New Alabama DUI Law 2011

Posted on November 30, 2011 by DUI Attorney

 Alabama DUI Law Update 2011

I.      Changes to DUI Statutory Law

In the summer of 2011 the Alabama Legislature passed two bills that made significant changes toAlabama’s DUI law.  Both bills were signed onJune 9, 2011by Gov. Bentley.  Both bills enhance the penalties for DUI convictions under certain conditions.  Each bill is designed to makeAlabamaeligible for additional federal funding.   The first bill (HB 361 / Act 2011-613) imposes a DUI Ignition Interlock requirement on those convicted of DUI if certain requirements are met.  The second bill (SB 67 / Act 2011-621) provides for enhanced punishment of DUI convicts with a .15 or higher BAC (blood alcohol content). There remains a legal issue as to whether the passage of the “.15 BAC or higher” bill nullifies the “interlock” bill.Alabamahas a constitutional provision that states when a statute is amended, the portions of the act that is extended, i. e. not stricken, must be re-enacted and published at length. Case law has interpreted these types of scenarios and says that the last pronouncement of the legislature controls. Alabama has a statute that attempts to salvage this situation by allowing the Code Commissioner to re-write a statute when two acts are passed in the same legislative session that do not conflict each other. It is left undecided as to whether such a statute can override and trump a state constitutional provision.

The Alabama Code Commissioner has now incorporated the changes of both bills into Alabama Code §§ 32-5A-191 and 191.4.  The updated law is now available on Westlaw and should soon be arriving in updated pocket parts for the printed Alabama Code.  Both bills became effective on September 1, 2011.  However, the implementation date of the changes found in the Interlock bill is not until September 1, 2012. While the new bills made substantial changes to Alabama’s DUI law, much remains the same. For example, the elements of DUI found in subsections (a)(1)-(5) remain unchanged.  Also, the administrative driver’s license suspension framework found in Alabama Code § 32-5A-300 through 308 remains unchanged.

 

A.     The High BAC Bill

Prior to the passage of this “over .15 BAC” bill, the same sentencing scheme applied to all persons convicted of an alcohol related DUI regardless of the person’s BAC level.  Under the new law, if a BAC of .15 or greater is proven:  “he or she shall be sentenced to at least double the minimum punishment that the person would have received if he or she had had less than 0.15 [BAC].”  Ala. Code § 32-5A-191(i). Further, DPS is to revoke the driving privileges or driver’s license of the person convicted for a period of not less than one year.  Id.  There is an apparent discrepancy between the new .15 law and existing law as it relates to driver’s license suspensions. This will be discussed below.

Subsection (i) of the .15 DUI statute goes on to state that “If the adjudicated offense is a misdemeanor, the minimum punishment shall be imprisonment for one year.” Id.  All of the sentence may be suspended if the misdemeanor DUI is a first offense.  If it is a second conviction within five years, then at least ten days of the sentence must be served or 60 days of community service.  If it is a third conviction, then at least 120 days must be served.

If the DUI is a fourth offense, felony DUI, then the person convicted is facing, under the new law, a minimum sentence of two years and two days.

The new law does not expressly state whether “double the minimum punishment” includes doubling of just terms of imprisonment or if it includes fines, etc. It is this writer’s opinion that the fines would be doubled, since they are a part of the punishment.

The Driver’s License Discrepancy

As it turns out there is a discrepancy regarding the “not less than one year” license revocation under the .15 statute and the existing up-front driver’s license suspension laws found at Section 32-5A-300 et seq. Under Alabama’s administrative driver’s license suspension statutes, a person who is arrested for DUI and blows .08 or greater will typically have his or her driver’s license suspended for only 90 days (as long as his or her driving record “shows no prior alcohol or drug-related contacts during the immediately preceding five years”). Ala. Code § 32-5A-304(b)(1). No distinction is made in the administrative suspension statutes between BACs above or below .15.  The discrepancy lies in the fact that the administrative suspension statutes go on to say that:

If a license is suspended under this section for having .08 [BAC] and the person is also convicted [under the DUI statute], the suspension under this section shall be imposed, but no other period of suspension or revocation shall be imposed under [the DUI statute].

Ala. Code § 32-5A-304(c).  Thus, if a DUI arrestee’s license is administratively suspended for blowing .08 or greater, he or she is not subject to the one year revocation for .15 or greater DUI convictions.  The Attorney General recently agreed with this interpretation of the law in aNovember 8, 2011 Attorney General Opinion, a copy of which is included with these materials.

 

B.     The Ignition Interlock Bill

In 2011 Alabama became the 50th state to enact an ignition interlock law. Alabama joins a growing number of states that require mandatory ignition interlocks for BAC’s of .15 or higher and that require interlocks for repeat offenders.  Many other states leave the imposition of ignition interlocks to the discretion of the trial judge.

An ignition interlock device is a device that is wired to a vehicle’s ignition system. In order for the vehicle to start, the person must blow a breath sample into the device and the resulting breath alcohol must register below a .02%. If the subject’s breath alcohol is higher than .02%, then the vehicle will not start.  Under the new law defendants convicted of a second offense DUI (within 5 years) or a third or subsequent offense DUI (within 5 years) will be required to have a ignition interlock device installed in their vehicle as part of their DUI sentence.  Even some first-time DUI offenders are subject to the new interlock law.  More specifically, four classes of DUI first offenders are subject to mandatory ignition interlock: defendants with a BAC of .15 or greater, defendants who refuse to provide a BAC sample, defendants who had a passenger under 14 years of age in the vehicle, and defendants who had the misfortune of injuring or being involved in an occurrence that injured someone other than themselves.

There are various costs related to the interlock which must be paid by the defendant.  These will be discussed in some detail later.  One of the most retributive requirements for those convicted under the new law, is the requirement that the person get a “scarlet letter” driver’s license.   The “scarlet letter” license must display that the person’s driving privileges are subject to the condition of the installation and use of an interlock.  Thus, whenever the person shows their driver’s license as identification, he or she will be exposed as a DUI convict.

How long is a person subjected to the interlock requirement?

If the defendant was over 21years old and there was a passenger under 14 years old, then the interlock period could be even longer.

When does the interlock period begin to run? 

The period for which the person’s driving privilege is subject to an interlock device does not begin to run until the date of issuance of a “scarlet letter” driver’s license.  Since the person cannot get a new driver’s license until after the mandatory driver’s license suspension/revocation is over, the earliest starting date for the interlock period is the end of the suspension/revocation period.

The new law further requires that “When the court imposes the use of an ignition interlock device …, the court shall require that the person provide proof of installation of a device to the court or probation officer within 30 days.”  Ala. Code § 32-5A-191.4(g)(1). It goes on to state that “If the person fails to provide proof of installation within that period, absent a finding by the court of good cause for the failure which is entered into the court record, the court shall revoke the person’s probation.”  Id.  Unfortunately, the new law does not answer within 30 days of what.

Interlock Driving Violations vs. Criminal Offenses

It should be pointed out that in this act there are certain wrongs that if committed would merely extend the period of time that the offender would be required to use the interlock device. These are referred to as “Interlock Driving Violations” or an “IDV”.  [See § 32-5A-191(t)(3)] Other wrongs are classified as actual criminal offenses with a built in habitual offender scheme. These new crimes are found in Section 32-5A-191.4(h) for the offender and for crimes for people other than the offender we look to Section 32-5A-191.4(j) and (k).

Extension of the Interlock Period

There are several things that can occur during the interlock period that can extend the length of time the person is subject to the interlock.  If the interlock device registers readings at .02 or above more than four times during a monthly reporting period, then the interlock period will be extended for six months from the date of violation. Ala. Code § 32-5A-191(v)(3).  Likewise, (1) succeeding or attempting to tamper, circumvent or bypass the interlock device or (2) failing to comply with servicing or calibration requirements every thirty days, can result in a six month extension.  Id.  The defendant is also subject to a six month extension if convicted of one of the misdemeanor offenses set forth in Alabama Code § 32-5A-191.4(h).  These offenses are discussed below under the heading “New Criminal Offenses Related to Interlocks.”

How much will the Interlock cost?

Persons sentenced to an interlock must pay the court $75 dollars per month during the first four months of their driver’s license suspension.  Ala Code § 32-5A191(s).  However, (s) is silent as to what happens with first time offenders who only have their licenses suspended for 90 days, less than four months.  Perhaps they get away without paying the last $75 installment, perhaps not.  These funds are divided as follows:  the Alabama Interlock Indigent Fund – 40%, the court of jurisdiction – 25%, the Department of Public Safety – 20%, and the district attorney of jurisdiction – 15%.

The defendant will also have to pay a third party interlock device provider to purchase/lease, install and calibrate the interlock device.  The device will have to be calibrated monthly, so this could get quite expensive.  Special rules apply for indigent defendants and defendants without a motor vehicle.

DPS may set a fee of not more than $150 for the issuance of the required “scarlet letter” driver’s license.  A 15% cut of this fee is to go to the general fund of the county where the defendant was convicted.  At the end of the interlock period, DPS can charge a fee of up to $75 to reissue a regular driver’s license.

What is an “ignition interlock device”?

The new law defines “ignition interlock device” as “a constant monitoring device that prevents a motor vehicle from being started at any time without first determining the equivalent blood alcohol level of the operator through the taking of a breath sample for testing.”  Ala. Code § 32-5A-191.4.  The law goes on to say the interlock must be calibrated so that the vehicle will not start if a BAC of .02 or greater is measured.

Who installs, calibrates and maintains the interlocks?

The new law sets up a frame work where private businesses actually install and calibrate the interlocks under rules that are to be promulgated by the Department of Forensic Sciences.  Because the Department of Forensic Sciences has not created these rules yet, many of the details of how the system will work are still unknown.

What brand or model interlock devices may be used?

We do not know yet.  The new law gives the Department of Forensic Sciences the responsibility to maintain and make public a list of approved ignition interlock devices, but this list has not be compiled yet.

What about indigent defendants?

A defendant can apply to the court for indigent status and, if found to be indigent, will only have to pay ½ of the costs associated with installing and maintaining an interlock device.  The criteria for indigency status is the same as that set forth in Alabama Code § 15-12-5.  How does the state plan to pay for this?  The new law provides that all interlock providers are required to pay 1.5% of all payments collected to the Alabama Interlock Indigent Fund in the State Treasury.

What about defendants who do not have a motor vehicle?

A defendant who does not own a vehicle will be required to pay $75 per month, which the new law states is “the same approximate cost the defendant would have paid to an ignition interlock provider if the defendant had an interlock device installed.” Ala. Code § 32-5A-191.4(g)(6).

New Criminal Offenses Related to Interlocks

Under the new law it is a Class A misdemeanor for a person who is sentenced to an interlock to “Operate, lease, or borrow a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device.” Ala. Code § 32-5A-191.4(h)-(i).  It is also a Class A misdemeanor to “Request or solicit any other person to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing the person so restricted with an operable motor vehicle.

For criminal offenses committed by people other than the offender, we refer to Section 32-5A-191.4(j)-(k). (j) “No person shall blow into an ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person who is prohibited from operating a motor vehicle without an ignition interlock device.” (k) No person shall intentionally attempt to tamper with, defeat, or circumvent the operation of an ignition interlock device.” If convicted of either of these offenses, the person convicted is punished up to 6 months in jail and or a fine of up to $500.

Did SB 67 (the High BAC bill) repeal the provisions of HB 361 (the Interlock bill)?

The High BAC bill was signed by Governor Bentley 23 minutes after he signed the Interlock Bill into law.  The High BAC bill did not include any of the new substantive provisions of the Interlock bill.  The question arises of whether the High BAC bill repealed the Interlock bill or if the two are to be integrated together.  On November 8, 2011 the Attorney General’s office issued an opinion dealing with this question. A copy of the Opinion is attached included with these materials.  The Attorney General’s opinion is that the later bill did not repeal the earlier bill, and that the two bills can be incorporated together by the Code Commissioner under the authority granted to the Commissioner in Alabama Code § 29-7-8(a)(11).  The gist of Section 29-7-8(a)(11) is that, if a code section is amended by more than one act in the same legislative session, the Code Commissioner can incorporate into one or more code sections the changes from the different bills “if each of the [changes] are not in substantive conflict.” Id. (underlining added).  It is the opinion of the Attorney General that there is no substantive conflict.  As mentioned in the opening paragraphs, the real question here is whether the code commissioner provision can trump the Alabama state constitution, which clearly states that when amending a code section the previous portion of the act that will remain in effect shall be stated in its entirety. It remains to be seen if the courts will agree with the code Attorney General on this one. As a closing comment, this act is so poorly written that it really should go back to the drawing board. For example, Alabama has a law that says that an individual can only be on probation for a misdemeanor offense (1st, 2nd or 3rd DUI in a five year period) for a time period of two years. An offender who is a 3rd offender will only be subject to an interlock device after they get re-licensed. The license revocation period for a 3rd offender is three years. The person will long since be removed from any oversight of the sentencing court. It seem that the burden is being placed on the Department of Public Safety to oversee the enormous nuances of this act. This agency is already operating at full power. We will just have to wait and see.

 

II.   DUI Case Law Update

While 2011 has been a big year for statutory DUI law, it has been a lackluster year for case law interpreting Alabama’s DUI statute.  Only one case interpreting the DUI statute has been decided by Alabama Court of Criminal Appeals, and none have been decided by the Alabama Supreme Court.  However, the United State Supreme Court did decide a case dealing with the application of the Confrontation Clause to lab reports, which is relevant to DUI trial practice.

Shirley v. Alabama Department of Corrections, 68 So.3d 892 (Ala., Feb. 25, 2011).

While Mr. Shirley was on probation for a felony DUI conviction, he was convicted for yet another DUI. This led to his probation for the felony DUI being revoked.  Shirley filed a petition for a writ of habeas corpus in the trial court where he was convicted of the felony DUI, arguing that the trial court in that case had lacked jurisdiction to use his three prior municipal DUI convictions to enhance that DUI to a felony.  Shirley appealed after the trial denied his petition, and the Alabama Court of Criminal Appeals reversed the trial court.  Referencing Ex parte Holbert, 4 So. 3d 410 (Ala. 2008), the Court of Criminal Appeals noted that municipal convictions for DUI are not convictions for violations of Alabama’s DUI statute (§ 32-5A-191) and, thus, do not count toward the felony enhancement applicable to a fourth or subsequent DUI conviction set forth in § 32-5A-191(h).  This is true even where the municipal ordinance adopts the language of Alabama’s DUI statute verbatim.  The Court of Criminal Appeals stated that because the issue of the use of municipal convictions for felony enhancement was a jurisdictional matter, the circuit court erred when it held that the issue was precluded because Shirley had failed to appeal his original conviction.  The Court of Appeals further held that because Shirley was illegally sentenced for a felony based on the municipal convictions, the trial court erred in denying his writ of habeas corpus.

Bullcoming v. New Mexico, 131 S. Ct. 2705 (June 23, 2011).

Bullcoming was tried before a jury and convicted of aggravated DUI in a New Mexico state court.  The principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was above the limit for aggravated DUI in New Mexico.  A blood sample taken from Bullcoming had been tested at a state lab by a forensic analyst who completed, signed, and certified the lab report. The report was admitted into evidence despite the fact that the prosecution never called the analyst to testify nor asserted that he was unavailable.  In lieu of calling the analyst who performed the test, the prosecution called another analyst to validate the lab report.  Although the other analyst was familiar with the testing device used to analyze the blood and the laboratories test procedures, he did not participate or observe the test done on Bullcoming’s blood sample.  At trial the report was admitted over objection as a business record.

On appeal, the New Mexico Supreme Court held that the admission of the lab report did not violate the Confrontation Clause because the missing analyst was a mere scrivener who simply transcribed machine-generated test results and because the analyst who did testify, although he did not participate in the test, was qualified as an expert witness with respect to the testing machine and laboratory procedures.

The U.S. Supreme Court Reversed the New Mexico Supreme Court and held that the admission of the lab report violated the Confrontation Clause.  The Court held that the Confrontation Clause, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.  The accused has the right to be confronted with the analyst who made the certification, unless that analyst is unavailable for trial, and the accused had an opportunity, pretrial, to cross-examine the particular analyst.

The Court noted that the certification reported more than just machine generated data – It essentially asserted that the analyst received the sample sealed and intact, that the forensic report number and the sample number corresponded, that the test was performed on the sample and was performed properly, etc.  These representations, related to events and human actions not just data produced by a machine.  These assertions are properly the subject of cross-examination.

The Court also noted that its prior decision in Melendez-Diaz, 129 S. Ct. 2527 (2009), precluded the prosecution’s argument that the lab report did not implicate the Confrontation Clause because the report was non-testimonial.  The Court noted that like the certificates in Melendez-Diaz, the lab report was an affirmation made for the purpose of establishing or proving some fact in a criminal proceeding.  The report was created solely for an evidentiary purpose and is testimonial.

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