Under Alabama law, a person can be charged with the offense of Driving Under the Influence (“DUI”) if he or she is found in control of a vehicle while under the influence of alcohol, under the influence of a controlled substance, under the combined influence of alcohol and a controlled substance or under the influence of a substance that impairs such person’s mental or physical facilities.  In other words, being under the influence refers to a person’s impaired ability, whether physical or mental, to be in control of a vehicle in the state of Alabama. If you were arrested for driving under the influence contact a Daphne DUI attorney.

A person can also be arrested for DUI even if his or her ability to drive is not impaired.  According to Alabama’s per se laws, it is a criminal offense to be in control of a vehicle with a blood alcohol level of 0.08% or higher.  This means that prosecution of an individual who has violated this per se limit of 0.08% is simply based on body chemistry notwithstanding the manner in which such individual is operating the vehicle.

It is however important to note that being arrested and charged with DUI does not automatically mean that a person will be convicted of DUI.  In order to obtain a conviction, the state must prove all of the elements of the offence.  That is, the prosecutor must show beyond a reasonable doubt that the person charged with DUI was in physical control of a vehicle and that the person was under the influence in one of the ways articulated above.

To have physical control of a vehicle does not mean that you have to be driving the vehicle.  You could be arrested for DUI even if you were merely in the vehicle, sleeping in the vehicle or sitting in a vehicle.  The courts in Alabama have generally defined “actual physical control” of a vehicle to mean “exclusive physical power, and present ability, to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment.”  Determining what constitutes physical control however is a flexible test that must be based on the “totality of the circumstances”.  This means that in each individual case, the courts will consider all of the circumstances surrounding the incident in question in order to determine whether the person charged was in “actual physical control”.

Alabama law defines vehicles to include cars, trucks, motorcycles, and other automotives.  Interestingly, bicycles and animals that can be ridden, such as horses, could also be considered a vehicle for the purposes of DUI.

The crux of the matter in most DUI cases is whether the person was actually under the influence of alcohol or other drug that altered the person’s mental or physical facilities.  Proving whether someone is “under the influence” is generally done through chemical tests, eye witness testimony, or other circumstantial evidence that is found to be admissible.

If you are legally arrested for DUI in Alabama, you will be required to submit to a chemical test of your blood, breath or urine.  While you may refuse to agree to such a test, your license may be suspended.  Further, your refusal to test could also be used by the prosecutor in the criminal case against you to indicate a perception of guilt.  An experienced DUI lawyer can not only rebut such perception and arguments, he may also be able to get certain evidence excluded from a DUI trial.  For example, there are many factors that may influence a chemical test such as fumes in the air, improper calibration, belching, the presence of blood or vomit in the mouth, or failure to properly calibrate the testing instrument.

The lawyers at Caldwell Wenzel & Asthana, PC have extensive experience in successfully handling hundreds of DUI cases in the state of Alabama.  We are extremely familiar with the courts, knowledgeable of plea bargain details, and are capable in navigating the complex administration procedures.  We are ready to answer all your questions, to explain what impact a DUI arrest would have on your driver’s license and the punishment and penalties you might face.  But most importantly, we are very skilled at advising you on how to best defend your case.

Alabama DUI Penalties

First and foremost, it is important to understand that Alabama has an Implied Consent Statute.  This essentially means that by operating a vehicle on a public road in the state of Alabama, drivers must consent to chemical test requests upon being lawfully arrested for DUI or face a 90 day suspension of their driver’s license.  This suspension is separate from and in addition to the DUI charge and if you believe that the police officer did not have reasonable grounds to stop you for DUI then you should consult with a DUI lawyer, who can help you prepare a challenge to the suspension.  This should be done as soon as possible following your arrest because there is only a 10 day window from the time of your arrest to challenge this suspension.

You may be tempted not to submit the chemical test, but failing to do so may have serious consequences.  If you are arrested for an alcohol related driving offense then your license will be administratively suspended anyway under Code of Alabama, 1975, section 32-5A-300 thru 309.  If, however, you refuse the chemical test and then are subsequently convicted of DUI you will face an additional 90 day suspension of your license further to any penalties imposed due to the DUI conviction.

You should know that a first offense DUI conviction carries a sentence of one or all of the following: up to a year in jail; a fine of $600-$2100; and a license suspension for 90 days.

A second conviction can result in up to a year in jail; a fine of $1100-$5100; and a license revocation for one year.  A second conviction also carries a mandatory 5 day jail sentence or, a minimum of 30 days of community service.

If you are convicted of DUI a third time, then you potentially face 60 days to one year in jail; a fine of $2100-$10,000; and a 3 year revocation of your license.  A third DUI conviction results in a mandatory minimum sentence of 60 days in jail.

A fourth DUI conviction in Alabama is a class “C” felony and you could be sentenced to any or all of the following:  1-10 years in jail; a fine of $4,100 – $10,100; ordered to complete a certified chemical dependency program; and a license revocation of up to 5 years.  A fourth DUI conviction carries a mandatory 1 year and 1 day jail sentence in Alabama.

The time period considered by the court for the purposes of determining whether the conviction qualifies as a second, third, or fourth offense is five years.  In other words, if you are convicted of a DUI then the court will look back over the past five years to determine whether you have another DUI which would subject you to additional punishment.  Every five years the time period resets.  For example, if you were convicted of DUI in 2012 and had a previous DUI conviction in 2009, then you would be a second time offender and would be sentenced under the guidelines discussed above accordingly.  On the other hand, if you were convicted of DUI in 2012, but had a previous DUI conviction in 2005, then you would be treated as a first time offender since the previous conviction occurred more than 5 years before the current one.  It is important to keep in mind that a previous DUI conviction need not have been in this state for the look back period to apply, it could have been in any other state or territory.

Further to the above fines and penalties, your sentence will be double the minimum punishment if your BAC is found to be 0.15 percent or higher or if you are over the age of 21 and have a minor in the vehicle aged 14 years or younger at the time of your conviction.  Moreover, for a first DUI offense of BAC of 0.15 percent or higher, you will face a 1 year license revocation rather than a 90 day suspension.

Additionally, if you are convicted of a DUI and have a prior DUI conviction in Alabama or in another state within a five year period, then your motor vehicle registration will be suspended by the Alabama Department of revenue for the same period as the corresponding driver’s license suspension unless such a suspension would impose an undue hardship on another individual who is dependent on that vehicle for everyday necessities.

The Alabama legislature has also recently passed new laws that require ignition interlock devices to be installed on the vehicles of those convicted of DUI under certain circumstances (See our section on ignition interlock devices for more information).

The bottom line is that DUI convictions are very costly and potentially life-altering.  The laws are becoming increasingly strict and carry severe sentences.  If you are arrested for DUI then you will need a lawyer to assist you with your case.  At Caldwell Wenzel & Asthana, PC we have experience in handling DUI cases, and we will vigorously defend your case.

Should You Submit to a Roadside Breath Test?

In the state of Alabama, if a law enforcement officer makes a roadside stop based on reasonable suspicion or probable cause relating to DUI, he or she may ask you to submit to a breath test, also known as breathalyzer.  You should refuse to take this roadside breath test.  It is your right to say no to this roadside breath test and there is no punishment or penalty that attaches to such refusal.  Please note that this does not apply to individuals who are on parole or under the age of 21 years.

A breathalyzer is used to estimate the concentration of alcohol in your breath and if conducted, the result may lead to your arrest and could be used as evidence in your criminal trial for DUI.  According to Alabama law, it is a criminal offense to be in actual physical control of a vehicle with a blood alcohol content of 0.08% or higher.  As a result, if you submit to a breath test and the test reveals that your blood alcohol content is at least 0.08%, the result of your test will provide law enforcement officers with probable cause to arrest you for DUI.

There are several good reasons to decline taking the roadside breath test.  While the roadside is not the ideal place for any form of tests, law enforcement officers are often inadequately trained on how to properly use a breath analyzer.  For instance, an officer who is in charge of maintaining the breath analyzers might set the baseline alcohol concentration levels incorrectly.  Furthermore, the breath analyzers could themselves be inaccurate and unreliable.  For example, breath analyzers are calibrated in relation to an average person.  But what if the person taking the roadside breath test is not the typical average person?  Or what if this person has slow metabolism or suffers from diabetes or acid reflux?  Such individualistic characteristics could impact the accuracy of the breath analyzer results.

The advice of our DUI attorneys at Caldwell Wenzel & Asthana, PC is that as a general rule you should not submit to a roadside breath test.  In the event that you have already taken this test, we can help you challenge and refute such test results.  The DUI lawyers at Caldwell Wenzel & Asthana, PC have experience in defending DUI cases and are ready to do the same for you!

DUI Stops and Reasonable Suspicion

The fourth amendment of the United States Constitution protects people from unreasonable searches and seizures.  A search or seizure is presumptively unreasonable if it is not conducted pursuant to a lawful arrest or executed without a valid search warrant.  So, are traffic stops unreasonable seizures since they typically occur without lawful arrests and without warrants?  Unsurprisingly, the answer is no.  The Supreme Court of the United States has stated that some limited searches and seizures do not violate the fourth amendment.

The leading case on this issue arose in 1968 in Terry v. Ohio 392 U.S. 1 (1968).  In Terry a police officer conducted a search of three suspects without first placing them under arrest and without probable cause to arrest.  The suspects challenged the arrest under their fourth amendment rights to be protected from unreasonable searches.  The Supreme Court ruled in Terry that searches are lawful if the law officer conducting the search has an “articulate and reasonable” suspicion that a “person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.”  In Terry, the searching officer had observed the suspects scoping out a store and having conversations with each other in a way that led him to “suspect” that they were about to rob the store and that they may be armed.  The Supreme Court found that these observations in light of all of the surrounding circumstances were enough to effectuate a brief detention and a frisk search for dangerous weapons.

In later cases the Supreme Court extended the same reasoning to traffic stops.  The law enforcement officer need only have a reasonable suspicion of criminal activity in order to stop a vehicle for a brief detention necessary to carry out the purpose of the stop.  In order to search further, the law enforcement officer must have probable cause to make an arrest and even then there are limits to what may be searched and how the search may be conducted.

So, what observations by a law officer will amount to reasonable suspicion?  You will probably not find it surprising that acts such as speeding, obvious traffic violations, and erratic driving are enough to meet the reasonable suspicion threshold for a traffic stop, which can lead to a DUI arrest.  On the other hand, simply being present in a “high crime area” or sleeping in a lawfully parked car will generally not be enough to ground reasonable suspicion necessary for a detention under the Terrystandard.

Despite the reasonable suspicion requirement, law enforcement officers are imperfect and are sometimes unable to articulate a reasonable suspicion for stops that result in DUI arrests.  Under a legal doctrine known as the exclusionary rule, a Baldwin county DUI attorney can move to have any evidence obtained after a traffic stop for which there was no reasonable suspicion of criminal activity suppressed.  This means that even though the prosecutor may have evidence tending to prove a DUI conviction, the evidence will be deemed “tainted” because of an unlawful seizure and a judge will not allow it to be considered during the trial.

While reasonable suspicion is not always an avenue of defense, if the arresting officer basis reasonable suspicion on a mere hunch or on something that the courts have already ruled insufficient to meet the standard, then proof beyond a reasonable doubt may be impossible and the DUI charges may be dropped or defeated at trial.  If you think that there may not have been reasonable suspicion for your DUI stop then call Caldwell Wenzel & Asthana, PC today and schedule a free consultation.

The Ignition Interlock Statute in Alabama

Governor Robert Bentley signed Act 11-613 into law last year which creates new and more severe sentences for those convicted of DUI in Alabama.  Commonly known as the “ignition interlock statute”, the new law became effective on September 1, 2012 and applies to certain first time DUI offenders and all repeat DUI offenders.

The statute applies to any first time offender convicted of DUI under the following conditions:  1) with a blood alcohol content (“BAC”) of 0.15% or greater, 2) any person refusing to submit to a chemical test, 3) persons convicted of DUI where a child under the age of 14 was present in the vehicle, or 4) if the offender injures someone else while committing the offense of DUI.

Likewise the statute applies to repeat offenders of any DUI offence (this includes offences where BAC is less than 0.15%).

A first time conviction under any of the enumerated conditions above carries a required interlock installation and maintenance for two years.

Furthermore, repeat DUI offenders convicted of any offense under the DUI statute will be subject to ignition interlock installation as follows:

  • A second DUI offence within a five-year period requires the ignition interlock to be installed and maintained for two years from the date of driver’s license reissuance.
  • A third DUI offence within a five-year period requires the ignition interlock to be installed and maintained for three years from the date of driver’s license reissuance.
  • A fourth DUI offence within a five-year period requires the ignition interlock to be installed and maintained for five years from the date of driver’s license reissuance.

The new statute also requires additional fees of $75 per month for the first four months that the offender’s license is suspended.   Even if the offender does not own a vehicle, he will be required to pay the $75 per month.

Those required to install the ignition interlock devices are subjected to further monetary penalties under the new law because convicted offenders are required to obtain a special “ignition interlock required” licenses at a cost of $150 per issuance.  Moreover, once the ignition interlock device is no longer required, to obtain a new license the offender must pay a $75 re-issuance fee and a $275 “reinstatement fee”.

There are a myriad of issues with the ignition interlock statute, many of which have not yet been tested in the courts because the law is so new.  The crux of the matter is that the introduction of this new law represents a far reaching expansion of the courts ability to penalize those convicted of DUI in Alabama.  The new law also enables the Department of Public Safety to collect new administrative fees that will significantly impact DUI offenders.  If you have been charged with a DUI or have been convicted under the new ignition interlock statute, contact Caldwell Wenzel & Asthana, PC to learn more about these severe penalties and obtain legal advice regarding your rights and obligations from a DUI lawyer Alabama.

Roadblocks and Sobriety Checkpoints in Alabama

If you read the section on reasonable suspicion and the fourth amendment then you may be wondering how the police are able to conduct “roadblocks” or “sobriety checkpoints” and use evidence gathered there to convict drivers of DUI.  These searches are after all, without reasonable suspicion or probable cause.  When conducting these activities the police are stopping cars that pass through the checkpoint according to a designed plan and this is one of the few times where you can be detained by a law officer without reasonable suspicion.  Aren’t these searches unreasonable under the fourth amendment?  The short and obvious answer is yes, and in fact the Supreme Court of the United States acknowledged this in Michigan Dept. of State Police v. Sitz496 U.S. 444 (1990).  The majority of the Court however concluded that even though police sobriety checkpoints infringe on constitutional rights, such checkpoints are constitutional because there is a substantial government interest in preventing and combating drunk driving and sobriety checkpoints are rationally related to achieving this objective.

Despite this ruling, some states have made sobriety checkpoints illegal in their own states.  Alabama, however, is not one of these states.  The Alabama Supreme Court has followed the Sitz ruling, and has upheld sobriety checkpoints in Alabama provided that they meet certain criteria.  One of the crucial factors in determining whether a roadblock in Alabama will pass constitutional muster is whether it was carried out subject to a neutral and objective plan.  In other words, a group of police officers on patrol cannot just arbitrarily decide to set up a roadblock on a hunch that there will be a number of drunk drivers on the road.  There must be a written plan that was conceived by a policeman in a supervisory role and this plan must not give discretion to the officers conducting the roadblock operation to deviate from the plan.

You should also know that attempting to avoid a roadblock can form the basis of reasonable suspicion for the police to stop you and question you further.

If confronted with a roadblock then it is best to have your driver’s license, registration, and insurance paperwork quickly available.  If they are following the law, then the police are only authorized to stop you for a very brief detention.  If you are fumbling around looking for paperwork it gives them more time to observe you and look for reasonable suspicion or probable cause to conduct a more detailed investigation.  You are required to give them your driver’s license, registration, and proof of insurance.  You are not required to submit to a roadside field sobriety test.  At all times you should remain calm and be polite to the police officer.  This is a good idea not only for roadblocks, but for all encounters with the police.

If you are arrested for DUI then you should ask to speak to a lawyer right away.  If you have been arrested for DUI during a roadblock operation then your lawyer may be able to raise some additional constitutional arguments depending on whether the police were following the guidelines articulated under Alabama law.  If the police attempt to interrogate you after detention then it is very important to not answer any of their questions and to insist on speaking with a lawyer.

The take away from this section is that sobriety checkpoints are lawful in Alabama, but they are subject to strict guidelines.  If you have been arrested during a sobriety checkpoint operation then an experienced DUI lawyer in Alabama may be able to help you tremendously, and the earlier you are able to involve an Alabama DUI lawyer in your case, the more protected you will be.

Please call the Caldwell Wenzel & Asthana attorneys in Daphne, Foley, Spanish Fort, and Fairhope, for a free consultation at 251.948.2168.