DUI FAQs (Part 2)

In past years, on first offense arrests, most courts did not impose an active jail sentence. However, that has changed in recent years with more and more district and municipal courts ordering an active jail sentence upon first offense conviction, and especially so if the DUI is an “aggravated DUI” with an elevated breath test. Every trial court has the authority to impose an active jail sentence, even on first conviction. As a general rule, the court will impose a suspended jail sentence on first offense as a mechanism to require completion of the court referral program and payment of fines. If the fine and court costs are not paid when specified, the court is authorized to revoke the suspended sentence for non-payment. Under the Code of Alabama, probation for a misdemeanor remains in effect for two years, unless a shorter period of time is specified by the court. If the motorist receives a second DUI arrest while on probation from the first offense, the court is authorized to revoke the suspended sentence and order the person incarcerated. The time spent incarcerated for probation violation will not be counted as “credit” towards a second or subsequent conviction.

In past years, on first offense arrests, most courts did not impose an active jail sentence. However, that has changed in recent years with more and more district and municipal courts ordering an active jail sentence upon first offense conviction, and especially so if the DUI is an “aggravated DUI” with an elevated breath test. Every trial court has the authority to impose an active jail sentence, even on first conviction. As a general rule, the court will impose a suspended jail sentence on first offense as a mechanism to require completion of the court referral program and payment of fines. If the fine and court costs are not paid when specified, the court is authorized to revoke the suspended sentence for non-payment. Under the Code of Alabama, probation for a misdemeanor remains in effect for two years, unless a shorter period of time is specified by the court. If the motorist receives a second DUI arrest while on probation from the first offense, the court is authorized to revoke the suspended sentence and order the person incarcerated. The time spent incarcerated for probation violation will not be counted as “credit” towards a second or subsequent conviction.

If I Do Not Want to Contest the Case, Can I Plead “No Contest” in an Alabama Court?

No - Alabama law does not recognize the plea of nolo contendre and no Alabama court is authorized to accept such plea. A defendant in a criminal case can only plead “guilty” or “not guilty” to that offense. Further, there is a specific section in the Alabama traffic code that states if an Alabama licensed driver entered a plea of “nolo contendre” in an out-of-state court that accepts such plea, the Alabama authorities will treat the “nolo contendre” plea as a finding of guilt and impose appropriate license sanction.

No - there is no authority under the Code of Alabama for ALEA to issue a temporary, limited privilege, or “hardship” driver license to a DUI offender (to include ALS suspension), and no court has any authority to give such a permit. The only sort of restricted license available under current law is the “interlock required” license issued after the court orders the offender to install an operable ignition interlock device on the vehicle, or in the alternative, after the DUI offender enters into an approved Pre-Trial Diversion program and the court issues a mandatory interlock installation order as part of the program.

48 states and the District of Columbia participate in the Driver’s License Compact Act, meaning that an Alabama DUI conviction will be reported to your home state which will generally take action to suspend your driver license based on the conviction entered by an Alabama court. Consequently, even if you hold an out of state driver license, it’s imperative that you contact an experienced DUI attorney to represent you in this very important matter.

Yes – any person holding a CDL is subject to much tougher standards. If the motorist was operating a commercial motor vehicle at the time the arrest was made, an evidentiary test result of .04% is sufficient to convict the driver of DUI. If the CDL holder was operating a private motor vehicle at the time the arrest was made and submits to the breath test with results of .08% or greater, or refuses to submit to the breath test, then the administrative hearing has the authority to hold the licensee to a “disqualification” of the CDL for one year, and a lifetime disqualification of the CDL if this is the second DUI offense. Under Alabama law, if the defendant is subsequently convicted of DUI, the CDL endorsement will be “disqualified” (removed) for one year on first offense and lifetime for second offense.

A person can be convicted of DUI if the motorist’s driving was affected in any appreciable manner by the consumption of alcohol. Consuming 4 to 5 beers over a period of one to two hours will most likely result in a blood alcohol concentration between .06% to .09%, depending on body weight and absorption rate. (This estimate assumes each beer contains 12 fluid ounces of 5% alcohol.) Therefore, consuming 4 to 5 beers may be sufficient to violate either the “under the influence” standard or the per se standard.

Absorption rate is highly variable due to individual metabolism and whether or not the stomach was full or empty at the time of consuming alcohol. There is a widely held, but mistaken, belief that drinking alcohol on an empty stomach will cause intoxication, while drinking on a full or partially full stomach will not. This is simply false. All alcohol will be absorbed into the blood stream in 30 to 90 minutes after it is consumed. Body weight has some degree of influence on the estimated alcohol concentration: as a general rule, a larger person will have greater blood volume than a smaller person. Since ethyl alcohol mixes completely with blood, the larger blood volume in a large sized person will result in a somewhat lower blood alcohol concentration, as compared to a smaller individual. However, determining an accurate blood alcohol estimate based only on body weight and the total number of drinks consumed within a certain period is highly speculative. Only an evidentiary test can determine the exact blood alcohol concentration in that person at the time the test was given.

Under Alabama’s Implied Consent Law, there is an inherent legal ambiguity in the reading obtained from the breath test instrument at the time the test was given, and the actual blood alcohol concentration in the motorist while driving or in actual physical control of the vehicle. A qualified defense lawyer with a detailed understanding of breath test limitations can point out this potential error to the court and may be able to create sufficient reasonable doubt to acquit the motorist, even when the breath test result is .08% or greater.

No - a defendant in a criminal case is never required to testify and cannot be compelled to do so. For a variety of legal reasons, the defense attorney may not want the defendant to testify. However, the right to testify remains with the defendant and if the defendant elects to do so, he or she may testify in their own defense.

This is a fundamental question that must be addressed in every DUI case. Under the Constitution and laws of the United States and the state of Alabama, a law enforcement officer must have some legal basis to stop you, demand your driver license or identification, and hold you for investigation. Only an experienced and well-trained criminal defense lawyer will understand this highly technical and complex area of the law and be able to effectively represent you. Not all reasons offered by law enforcement officers are legal. In fact, in some instances, officers have no legal basis at all to ‘blue light’ a car and order the motorist to stop. A trained and experienced criminal defense attorney will be needed to examine the different aspects of your case and defend your legal rights aggressively.

No. There is no requirement under the Constitution or under Alabama law for law enforcement officers to automatically read a defendant in police custody their “rights.” Only if the police officer engages in direct questioning of the facts of the case once the defendant is placed in custody are the Miranda warnings required. If the court should find a Miranda violation has taken place, only the confession or admission given is suppressed (kept out of evidence); the case itself will proceed to trial.

Unlike blood and breath tests obtained under the Implied Consent law, submitting to a "field sobriety test" is voluntary but do not expect an officer to inform you of this fact. According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Heel-to-Toe and the Horizontal Gaze Nystagmus (HGN). At present time, due to court rulings, Alabama case law does not allow the results of the Horizontal Gaze Nystagmus to be admitted into evidence. However, the results of the other tests will be entered as evidence. But even under laboratory conditions, these tests have only been established to be accurate in predicting blood alcohol content above .10% in 66% to 77% of the time. In other words, under the best of conditions and circumstances, there is a 1/3 error rate in determining sobriety or insobriety by using these so-called tests.

No - that is not correct. Under Alabama’s original expungement statute, only misdemeanor arrests and non-violent felony offenses that did not result in a conviction were eligible to be “expunged.” Act 2021-482, which took effect on July 1, 2021, now allows for expungement of minor misdemeanor convictions not involving a crime of violence. Alabama’s revised expungement statute at Code section 15-27-1 (b)(7) [eligibility requirements] states: “The conviction is not a serious traffic offense, as provided in Article 9 of Chapter 5A of Title 32.” Specifically excluded from Act 2021-482 are DUI and reckless driving offenses. Expungement is not an option if convicted of a DUI offense.

It is correct that under a specific section of the Alabama Code, a person who was under the age of 21 at the time the offense occurred is entitled to petition the trial court for treatment as a “youthful offender.” This is a special status afforded the individual, and is not a defense to a criminal offense. If the court grants Youthful Offender status, the trial will proceed on the merits. However, if the person is found guilty (the legal term is “adjudicated”), the finding by the court will not result in a criminal conviction. The record will be sealed by the court and the outcome not reported as a “conviction.” The grant or denial of Youthful Offender status is discretionary with the court, and there is no appeal process if the petition for Youthful Offender is rejected by the court.

Insurance companies commonly report that a full 25% of all automobile insurance losses are the direct result of DUI and alcohol related crashes. A person convicted of DUI, even first offense, represents a huge additional risk to the insurance carrier. Nearly every reputable automobile insurance company will cancel the automobile insurance coverage if a DUI conviction is reported on the driver’s record, or at a minimum, re-write the policy and require significantly increased insurance premiums. Often-times, the increase in the auto insurance rate is a 50-60% increase in monthly premium. If required to file SR-22 certificate of insurance, SR-22 insurance often costs $300 to $400 per month to the individual. The Department of Insurance regulates all automobile insurance carriers in the state, and as a requirement to do business in this state, each insurance company must participate in the “high risk” insurance pool. It is not uncommon for a driver to be eligible for re-licensing, but unable to afford the costs of SR-22 insurance coverage, and thus unable to obtain a valid driver license. The high cost of SR-22 insurance is one of the hidden costs of a DUI conviction.

Alabama utilizes a two tier court system to try misdemeanor cases. The first level, or first tier, is the municipal court for cases made by municipal (city) police officers. There are over 230 municipal courts operating in Alabama. Each municipal court operates under its own schedule. In some cities, such as Mobile, Montgomery, Huntsville, and Birmingham, trial sessions are conducted daily or several times each week. In other cities, trials are held bi-weekly or monthly, depending on the court’s schedule. The district court is used for cases made by state and county officers. Each of Alabama’s 67 counties has one district court. In most district courts, trial sessions are generally conducted weekly or bi-weekly.

The trial in a municipal or district court is before a judge only. All testimony is given under oath; however, there is no court reporter and no trial transcript is made. The rules of evidence are often loosely applied. Trials in municipal or district court are generally short in duration and are often completed in less than 20 to 30 minutes. Trials taking longer than 30 minutes are out of the ordinary.

The prosecution will go forward with the arresting officer’s testimony using a form outline of standard questions. The defense attorney will then cross-examine the arresting officer. The key to winning any DUI case is by thorough and effective cross-examination of the arresting officer.

Next, the prosecutor will offer a second witness, such as the “back-up” officer or the breath testing officer, if any, into evidence. The defense attorney will cross-examine all witnesses put on by the prosecutor.

The prosecution will then “rest” meaning the prosecution’s case is completed. The defense attorney will then call any witness for the defense side, to rebut the information given by the prosecution. The decision for the defendant to testify rests solely with the defendant.

There is a high conviction rate in the municipal and district courts. According to statistical data supplied by the Administrative Office of Courts, nearly 85% of defendants facing a DUI charge in municipal or district courts who do not enter or are denied pre-trial diversion are convicted of that charge, most often by pleading guilty. However, if the case is tried on the merits and effective legal counsel is prepared to defend the client’s case, the conviction rate drops significantly. It is always in the defendant’s best interest to carefully evaluate the facts of the case, and if there are legal or factual grounds to challenge the prosecution’s case, the defendant should plead not guilty and demand a trial.

Every person convicted in a district or municipal court has the absolute right to appeal the lower court conviction to the circuit court of the county. However, there is a strict 14 day time period in which to file an appeal. If the appeal is not properly filed in the 14 day time period, the appeal is deemed “waived” and cannot later be filed.

The trial in circuit court is much more like the type of trial shown on television or in the movies – strict rules of evidence are applied, the procedure is much more formal, and the right to a jury trial is authorized in the circuit court. Additionally, a court reporter is present to record all witness testimony, objections from the attorneys, and rulings from the trial judge. The court reporter’s record later becomes the trial transcript and is the mechanism to file an appeal at a later time.

A jury trial in a circuit court is a time-consuming process, and generally requires nearly a full day, and may often go into a second day. The decision to request a jury trial, instead of a judge only “bench trial,” is a strategic decision best left to the attorney. When questions of law predominate, the attorney will generally argue the law to the trial judge, and the facts take a secondary role. However, where the facts are in dispute, the attorney will generally want a jury trial to hear the case and make a decision.

Jury trials represent the culmination of the attorney’s case. The bench trial in the municipal or district court is often viewed by many experienced attorneys as a “discovery” mechanism to determine the strength of the state’s case and the credibility of the arresting officer and/or witness officers. Since the officer’s prior testimony is sworn and under oath, an experienced attorney will either tape-record and later transcribe the officer’s testimony, or employ a certified court reporter to record the officer’s testimony. It is not unusual for the arresting officer to have forgotten key facts between the time of the lower court trial and the jury trial in circuit court, or to misstate the facts altogether. An experienced trial lawyer will use these mistakes to the advantage of the client to show there is “reasonable doubt” in the prosecution’s case.

The prosecution must prove each element of the state’s case beyond a reasonable doubt. The defendant is presumed innocent as a matter of law. However, as noted in this Summary, Alabama’s DUI laws are clearly designed to assist the prosecution in obtaining a conviction. Alabama’s Implied Consent statute and the case law interpreting the DUI statutes nearly always favor the prosecution. Only an experienced and skilled criminal defense lawyer can overcome these obstacles and arrive at the verdict you desire- “Not Guilty!”

There are over 15,000 practicing attorneys in Alabama, but fewer than one thousand Alabama attorneys concentrate their practice in criminal defense. Even fewer, probably less than 40 attorneys state-wide, concentrate their practice in DUI and alcohol related offenses. It would be a mistake to think all attorneys are equally qualified to represent a DUI client. One of the biggest mistakes a person arrested for DUI can make is failing to seek out the legal services of an attorney who concentrates his or her practice in criminal defense and more importantly, in defense of DUI cases.

Some of the credentials in selecting an attorney for DUI defense are fairly obvious:

1. At a minimum, the attorney should concentrate his or her practice in criminal defense. An attorney who only rarely takes a criminal case is seriously handicapped in providing effective representation. The issues involved in criminal defense require a thorough knowledge of the Alabama Rules of Criminal Procedure, the Alabama Criminal Code, the Alabama Traffic Code, the Alabama Rules of Evidence, and other areas of statutory and procedural law directly related to criminal defense.
2. The attorney should have substantial trial experience. Prior experience as a criminal defense attorney is a distinct advantage in providing an effective defense to a DUI charge.
3. The attorney should be an active member of the The National College for DUI Defense. This organization limits its membership to highly qualified criminal defense lawyers who are specialists in DUI defense. Check the roster of active NCDD members by accessing www.ncdd.com.
4. The attorney should have in-depth knowledge of police techniques such as field sobriety tests, breath testing, field interrogation techniques, and other police procedure. This type of practical knowledge can only be obtained through years of experience, and most commonly by prior experience as a law enforcement officer or as a prosecuting attorney.
5. The attorney should have the available resources needed to devote to your case. This includes ready access to a private investigator to locate witnesses or verify the accuracy of the police report and the availability of forensic experts to review hospital reports, the breath test, or blood test results.

It is important that you ask the lawyer you are consulting the following questions while in the process of selecting the right lawyer for your DUI defense:

• How many criminal defense cases have you personally undertaken in the past 12 months? How many DUI cases have you personally undertaken in the past 12 months?
• Are you a member of the National College for DUI Defense? Do you attend the training programs sponsored by the NCDD?
• Have you attended any CLE programs in the past two years focusing on DUI defense? Have you ever instructed a CLE program on DUI defense?
• Have you written or published in a professional magazine or legal journal any articles on criminal law or DUI defense? Have you written a treatise or practitioner’s handbook on criminal law or DUI defense?

Normally, the attorney will conduct a very thorough interview of the motorist before accepting the case. The attorney will review the traffic tickets, the breath test report, and all written documents associated with the arrest. The initial interview will often require one hour to ninety minutes in length. Every facet of the case and the applicable law will be discussed. The interview is completely confidential and all information is held in strictest confidence. If the attorney decides to accept the case, the attorney will then offer the motorist a detailed written contract to review. If the motorist agrees to the terms of the contract, the motorist then becomes the client, and the attorney will then start the representation process.

The attorney will file a Notice of Appearance and Plea of Not Guilty on behalf of the client. The next step is to file a petition for administrative hearing with the Alabama Law Enforcement Agency. The petition for administrative hearing must be filed within ten (10) days of the arrest, or the license suspension will take effect in 45 days. The attorney will also file a petition for discovery on the district attorney to obtain all discoverable evidence permitted by law. The attorney will file a request for breath test data with the Department of Forensic Science. Then the attorney will undertake a very detailed investigation of the traffic stop and the scene of the arrest. Digital photos or video may be taken of the location of the arrest and the field sobriety tests. Additionally, the attorney may hire a private investigator to conduct a field investigation and locate witnesses who may offer favorable evidence to assist in defense of the case.

The attorney will also research applicable statutes and case law to determine legal defenses that may be utilized in this specific case and, if warranted, file a pre-trial motion to suppress the arrest on grounds the evidence was illegally obtained or failed to meet legal standards. Many DUI cases are won by the defense by successfully arguing pre-trial suppression motions. The time involved in preparation for an effective DUI defense will often exceed 15 to 20 hours of work prior to trial. The client should realize the key to an effective defense is preparation, preparation, and more preparation.

Attorney fees for defense of a misdemeanor DUI case can range from $1500 to $7500, with the average fee being approximately $3500 to $5000 for bench trial in the municipal or district court and a significantly higher fee for trial in the circuit court. In addition, the client will be responsible for payment of any “extra” fees such as the fee required to hire an expert witness, private investigator, accident reconstructionist, or other specialist.

The attorney’s fee is dependent on a number of factors which include:

• Whether the defendant has previously been convicted of DUI within the past 10 years, in or out of state, and whether the current offense a second, third, or fourth offense.
• Whether the motorist is currently on probation as a result of a previous DUI conviction.
• The defendant’s blood alcohol level at the time of arrest, especially if the blood alcohol level was .15% or greater, and any aggravating or mitigating factors.
• Whether or not the motorist is facing “double minimum punishment” under Alabama’s new DUI laws.
• Whether or not the motorist holds a commercial driver license (CDL).
• Whether or not the motorist holds or is seeking a “professional license” such as a medical doctor, registered nurse, pharmacist, attorney or law student, or any other licensure that requires notice of a DUI conviction to be reported to the state licensure board.
• Whether or not there was an accident involved in the DUI arrest and whether or not the accident involved injuries to any party.
• Whether or not any drug evidence was recovered as a result of the arrest.
• Whether or not the motorist resisted arrest or attempted to elude law enforcement, and the seriousness or number of underlying driving offenses leading up to the DUI arrest.

In cases where the motorist is arrested for fourth or subsequent (felony) DUI, the costs for an effective DUI defense will be significantly higher than for representation in a misdemeanor DUI case.

A defendant in a DUI case should never base his or her decision in selecting an attorney on cost alone. The highest priced attorney is not necessarily the best, nor will the least expensive attorney provide the most economical representation. It should be obvious that every defendant’s case is factually different from the next case, and each case must be determined on the facts and the law. DUI cases are especially complex and require an attorney to understand scientific principles as well as the legal process. The legal issues are wide-ranging and involve Constitutional law, search and seizure, due process, administrative law, and complex evidentiary issues. These legal issues intersect in a DUI case with the scientific areas of chemistry, biochemistry, physics, anatomy, physiology, pharmacology, and toxicology. For that reason, DUI defense requires an especially skilled and knowledgeable attorney to effectively represent the client. It is always in the best interest of the defendant to ask questions, conduct a thorough inquiry into the attorney’s credentials, and make an informed decision.

No ethical attorney will ever make any specific representation as to the eventual outcome of the case. It would be completely misleading and professionally unethical, as well as a violation of the Alabama Rules of Professional Conduct, to make an express or implied statement, or to offer a promise or a “guarantee” of any sort, that any particular result or desired outcome will be obtained in the case. Every DUI case is fact specific, and the facts in one case may vary significantly from the facts in another case. The attorney must apply the law to the facts of the case and strive to zealously represent the client within the bounds of the law.