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:

1. there is .08% or greater of alcohol in his blood,
2. under the influence of alcohol,
3. under the influence of a controlled substance,
4. under the combined influence of alcohol and a controlled substance, or
5. 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.

DUI FIELD SOBRIETY TEST IN ALABAMA

The Standardized Field Sobriety Test (SFST) battery is composed of three tests:

• Horizontal Gaze Nystagmus (HGN)
• Walk-and-Turn (WAT)
• One-Leg Stand (OLS).

The tests were developed by the National Highway Traffic Safety Administration (NHTSA) in the late 1970’s. In 1981, law enforcement officers began using NHTSA’s Standardized Field Sobriety Test (SFST) battery at roadside to help determine whether motorists who are suspected of DWI have blood alcohol concentrations (BAC’s) greater than 0.10 percent. Since 1981, however, many states including Texas have implemented laws that define DWI at BAC’s below 0.10.

The validity of SFST results is dependent upon officers following the established, standardized procedures for test administration and scoring. According to NHTSA when properly administered and scored, under laboratory conditions, the accuracy of the SFSTs in correctly identifying intoxicated drivers is as follows:

• HGN – 77%
• WAT – 68%
• OLS – 65%

This means that even under laboratory conditions, the HGN was wrong 23% of the time, the WAT 32% and the OLS 35% of the time. Additionally, NHTSA’s own research emphasizes that test results are valid only when administered in strict compliance with NHTSA protocol. If anyone of the standardized field sobriety elements is changed, the validity is compromised. It is therefore imperative to have your attorney review the manner in which the SFST’s was administered. Your lawyer may be able to suppress the results of an improperly administered test.

HGN – HORIZONTAL GAZE NYSTAGMUS

“Nystagmus” means an involuntary jerking of the eyes. HGN refers to an involuntary jerking occurring as the eyes gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening. The theory behind the test is that nystagmus becomes readily noticeable when a person is impaired.

In administering the test, the officer has the subject follow the motion of a stimulus with the eyes only. The stimulus may be the tip of a pen or penlight, an eraser on a pencil or a fingertip. As the eyes move from side to side each eye is examined for three specific clues:

• Lack of Smooth Pursuit – does the eye move slowly or does it jerk noticeably?
• Distinct Nystagmus at Maximum Deviation – when the eye moves as far to the side as possible and is kept at that position for several seconds, does it jerk distinctly?
• Onset of Nystagmus Prior to 45% – as the eye moves to the side, does it start to jerk prior to a 45% angle?

Officers frequently fail to properly administer the HGN. It is crucially important for your attorney to review the videotape, if available to ascertain whether the test was properly administered or whether suppression of the results is possible.

WALK & TURN

The WAT is a divided attention test consisting of two stages: Instruction Stage; and Walking Stage. In the instruction stage, the subject must stand with their feet in heel-to-toe position, keep their arms at their sides, and listen to instructions. The subject must maintain the heel-to-toe position and may not begin walking until all instructions are given. In the Walking Stage the subject takes nine heel-to-toe steps, turns in a prescribed manner, and takes nine heel-to-toe steps back, while counting out loud and watching their feet.

Officers observe the subject’s performance for eight clues:

• Can’t balance during instructions
• Starts too soon
• Stops while walking
• Doesn’t touch heel to toe
• Steps off line
• Uses arms for balance
• Loses balance on turn or turns incorrectly; and
• Takes the wrong number of steps

A subject who exhibits two or more clues will fail the test. Scoring is entirely subjective and within the officer’s discretion.

ONE LEGGED STAND

The OLS is also divided into two stages. In the Instruction Stage, the subject must stand with feet together, keep arms at side and listen to instructions. In the Balance and Counting Stage, the subject must raise the leg of his choice approximately 6 inches off the ground, toes pointed out, keeping legs straight. While looking at the elevated foot, count out load in the following manner: “one thousand and one”, “one thousand and two”, etc, until told to stop. The officer will instruct the subject to stop after 30 seconds.

The subject is observed for the following clues:

• Sways while balancing
• Uses arms to balance
• Hops
• Puts foot down

A subject who exhibits 2 or more clues, as determined by the officer, will fail the test.

ROMBERG

Person is instructed to stand with feet together, head tipped back, eyes closed, arms at side. Position is demonstrated. Observe anterior-posterior sway, 30 sec. trial. This is not one of the “Standardized” Field Sobriety Tests. Typically estimating 30 seconds within 5 seconds either way is considered good, anything outside of a 5 second margin of error will be counted as a sign of intoxication. The officer will also look for swaying during this time.

BREATH TEST – CHEMICAL TEST

Under Texas law an individual is legally intoxicated if his/her alcohol concentration is .08 or greater. A person’s alcohol concentration can be determined by testing the blood, urine or breath.

“Alcohol concentration” means the number of grams of alcohol per:

• 210 liters of breath;
• 100 milliliters of blood; or
• 67 milliliters of urine.

Blood testing is generally considered to be the most reliable and accurate, while urine tests are regarded as the least precise. If you are arrested for DWI in Texas, you will most likely be asked to give a sample of your breath. Breath testing is the most commonly utilized method because it is the least expensive to administer. The scientific community is sharply divided over the accuracy and reliability of breath testing procedures. The police do not save the sample of breath tested. Thus it is not available for re-testing by an independent laboratory.

At Hays Law Firm, LLC, our DUI lawyers work hard after you’ve been pulled over. Call us today at 251-378-2720 to schedule your free consultation immediately.

DUI TIME OF DRIVING VS. TIME OF TEST

An essential element of the crime of DUI is that the person is intoxicated at the time of driving. However, chemical tests only reflect a person’s alcohol concentration at the time of testing. A person’s alcohol concentration at the time of driving may have been higher, lower or the same.

In order to link the test result to alcohol concentration at the time of driving the prosecution may attempt to present expert testimony concerning alcohol concentration at the time of driving. The process the expert uses to relate the test result back to the time of driving is known as retrograde extrapolation. However, in order for the expert to offer an opinion which will be admissible at trial, the court must find that the expert’s opinion will be reliable.

Factors effecting reliability include:

• The length of time between the offense and the test(s) administered;
• The number of tests given and the length of time between each test; and
• Whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert.

These characteristics and behaviors might include, but are not limited to:

• Weight and gender
• Typical drinking pattern
• Tolerance for alcohol
• How much the person had to drink on the day or night in question,
• What the person drank,
• The duration of the drinking spree
• The time of the last drink, and
• How much and what the person had to eat either before, during, or after the drinking.

Don’t hesitate to call the DUI attorneys at Hays Law Firm, LLC. We can be reached at 251-378-2720 to schedule your free consultation.

THE TEN DAY DEADLINE

Most people arrested for an Alabama DUI have their driver’s licenses taken from them by the police. If your driver’s license was taken from you, then you ONLY HAVE TEN (10) DAYS to request a hearing to try to stop the suspension of your Alabama driver’s license.

If you refused to take the breath test after you were arrested (or the police officer claims you refused to take it) or if you submitted to a test that yielded results of .08% or more, then your Alabama Driver License may automatically be taken and will be subject to suspension (or revocation) for ninety (90) days to five (5) years.

This automatic driver’s license suspension case is separate from your DUI case. You CANNOT put off dealing with your driver’s license suspension case until your DUI case goes to court.

Because you only have ten (10) days to request a hearing to protect your driver’s license, it is very important that you contact an Alabama DUI defense attorney as soon as possible after you are arrested for DUI.

AVOID AN ALABAMA DUI CONVICTION

5 IMPORTANT TIPS FROM AN ALABAMA DUI LAWYER

1. Don’t blow – you have the right to refuse taking a breath test. Yes it’s true, your license may be suspended longer than if you had blown, but you want to beat the case, right? Instead, offer to give a blood sample.
2. Don’t do any sobriety tests at all – at the scene where you are stopped or at the station when you are arrested. You can refuse.
3. Don’t lean against the car or anything else …every little thing you do that shows intoxication will be used against you in Court.
4. Don’t say anything – they will use your statements against you in Court. Common mistakes are saying, “Officer, I couldn’t even do those tests if I were sober”…”I know I’m wasted.”
5. Speak clearly and be polite.

Most importantly, retain an Alabama DUI attorney at Hays Law Firm, LLC. Call us today at 251-378-2720 to schedule your free initial consultation after you have been pulled over in Alabama.