DUI Defense

DUI Defense in Alabama

DUI Attorney Huntsville, AL | Crumbley-Blackwell-Price Attorneys

Our team of local DUI attorneys are dedicated to defending DUI cases across Alabama – from first offense to felony drunk driving. Being arrested for DUI can be devastating to people of certain professions, religious backgrounds, etc. After an arrest, the last thing you need is a lawyer who will lecture you about the choices you’ve made. The fact is, you have been arrested and accused of DUI – you need a trusted DUI lawyer to give you straight-forward legal advice about beating your case, period. This is exactly what you will receive from our team. We’ve defended thousands of DUI related cases in courtrooms throughout Huntsville, Decatur, Scottsboro, Guntersville, Madison, Athens, Birmingham, and surrounding areas.

 

Penalties for DUI in Alabama

Penalties for DUI (alcohol or drug related) can be harsh – consisting of fines, incarceration, and more. If you’ve recently been arrested for DUI – it’s imperative that you contact a DUI lawyer immediately. Your attorney can answer your questions, assess the details of your case, and provide a strategic plan to defend your charges.

If you’ve been charged with DUI in North Alabama – you could be facing serious consequences. Drivers who are convicted of operating a vehicle with a blood alcohol content (BAC) in excess of 0.08% may be incarcerated, fined, and more.

 

Penalties for DUI in Alabama:

First DUI Offense (Misdemeanor)

  • Up to 1 year in jail
  • Fines between $600 and $1,200
  • Alabama Driver’s License suspension of 90 days
  • DUI treatment program
  • Second DUI Offense (Misdemeanor)
  • 5 days to 1 year in jail
  • Fines between $1,100 and $5,100
  • Alabama Driver’s License suspension of 1 year
  • DUI treatment program
  • Third DUI Offense (Misdemeanor):
  • 60 days to 1 year in jail
  • Fines between $2,100 and $10,000
  • Alabama Driver’s License suspension of 3 years
  • DUI treatment program
  • Fourth DUI Offense (Class C Felony):
  • 1 to 10 years in jail
  • Fines between $4,100 and $10,100
  • Alabama Driver’s License suspension of 5 years
  • DUI treatment program

 

101 Ways to Avoid a Drunk Driving Conviction

Excerpted from the book, 101 Ways to Avoid a Drunk Driving Conviction by William C. Head, Esq. and Reese I. Joye, Jr., Esq.

Chapter I

1. Avoid any type of vehicle if you have become impaired by overindulging, because any means of transportation can lead to a DUI conviction.

2. Don’t assume that you can’t be arrested for DUI on private property, because you can be charged with DUI in most states, regardless of your location.

3. Even a car being towed can lead to a DUI conviction if the person sitting behind the wheel is intoxicated, so avoid even getting in the front seat of a car if you are intoxicated.

4. If sleeping inside a car after you have been drinking, do so in the back seat, with the ignition off and the keys in your pocket, with the car off the highway.

5. Breath machines are subject to error when you have been recently exposed to volatile fumes, such as lacquer, paint, gasoline, or dry cleaning fluids. Always get a second, independent test.

6. Existing “illegal per se” laws in 45 states and D.C. allow the police to make a case against you regardless of any evidence of impairment; therefore, either keep your alcohol consumption to moderate levels, or don’t drive at all after having more than a few drinks.

7. Where faced with a traditional DUI charge, and the indicated level of alcohol allows the state to have a presumption of intoxication in its favor, the defendant must introduce evidence of non-intoxication to rebut the presumption, or face virtual certain conviction.

8. If the trial judge incorrectly instructs the jurors about presumptions (making it irrebuttable or mandatory), such instruction constitutes reversible error.

9. With blood tests, if the personnel drawing the blood for the state’s test do not follow the required rules and regulations, the test results can be totally excluded from the evidence.

10. In administering any of the state’s tests, if the person operating the machine is not qualified or certified in accordance with state law, the test is invalid. Requiring strict proof of the testing officer’s certification can often lead to a dismissal or a favorable “plea bargain”, where some flaw or defect in the proof of current certification is called into question.

11. By proving that the defendant was not “in actual physical control” of the vehicle, the case can be won, since one of the elements of the alleged crime is missing.

12. With blood tests, the use of an alcohol laden swab on subject’s skin contaminates the puncture site and voids the test by the state.

13. Where state law requires it, failure of the police to advise the defendant of his right to a second, independent test as required by state law voids the state’s test.

14. In an “illegal per se” DUI case, proof (by use of retrograde extrapolation techniques) that the defendant was not above the state threshold level because he was still in the absorption stage at the time of the arrest, eliminates one of the elements of the per se DUI. A similar tactic can help where you are facing a “presumption” of intoxication threshold.

15. The police lacked probable cause to make the “stop”, so all tests and evidence gathered as part of the illegal arrest must be thrown out of court.

16. The use of medical or other expert testimony can prove that the defendant’s physiological system is “unusual” so that the state’s test results can be excluded or at least adjusted to an amount below the state’s threshold for the “presumption” of intoxication.

17. Where the state’s testing machine is subject to error of +/-0.01% this margin of error can be used to show that the required threshold (which is an element of the state’s case) is missing.

18. Where good reason exists to refuse the state’s test, such refusal generally will prevent the state from using a numerical BAC reading against you, thereby greatly reducing the chances of a conviction for DUI. However, an administrative suspension of driving privileges will be the consequence, in most states. In some states, such as New Jersey and Alaska, potential penalties for refusal are as bad as the penalties for DUI.

19. The failure of the arresting officer to follow through in giving the required implied consent warnings will cause the state’s BAC test results to be excluded from trial.

20. If the arresting officer misstates the required wording of the implied consent warnings, the state’s BAC test results will be excluded from trial, or the entire case may be dismissed.

21. In some states, if the prosecutor mentions the defendant’s failure to submit to the state’s test, such introduction of evidence is improper in a jury trial.

22. Most states do not permit forcible retrieval of a blood sample from a suspected DUI driver unless death or serious injury to another person has resulted from a DUI related accident. Therefore, results obtained in such cases will be void.

Chapter II

23. Use a designated driver for your group in order to eliminate the possibility of the least drunk driver trying to take everyone home.

24. Change the brand or type of alcoholic beverage to lessen the quantity of alcohol being consumed. For example, use a “low alcohol” brand beer versus regular beer, or alternate with a “non-alcoholic” beer every other hour.

25. Use public transportation to take you and your group to and from your destination, thereby allowing everyone to imbibe.

26. Put together a “kit” of items to assist you to avoid incriminating yourself and in order to be prepared in the event you are stopped by the police.

27. Use the “Driver’s Rights” cards located in Appendix K (or similar cards provided by your attorney) which “speak for you” in asserting your rights in the event of a confrontation with police.

28. Before going out for the evening, always prepare your vehicle by removing any and all incriminating items and any valuables.

29. Eat heartily before starting to drink and include high carbohydrate foods to help absorb alcohol that you will be drinking later that night.

30. Avoid driving after drinking if you have a fever or an elevated “body core” temperature.

31. If you are taking any type of non-prescription medication, avoid driving at all after drinking due to the possibility of the medication containing alcohol which would be added to the alcohol that you will be drinking.

32. Don’t drink at all (much less drive after drinking) if you are taking prescribed medications since the possibility of synergism or some other adverse effect from combining alcohol and drugs could kill you or cause the death of someone else.

Chapter III

33. Be aware that a person’s body water determines how readily your body will absorb alcohol, and that lean, young men are best able to tolerate alcohol while old, fat women are the least able to tolerate alcohol.

34. Women should be especially cautious about what type of alcohol and what quantity they consume since studies have shown that men’s stomachs produce more of a special enzyme which metabolizes alcohol than is found in women’s stomachs.

35. If you plan a night of drinking, start by having up to 32 ounces of water before any alcohol consumption, and alternate a glass of water between each alcoholic drink to help slow the rate of consumption.

36. Studies have shown that carbonation in highball mixers, sparkling wines, and draft beer tends to accelerate the rate of absorption of alcohol into your bloodstream, causing you to get more drunk than you would by using non-carbonated (or less-carbonated) alternatives.

37. Use non-carbonated fruit juices or other mixers with wine to dilute the alcohol content of your beverage, and thereby extend the time in which you can safely continue consuming wine.

38. Stop all alcohol consumption 1 1/2 hours before starting home and drink water during this time period to improve your chances for a favorable urine test if you are stopped later that night.

39. Use a hand-held breath alcohol testing device to see what your alcohol content is before leaving for home.

40. Give yourself some field sobriety tests to see what level of impairment you may have, and avoid driving at all if you have difficulties performing the tests.

Chapter IV

41. Make sure that you and all your passengers are wearing seat belts, and that no distractions in your car (such as rowdy passengers, the radio or a tape player) would cause you to not concentrate on driving.

42. Use turn signals whenever required, and do not use your high beam lights at all on the entire trip home.

43. Be aware that traffic offenses such as speeding, running a red light, and not making a complete stop at a stop sign are the leading causes for the police to stop vehicles that subsequently result in DUI convictions.

44. In bad weather, due to more than a ten times greater chance of an accident, don’t drive after consuming any alcohol at all since you can be convicted of a DUI even where the level of alcohol was less than the per se limit or the traditional DUI threshold when an accident is involved.

45. “Blend in” with traffic because studies have shown that it is significantly more difficult for police to detect an impaired driver than when your car is isolated on the highway.

46. Don’t be a good Samaritan on the way home because acts of kindness or civic-mindedness can bring you into contact with police, resulting in a DUI conviction.

47. Don’t ever try to elude an officer because such an attempt constitutes a serious offense and may even result in atragic accident, or possibly lead to a murder charge.

48. If you are pulled over by the police, don’t exit your car unless instructed to do so by the police officer, because you may incriminate yourself by conduct which indicates intoxication (being unsteady on your feet).

Chapter V

49. If you are stopped for a traffic violation, don’t argue with the police officer. Simply give the officer your documents, and don’t talk except to respond in the most basic fashion. Your pocket recorder will tape the transaction for later use.

50. If you receive a ticket for a moving violation, and not a DUI citation, don’t press your luck by continuing to drive. The police may well be looking for you down the road. Go to a motel and check in, or call someone to come get you.

51. If you are stopped at a roadblock, have your license and other documents in hand and offer these to the officer. Your pocket recorder will capture the conversation. Never admit to having consumed alcohol. Don’t perform field sobriety tests, and (in most states) don’t blow into a portable breath testing device without first speaking to an attorney, unless the officer advises you that your license will be revoked for refusing to do so. Card No. 1 of Appendix K covers what needs to be told the officer about your willingness to cooperate on tests at the scene of the “stop”.

52. If you are involved in an accident after having had something to drink, don’t talk to anyone at the scene about it. Don’t take any FSTs. If anyone was injured or killed, refuse all tests unless your attorney advises you to submit.

53. Regardless of the cause for the “stop” NEVER admit prior alcohol consumption. Don’t blurt out anything to the officer in an attempt to explain the circumstances, or it will be used against you later in court.

54. If an officer insists that you must perform field sobriety tests or blow into a portable breath testing device, only do so IF the officer advises you that your license will be revoked for failure to comply. Due to the fact that this is NOT TRUE in most states, ask the officer to write in his field notes that you are agreeing to do these tests under protest.

55. When you are required to submit to the official state test for BAC, ALWAYS insist on your own independent BAC tests. Some states require you to obtain your tests on your own initiative, and will tell you nothing about your rights to seek another test. Other states will advise you of this right, and will even transport you to a facility for giving a sample, if you are going to be kept in custody.

56. If the police deprive you of your freedom of movement and then elicit answers to incriminating questions from you without first giving your Miranda warnings, your attorney may be able to suppress any admissions made by you while in custody.

57. A commonly-used field sobriety test, the horizontal gaze nystagmus test has a multitude of other possible medical causes other than intoxication, and your attorney can present these to the jury to discount the officer’s statement that you failed this test due to intoxication (assuming that you haven’t simply refused to perform all field sobriety tests).

58. Before taking the official state-administered BAC tests, ask if state law permits you to speak with an attorney. Many states permit a limited right for you to do so, and you should always exercise this right. Card No. 2 of Appendix K covers this situation, and asserts your rights for you.

59. Try to record the conversations between you and the police officers because the officer’s missing or defective warnings can cause test results to be excluded from evidence. Without the tape, the jury will believe the officer’s testimony over yours.

60. If requested to take the “officials state BAC tests, your delaying tactics or insistence on speaking with an attorney (if you have been told that no right to counsel exists in that state) can constitute a refusal, causing an implied consent license revocation.

61. By asking the officer whether you can make telephone calls to an attorney or family member prior to submitting the official BAC tests, you may be taking advantage of legally-permissible delays that will make your BAC tests more favorable.

Chapter VI

62. In states which require the police to administer multiple BAC tests, the failure of the police to perform any of the additional tests required by law will be grounds to exclude all test evidence from the trial. However, the cause of the non-completion of tests can not be your refusal or willful non-compliance with the officer’s request for a sample.

63. If the police fail to fully advise you of what types of independent tests you may take pursuant to state statutes and regulations, this will cause the state’s test results to be excluded from evidence.

64. Proving that the defendant partition ratio is not “normal” such that the pre-set breath testing machine standards are inaccurate can provide the necessary evidence to convince the jury that the BAC results are not worthy of belief.

65. Proving that the defendant’s hematocrit is outside the normal range and significantly “variant” to cause an adjustment in the indicated BAC reading may drop the defendant’s BAC level below the per se standard (or the “presumed” intoxicated threshold) set by law.

66. Attacking the breath testing machine’s accuracy based upon its record of failure during certification tests may cast sufficient doubt upon reliability of the machine to either cause the judge to exclude the test results or convince the jury not to believe the state’s BAC reading.

67. If you are to be tested on the official state BAC equipment, be certain that you inform the officers about any physical problems or environmental interferers which may have a bearing on your test results. The state’s test may be later excluded if it is non-specific for detection of alcohol.

68. Bridgework or false teeth may “trap” mouth alcohol and contaminate a breath machine sample. The failure of police to cause dentures to be removed before a test can be grounds for dismissal of charges, or at least grounds for excluding the state’s breath test results.

69. If a police officer fails to continuously observe a defendant for the required waiting period under state law, this can be the ground for excluding the state’s BAC results.

70. Vomiting or burping delays the start of the breath test due to the contamination of your mouth by alcohol brought up from the stomach. The failure of the officer to restart the observation period will be grounds to exclude the state’s BAC results.

71. Where the prosecution uses a witness to try to establish that you had a higher BAC at the time of driving (by using retrograde extrapolation techniques), such testimony should be attacked based on the witness’ lack of knowledge about your rate of elimination, timing of the drinking period, strength of the alcoholic beverage, and other variables which will affect the Widmark curve.

72. Always get the names, addresses and telephone numbers of potentially beneficial witnesses regarding your appearance of sobriety at the police station, or during the time your were receiving your independent tests. These witnesses may help your attorney build your defense.

73. Whenever submitting to the state’s BAC tests, always ask the test operator to preserve a sample of the breath, urine or blood so that the sample can be independently tested later.

74. Where a single breath test is utilized by the state, your attorney may be able to assert due process and equal protection arguments that may convince an appeals court that the state’s use of one test is constitutionally infirm, particularly where no sample is preserved after your request for same.

75. For blood tests, most states only permit highly-trained medical personnel to collect blood samples. Challenging the person’s qualifications or certification can result in the BAC test results being excluded.

76. The state must prove that the laboratory or hospital which analyzed your blood sample used properly trained personnel to collect the sample. Sometimes, winning on this point is as simple as filing a motion to dismiss or a motion for directed verdict as a result of the prosecutor failing to introduce the proper evidence of the technician’s training, which will cause the person’s testimony to be totally excluded.

77. When obtaining your independent tests, be certain that the laboratory analyzes whole blood and not plasma. Whenever plasma is tested, the results can be as much as 20% higher than when whole blood is utilized.

78. Always ask for “split” samples on blood tests so that an unaltered portion can be later tested to determine unusual hematocrit or other atypical conditions of your blood.

Chapter VII

79. If you have not yet been permitted to call an attorney, ask for permission to do so after you are booked. Every state allows attorney contact at this stage.

80. Don’t talk with fellow detainees or police personnel about your arrest for DUI. Only speak with your attorney unless he advises you to discuss matters with other persons.

81. At the police station, stay seated and be certain that you maintain a composed demeanor at all times. You may be “on camera” with the police department’s video tape machine.

82. In many states, the police officers must provide you with certain copies of the arrest, testing or booking documentation. Remember what you were given and keep up with all such documents.

83. If the police ask your permission to videotape you, don’t agree to this, since this likely means that you look drunk, and they want to tape you so it can be used against you later.

84. If video equipment is available to the police and it is NOT being used on you, ask your attorney whether you should request the police to videotape you if equipment is available. In the alternative, ask your attorney if he has video equipment which can be brought to the police station so that you can be taped.

85. When you go to have your independent test(s) done, get a urine test and a blood test, if your state law allows you to have more than one test made. If you have been consuming vast quantities of water, as suggested in this book, your urine test may be highly favorable, when compared to a blood or breath test.

86. Be certain that you can establish a “clean” chain of custody for your independent test samples in the event these are required to be transported for analysis.

87. Call upon a friend or relative to assist you in arranging for bail so that you can get out of jail promptly. Furthermore, this witness may be used later to testify that you did not appear to be intoxicated when they saw you that evening.

88. Your observations concerning facts and witnesses may be critical to winning the case, particularly because you may be the only favorable eyewitness to certain facts.

89. The computer “readout” on breath machine tests must be 100% correct or it will be subject to being excluded by the court upon proper motion filed by your attorney.

90. On the night of your arrest, complete the DUI client intake questionnaire found in Appendix F. Don’t delay in doing this. In the morning, supplement the form with any additional data that you remember.

Chapter VIII

91. Radio frequency interference may occur in police stations or in “mobile” testing facilities and may cause several brands of breath testing machines to give artificially high readings.

92. Because a skilled DUI attorney “knows the ropes” it is always advisable to utilize an attorney who is a specialist in DUI case. Not only can the attorney assist in developing a strategy for your case, but can also be instrumental in obtaining a more favorable sentence if you decide to plead guilty or nolo contendere.

Chapter IX

93. A motion for speedy trial forces the prosecutor to bring the case to trial, or suffer a dismissal as a result of failing to meet the statutory deadline set by state law.

94. By use of a motion for a Bill of Particulars, a defense attorney may cause the prosecutor to commit himself to a specific trial strategy. By narrowing the focus of the trial, the defense attorney may be able to undermine the prosecutor’s case, leading to a dismissal of the charges.

95. Whenever state law permits a preliminary hearing, the defense attorney may benefit from using this pretrial hearing to obtain sworn testimony from the witnesses for the prosecution which cannot later be changed or embellished to suit the needs of the state’s case.

96. A defense attorney may use a motion in limine to suppress evidence to eliminate the state’s principal evidence against you in the case (the BAC test result) thereby effectively winning the case.

97. When breath testing machines are utilized by the state to obtain your BAC reading, all documents relating to such machines should be subpoenaed and closely scrutinized to determine if all calibration and inspection has been followed to the letter. The failure of the state to comply with the mandates of the operator’s manual can lead to exclusion of the BAC test results.

98. A motion for disclosure under Brady v. Maryland will sometimes uncover potentially exculpatory evidence which will effectively negate the state’s evidence.

Chapter X

99. Where the judge refuses to excuse a biased juror from the jury panel in your case, such refusal will constitute reversible error in the event you are convicted.

100. Once the state has put up all of its witnesses and evidence, and has “rested”, the defense attorney can seek to have the judge decide that the evidence in the case is insufficient to support the defendant’s conviction. This is called a motion for directed verdict of acquittal.

Chapter XI

101. During closing arguments, where the prosecutor argues to the jury using inflammatory and impassioned arguments that are not relevant to the issue of the driver’s guilt or innocence, reversible error occurs.

 

Still Have Questions About DUI?

Visit our FAQ page for answers to common questions relating to DUI charges in Alabama. Questions are answered in short-video format by DUI attorney Russell Crumbley.

 

DUI Courts in Alabama

Alabama Courts we appear in for cases:

Our attorneys are licensed to practice law in every state and municipal (“city”) court in Alabama. We also handle federal DUI cases. We have helped clients throughout Alabama win their DUI cases, and we would be happy discuss your case with you.

In Alabama we have a two level trial court system. The first trial court is called the “district” court and the second trial court is called the “circuit” court. Cities and towns can also have courts, which are called “municipal” courts.

The vast majority DUI cases usually begin in either a municipal or district court. Only where a person is charged with a felony DUI (fourth or higher offense within five (5) years) does the case go straight to circuit court. At municipal courts and district courts your trial is handled entirely by a judge; there is no jury. If you are found guilty in a municipal or district court, you can appeal your case to the circuit court where you can get a jury trial.

If you are arrested for a DUI that is alleged to have occurred on federal land, such as a military base or national park, your case will be handled in federal court instead of an Alabama state court. If the alleged offense is alleged to have occurred on Redstone Arsenal, the federal court will apply Alabama’s DUI law to your case.

 

Five Myths About Defending Accused Drunk Drivers

Most attorneys harbor many myths and misconceptions about this offense. These can lead to malpractice. In this article, I will address five myths about defending accused drunk drivers.

 

Five Myths About Defending Accused Drunk Drivers by William C. Head Reprinted with permission of TRIAL (March 1993) Copyright the Association of Trial Lawyers of America

Almost every attorney is at one time or another confronted with a client, friend, or family member charged with drunk driving. Because accused drunk drivers are immediately charged with a crime, drunk driving cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined. Even attorneys who do not generally handle criminal matters are routinely asked how an accused person should proceed in a drunk driving case.

In the 1960s, driving under the influence of alcohol was considered a minor offense, leading to modest fines; in the 1990s, it is considered the most serious misdemeanor offense. In several states, repeat offenders are considered felons.
Nearly 2 million drunk driving cases are filed by law enforcement officers around the country every year. These cases take up a large portion of the criminal docket of most court systems. Because the penalties for drunk driving have increased, many of those charged with this crime now must seriously consider alternatives to pleading guilty or nolo contendere. For the rest of the 1990s, the absence of palatable alternatives for the accused driver will lead to a dramatic increase in these trials.
Most attorneys harbor many myths and misconceptions about this offense. These can lead to malpractice. In this article, I will address five myths about defending accused drunk drivers.

Myth Number 1: Most people accused of this crime are guilty.

This is perhaps the most troubling myth—one harbored by attorneys and the general public. In my opinion, an attorney who believes this should never represent a person accused of drunk driving. That mindset can eliminate objectivity.
In the overwhelming majority of drunk driving cases in which a chemical test is obtained by police, an infrared breath analysis machine is used, not a blood test. This primary evidence is vulnerable to attack by a skillful practitioner.

Most attorneys have no idea how woefully inadequate infrared breath machine are as evidence-gathering devices. These machines are so unsophisticated that virtually no scientist would ever trust the results as a basis for scholarly research or scientific investigation. Yet attorneys assume that since the state has approved the machine, its accuracy and reliability are not subject to challenge.

There are at least 30 ways to rebut the evidence from these machines if the attorney understands how the machines work, what causes them to malfunction, and that they are nonspecific for alcohol. Without doing exhaustive research, no attorney would understand their internal workings enough to cross-examine the state’s witnesses effectively on their alleged accuracy.

The “opinion” evidence gathered by police officers typically consists of field or roadside sobriety tests. These agility tests are supposed to indicate that the person suspected of drunk driving was actually impaired or in some way “a less safe driver.”
Recent scholarly studies have shown that field sobriety tests are not given uniformly, there is no scientific basis for assuming they are valid, and most officers either require the wrong tests or improperly instruct the suspect on how to perform the tests. A defense attorney can obtain a pre-trial ruling that the tests and their alleged indication of impairment must be excluded from evidence due to lack of scientific foundation and faulty instructions.

Any other “observation” evidence from a police officer will generally be inconclusive and subject to many interpretations by experts. For example, bloodshot eyes can be caused by conditions other than drunkenness, including contact lenses, allergies, or lack of sleep. The defense attorney should analyze the evidence that will likely be presented and take the time to investigate the medical background of clients and the environmental contaminants they have been exposed to. Most alleged evidence of intoxication can be neutralized or eliminated from the state’s presentation with findings from this investigation.

The defense should leave no stone unturned. These cases require detailed investigation, as does a complex murder case that involves fiber evidence, ballistics tests, or other intricate issues. Attorneys who do not investigate thoroughly and defend the client aggressively do the client a disservice and expose themselves to possible liability. In addition, they harm the legal profession by failing to fully represent the client.

Myth Number 2: Drunk driving is a minor offense.

Many veteran attorneys remember when drunk driving convictions led to fines of $50 to $150, with no suspension of driving privileges and no penalties beyond going to court, paying the fine, and being chastised by the judge. Those days are gone.
One reason some attorneys still do not give proper consideration to these cases is that their only contact with the client occurs when they enter the plea. The attorney doesn’t experience the penalties that later befall the client.

A client accused of drunk driving deserves to be represented zealously because an unjustified conviction will have repercussions lasting for the rest of the client’s life. Not all the “penalties” for these convictions are legal in nature.

The stigma of a conviction can exact a severe psychological toll.

A substantial number of drivers whose licenses are suspended continue to drive. Typically, they do so to provide for themselves and their families, despite the possibility of being jailed for driving with a suspended license. A surprising number are never caught. Yet, they live in terror of being stopped at a license check or a roadside sobriety checkpoint. Those unjustly convicted should not have to live with this hardship.

Most of those convicted also suffer serious financial and social consequences. In most states, a drunk driving conviction can never be removed from a driving record, so convicted offenders must endure the consequences of their convictions for the rest of their lives.

Some blame themselves, because they know that they had something to drink before they were stopped by the police. However, it is not illegal for adults to drive after drinking alcoholic beverages in any state. The crime of drunk driving occurs only when the person’s blood alcohol level has exceeded the arbitrary numerical standard set by the state, or when the person has demonstrated bad driving that can be causally connected to impairment due to a high blood alcohol level.

Most attorneys would cringe at the thought that they might have poorly represented a client on a civil matter and that the substandard representation could come back to haunt them. Malpractice in drunk driving cases carries the same potential for litigation, except that most convicted drivers don’t realize that their attorneys may not have properly represented them when advising them to plead guilty or nolo contendere without first checking into the facts of the case. The client doesn’t know whether the state’s case was validly made or based on an illegal stop. The client is not familiar with the many ways that breath machines may be inaccurate. That is why people need attorneys in the first place-to investigate the case thoroughly and recommend the best alternative.

Myth Number 3: Any attorney can defend an accused drunk driver.

If a friend or relative asked me for help on a matter involving antitrust litigation, my response would be to consult an expert in the field. I would probably inquire with the state bar association or phone colleagues to try to locate an expert in antitrust law. I would try to send the client to the most skilled lawyer I could find who specializes in this area of practice.

When a prospective client walks into the average law office and asks for help on a drunk driving case, some attorneys will agree to represent that person even if they have never handled criminal matters. The attorney may advise the person to plead guilty or nolo contendere (depending on state law) and work out an arrangement with the court to keep his or her license with the least possible suspension time. The attorney may not adequately investigate the facts of the case or get copies of documents and other evidence that are readily available through discovery.

These naive attorneys don’t realize how much exposure to liability they have if they counsel clients to give up their constitutional and statutory rights and plead guilty to this serious offense. Yet these same attorneys would probably not hesitate to refer these same clients to specialists if they were charged with securities fraud.

Some clients discover the folly of their plea before the statute of limitations on their potential malpractice claim against their former attorney expires. A suit for malpractice may be the only way they can hope to achieve some semblance of recovery for the devastating effects of a drunk-driving conviction.

After a conviction, these clients soon learn what most drunk driving specialists already know: The penalties are not only serious, but like the Energizer bunny in the TV ads, they keep going and going and going. Consequences like license suspension, fines, community service, probation, mandatory counseling or alcohol treatment, and possible incarceration (even for first offenders) are well known. These cases also carry a plethora of other consequences that will confront the convicted driver days, months, or even years after.

For example, in most states insurance rates for convicted drunk drivers will increase 500 percent to 1,000 percent above the premiums paid before the conviction (if coverage isn’t canceled). In South Carolina, a person with a five-year-old car carrying only liability coverage can expect to pay $10,000 to $11,000 in additional premiums over the first three years after a first offense drunk driving conviction.

This increase in insurance costs is well known. But many attorneys are unaware that most credit bureaus now include drunk driving convictions on credit reports. This not only will affect future credit, but it may also prevent convicted drivers from getting jobs where the prospective employer runs a credit check in processing job applications. A drunk driving conviction may bar or restrict employment alternatives with a significant segment of the job market.
Other penalties have been imposed on defendants in different states. They include the following:

  • College students charged with or convicted of drunk driving have been suspended from school for at least one semester or one quarter.
  • Recipients of unemployment benefits who have drunk-driving convictions have had their benefits eliminated.
  • Those in military service who are charged with or convicted of drunk driving offenses can be summarily discharged or required to take extensive alcohol education courses, restricted to military bases, deprived of normal base privileges, or saddled with other forms of punishment.
  • Professionals (like attorneys and judges) may be disciplined by their professional regulatory authorities.

Many people wrongly convicted of drunk driving need not passively suffer these consequences. Relief may be as close as the nearest attorney who handles legal malpractice cases. Any judge or jury will sympathize with former trusting clients who can show that they lost jobs or homes and suffered other serious penalties as a result of a conviction that should never have occurred.

Myth Number 4: These cases can’t be won.This is the most prevalent myth about these cases. Not only do members of the general public believe this; so do many attorneys. In fact. experienced drunk driving defense lawyers “win” most cases of first offenders when there is no evidence of a wreck or other manifest bad driving.The term “win” is in quotation marks here because winning may mean having the charge reduced to a different offense or otherwise obtaining a plea bargain that avoids a conviction. The availability of alternative plea arrangements for offenders varies from jurisdiction to jurisdiction.Where jury trials are available, success rates for acquittal are surprisingly good. The national average for acquittals is about 50 percent for those accused of drunk driving if their cases are heard by juries. In some jurisdictions, only about 20 percent to 30 percent of all drunk driving arrests lead to a conviction, while other states have an 80 percent to 90 percent conviction rate.In the few states that have abandoned the right to jury trials for misdemeanor drunk driving cases, defense attorneys will have a more difficult task convincing a judge to acquit. However, this only applies to about 5 percent of all drunk driving cases.
The formula for success is to investigate exhaustively; conduct pretrial discovery and motion practice aggressively; use evidentiary maneuvers and procedural devices skillfully; and present a well conceived, thoroughly choreographed trial with expert witnesses, character witnesses, and other tried-and-true tactics for successful defense of criminal cases.

Many people know someone who has been charged with this offense and pleaded guilty or nolo contendere. Because most people believe that these cases are difficult or even impossible to win, the average client will not challenge the trusted attorney’s “sage advice.”

Attorneys who enter pleas of guilty or nolo contendere for these clients will never win those cases. Their files for these clients probably contain only three or four pieces of paper, clearly indicating that they have not performed “due diligence” investigations. Granted, the client may have told the attorney that he or she could not afford to contest the charges. But was the client fully informed of the penalties that will follow a conviction? If the client had known this, would the client have chosen to seek a trial to challenge the state’s case?

In explaining to clients why they should consider pleading not guilty and letting a jury decide their fate, I often compare receiving a conviction for drunk driving with receiving a diagnosis of cancer. Getting rid of the problem may be expensive and difficult and will involve some risks, but the alternative is much worse.

This may seem like a bad analogy, but consider the “cancer” that attacks the lives of convicted drunk drivers. Some have committed suicide after incarceration for drunk driving. Certainly, people who suffer from untreated cancer (or their survivors) will not be pleased if they later discover that the doctor should have recommended surgery, not vitamin therapy. Similarly, people who suffer the consequences of ill-advised guilty pleas to drunk-driving charges will not be pleased with their lawyers.

Myth Number 5: Drunk-driving cases are just like any other criminal case.

Nothing could be farther from the truth. In many areas, the courts handle these cases differently from other offenses. Here are two examples that make the point.

First, consider the normal prosecution where the state proposes to use physical evidence as part of its case-in-chief. For example, suppose John Doe is charged with murder, having allegedly shot Tom Jones. The prosecution will normally order ballistics tests, take blood spatter patterns and fingerprints, and collect other physical evidence. That evidence is always subject to independent analysis by the defense attorney representing the accused.

This is not true in drunk driving cases, where breath tests usually are not required to be preserved. Very few states require police officers taking a breath sample to capture some of the breath so it can be analyzed independently at a later date. Yet, all modern breath analysis machines can provide sealed samples at a minimal cost. The U.S. Supreme Court has said that it is perfectly acceptable that such critical evidence is destroyed, even where the state could have preserved it for less than $1 per sample.

Another consideration is the use of roadside sobriety checkpoints (roadblocks) at which drivers are briefly detained to determine if they are under the influence of alcohol or drugs. More than 40 states permit this, and the U.S. Supreme Court has given its stamp of approval to this encroachment on our Fourth Amendment rights. A few states like Louisiana and Texas have ruled that their state constitutions provide protection against such arbitrary searches and seizures.

Manifestly unfair judicial decisions have been rendered in many other areas in an effort to stamp out drunk driving. A book could be written about these unfair and unconstitutionally premised state court decisions. Suffice it to say that the judicial system has erected difficult hurdles for practitioners who defend drunk-driving cases.

No attorney likes to hear the word “malpractice.” However, I am convinced that faulty representation in these cases is blatant attorney malpractice. Often, the attorney’s negligent handling of a drunk-driving case is attributable to a defeatist attitude.
Lawyers must take these cases seriously. Either they must fully educate themselves on this subject so they can provide an effective defense, or they must refer these cases to lawyers with expertise in the field. This will protect these clients from great harm and provide the lawyers with many peaceful nights, free from the concern that they may have improperly advised a client.

 

Notes

1. AMES C. FELL, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., REPEAT DWI OFFENDERS INVOLVEMENT IN FATAL CRASHES (1992).
2. James C. Fell, Drinking and Driving in America, 14 ALCOHOL, HEALTH & RES. WORLD 24 (1990)
3. J. GARY TRICHTER & W. TROY MCKINNEY 1 TEXAS DRUNK DRIVING LAW 37 (1991).
4. See generally REESE I. JOYE & JAMES LOVETT, THE TRIAL WORKBOOK (1986).
5. Spurgeon N. Cole & Ronnie M. Cole, New Proof That Field Sobriety Tests Are “Failure Designed,” DWI J.: L. & SCI., Feb. 1991, at 1; Jonathan D. Cowan & Susannah G. Jaffee, Field Sobriety Tests: The Flimsy Scientific Underpinnings DWI J.: L. & SCI., Dec. 1990, at 1.
6. Ralph Hingson & Jonathan Howland, Use of Laws to Deter Drinking and Driving, 14 ALCOHOL, HEALTH & RES. WORLD 38 (1990).
7. Adam Gelb, Georgia ‘s DUI Scandal: Car Insurers Often Fail to Flag Driving Records, ATLANTA J., Nov. 6, 1991, at D1, D3.
8. SOUTH CAROLINA DEP’T OF INS., DUI: DIED UNDER THE INFLUENCE (1991).
9. Action against employees varies from state to state and employer to employer. In non-union companies operating in states with no right-to-work laws, employees have less protection against discharge based on a drunk-driving conviction because they can be fired “at will.” Employers can justify the termination by citing “insurance factors,” diminution of employee versatility, or more general grounds, such as the employees’ “lack of judgment.”
10. State v. Webb, No. ST-92-CR-1689 (Ga., Clarke County Super. Ct., arrested June 7, 1992) (before trial for an alleged drunk-driving offense the University of Georgia notified the defendant of a proposed immediate suspension for one quarter).
11. Markel v. City of Circle Pines, 479 N.W.2d 382 (Minn. 1992).
12. U.S. CONST. amend. I, §8; Dep’t of Defense Directive 5525.7; U.C.M.J. Article 15.
13. See Gary Taylor, MADD at Lawyer, NAT’L L. J., Mar. 9, 1992, at 2 (article about Texas sole practitioner facing disbarment proceedings for drunk driving); sidebar, NAT’L L. J., May 11, 1992, at 2 (citing Massachusetts case where superior court judge retired after misconduct charges based on an arrest for suspected drunk driving were brought against him).
14. FELL, supra note 1.
15. See Blanton v. City of North Las Vegas, 489 U.S. 538 (1989). Nevada, New Jersey, and New Mexico are among the states that allow no jury trial for first offenders.
16. Only six states require preservation of breath samples: Alaska, Arizona, Colorado, New Hampshire, Oklahoma, and Vermont.
17. California v. Trombetta, 467 U.S. 479 (1984).
18. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990).
19. State v. Church, 538 So. 2d 993 (La. 1989); Higbie v. State, 780 S.W.2d 228 (Tex. Crim. App. 1989).
20. State v. Powers, 555 So. 2d 888 (Fla. Dist. Ct. App. 1990), Bryant v. State, 410 S.E.2d 778 (Ga. Ct. App. 1991); State v. Tosar, 350 S.E.2d 811 (Ga. Ct. App. 1986)

 

Summary of Alabama’s DUI Law*

Alabama DUI law can be complicated. Below is a summary of Alabama DUI law that will give you a better understanding of the laws as written as well as the consequences of being convicted of the offense of DUI in Alabama.

A person may be charged with Driving Under the Influence (DUI) if the police officer(s) reasonably believe(s) that there is probable cause that the person was found to be in actual physical control of a motor vehicle while:

  • there is .08% or greater of alcohol in his blood,
  • under the influence of alcohol,
  • under the influence of a controlled substance,
  • under the combined influence of alcohol and a controlled substance, or
  • under the influence of any substance which impairs mental or physical faculties.

 

§32-5A-191(a)(1)-(5), Code of Ala. 1975.

Keep in mind that a charge of DUI is not a conviction. Many people labor under the mistaken belief that they have to be driving a vehicle to be charged with DUI. However, to be charged with DUI, a person need only be in actual physical control of a motor vehicle. Actual physical control is sometimes defined as the exclusive physical power, and present ability, to operate, move, park, or direct whatever use or nonuse is to be made of a motor vehicle at the moment, as determined by the totality of the circumstances. Adams v. State, 585 So.2d 161 (Ala. 1991). For instance, a person who meets one of the above conditions and who is asleep in, or simply sitting in, a motor vehicle may be guilty of DUI.

There are several occasions when individuals will be held to a higher standard than those conditions stated above. As a deterrent to underage drinking, a person under the age of 21 may not be in actual physical control of a motor vehicle with a blood alcohol level of .02% or greater. An underage individual (under 21) convicted, or adjudicated guilty, of DUI with a blood alcohol level between .02% and .08% on a first offense DUI may have his driver’s license suspended for a minimum of 30 days in lieu of any other punishments imposed by the court. The penalties are more severe if the underage individual had a blood alcohol content of over .08%.

 

§32-5A-191(b), Code of Ala. 1975.

Furthermore, a person who is operating a school bus or a day care vehicle is prohibited from operating a vehicle while there is .02% or greater of alcohol by weight in his blood. If the school bus or day care vehicle driver is convicted, in addition to any other penalties, his or her driver’s license may be suspended for a minimum of one (1) year.

 

§32-5A-191(c), Code of Ala. 1975.

Alabama law doubles the minimum punishment for a DUI conviction if the person convicted was over the age of 21 at the time of the stop and had a child under the age of 14 in the vehicle.

 

§ 32-5A-191(n), Code of Ala. 1975.

The penalties for DUI have increased dramatically in the past few years. The sentencing range for a particular case, and whether the offense will be a misdemeanor or felony, is based on the number of prior DUI offenses.

The first DUI conviction in a person’s lifetime is a misdemeanor. Upon conviction the defendant may be give a sentence of up to 365 days in the county or municipal jail and a fine between $600 and $2,100. The defendant will also be ordered to attend a court referral program, and he may have his driver’s license suspended for 90 days.

 

§32-5A-191(e), Code of Ala. 1975.

If a person has only one prior DUI, and the date that he is convicted of his second DUI is more than five (5) years after the date of conviction for his first DUI, he will be sentenced within the range of punishment as a first offender. However, if the second DUI conviction is within 5 years of the first conviction, he will be punished as a second offense. A second DUI is a misdemeanor with a jail term of no less than five (5) days and up to 365 days in the county or municipal jail. A court may allow a defendant to perform 30 days of community service in lieu of the required five (5) days imprisonment. On a second conviction, the accused will be fined between $1,100 and $5,100, his license may be revoked for one (1) year, and he will be required to attend a court referral program.

 

§32-5A-191(f), Code of Ala. 1975.

A third DUI conviction within five (5) years of the current conviction date is currently a misdemeanor. Upon conviction he will be sentenced to no less than 60 days and no more than one (1) year in the county or municipal jail. The accused shall be fined between $2,100 and $10,100, may have his driver’s license revoked for three (3) years and shall be required to complete a court referral program.

 

§32-5A-191(g), Code of Ala. 1975.

The fourth, or subsequent, DUI within five (5) years of the current conviction is a Class C felony. A person convicted of felony DUI will be sentenced to no less than one year and one day and no more than ten (10) years imprisonment. He must serve a mandatory minimum of ten (10) days of that sentence. The remainder of the sentence may be suspended or probated, but only if the person enrolls and successfully completes a state certified chemical dependency program. He will be fined between $4,100 and $10,100 dollars, and may have his driver’s license suspended for 5 years.

 

§ 32-5A-191(h), Code of Ala. 1975.

In 2011 the Alabama Legislature passed two bills that dramatically increased penalties for those convicted of alcohol related DUI’s. First, the Legislature passed a bill that would require most DUI offenders to install ignition interlock devices in their cars. There is some question about whether this bill has been repealed by the second DUI bill that passed the Legislature in the same legislative session. However, if the ignition interlock bill goes into effect, even some first time offenders will have to have ignition interlock devices installed in their cars! Any person sentenced to having an ignition interlock placed on their vehicle will also have to get a new limited driver’s license that says that their license is subject to an ignition interlock. The second DUI bill passed by the Legislature doubles the minimum punishment for a DUI conviction when the person’s blood alcohol level is .15% or higher. The bill also increases the minimum driver’s license suspension time for these high blood alcohol cases to not less than one year.

If individuals are arrested for DUI and driving a commercial vehicle, special rules apply.

Alabama also has a law concerning boating under the influence of alcohol and/or a controlled substance. The “legal limit” on the water of this state is .08% blood alcohol.

 

*Alabama’s DUI law has been amended many times and is likely to be amended again. Although we do our best keep this page current, we cannot guarantee it contains the latest statement of the law. For that reason, do not rely on any statement of law herein without first confirming the same with an attorney.

 

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