Driver License Suspension &
Revocation Actions
As a Result of Alcohol Related
Violations
Patrick Mahaney
Montgomery, Alabama
Driver License Classification
• Federal Commercial Motor Safety Act of 1986
• Effective date in Alabama - 1989
• Classification of Driver Licenses
– Class A: Combination Vehicle w/ 26,000 GVWR
– Class B: Single vehicle or combination vehicle under
26, 000 GVWR
– Class C: Passenger vehicle w/ 16 or more; transport
hazardous materials
– Class D: Standard operators license
– Class M: Motorcycle only (w/ ‘B’ restriction for
14-15 yr old)
– Class V: Vessel license
Terms
• Driver License: Any license issued under the laws of
this state to operate a motor vehicle on public
highways of the state
• Driver (Driving) Privilege: The authorization to
operate a motor vehicle on the public highways of
this state, although the motorist may be unlicensed
or licensed in another state.
Terms
• Suspension: Temporary or limited time period removal of
driver license or privilege, or reinstatement conditioned upon
compliance of a legal requirement.
• Revocation: Complete and full removal of driver license or
privilege. Revocation generally the result of conviction of a
serious traffic offense.
• Cancellation: The annulment or termination of driver license
because of error or defect in application or issuance.
What’s the Difference?
• Suspension: Removal for limited time period (duration
established statute or by Alabama Administrative
Code) or unspecified period until motorist complies
with a legal requirement. Reinstatement fee only. No
SR-22 requirement or driver exam.
• Revocation: Permanent removal of driver license for a
period not less than 6 months. Must serve entire
revocation period before eligible for re-licensing.
Requires payment of reinstatement fees, proof of
financial responsibility (SR-22) for a period of three (3)
years, and complete entire driver exam.
Driver License Suspension & Revocation for
Alcohol Related Offenses
1. Administrative Driver License Suspension –
Code of Alabama, 1975, section 32-5A-300 thru
309
2. Implied Consent Law –
Code of Alabama, 1975, section 32-5-192
3. Driving Under the Influence –
Code of Alabama, 1975, section 32-5A-191
4. Statutory authorization for the Director to
suspend/revoke –
Code of Alabama, 1975, section 32-5A-195
Effect of Conviction
•
The term “conviction” is a specific term of law.
•
The term “conviction” means a final conviction.
•
Also, the term means: “… an unvacated forfeiture of bail … a plea of nolo
contendere accepted by the court, the payment of fine, a plea of guilty or a
finding of guilt …. shall be the equivalent to a conviction regardless of whether
the penalty is rebated, suspended or probated.” Code of Alabama, 1975,
section 32-5A-195(i).
•
The Department of Public Safety will not take action against an Alabama driver
license until notice of final conviction is received.
•
Caveat: CDLs – payment of court costs is the equivalent of a conviction [If
operating a “commercial vehicle” at time of the offense]
Convictions and Court Costs - CDLs
49 CFR 383.5: "Conviction means an unvacated adjudication of guilt, or a
determination that a person has violated or failed to comply with the law
in a court of original jurisdiction or by an authorized administrative
tribunal, an unvacated forfeiture of bail or collateral deposited to secure
the person's appearance in court, a plea of guilty or nolo contendere
accepted by the court, the payment of a fine or court cost, or violation of
a condition of release without bail, regardless of whether or not the
penalty is rebated, suspended, or probated.” (emphasis added) [See, also,
32-6-49.3 for definition of the word "conviction.“]
Effective November 2012, the Department of Public Safety is treating
payment of court costs as the equivalent of a “conviction” if the licensee
held a CDL and a CDL was required for vehicle operation at the time the
citation was issued.
Alabama Licensee: In-state Conviction
Attorney General Opinion 2012 – 0011
• If the license or privilege is suspended administratively under the
Administrative License Suspension Act, there is no additional period of
suspension or revocation if subsequently convicted of DUI.
• If the license or privilege is not suspended administratively (AST-60
was not submitted timely; affidavit was defective, etc.), the Director is
required to impose the full one year revocation for first offense
conviction as required by statute for any conviction with a breath test
result of .15% or greater; otherwise the standard 90 day suspension
will apply if not subject to “double minimum punishment.”
• The Director of Public Safety should not impose the one year period of
revocation specified under Code section 32-5A-191(i) for a DUI
conviction with a test result of .15% or greater if the administrative
license sanction has already been ordered.
Alabama Licensee: In-state Conviction
Attorney General Opinion 2012 – 0011
• If the license or privilege is suspended administratively under the
Administrative License Suspension Act, there is no additional period of
suspension or revocation if subsequently convicted of DUI.
• If the license or privilege is not suspended administratively (AST-60
was not submitted timely; affidavit was defective, etc.), the Director is
required to impose the full one year revocation for first offense
conviction as required by statute for any conviction with a breath test
result of .15% or greater; otherwise the standard 90 day suspension
will apply if not subject to “double minimum punishment.”
• The Director of Public Safety should not impose the one year period of
revocation specified under Code section 32-5A-191(i) for a DUI
conviction with a test result of .15% or greater if the administrative
license sanction has already been ordered.
DUI Convictions - Duration
• First offense conviction with a BAC of .14% or less – 90 day
suspension
• First offense conviction with a BAC of .15% or greater – 1 year
revocation
• Second DUI conviction (within 5 years) – 1 year revocation
• Third DUI conviction (no time limitation) – 3 year revocation
• Fourth or subsequent DUI conviction (no time limitation) – 5
year revocation
• Note: This list of driver license sanctions pre-supposes that
no administrative action was taken prior to receipt of notice
of conviction
Driver License Removal - DUI
For purposes of license removal:
– Date of conviction, and not date of arrest, is the controlling date
– DUI conviction applies equally to any in or out of state court or
federal conviction
– DUI conviction of whatever kind are entered, without regard to
court’s approval of any plea agreement
 Each license removal action must be served in full and in sequence
of receipt to Department of Public Safety.
 Includes all DUI convictions, in or out of state, received by the
Department of Public Safety [Note: Out of state conviction is
authorized an administrative review]
Duration of License Removal DUI Conviction
The mandatory revocation period established by statute
must be served in full, and each revocation period served,
before becoming eligible for re-licensing.
Alabama Dept. of Public Safety v. Barbour, 5 So. 3d 601
(Ala. Civ. App. 2008)
Additional License Removals
• Drug crime conviction – Code section 13A-12-290: 6 months
mandatory license suspension (includes Y.O. and juvenile
adjudications)
• Breath test refusal – Code section 32-5-192 (c): 90 day suspension
first refusal and 1 year suspension second or subsequent refusal
(within a five year period).
• Typical example: Traffic stop for DUI (first offense) with a breath test
refusal and a small amount of marijuana. Convicted of DUI and
possession of marijuana, 2nd degree. Result: 90 day suspension for
breath test refusal (administrative under the AST-60), 90 day
suspension for the first offense conviction, additional 180 days for
the ‘drug crime’: 365 days of license suspension to be served.
Implied Consent Law
• Motorist must be under lawful arrest
• Arrest must take place on a public road or highway – no
application to an arrest on private property
• Statute is alcohol only; no application to controlled substance
DUI cases
• Statute equally applicable to in/out of state motorists
(“license or privilege”)
• Motorist cannot be compelled to submit to a test; can
lawfully refuse blood test (alternate test must be offered)
[Common threat: “If you don’t take this test, you are going to
be locked up for 24 hours.”]
• Refusals reported on AST-60 forms
– 1st Refusal/5 yrs – 90 day suspension
– 2nd Refusal/5 yrs – 1 yr. suspension
Administrative License Suspension
• Reported on AST-60 form
• Each arresting officer acts as agent of the Director
of Public Safety
• Tracks Implied Consent Law in application
– Alcohol only DUI violations
• No application to controlled substances
– Must be .08% or more for license removal
• No application to ‘Under 21’ .02% DUI cases
• No application to any breath test less than .08%
– License seizure must be an Alabama license
• No application for seizure for out-of-state licensee*
[*Department of Public Safety takes position ALS applies to out
of state licensee’s driving privilege]
Procedure: AST-60 forms
• Must be completed and processed in 5 business days to
Department of Public Safety
• Must be sworn at time of submission (not necessarily at time of
issuance)
• Must include statement of probable cause
• Motorist must make written petition for hearing within 10
calendar days of receipt of AST-60
• Department must conduct administrative hearing within 30
days of receipt of petition [Note: Sanction for DPS noncompliance not stated.]
• Sole Issues at hearing:
– Lawful arrest/Conforms to Implied Consent Law
– Motorist drove or was in actual physical control of vehicle
with .08% test result or test refusal
– Decisions based on preponderance of the evidence standard
Driver License Removal - ALS
• 90 day suspension if no prior alcohol or drug-related
enforcement contact* in past five years
• One year suspension for one prior contact in past five
years
• Three year suspension for two or three prior contacts
in past five years
• Five year suspension for four or more prior contacts in
past five years
*Includes all breath tests, breath test refusals, and DUI
convictions of any kind, in this state or any other state
Appeals - ALS
• Appeal for judicial review must be taken within 30 days
after notice of final order issued.
• Review process under ALS tracks procedure of the
Alabama Administrative Procedures Act
• Must be filed in the county where the arrest was made.
• Filing of an appeal does not operate as an automatic stay;
must file a stay order and have circuit court enter a stay.
• Petitioner/plaintiff has burden of proof; decisions of the
agency presumed correct as a matter of law
Practical Considerations
•
Far greater likelihood that AST-60 will be processed first and motorist held to ALS
suspension, than conviction in court and license removal for DUI conviction.
•
If licensee submitted to breath testing, only suffers one license removal per
incident – This is extremely important in view of the Department’s ‘first in-first
recorded’ method of license removal.
•
If DUI case subsequently is acquitted, dismissed, or nol prossed, and licensee had
submitted to breath test with results of .08%, then Director must rescind
suspension order and remove entry from MVR.
•
If licensee refused the breath test – no benefit of the ‘acquittal/dismisal/nol pros
rule’ – licensee is held to full suspension under I.C. and ALS statutes.
•
If ALS license suspension goes into effect first, no subsequent revocation order if
later convicted. [This statute is frequently ignored by DPS data entry; requires a
‘DQ’ to untangle.]
Practical Considerations
•
Driving While Revoked: A conviction of DWR while under a revocation order
will result in an additional 6 month removal order. If revoked, each revocation
order will initiate new SR -22 requirement.
•
Driving While Suspended: Two convictions for driving while suspended will
operate as ‘automatic’ revocation order. If revoked, start date for the SR-22
requirement. [Three (3) years duration from date of initial order.]
•
CDL Holder: A conviction of DUI* will result in a one year disqualification of
CDL; second conviction will result in lifetime disqualification (Subject to
administrative review after 10 years).
 [*Note: DPS is interpreting ALS suspension for breath test result of .08% as the equivalent of a
conviction and holds the ALS hearing an “authorized administrative tribunal” under 49 CFR
383.5]
 ALS suspension is 90 days for Class D license; one year disqualification for CDL
endorsement.
•
Minor in Possession statutes: Conviction or adjudication of MIP requires a
three month (90 day) suspension of driver license or privilege. Application for
Y.O. has no effect.
End of Materials
What Are Your Questions?
Law Office of Patrick Mahaney
8244 Old Federal Road
Montgomery, Alabama 36117
www.mahaneylaw.com