Cumberland School of Law
2006 DUI Seminar
Patrick Mahaney
Montgomery, Alabama
Today’s Outline
• Alabama DUI Law- Past, Present…and Future?
• Traffic Court statistics- 2005
• Comprehensive review of recent statutes and
cases affecting DUI practice
VBIED Attack on IP Station
Moral of the StoryDon’t Complain About Your
Commute to Work!
How Did Alabama Traffic Law Originate?
• The state’s first traffic laws originated in 1911
• Act 535 of the 1911 Legislature was titled “The Motor
Vehicle Law” -- effective October 1, 1911.
• Act 535 was intended to generate revenue and designed to
require uniform license fees on automobiles
• The act also included, among other parts, a speed limit
law*; a law for requiring operational brakes, horns and
lights; and a law prohibiting driving while intoxicated.
* “No person shall operate a motor vehicle upon the public highways of
this State recklessly, or a rate of speed that is reasonable and
proper….. a rate of speed in excess of thirty miles per hour for a
distance of a quarter mile shall be presumed evidence of traveling at a
rate of speed which is not careful and prudent.”
DWI- 1911 thru 1979
• Act 535, Section 28, first line, stated: “Whoever operates
a motor vehicle while in an intoxicated condition shall be
guilty of a misdemeanor.”
• The 1919 legislature, by Act 696, amended the 1911
statute to include the requirement for the trial court clerk
to report to the State Tax Commission [the predecessor
agency to the Department of Revenue] a conviction for
violation of the DWI law so that the operator’s license
would be suspended.
• The 1919 amendment also set the DWI penalty, as an
unscheduled misdemeanor, of a fine “not exceeding
twenty-five dollars for the first offense and not in excess
of five hundred dollars for the subsequent offense.”
Alabama’s First “Rules of the Road”
• The state’s traffic code was re-written in 1927 as part of a
comprehensive legislative act reorganizing the State
Highway Department
• Among the duties set forth in the legislation was the
requirement to enforce the state’s traffic laws and the
authorization for the State Highway Department to
commission selected individuals to enforce the “road
laws.”
• Contained in Article II of Act 347 was the state’s first
comprehensive “Rules of the Road.” The 1927 version of
the “Rules of the Road” were subsequently incorporated
into the 1928 revision of the Code of Alabama.
The 1927 DWI Statute
• First Alabama driving while intoxicated statute was
enacted in 1911, and given a fine schedule and mandatory
license suspension by the act of 1919.
• The 1927 Act which established Alabama’s first systematic
“Rules of the Road” incorporated a DWI statute prohibiting
driving “under the influence of intoxicating liquor…”
• By comparison to today’s DUI law, the 1927 statute was a
model of simplicity:
“It shall be unlawful for any person whether
licensed or not who is an habitual user of narcotic
drugs or any person who is under the influence
of intoxicating liquor or narcotic drugs to drive any
vehicle upon any highway within this State;…”
The 1980 “Rules of the Road” DUI
• One sentence constituted the entire DWI law for the state in 1927. The
wording of the state’s DWI statute remained generally unchanged until
1980.
• 1980: Alabama legislature writes new “Rules of the Road” and enacts
Chapter 5A of Title 32. The current DUI statute- 32-5A-191- now
exceeds four pages, single spaced, in length.
• 32-5A-191 (a): A person shall not drive or be in actual physical
control of any vehicle while:
– (1) There is 0.08 percent or more by weight of alcohol in his or her
blood;
– (2) Under the influence of alcohol;
– (3) Under the influence of a controlled substance to a degree which
renders him or her incapable of safely driving;
– (4) Under the combined influence of alcohol and a controlled
substance to a degree which renders him or her incapable of safely
driving; or
– (5) Under the influence of any substance which impairs the mental or
physical faculties of such person to a degree which renders him or her
incapable of safely driving.
Two Major Changes
• The first major change contained in the 1980 DUI statute
was the removal of the term “intoxication” as part of the
nomenclature of the offense.
• Under the 1980 statute, a new term replaced “driving
while intoxicated” with “driving under the influence.”
• The second major change that took effect with the
enactment of the 1980 statute was, for the first time in this
state, a per se violation of the DUI statute based
strictly on the blood or breath test reading.
• No evidence of actual physical impairment or proof of
intoxication is required to obtain and uphold a conviction
DUI becomes a ‘blood-alcohol’ offense
• The per se violation constituted a major shift in the
prosecution of the DUI driver.
• Testimony now centered on test administration rather than
the indications of physical impairment of the motorist.
• Additionally, with two later pieces of legislation, the state’s
case was easier to prove than previously.
– Act 660 of the 1988 legislature re-wrote the chemical
test for intoxication act, and included as part of the
legislation the “2100 to 1 ratio” as a fundamental part of
state law governing the administration of breath tests.
– In 1995, the legislature re-wrote the DUI statute lowering
the per se violation from .10% to .08%, and incorporated
the same changes into the chemical test act.
What Was the Result?
• Since 1980 when the revised Rules of the Road took effect
with the enactment of Chapter 5A of the motor vehicle
code, and following two and half decades since, a complex
series of events took place:
• Single-issue public interest groups (M.A.D.D.)
• The financial consequences of partial or complete loss of
federal highway funding if certain federal mandates were
not achieved (90% Ala. road building is federal money)
• Media interest in traffic enforcement issues (Birmingham
News)
• Media savvy politicians eyeing an easy target for favorable
press
• Result: Creation of a complex, sometimes over-lapping,
and oftentimes punitive traffic code, all with serious and
long-term consequences for citizens facing traffic offenses.
What Court and How Many Cases?
District Court
• 67 Districts/102 Elected
Judges
• Original and exclusive
jurisdiction in all traffic
cases made by state and
county officers
• 349,562 Traffic cases
disposed in 2005
Municipal Court
• 263 Courts/137 Appointed
Judges
• Prosecutions for municipal
ordinance violations and
state law misdemeanors or
violations incorporated into
the municipal code made
by municipal officers
• 458,404 Traffic cases
disposed of in 2005
Population Trends: State Population Up 15%
Source: Auburn University at Montgomery
4.6
4.4
4.2
Ala. Pop. (mil)
4
3.8
3.6
1980
1990
2000
2005
Alabama Driver License Statistics: 60% More License Holders
1980-2005
Source: Alabama Department of Public Safety
4,000,000
3,500,000
3,000,000
2,500,000
2,000,000
Lic. Drivers
1,500,000
1,000,000
500,000
0
1980
1985
1990
1995
2000
2005
DUI Arrests As Compared to Population Trends and Licensed Drivers
Alabama DUI Trends – State population increases 15% over the past
25 years, but DUI arrests decline by 46%
35,000
30,000
25,000
20,000
DUI Arrests
Convictions
15,000
10,000
5,000
0
1980
1985
1990
1995
2000
2005
32-5A-191 in a Nutshell
• The current DUI statute has five kinds, or alternative methods of proof,
of the regular “driving under the influence” violation and three “special
circumstance” DUI violations. In a nutshell, the violations are the
following:
•
•
•
•
•
•
•
•
•
•
Section (a):
The per se violation of .08% of more by weight of alcohol violation
The “under the influence of alcohol” violation
The “under the influence of a controlled substance” violation
The “combined influence” of alcohol and a controlled substance violation
The “under the influence of any substance” violation
Section (b): The “under the age of 21 years” DUI -- a per se type subsection
for motorists under the age of 21 with a threshold of .02% blood alcohol.
Section (c):
The school bus or day care driver DUI- a per se type subsection for any
person operating a school bus or day care vehicle with a threshold of .02%
blood alcohol.
The commercial motor vehicle DUI- a per se type subsection for any person
operating a commercial motor vehicle with a threshold of .04% blood alcohol.
Supplemental and Supporting Legislation
• Chemical Tests for Intoxication Act, §32-5-190 -194
• Consent to Chemical Testing for Accidents Involving Death or Serious
Injury, §32-5-200
• Evidentiary Standards for Chemical Tests, §32-5A-194
• Driver License Cancellation, Suspension, or Revocation, §32-5A-195
• Suspension of Driving Privilege for Alcohol Related Offenses
(Administrative Per Se Law), §32-5A-300
• Open Container Law, §32-5A-330
• “Tow and Impound” Law, §32-6-19(b)
Traffic Law as a Source of Revenue
• Traffic law constitutes a major source of funding for the
state and municipalities
• The Department of Public Safety collected $46 million in
driver license fees and sales of records in 2005.
Receipts paid into state general fund.
• Traffic tickets = revenue for the state and municipality
• How much money?
What does 807, 966 tickets equal?
• Assumption: each UTTC is ‘valued’ at approximately
$150 per ticket: $20 fine and $130 court costs. [Fines are
paid into the state, county, or municipal general fund
depending on which agency makes the arrest.]
• 2005 -- 807,966 traffic tickets all courts
• At a 70% compliance/pay rate = $84 million revenue per
year, with 85% of the amount designated as “court costs”
• Bottom Line: The state court system can not operate
without traffic ticket revenue!
The MADD Agenda- In Effect in Alabama
•
.08 Per Se
Comments: 32-5A-191(a)(1)
•
Keg Registration
Comments: Passed 2004.
•
Administrative License Revocation
Comments: 32-5A-300, 304, 305
•
•
Child Endangerment
Comments: Minimum sentence
doubled; 32-5A-191(n)
Mandatory Alcohol
Assessment/Treatment
Comments: On first offense
32-5A-191(b)
•
Mandatory Alcohol Education
Comments: On first conviction required;
32-5A-191(i)
•
Mandatory BAC Testing for Drivers
involved in fatal or serious injury
collisions
•
Mandatory Jail 2nd Offense
•
Open Container Law that is Federally
Compliant
Comments:32-5A-330
•
Happy Hour Laws
Comments: Regulation 20-X-6-.14
•
Dram Shop
Comments: 6-5-71
•
Fake ID
Ala. Code 13A-10-14 and 28-3A-25(22)
•
Felony DUI
Comments: 4th and subsequent
offences
•
Graduated Drivers Licensing
Ala. Code 32-6-7.2
The MADD Agenda-In Effect in Alabama
•
Primary Belt Law
•
Victim Rights Constitutional
Amendment
•
Repeat Offender Law that is Federally
Compliant
•
Youth Attempt at Purchase
•
Selling/Furnishing Alcohol to Youth
•
Youth Consumption of Alcohol
Comments: 28-3A-25(a)(19)
•
Sobriety Checkpoints
Comment: By case law decision
•
Youth Possession of Alcohol
Comments: 28-3A-25(a)(19)
•
Social Host
Comments: Limited to intoxicated
underage people.
•
•
Vehicle Sanctions While Suspended
Ala. Code 32-6-19(b)
Youth Purchase
Comments: Exceptions: For law
enforcement purposes only; 28-1-5
and 28-3A-25(a)(19)
•
Zero Tolerance Under 21
Comments:.02 BAC; 32-5-191(b)
•
Vehicular Homicide
Comments: Two types: Homicide by
vehicle - felony - 32-5A-192; criminally
negligent homicide while DWI - class
C felony 13A-6-4(a) and (c)
…And Coming Soon To Alabama
(MADD Agenda Not Yet in Effect)
•
Anti-Plea Bargaining
•
Habitual Traffic Offender
•
•
•
High BAC
Hospital BAC Reporting
Ignition Interlock
•
Lower BAC for Repeat Offender
•
Mandatory BAC Testing for
Drivers who are Killed
•
Mandatory Server Training
•
Penalties for Test Refusal
Greater than Test Failure
•
Plate Sanctions
•
Preliminary Breath Tester
•
Vehicle Confiscation
•
Vehicle Impoundment
MADD’s Definition of “High-Risk” Driver
The MADD Impaired Driving Summit found that a major
focus should be the "higher-risk driver" who is defined
as:
1) convicted of a repeat offense for driving while
intoxicated (DWI) or driving under the influence (DUI), or
2)
convicted of DWI/DUI with a blood-alcohol
concentration of .15 percent or higher, or
3)
convicted of a driving-while-suspended offense
(DWS), where the suspension was the result of a
conviction for driving under the influence.
What Will Happen to the High-Risk Driver?
•
Driver's license suspension for not less than one year, including a complete
ban on driving for not less than 90 days; and for the remainder of the license
suspension period and prior to the issuance of a probational hardship or work
permit license the offender must install a certified alcohol ignition interlock
device on his/her vehicle
•
Impoundment or immobilization of the motor vehicle for not less than 90
days; and for the remainder of the license suspension period the offender must
install a certified alcohol ignition interlock device on his/her vehicle
•
Alcohol assessment and appropriate treatment; if diagnosed with a substance
abuse problem
•
Imprisonment for not less than 10 days, an electronic monitoring device for
not less than 100 days, or be assigned to a DWI/DUI special facility for 30 days
•
Fined a minimum of $1000, with the proceeds to be used for state or local
jurisdiction for impaired driving prevention and/or enforcement
•
If the arrest resulted from a crash, requires restitution to victims of the
crash
Requirement to attend a victim impact panel if panel is available in the area
•
Recent Statutes
• 1. Act 2006-298 and Act 2006-654: Inclusion of out-ofstate convictions for “Five Year Period” for second and
subsequent DUI convictions
• 2. Act 2006-547: Arrest Warrants- domestication and
endorsement requirement of out-of-county arrest
warrants abolished
• 3. Act 2006-221: Reinstatement fees for motor vehicle
registrations
• 4. Act 2006-622: Commercial Motor Vehicle Operator
Licensees Ineligible for Deferred Prosecution (see also
Act 2004-521)
• 5. Act 2006-579: Use of Electronic Tickets (“e-tickets”)
approved. No signature bond is required.
Other Changes to Driver Licensing
and ‘Rules of the Road’
• Child restraint law, 32-5-222, amended by Act 2006-623
• Military exemption to driver license renewal, Act 2006415, so long as individual deployed on orders
• Emergency vehicle right of way “Move Over” provision,
Act 2006- 546…..ambiguous language in statute
Recent Cases of Interest
• Hammonds v. State, -- So. 2d-- 2006 WL 1120652 (Ala.
Cr. App. April 28, 2006)—[Inconsistent verdict]
• Edwards v. City of Fairhope, -- So. 2d-- 2006 WL
1452915 (Ala. Cr. App. May 26, 2006) – [Subject matter
jurisdiction]
• Ex Parte McConathy, 911 So. 2d 677 (Ala. 2005) –
[Forfeiture under state law]
• Ex parte Howard, in re: State of Alabama v. Howard, -So. 2d -- 2006 WL 825038 (Ala. Cr. App. Mar. 24, 2006)
– [Petition for Writ of Prohibition; denied]
Recent Cases- Search and Seizure
• Ex parte Aaron, 913 So. 2d 1110 (Ala. 2005): [vehicle stopanonymous tip] and Ex parte Shafer, 894 So. 2d 781 (Ala. 2004):
[vehicle stop – anonymous tip]
• State v. McPherson, 892 So. 2d 448 (Ala. Cr. App. 2004) and
Peters v. State, 859 So. 2d 451 (Ala. Cr. App. 2003): nearly identical
facts; different rulings
• Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842
(2005): a dog sniff of the exterior of a lawfully stopped vehicle during a
traffic stop does not constitute a search under the Fourth Amendment.
• Thornton v. U.S., 541 U.S. 615, 124 S. Ct. 2127 (2004):
Extending the ruling in New York v. Belton, 453 U.S. 454, 101 S. Ct.
2860, 69 L.Ed. 2d 768 (1981), the Court held in Belton that police may
search the passenger compartment where the occupants were sitting
as incident to arrest; in Thornton that ruling was extended to “recent
occupants.”
Recent Cases- Search and Seizure
• Urioso v. State, 910 So. 2d 158 (Ala. Cr. App. 2005) -- Consent to
search ostensibly given by non-English speaking motorist; denial of
suppression motion by trial court reversed.
• And if your client is arrested in a traffic accident related DUI,
see-- Muldoon v. State, -- So. 2d --, 2006 WL 2788982 (Ala. Cr. App.
Sept. 29, 2006): A defendant is not entitled to dismissal of the UTTC
even if the arresting officer lacked probable cause to effect arrest and
even if an arrest warrant separate from UTTC should have been
obtained. Motion to suppress is the proper remedy.
Blood and Breath Tests
• Arrest required, or maybe not….see,
Adams v. State, 907 So. 2d 1079 (Ala. Cr. App. 2005)
• Independent blood tests, but only if you ask for
one….see, Ex parte Yelverton (In re Yelverton v. City
of Dothan), 929 So. 2d 438 (Ala. 2005)
Roadblocks/Lawfulness under the
4th Amendment
• Ex parte Jackson, 886 So. 2d 155 (Ala. 2004) -[Adopting the Cains standard to determine the
Constitutionality of police roadblocks]:
The Court found that roadblocks, conducted under
supervised conditions and using established standards
of enforcement, met the Constitutional test required in
weighing the balancing of the interests in the public’s
safety and the individual’s reasonable expectation of
privacy.
Driver License Cases
• Finch v. State, 903 So. 2d 166 (Ala. Cr. App. 2004) –
Mandatory Revocation; Method of Appeal
• Huggins v. Alabama Department of Public Safety,
891 So. 2d 337 (Ala. Civ. App. 2004)—Determination of
Suspension; Review
• Cooley v. State Department of Public Safety, 827 So.
2d 124 (Ala. Civ. App. 2002) --[Out of state violation;
application to Alabama Class D and CDL]
Concluding Thoughts
• Traffic law procedure is complex, hyper-technical, highly
punitive, and requires no intent (no mens rea element)
• Prosecution or defense of traffic law cases requires
detailed knowledge of Constitutional law (4th Amendment
law), rules of criminal procedure, state statutory law, and
administrative regulations of state agencies
• Successful prosecution or defense requires the ability to
negotiate pleas and “work with what you got” as trial
preparation is minimal.
Final Thought
• Buy the Book!
• “Alabama DUI, Traffic, and Driver
License Law Handbook”
by Judge Wm. Bowen and Patrick
Mahaney
• To be published by the University of
Alabama ABICLE in November or
December 2006