Transcript Alabama Traffic Courts and Alabama Traffic Law

Continuing Legal Education
2008 DUI Update
Patrick Mahaney
Montgomery, Alabama
Today’s Outline
• Alabama DUI Law- Past, Present…and Future?
• The DUI Offender – A Statistical Report
• Alabama’s DUI Statute
• Review of recent cases affecting DUI practice
How Did Alabama Traffic Law Originate?
• State’s first traffic laws enacted in 1911
• Act 535 of the 1911 Legislature was titled “The Motor
Vehicle Law” -- effective October 1, 1911.
• Act 535 was intended to generate revenue and designed to
require uniform license fees on automobiles
• The act also included, among other parts, a speed limit law*;
a law for requiring operational brakes, horns and lights; and
a law prohibiting driving while intoxicated.
* “No person shall operate a motor vehicle upon the public highways of
this State recklessly, or a rate of speed that is reasonable and proper…..
a rate of speed in excess of thirty miles per hour for a distance of a
quarter mile shall be presumed evidence of traveling at a rate of speed
which is not careful and prudent.”
DWI- 1911 thru 1979
• Act 535, Section 28, first line, stated: “Whoever operates
a motor vehicle while in an intoxicated condition shall
be guilty of a misdemeanor.”
• The 1919 legislature, by Act 696, amended the 1911
statute to include the requirement for the trial court clerk
to report to the State Tax Commission [the predecessor
agency to the Department of Revenue] a conviction for
violation of the DWI law so that the operator’s license
would be suspended.
• The 1919 amendment also set the DWI penalty, as an
unscheduled misdemeanor, of a fine “not exceeding
twenty-five dollars for the first offense and not in excess
of five hundred dollars for the subsequent offense.”
Alabama’s First “Rules of the Road”
• The state’s traffic code was re-written in 1927 as part of a
comprehensive legislative act reorganizing the State
Highway Department
• Among the duties set forth in the legislation was the
requirement to enforce the state’s traffic laws and the
authorization for the State Highway Department to
commission selected individuals to enforce the “road
laws.”
• Contained in Article II of Act 347 was the state’s first
comprehensive “Rules of the Road.” The 1927 version of
the “Rules of the Road” were subsequently incorporated
into the 1928 revision of the Code of Alabama.
The 1927 DWI Statute
• First Alabama driving while intoxicated statute was
enacted in 1911, and given a fine schedule and mandatory
license suspension by the act of 1919.
• The 1927 Act which established Alabama’s first systematic
“Rules of the Road” incorporated a DWI statute prohibiting
driving “under the influence of intoxicating liquor…”
• By comparison to today’s DUI law, the 1927 statute was a
model of simplicity:
“It shall be unlawful for any person whether
licensed or not who is an habitual user of narcotic
drugs or any person who is under the influence
of intoxicating liquor or narcotic drugs to drive any
vehicle upon any highway within this State;…”
The 1980 “Rules of the Road” DUI
• One sentence constituted the entire DWI law for the state in 1927. The
wording of the state’s DWI statute remained generally unchanged until
1980.
• 1980: Alabama legislature writes new “Rules of the Road” and enacts
Chapter 5A of Title 32. The current DUI statute- 32-5A-191- now
exceeds four pages, single spaced, in length.
• 32-5A-191 (a): A person shall not drive or be in actual physical
control of any vehicle while:
– (1) There is 0.08 percent or more by weight of alcohol in his or her
blood;
– (2) Under the influence of alcohol;
– (3) Under the influence of a controlled substance to a degree which
renders him or her incapable of safely driving;
– (4) Under the combined influence of alcohol and a controlled
substance to a degree which renders him or her incapable of safely
driving; or
– (5) Under the influence of any substance which impairs the mental or
physical faculties of such person to a degree which renders him or her
incapable of safely driving. (A-5 enacted in 1983)
Two Major Changes
• The first major change contained in the 1980 DUI statute
was the removal of the term “intoxication” as part of the
nomenclature of the offense.
• Under the 1980 statute, a new term replaced “driving while
intoxicated” with “driving under the influence.”
• The second major change that took effect with the
enactment of the 1980 statute was, for the first time in this
state, a per se violation of the DUI statute based strictly
on the blood or breath test reading.
• No evidence of actual physical impairment or proof of
intoxication is required to obtain and uphold a conviction
DUI becomes a ‘blood-alcohol’ offense
• The per se violation constituted a major shift in the
prosecution of the DUI driver.
• Testimony now centered on test admissibility rather than
the indications of physical impairment of the motorist.
• Additionally, with two later pieces of legislation, the state’s
case was easier to prove than previously:
– Act 660 of the 1988 legislature re-wrote the chemical
test for intoxication act, and included as part of the
legislation the “2100 to 1 ratio” as a fundamental part of
state law governing the administration of breath tests.
– In 1995, the legislature re-wrote the DUI statute lowering
the per se violation from .10% to .08%, and incorporated
the same changes into the chemical test act.
What Was the Result?
• Since 1980 when the revised Rules of the Road took effect
with the enactment of Chapter 5A of the motor vehicle
code, and following two and half decades since, an interrelated and complex series of events took place:
– Emergence of a single-issue public interest group (M.A.D.D.)
– The financial consequences of partial or complete loss of
federal highway funding if certain federal mandates were not
achieved (90% Alabama road building is federally funded)
– Media interest in traffic enforcement issues (Birmingham News)
– Media savvy politicians eyeing an easy target for favorable press
• Result: Alabama’s DUI statute has been amended 14
times since enactment in 1980, and along with
supplemental legislation, has created of a complex,
disjointed, and punitive traffic code, with serious and longterm consequences for citizens facing an alcohol and/or
drug related driving offense.
Population Trend: State Population Up 15% in past 25 years
Source: Auburn University at Montgomery
4.6
4.4
4.2
Population
4
3.8
3.6
1980
1990
2000
2005
Alabama Driver License Statistics: 60% More License Holders
1980-2005
Source: Alabama Department of Public Safety
4,000,000
3,500,000
3,000,000
2,500,000
2,000,000
Lic. Drivers
1,500,000
1,000,000
500,000
0
1980
1985
1990
1995
2000
2005
DUI Arrests As Compared to Population Trends and Licensed Drivers
Alabama DUI Trends – State population increases 15% over the past 25
years, but DUI arrests decline by 46%
35,000
30,000
25,000
20,000
DUI Arrests
Convictions
15,000
10,000
5,000
0
1980
1985
1990
1995
2000
2005
DUI Arrests Statewide 2003-2006
18,800
18,700
18,600
18,500
18,400
18,300
18,200
18,100
18,000
17,900
17,800
17,700
2003
2004
2005
2006
2006 DUI Arrest Data
Total: 18,596 DUI Arrests state-wide
Convictions: 13,647 (78.4%)
Dismissed/Nol Prossed: 4,133
Acquitted/Not Guilty: 728 (4%)
Reduced to Reckless Driving: 54
Other: 34
Alabama’s DUI Offenders
A Statistical Study Based on Draeger
Breath Test Data
7/15/2003 – 10/21/2007
Percent of total Test As a Function of BrAC for
Males and Females
25
Male % of Total
Female % of Total
20
Percent
15
10
5
0
0
0.01-0.079
0.08-0.149
0.150-0.199
BrAC
0.200-0.299
0.3 and Above
Percentage of Test Results as a Function of BrAC For Males
and Females For completed Tests
50
Male % of Completed
Female % of Completed
40
Percent
30
20
10
0
0
0.01-0.079
0.08-0.149
0.150-0.199
BrAC
0.200-0.299
0.3 and Above
Alabama Breath Test Data
7/15/2003 – 10/21/2007
• 51 month analysis of all Draeger tests in Alabama
• 101,668 tests
– 66,904 completed tests (65.8%)
– 56,226 male (84% male)
– 10,676 female (16% female)
– 34,764 refusal/incomplete (29.8%)
– 4.4% incomplete other reasons
• 32% all test takers aged 21-30
• Average BrAC all tests- .137%
• Per cent tests above .15% - 41% all tests
So Who Is the Statistical Offender?
• Male, aged 21-30
• Breath test at or near 15%
Federal Mandates
Federal statutes requiring state compliance or order the Secretary of Transportation
to withhold federal highway funds from non-compliant states:
•23 U.S.C. 153, PL 102-240 “Use of Safety Belts and Motorcycle Helmets”
•23 U.S.C. 154, PL 102-240 “Open Container Requirements”
•23 U.S.C. 157, PL 102-240 “Safety Incentive Grants for Use of Seatbelts”
•23 U.S.C. 158, PL 105-178 “National Minimum Drinking Age”
•23 U.S.C. 159, PL 102-388 “Revocation or Suspension of Driver’s Licenses of
Individuals Convicted of Drug Offenses”
•23 U.S.C. 163, PL 105-178 “Safety Incentives to Prevent Operation of Motor
Vehicles by Intoxicated Persons”
•23 U.S.C. 164, PL 105-178 “Minimum Penalties for Repeat Offenders for Driving
While Intoxicated or Driving Under the Influence”
The MADD Agenda - In Effect in Alabama
•
Keg Registration
Comments: Passed 2004.
•
Mandatory Alcohol
Assessment/Treatment
Comments: On first offense required
•
.08 Per Se
Comments: 32-5A-191(a)(1)
•
Administrative License Revocation
Comments: 32-5A-300, 304, 305
•
Child Endangerment
Comments: Minimum sentence
doubled; Ala. Code 32-5A-191(n)
•
Mandatory Alcohol Education
Comments: On first conviction required
Ala. Code 32-5A-191(i)
•
Dram Shop
Comments: Ala Code 6-5-71
•
Mandatory BAC Testing for Drivers
involved in fatal or serious injury
collisions Ala. Code 32-5A-200
•
Fake ID
Ala. Code 13A-10-14 and 28-3A-25(22)
•
Mandatory Jail 2nd Offense
Ala. Code 32-5A-191 (f)
Open Container Law that is Federally
Compliant
Ala. Code 32-5A-330
•
Felony DUI
Comments: 4th and subsequent
offence (within 5 years)
•
•
Graduated Drivers Licensing
Ala. Code 32-6-7.2
•
Happy Hour Laws
Comments: Regulation 20-X-6-.14
The MADD Agenda - In Effect in Alabama
•
•
•
•
•
Primary Belt Law
Ala. Code 32-5B-1
Repeat Offender Law that is Federally
Compliant
Comment: Except ignition interlock
Selling/Furnishing Alcohol to Youth
Ala. Code 28-3A-25 (a)(3)
Sobriety Checkpoints
Comment: By case law decision
Social Host
Comments: Limited to intoxicated
underage people.
•
Vehicle Sanctions While Suspended
Ala. Code 32-6-19(b)
•
Vehicular Homicide
Comments: Two types: Homicide by
vehicle - felony - 32-5A-192; criminally
negligent homicide while DWI - class C
felony 13A-6-4(a) and (c)
•
Victim Rights Constitutional
Amendment
•
Youth Attempt at Purchase
Ala. Code 28-3A-25 (a)(19)
Youth Consumption of Alcohol
Ala. Code 28-3A-25(a)(19)
•
•
Youth Possession of Alcohol
Ala. Code 28-3A-25(a)(19)
•
Youth Purchase
Comments: Exceptions: For law
enforcement purposes only; 28-1-5
and 28-3A-25(a)(19)
•
Zero Tolerance Under 21
Comments:.02 BAC; 32-5-191(b)
…And Coming Soon To Alabama
(MADD Agenda Not Yet in Effect)
•
Anti-Plea Bargaining
•
Habitual Traffic Offender
•
•
•
High BAC
Hospital BAC Reporting
Ignition Interlock
•
Lower BAC for Repeat Offender
•
Mandatory BAC Testing for
Drivers who are Killed
•
Mandatory Server Training
•
Penalties for Test Refusal
Greater than Test Failure
•
Plate Sanctions
•
Preliminary Breath Tester
•
Vehicle Confiscation
•
Vehicle Impoundment
MADD’s Definition of “High-Risk” Driver
The MADD Impaired Driving Summit found that a
major focus should be the "higher-risk driver" who is
defined as:
1) convicted of a repeat offense for driving while
intoxicated (DWI) or driving under the influence
(DUI), or
2) convicted of DWI/DUI with a blood-alcohol
concentration of .15 percent or higher, or
3) convicted of a driving-while-suspended offense
where the suspension was the result of a
conviction for driving under the influence.
What Will Happen to the High-Risk Driver?
•
Driver's license suspension for not less than one year, including a complete
ban on driving for not less than 90 days; and for the remainder of the license
suspension period and prior to the issuance of a probational hardship or work
permit license the offender must install a certified alcohol ignition interlock
device on his/her vehicle
•
Impoundment or immobilization of the motor vehicle for not less than 90
days; and for the remainder of the license suspension period the offender must
install a certified alcohol ignition interlock device on his/her vehicle
•
Alcohol assessment and appropriate treatment; if diagnosed with a substance
abuse problem
•
Imprisonment for not less than 10 days, an electronic monitoring device for
not less than 100 days, or be assigned to a DWI/DUI special facility for 30 days
•
Fined a minimum of $1000, with the proceeds to be used for state or local
jurisdiction for impaired driving prevention and/or enforcement
•
If the arrest resulted from a crash, requires restitution to victims of the
crash
Requirement to attend a victim impact panel if panel is available in the area
•
Hankins Decision and Related Hankins Decisions
• Hankins v. State, __So. 2d__, 2007 WL 2811970 (Ala. Cr. App. Sept.
28, 2007): Using the rules of statutory construction, and the rule of
lenity, the legislature’s adoption in 2006 of sub-section ‘O’ to 32-5A-191
requires strict application of the five year “look-back” provision for prior
DUI convictions for purpose of sentencing.
• Hankins has no retroactive effect: Stewart v. State, __So. 2d __ 2008
WL 274598 Ala. Cr. App. Feb. 1, 2008): The law in effect at the time of
the offense is controlling [i.e.- no application of the five year look back
provision if the DUI offense occurred prior to April 28, 2006]
• Circuit Court retains jurisdiction if remanded, and not the District Court:
Marshall v. State, __So. 2d. __ 2008 WL 902905 (Ala. Cr. App. Apr. 4,
2008): If the felony DUI is nullified by the Hankins decision, the case
remains under the jurisdiction of the circuit court, and not the district
court.
Recent Cases of Interest -Traffic
• Muldoon v. State, 959 So. 2d 698 (Ala. Cr. App. 2006): In
misdemeanor traffic cases, the Uniform Traffic Ticket and Complaint
(U.T.T.C.) is the formal charging instrument, analogous to an indictment
and conferring original subject-matter jurisdiction in the district or
municipal court, and in the circuit court in case of a de novo appeal.
Where a U.T.T.C. has been issued without probable cause, the
remedy is suppression of any evidence obtained as a result of an
illegal detention – not the dismissal of the charge against the
accused.
• Vehicle stop- suspected DUI- anonymous informant: Cottrell v.
State, __ So. 2d __, 2006 WL 3734719 (Ala. Cr. App. Dec. 20, 2006): In
a case of first impression for an Alabama appellate court, the Court of
Criminal Appeals held: “We …hold that an anonymous tip concerning
a potential drunk driver may be sufficiently reliable to justify a Terry
stop without independent corroboration by the police.”
Recent Cases- Search and
Seizure/Automobiles
• Ex parte Aaron, 913 So. 2d 1110 (Ala. 2005): [vehicle stopanonymous tip] and Ex parte Shafer, 894 So. 2d 781 (Ala. 2004):
[vehicle stop – anonymous tip]
• Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842
(2005): a dog sniff of the exterior of a lawfully stopped vehicle during a
traffic stop does not constitute a search under the Fourth Amendment.
• Thornton v. U.S., 541 U.S. 615, 124 S. Ct. 2127 (2004):
Extending the ruling in New York v. Belton, 453 U.S. 454, 101 S. Ct.
2860, 69 L.Ed. 2d 768 (1981), the Court held in Belton that police may
search the passenger compartment where the occupants were sitting
as incident to arrest; in Thornton that ruling was extended to “recent
occupants.”
Recent Cases- Search and SeizureTraffic Stops
• Urioso v. State, 910 So. 2d 158 (Ala. Cr. App. 2005) -- Consent to
search ostensibly given by non-English speaking motorist; denial of
suppression motion by trial court reversed.
• Brendlin v. California, 551 U.S. __ (June 18, 2007): When a police
officer makes a traffic stop, the passengers and the driver of the car is
seized within the meaning of the Fourth Amendment. A person seized by
police action is entitled to challenge the seizure, even if not the operator
of the vehicle. In Maryland v. Wilson, the Court held that during a lawful
traffic stop, the police may order a passenger out of the car, as a
precautionary measure.
By the same measure, a passenger is seized by police authority and
has standing to challenge the lawfulness of the vehicle stop.
Where, as in this case, the automobile was stopped without reason to
believe it was being operated unlawfully, the subsequent seizure of
Brendlin was unlawful.
Recent Cases- Search and SeizureBlood Tests
• Brown v. State, __So. 2d __, 2007 WL 1865383 (Ala. Cr.App. June
29, 2007) [Non-DUI case]. In a case of first impression in this state,
the Court ruled there is no right to have counsel present at the
taking of a blood sample pursuant to a court order.
• Independent blood tests, but only if you ask for one… Ex parte
Yelverton (In re Yelverton v. City of Dothan), 929 So. 2d 438 (Ala.
2005)
Right to Counsel
• Scott v. State, 939 So. 2d 950 (Ala. Cr. App. 2005): Expanding on
the principles established in Alabama v. Shelton, the Court held that
where the state provides no counsel to an indigent defendant,
the Sixth Amendment, as interpreted in light of Argersinger and
later cases, does not permit the state to activate a suspended
sentence based upon the defendant’s violation of the terms of the
sentence.
Roadblocks/Lawfulness under the 4th
Amendment
• Ex parte Jackson, 886 So. 2d 155 (Ala. 2004) -- [Adopting the
Cains standard to determine the Constitutionality of police
roadblocks]:
The Court found that roadblocks, conducted under supervised
conditions and using established standards of enforcement, met
the Constitutional test required in weighing the balancing of the
interests in the public’s safety and the individual’s reasonable
expectation of privacy.
Driver License Cases
• Finch v. State, 903 So. 2d 166 (Ala. Cr. App. 2004) – Mandatory
Revocation; Method of Appeal
• Huggins v. Alabama Department of Public Safety, 891 So. 2d 337
(Ala. Civ. App. 2004)—Determination of Suspension; Review
• Cooley v. State Department of Public Safety, 827 So. 2d 124 (Ala.
Civ. App. 2002) --[Out of state violation; application to Alabama Class D
and CDL]
• Cole v. Riley, __ So. 2d __, 2007 WL 3051051 (Ala. Oct. 19, 2007):
Department of Public Safety’s policy of offering written driver license
examinations in languages other the English does not to violate the
Alabama Constitution’s Amendment 509 (English as the “official
language” of the State of Alabama)
Concluding Thoughts
• DUI practice is complex, hyper-technical, involves overlapping issues of driver license law, and requires no intent
(no mens rea element)
• Successful defense of DUI cases requires knowledge of
law, facts of the case, and understanding the science of
alcohol testing in the human body.
• Defense of DUI cases requires detailed knowledge of 4th
Amendment law, rules of criminal procedure, state statutory
law, and administrative regulations of state agencies