Alabama DUI, Traffic, and Driver License Law Handbook

Second Edition

A Guide to Alabama DUI, Traffic, and Driver License Law with Practitioner’s Notes

INDEX

Foreword

Authors and Contributors...... vii-ix

Goal of this Handbook...... 1

Introduction and Overview...... 2

Alabama’s first DUI statute and subsequent enactments...... 2

Necessity for specialized training...... 5

How did Alabama’s DUI law evolve?...... 6

The 1980 Driving Under the Influence statute...... 9

Alabama DUI trends, 1980-2005...... 13

32-5A-191 in a nutshell...... 14

Amendments since enactment...... 15

Supplemental and supporting legislation...... 18

Simplified theory of breath testing...... 20

Part I. Statutes: Construction and Interpretation; Jurisdiction

  1. Recent Legislation and cases of importance...... 22
  2. DUI Defined...... 26
  3. Challenges on Constitutional and statutory grounds...... 30
  4. Alabama Implied Consent Statute...... 32
  5. Jurisdiction, in general...... 34
  6. Jurisdiction, juveniles and persons under 18...... 35
  7. Jurisdiction, municipal courts and municipal officers...... 36
  8. Jurisdiction, complaints and indictments...... 38
  9. Jurisdiction where district attorney elects not to proceed...... 44

Part II. Jeopardy Issues

  1. Jeopardy, U.S. Supreme Court cases...... 45
  2. Jeopardy, Alabama Appellate Court cases...... 46
  3. Jeopardy and Forfeiture...... 51

Part III. Juvenile and Youthful Offender Issues

  1. Prosecution of Juvenile and Youthful Offender...... 55
  2. Driver License Issues Involving Juveniles and Youthful Offender...... 60

Part IV. Arrest

  1. Reasonable Suspicion to Stop, in General...... 62
  2. Reasonable Suspicion to Stop, Anonymous Tips...... 63
  3. Reasonable Suspicion to Stop, specific criminal offense or traffic violation....68
  4. Probable Cause to arrest...... 73
  5. Arrest on other grounds...... 79
  6. Questioning the Motorist...... 79
  7. Arrest Warrants...... 84
  8. Detaining Motorists and Miscellaneous Matters...... 86
  9. Passengers...... 96
  10. Taking Before a Magistrate...... 98
  11. Resisting Arrest, Escape, and Attempting to Elude...... 100

Part V. Roadblocks

  1. Constitutional Issues...... 103
  2. Alabama Cases Interpreting Roadblock Seizures...... 105

Part VI. Searches and Seizures

  1. Consent to Search...... 112
  2. Plain View...... 115
  3. Informers and Tips...... 117
  4. Probable Cause to Search, in general...... 117
  5. Probable Cause to Search, odor of marijuana...... 120
  6. Scope of Search...... 122
  7. Incident to Arrest...... 122
  8. Inventory Search and Impounding Vehicles...... 124

VIII. Field Sobriety Tests

  1. In General...... 126
  2. Horizontal Gaze Nystagmus (HGN)...... 130
  3. Alco-Sensor...... 132

IX. UTTC, Complaint, Information, Indictment

  1. Sufficiency of Charge...... 134
  2. Verification of the UTTC...... 141
  3. UTTC Procedure for Leaving the Scene of Accident...... 147
  4. Amendment of the Complaint...... 147
  5. Miscitations, Errors, and Mistaken Information on UTTC...... 152
  6. UTTC Procedure for Arrest after Hospitalization...... 153
  7. Statute of Limitations...... 154
  8. Forgery by Providing False Information for UTTC...... 154

X. Chemical Test for Intoxication

  1. Statutory Authority...... 156
  2. Admissibility-Predicate...... 156
  3. In General...... 156
  4. Breath Tests...... 158
  5. Blood Tests...... 169
  6. Photo-Electric Intoximeter (PEI)...... 175
  7. Time Factor and Deficient Sample; Test Administration...... 182
  8. Assimilative Crimes Act; Federal Courts...... 184
  9. Breath Test for Reasons Other than DUI...... 185
  10. Chain of Custody...... 185
  11. Arrest Required...... 187
  12. Reasonable Grounds to Believe Driving Under the Influence...... 195
  13. Refusal...... 196
  14. Independent Tests...... 200
  15. Warning of Constitutional or Statutory Rights...... 202

XI. Evidence

  1. Pre-trial discovery...... 205
  2. Sufficiency of Evidence to Support Conviction...... 205
  3. In General...... 205
  4. Evidence Found to Be Sufficient...... 209
  5. Evidence Found to Be Insufficient...... 217
  6. Actual Physical Control...... 218
  7. Proof of Municipal Ordinance...... 221
  8. Venue...... 224
  9. Opinion Testimony and Expert Testimony...... 225
  10. Breath and Blood Test...... 225
  11. Accident Investigation and Reconstruction...... 227
  12. Judicial Notice...... 232
  13. Presumptions...... 233
  14. Admissibility of Specific Evidence or Testimony...... 234

XII. Trial

  1. Right to Counsel...... 245
  2. Arraignment...... 247
  3. Jury...... 247
  4. Witness and Subpoenas...... 250
  5. Discovery...... 251
  6. New Trial...... 252
  7. Defenses...... 253
  8. Miscellaneous...... 255

XIII. Sentence

  1. Jurisdiction...... 256
  2. In General...... 258
  3. Sentencing and Prior Record...... 258
  4. Service of Sentence...... 262
  5. DUI Conviction- Immigration and Sentencing Guidelines...... 262
  6. Probation...... 263
  7. Disproportionate Sentence...... 265
  8. Vindictiveness...... 266
  9. Enhancement...... 268

XIV. Appeals

  1. Appeals in General...... 269
  2. Appeals by the Prosecution...... 278
  3. Abatement of Appeal by Death...... 280

XV. Police Civil Liability

  1. Alabama Cases Involving Alcohol Related Offenses...... 282
  2. Pursuit Driving Liability and Related Matters...... 286

XVI. Miscellaneous Alabama Civil Actions and Cases Involving Alcohol, Use of Automobiles, and Related Issues

  1. Negligence, Contributory Negligence, and Wantonness...... 292
  2. Civil - Application of “Guest Statute”...... 294
  3. Civil - Construction of Terms of Coverage of Automobile Insurance Policy as Result of Deliberate Traffic Violations 298
  4. Civil - Judgments and Damages...... 300

XVII. Miscellaneous Criminal Offenses Relating to Use of Automobile, Driver License and Registration, and Related Matters

  1. Truck and Commercial Vehicle Enforcement...... 305
  2. Leaving Scene of Accident...... 305
  3. Driving With Canceled, Revoked or Suspended License...... 306
  4. Homicide/Murder/Manslaughter/Assault by Use of a Vehicle...... 309
  5. Miscellaneous Offenses...... 320

XVIII. Driver License Law

  1. Driver License Law; Due Process...... 323
  2. Driver License Removal Authority and Duration...... 329
  3. Driver License Issuance...... 335
  4. Driver License Required...... 337
  5. Administrative License Suspension for DUI Related Offenses...... 341
  6. Statutory Suspension or Revocation for Non-DUI Offenses...... 342
  7. Driver License Suspensions and Revocations Based on DUI orDUI Related Cases 344
  8. Miscellaneous Driver License Cases...... 353

Annex A. Alabama Breath Test Instrumentation...... 358

Index...... 422

About the Authors

William M. Bowen is an attorney in private practice in Birmingham, Alabama with the firm of White, Arnold, Andrews, and Dowd, P.C. Mr. Bowen graduated from Samford University, cum laude, in 1969 and then attended Cumberland School of Law, receiving his juris doctorate in 1972. He was admitted to the Alabama bar in May 1973. From 1973 until 1976, Mr. Bowen practiced in the state and federal courts as an assistant attorney general for the State of Alabama.

In 1976, Mr. Bowen was elected to the Court of Criminal Appeals after a contested state-wide campaign. At the age of 29, he was the youngest appellate judge in the nation. He was re-elected without opposition in 1982 and again in 1988. Judge Bowen retired from the Court in January 1995, after three full terms of office. He was the Presiding judge of the Court of Criminal Appeals from 1983 through 1988 and again from 1992 to 1995. At the time of his retirement, Judge Bowen had written more published opinions than any other appellate judge in the history of the State of Alabama.

In addition to his judicial service to the state of Alabama, Mr. Bowen has served on numerous judicial and governmental committees, including the Advisory Committee on the Rules of Criminal Procedure, Standing Committee on the Rules of Conduct and Canons of Judicial Ethics, Prison Reform Task Force, and Board of Directors of the Sentencing Institute.

Patrick Mahaney is a criminal defense attorney in Montgomery, Alabama, concentrating his practice in defense of DUI, drug violations, and driver license cases. He also serves as local counsel to the Alabama Police Benevolent Association and represents P.B.A. members in employment law issues.

Mr. Mahaney served twenty-two years as a state trooper with the Alabama Department of Public Safety (1978-2000), including duty in uniform patrol, headquarters staff, and as assistant legal counsel for the Department. After retirement from state service, Mr. Mahaney served overseas with the U.S. State Department’s civilian police programs in Kosovo, Jordan, and Iraq where he supervised police reform and development efforts. He served 18 months in Iraq as the executive officer for the U.S. Department of State’s civilian police mission.

Mr. Mahaney received his B.A. from The Citadel, Charleston, S.C. and his law degree from Jones School of Law in Montgomery, Alabama. He was admitted to the Alabama state bar in 1989 and is member of the bar of the state of Alabama and the federal courts, to include the U.S. Supreme Court.

Special Contributor

Dale A. Carpenter, Ph.D. served as technical consultant and special contributor for this publication. Dr. Carpenter is the Technical Director for the Chemical Test for Intoxication Program at the Alabama Department of Forensic Sciences, located in Calera, Alabama. Dr. Carpenter received his formal training in chemistry earning the Bachelor of Science Degree from West Virginia University in 1983 and the Doctor of Philosophy Degree from the University of South Carolina in 1990. Dr. Carpenter has served as a forensic toxicologist since 1988 working for both the South Carolina Law Enforcement Division and Virginia’s Division of Forensic Science prior to his arrival in Alabama in 1997. Dr. Carpenter is a noted authority on breath testing theory and practice and is a frequent contributor of articles in scientific publications concerning breath testing.

Reviewer for the Second Edition

Jim Vickrey, J.D., Ph.D., served as reviewer for the second edition. Dr. Vickrey is professor of speech communications, Troy University, and is active in the Montgomery County bar association and Alabama state bar. Dr. Vickrey has been published in the Alabama Lawyer, the official publication for the Alabama State Bar. Dr. Vickrey maintains an active mediation practice, in addition to his instructional duties.

Dr. Vickrey received his B.A. from Auburn University in 1965. He later received his M.A. and Ph.D degrees from Florida State University, and his J.D. from Jones School of Law. Dr. Vickrey is the past president of the University of Montevallo (1977-1988) and has served for over thirty-five years in higher education as a college professor, administrator, and institution president.

Content Editor

Walter Robert “Robb” Farmer, J.D., M.L.I.S, served as content editor for this publication. Mr. Farmer is the Reference/Instructional Librarian for the Jones School of Law Library. Prior to coming to Jones School of Law in 2005, Robb worked as a reference librarian at the Arizona State University School of Law in Tempe, Arizona.

Mr. Farmer received his B.A. degree from the University of Louisville. He holds a law degree and a Masters Degree in Library Science, both from the University of Kentucky. He previously practiced law in Kentucky, Arizona, Nevada and California, primarily focusing in multi-jurisdictional litigation; criminal defense; personal injury; and consumer bankruptcy. Robb is an active member of the Kentucky Bar Association, the American Association of Law Libraries, and the Law Libraries Association of Alabama.

Comments, Suggestions, Recommendations, and Corrections

The authors invite the readers’ comments, suggestions, recommendations, and corrections. This publication is specifically written and designed for those working in the area of DUI law and related areas. The authors gratefully appreciate any constructive advice or criticism from members of the bench and bar, as well as officers from the law enforcement community. Please address your comments to:

Patrick Mahaney

Law Office of Patrick Mahaney

505 South Perry St.

Montgomery, Alabama 36104

(334) 264-5054

e-mail:

Information in this publication current through December 10, 2007

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