Alabama DUI and Traffic Law Summary



Alabama DUI, Traffic, and Driver License Law Handbook

Third Edition

A Guide to Alabama DUI, Traffic, and Driver License Law with Practitioner’s Notes

INDEX

Foreword

Editors and Contributors vii-ix

Goal of this Handbook 1

Introduction and Overview 2

Alabama’s first DUI statute and subsequent enactments 2

Necessity for specialized training 4

How did Alabama’s DUI law evolve? 7

The 1980 Driving Under the Influence statute 9

Alabama DUI trends, 1980-2010 13

32-5A-191 in a nutshell 14

Amendments since enactment 15

Supplemental and supporting legislation 18

Simplified theory of breath testing & breath test instrumentation 20

Part I. Statutes: Construction and Interpretation; Jurisdiction

A. Recent Legislation and cases of importance 26

B. DUI Defined 32

C. Challenges on Constitutional and statutory grounds 36

D. Alabama Implied Consent Statute 38

E. Jurisdiction, in general 40

F. Jurisdiction, felony DUI and misdemeanor traffic offense ..…………………..41

G. Jurisdiction, juveniles and persons under 18 42

H. Jurisdiction, municipal courts and municipal officers 44

I. Jurisdiction, complaints and indictments 47

J. Jurisdiction where district attorney elects not to proceed 53

Part II. Jeopardy Issues

A. Jeopardy, U.S. Supreme Court cases 55

B. Jeopardy, Alabama Appellate Court cases 56

Part III. Forfeiture … 61

Part IV. Juvenile and Youthful Offender Issues

A. Prosecution of Juvenile and Youthful Offender 68

B. Driver License issues involving Juveniles and Youthful Offender 73

Part V. Seizure and Arrest

A. Reasonable Suspicion to stop, in general……………………………………… 75

B. Anonymous Tips and anonymous informants…………………………………. 80

C. Vehicle Stop, suspected DUI, anonymous informant ……….…..…………….83

D. Vehicle Stop, suspected criminal activity, anonymous informant …………….85

E. Vehicle Stop, suspected criminal activity, known informant ………………….86

F. Vehicle Stop, suspected criminal activity, police initiated contact ……………88

G. Vehicle Stop, suspected criminal activity, “High Crime Area” justification…..89

H. Reasonable Suspicion to stop, specific criminal offense or traffic violation …. 93

I. Probable Cause to arrest……………………………………………. ……….. 97

J. Arrest on other grounds 103

Part VI. Questioning and Detention of the Motorist; Arrest Warrants

A. Questioning the Motorist……………………………………………………...104

B. Detention of the Motorist- State Court Cases ….…………………………….109

C. Detention of the Motorist - Federal Cases ...……………………………...….114

D. Detention of the Motorist – Drug Detection Dog…………...………...............120

E. Detention of the Motorist – Lawful Arrest ……………………… …………..121

F. Arrest Warrants……………………………………………………………….123

G. Passengers …………………………………… ………………………………125

H. Taking Before a Magistrate…………………………………………………...126

I. Resisting Arrest, Escape, and Attempting to Elude………………………….. 128

Part VII. Roadblocks

A. Constitutional Issues 133

B. Alabama Cases - Roadblock Seizures 135

Part VIII. Searches and Seizures

A. Consent to Search 141

B. Plain View 144

C. Informers and Tips 145

D. Probable Cause to Search, in general 146

E. Probable Cause to Search, odor of marijuana 148

F. Scope of Search, in general 150

G. Scope of Search, Commercial Motor Vehicles……………..………………...151

H. Incident to Arrest 152

I. Inventory Search and Impounding Vehicles 155

Part IX. Field Sobriety Tests

A. In General 158

B. Horizontal Gaze Nystagmus (HGN) 162

C. Alco-Sensor 163

Part X. UTTC, Complaint, Information, Indictment

A. Sufficiency of Charge 167

B. Verification of the UTTC 173

C. UTTC Procedure for Leaving the Scene of Accident 178

D. Amendment of the Complaint 178

E. Miscitations, Errors, and Mistaken Information on UTTC 183

F. UTTC Procedure for arrest after hospitalization. 184

G. Statute of Limitations 184

H. Forgery by providing false information for UTTC 185

Part XI. Chemical Test for Intoxication

A. Statutory Authority 187

B. Admissibility-Predicate 187

1. In General 187

2. Breath Tests 189

3. Blood Tests 199

4. Photo-Electric Intoximeter (PEI) 205

5. Time Factor and Deficient Sample; Test Administration 212

6. Assimilative Crimes Act; Admissibility in Federal Courts 213

7. Breath Test for Reasons Other than DUI 215

C. Chain of Custody 215

D. Arrest Required 217

E. Reasonable Grounds to believe Driving Under the Influence 225

F. Refusal 226

G. Independent Tests 230

H. Warning of Constitutional or Statutory Rights 232

Part XII. Evidence

A. Pre-trial discovery 235

B. Sufficiency of Evidence to Support Conviction 235

1. In General 235

2. Evidence Found to Be Sufficient 239

3. Evidence Found to Be Insufficient 247

C. Actual Physical Control 248

D. Proof of Municipal Ordinance 250

E. Venue 253

F. Opinion Testimony and Expert Testimony 254

1. Breath and Blood Test 254

2. Accident Investigation and Reconstruction 260

G. Judicial Notice 265

H. Presumptions 266

I. Admissibility of Specific Evidence or Testimony 267

Part XIII. Trial

A. Right to Counsel 277

B. Arraignment 279

C. Jury 279

D. Witness and Subpoenas 282

E. Discovery 283

F. New Trial 284

G. Defenses 285

H. Miscellaneous 286

Part XIV. Sentence

A. Jurisdiction 287

B. In General 289

C. Sentencing and Prior Record 289

D. Service of Sentence 294

E. DUI Conviction- Immigration and Sentencing Guidelines 294

F. Probation 296

G. Termination of Probation …………………………………………………….299

H. Disproportionate Sentence……………………………………………………300

I. Vindictiveness 300

J. Enhancement 303

Part XV. Appeals

A. Appeals in General 269

B. Appeals by the Prosecution 278

C. Abatement of Appeal by Death 280

Part XVI. Civil Liability

A. Alabama Cases Involving Alcohol Related Offenses 314

B. Police Civil Liability and Probable Cause to Arrest 315

C. Pursuit Driving Liability and Emergency Vehicle Operations ………………318

Part XVII. Miscellaneous Alabama Civil Actions and Cases Involving Alcohol, Use of Motor Vehicles, and Related Issues

A. Negligence, Contributory Negligence, and Wantonness 324

B. Civil - Application of “Guest Statute” 326

C. Civil - Construction of Terms of Coverage of Automobile Insurance Policy as Result of Deliberate Traffic Violations…………………………….. 332

D. Civil - Judgments and Damages Involving Alcohol and DUI………………... 334

E. Negligent Entrustment of a Motor Vehicle ….……………………………….336

F. Miscellaneous Cases and DUI ……………………………………………….339

Part XVIII. Miscellaneous Criminal Offenses Relating to Use of Motor Vehicles, Driver License and Registration, and Related Matters

A. Truck and Commercial Vehicle Enforcement 339

B. Leaving Scene of Accident 340

C. Reckless Driving ……………………………………………………………..341

D. Driving With Canceled, Revoked or Suspended License 343

E. Homicide/Murder/Manslaughter/Assault by Use of a Vehicle 345

F. Miscellaneous Offenses 358

Part IXX. Driver License Law

A. Driver License Law, Requirements 362

B. Procedural Due Process in License Removal 365

C. Driver License Removal for Non-Driving Activities 368

D. Driver License Removal, Authority and Duration 370

E. Driver License Issuance ……….……………………………………………..377

F. Driver License Required; Welch Hearings …………………………………...379

G. Administrative License Suspension for DUI Related Offenses 382

H. Statutory Suspension or Revocation for Non-DUI Offenses 383

I. Failure to Pay Traffic Citations; Bankruptcy .………………………………..384

J. Driver License Suspensions and Revocations Based on DUI or DUI Related Cases………………………………………………………… 385

K. Miscellaneous Driver License Cases…………………………………………. 395

Annex A. Alabama Breath Test Instrumentation 399

Annex B. Recommended Resources ………………...…………..………………….460

Index of Cases........................................................................………………………. .461

Editor

Patrick Mahaney is a criminal defense attorney in Montgomery, Alabama, concentrating his practice in defense of DUI, drug violations, and driver license cases. He also serves as local counsel to the Alabama Police Benevolent Association and represents P.B.A. members in employment law issues. Since 2006, Mr. Mahaney has exclusively practiced in the area of DUI defense and driver license law.

Mr. Mahaney served twenty-two years as a state trooper with the Alabama Department of Public Safety (1978-2000), including duty in uniform patrol, headquarters staff, and as assistant legal counsel for the Department. After retirement from state service, Mr. Mahaney served overseas with the U.S. State Department’s civilian police programs in Kosovo, Jordan, and Iraq where he supervised police reform and development efforts. He served 18 months in Iraq as the executive officer for the U.S. Department of State’s civilian police mission.

Mr. Mahaney received his B.A. from The Citadel, Charleston, S.C. and his law degree from Jones School of Law in Montgomery, Alabama. He was admitted to the Alabama state bar in 1989 and is member of the bar of the state of Alabama and the federal courts, to include the U.S. Supreme Court.

Associate Editor

Robb Farmer, J.D., M.L.I.S, served as associate editor for this publication. Mr. Farmer is Assistant Director for Research Services at the Faulkner University Law Library. Robb has taught legal research at Jones School of Law since 2006.

Mr. Farmer earned his B.A. degree from the University of Louisville. He holds a law degree and a Masters Degree in Library Science, both from the University of Kentucky, as well as a Masters in Criminal Justice from Faulkner University. He previously practiced law in Kentucky, Arizona, Nevada and California, primarily focusing in multi-jurisdictional litigation, criminal defense, personal injury, and consumer bankruptcy. Robb is an active member of the Kentucky Bar Association, the American Association of Law Libraries, and the Law Libraries Association of Alabama.

Special Contributors

Dale A. Carpenter, Ph.D., deputy director of the Alabama Department of Forensic Science and Greg Turner, Ph.D., current technical director of the Implied Consent Section served as technical consultants and special contributors for this publication. Dr. Carpenter received his formal training in chemistry earning the Bachelor of Science degree from West Virginia University in 1983 and the Doctor of Philosophy degree from the University of South Carolina in 1990. Dr. Carpenter has been a forensic toxicologist since 1988 working for both the South Carolina Law Enforcement Division and Virginia’s Division of Forensic Science prior to his arrival in Alabama in 1997. Dr. Carpenter is a noted authority on breath testing theory and practice and is a frequent contributor of articles in scientific publications concerning breath testing.

Dr. Turner received a Bachelor of Science degree in chemistry from Jacksonville State University in 1993, a Master of Science degree in chemistry from the University of Alabama in 1998, and a Doctor of Philosophy degree in chemistry from the University of Alabama in 1999.

Acknowledgement to First Contributing Editor

William M. Bowen was co-editor for the first edition of this publication and has greatly assisted the editor in preparing this material for publication. Mr. Bowen is an attorney in private practice in Birmingham, Alabama with the firm of White, Arnold, and Dowd, P.C. Mr. Bowen graduated from Samford University, cum laude, in 1969 and then attended Cumberland School of Law, receiving his juris doctorate in 1972. He was admitted to the Alabama bar in May 1973. From 1973 until 1976, Mr. Bowen practiced in the state and federal courts as an assistant attorney general for the State of Alabama.

In 1976, Mr. Bowen was elected to the Court of Criminal Appeals after a contested state-wide campaign. At the age of 29, he was the youngest appellate judge in the nation. He was re-elected without opposition in 1982 and again in 1988. Judge Bowen retired from the Court in January 1995, after three full terms of office. He was the Presiding judge of the Court of Criminal Appeals from 1983 through 1988 and again from 1992 to 1995. At the time of his retirement, Judge Bowen had written more published opinions than any other appellate judge in the history of the State of Alabama.

In addition to his judicial service to the state of Alabama, Mr. Bowen has served on numerous judicial and governmental committees, including the Advisory Committee on the Rules of Criminal Procedure, Standing Committee on the Rules of Conduct and Canons of Judicial Ethics, Prison Reform Task Force, and Board of Directors of the Sentencing Institute.

Comments, Suggestions, Recommendations, and Corrections

The editors invite the readers’ comments, suggestions, recommendations, and corrections. Please address your comments to:

Law Office of Patrick Mahaney

8244 Old Federal Road

Montgomery, Alabama 36117

(334) 277-3974

e-mail: office@

Information in this publication current through June 1, 2011

ORDER FORM

Additional copies of this publication may be ordered by submitting the form and payment to:

Alabama DUI Handbook

P.O. Box 242324

Montgomery, Alabama 36124

Alabama DUI, Traffic, and Driver License Law Handbook $85.00

Shipping & Handling $8.50

Total $93.50

Special prices are available for bulk purchases. Please contact the Law Office of Patrick Mahaney: (334) 277-3974

Name: ______________________________________

Shipping Address: ______________________________________

______________________________________

Telephone: ______________________________________

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download