FAQ

Most DUI charges in Alabama are misdemeanors. In Alabama, a DUI is only a felony if you have previously been convicted of a felony DUI or you have three or more prior DUI convictions within the 10 years preceding the latest new DUI offense.

Yes. If you have been charged with Driving Under the Influence of a “controlled substance” or “any substance,” the fact that you had a prescription for the medication you were taking is not a defense. However, the prosecution must prove that the substance at issue actually rendered you unsafe to operate a motor vehicle.

The offense of DUI in Alabama is charged in one of five different ways.

1. DUI – Illegal Blood Alcohol Concentration

Alabama’s DUI law lists several different ways a person can be charged with driving under the influence. A person can be charge with driving while having an illegal blood alcohol concentration. This illegal blood alcohol level is generally a 0.08% BAC or higher. However, for certain groups of people – those under 21 years of age, school bus or daycare drivers, or drivers of commercial motor vehicles (CMVs), there are even lower limits.

2. DUI – Under the Influence of Alcohol

In addition to being charged with having an illegal blood alcohol limit, a person can also be charged with simply driving under the influence alcohol. This is generally how a person is charged with DUI if he or she refused to take the breath test “offered” at the police station or jail. However, it is also common to see DUI charged in this way for cases where a breath test was performed or even a blood test was administered.

3. DUI – Under the Influence of a Controlled Substance

While people most commonly think of DUI in the context of alcohol, drug or medication related DUI charges are also very common. Alabama maintains a Controlled Substance List. If the police believe a person in driving under the influence of a substance on this list, they will typically charge the person with driving under the influence of a controlled substance. Marijuana is probably the most common controlled substance that forms the basis of a DUI arrest. However, prescription medication DUIs are very common as well. Many people are surprised to find that having a prescription for a medication is not a defense to a controlled substance DUI charge. Even with a prescription, if the substance renders you uncapable of safely operating a vehicle, then you can be charged with DUI.

4. DUI – Combined Influence of Alcohol and a Controlled Substance

Police typically charge a person with a combined influence DUI if they suspect the person has been using both alcohol and a substance on the controlled substance list. A person can be convicted for a combined influence DUI even if the amounts of alcohol and controlled substance in their system, taken separately, would be insufficient to render them unsafe to drive. The relevant question in these cases is if the combined effect is enough to render their operation of a motor vehicle unsafe.

5. DUI – Any Substance

Alabama’s DUI statute has a catchall provision for cases where the police believe a person is under the influence of something that is not alcohol or on the controlled substance list. Alabama enacted this subsection of the DUI statute to prevent the loophole of people driving under the influence of new drugs or substances that affect a person’s safety, but which have not been added to the controlled substance list for whatever reason. Alabama’s courts have made clear that it is improper to use this section to charge an alcohol DUI.

Under Alabama law, a DUI conviction (unless you are a juvenile or “youthful offender”) stays on your Alabama criminal record forever. However, as it relates to a new misdemeanor DUI charge, an old misdemeanor DUI conviction only impacts the statutory sentencing range for the new DUI charge if the old conviction occurred less than 10 years prior to the new DUI offense. However, if you have a prior felony DUI conviction, it will affect the sentencing range of the new DUI charge no matter how long ago it occurred.

There are two ways for the prosecution to go about admitting the results of a breath test in evidence in a DUI trial. By far, the least common way to do so is to lay the traditional predicate for the admissibility of scientific test results. This requires expert testimony, and the prosecution does not want to bring an expert in from the Department of Forensic Sciences for every “run of the mill” DUI trial. The second, and much more common method is to follow the “statutory predicate” set out in Alabama Code § 32-5A-194. “A party offering results from test shown to be given in conformity with the statute [§32-5A-194] is relieved of the burden of laying the extensive predicate generally necessary for admission of scientific test results.” Boyd v. City of Montgomery, 472 So. 2d 694 (Ala. Crim. App. 1985), quoting, McGough v. Slaughter, 395 So. 2d 972 (Ala. 1981).

The elements for proving the “statutory predicate” are:

1) that the person was lawfully arrested before being directed to submit to the test;

2) that the officer had reasonable grounds to believe the person was driving under the influence;

3) that the test administered was designated by the law enforcement agency giving the test;

4) that the test was performed in accordance with methods approved by the Department of Forensic Sciences; and

5) that the test was given by an individual possessing a valid permit issued by the Department of Forensic Sciences.

See, Boyd v. Montgomery, 472 So.2d 694 (Ala. Crim. App. 1985).

The “method” of the Department of Forensic Sciences (DFS) is found in Chapter 370 of the Alabama Administrative Code. For test results to be admissible under Alabama Code § 32-5A-194, the “method” of testing established by DFS must have been strictly complied with. The leading case on this area of law is Ex parte Mayo, 652 So. 2d 201 (Ala. 1994).

The two most straightforward ways to challenge a breath test are to suppress the results due to an illegal arrest or to show that there was not a proper 20-minute deprivation period, as required, by the DFS “method.”

There are certain factors that can enhance the punishment for an Alabama DUI conviction. However, the baseline range of punishment for a 4th offense DUI (or if there is a prior felony DUI conviction) can be summarized as follows:

Imprisonment: 1 year and 1 day to 10 years. “The minimum sentence shall include a term of imprisonment for at least one year and one day, provided, however, that there shall be a minimum mandatory sentence of 10 days which shall be served in the county jail. The remainder of the sentence may be suspended or probated, but only if as a condition of probation the defendant enrolls and successfully completes a state certified chemical dependency program recommended by the court referral officer and approved by the sentencing court.” Section 32-5A-191(h) of the Code of Alabama.

Fine: $4,100 to $10,100

Driver License Revocation: 5 years (The defendant must serve a minimum of 1 year of the revocation before he/she may have it stayed during the mandated 5-year interlock period and commuted at the successful completion of the interlock period. Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

Ignition Interlock: 5 years.

Court Referral Program: Yes, the person must complete a mandated court referral program.

There are certain factors that can enhance the punishment for a first offense misdemeanor Alabama DUI conviction. However, here is the baseline punishment for a person’s first DUI conviction.

Jail/Imprisonment: Between 0 days in jail all the way up to one year.

Fine: Between $600 and $2,100.

Driver License Suspension: 90 days all of which may be stayed and commuted if the person opts to submit to having an ignition interlock device installed in his or her motor vehicle for 90 days (or 1 year, if the person refused the breath test at the police station/jail, blew .15% or higher, had passenger under 14 years old, or if someone else was injured). Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

Ignition Interlock: If the person refused the breath test at the police station/jail, blew .15% or higher, had passenger under 14 years old, or if someone else was injured, then 1 year mandatory ignition interlock will be imposed. Even if none of none of the factor listed in the prior sentence apply, the person may still opt to complete 90 days of ignition interlock, instead of 90 days of driver license suspension. Note that CDL holders are not entitled to have suspension time under this section commuted through ignition interlock.

Court Referral Program: The person must complete a court mandated court referral program.

Yes, they can be. When a vehicle is stopped at a DUI roadblock or license checkpoint, a 4th Amendment seizure has occurred. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990); Ex parte Jackson, 886 So.2d 155 (Ala. 2004). However, “[l]icense checks, sobriety checkpoints, and roadblocks are not intrinsically unconstitutional.” McInnish v. State, 584 So. 2d 935, 936 (Ala. Crim. App. 1991). In the Sitz case, the U.S. Supreme Court applied a three-prong balancing test to roadblocks: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. Applying this test, the Court found that sobriety checkpoints satisfy to first two prongs and found that Michigan’s sobriety roadblock program satisfied the third prong. Roadblock cases turn on this third factor.

If a roadblock is to be upheld, it must be “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Ogburn v. State, 104 So.3d 267 (Ala. Crim. App. 2012). The Alabama case of Cains v. State, 555 So.2d 290 (Ala. Crim. App. 1989) set forth a series of 13 factors to be considered in analyzing a roadblock. While those factors are no longer the be-all-end-all, they are still important and a good place to start when evaluating a roadblock. See, Hagood v. Town Creek, 628 So.2d 1057 (Ala. Crim. App. 1993). The Cains factors are:

(1) The degree of discretion, if any, left to the officer in the field;

(2) the location designated for the roadblock;

(3) the time and duration of the roadblock;

(4) standards set by superior officers;

(5) advance notice to the public at large;

(6) advance warning to the individual approaching motorist;

(7) maintenance of safety conditions;

(8) degree of fear or anxiety generated by the mode of operation;

(9) average length of time each motorist is detained;

(10) physical factors surrounding the location, type and method of operation;

(11) the availability of less intrusive methods for combating the problem;

(12) the degree of effectiveness of the procedure; and

(13) any other relevant circumstances which might bear upon the test.

Cains v. State, 555 So.2d 290 (Ala. Crim. App. 1989).

Yes. In fact, in most DUI cases that end without a DUI conviction, it is not because the person was actually “innocent.” There are may ways a DUI case can be won. Here are just a few examples. In the United States, it is generally illegal for the police to stop a vehicle unless they have “reasonable suspicion” to do so. The police just having a hunch that you may be driving under the influence is not enough. A good DUI attorney may be able to get the case against you dismissed because the police lacked reasonable suspicion. Let’s look at another example.

In the United States, the police must have “probable cause” to arrest you. Even if the police had reasonable suspicion to have you pull over, they may not have probable cause to arrest you because probable cause is a higher standard than reasonable suspicion. If you are arrested without the police having probable cause, then evidence they gain after the arrest, such as a breath test, can be thrown out by the court, resulting in your case being dismissed or you being found not guilty.

When deciding to pursue a DUI charge against a person, police and prosecutors often rely on standardized field sobriety tests. These tests have strict rules for how they are supposed to be administered. Frequently, however, the police administer these tests improperly or interpret the results incorrectly. A good DUI attorney may be able to keep the field sobriety tests from coming into evidence or use the officer’s mistakes to discredit the tests.

In Alabama, as in the rest of the United States, a person is presumed innocent until proven guilty beyond a reasonable doubt. If you attorney can show in trial that there is a reasonable doubt, then you are entitled to be found not guilty even if the evidence against you is enough to prove that you probably were driving under the influence.

A good DUI defense attorney may be able to get the prosecutor and court to agree to dismiss the DUI charge against you even in cases where you would likely lose if the case goes to trial. This can occur for a variety of reasons. For example, especially if you have a clean record, the prosecutor may be convinced by your attorney to show mercy and agree to drop the charges upon the payment of court costs or upon the completion of certain conditions. Some court jurisdiction even programs, typically called DUI diversion programs, pre-trial intervention programs (“PTIP”) or deferred prosecution programs, which are aimed at helping first time offenders avoid having a conviction on their records. A good DUI lawyer may be able to help you in determining if you are eligible for such a program and in getting the prosecutor and court to agree to let you participate in such a program.

Yes. The DUI statute contains a couple of provisions that “double the minimum” punishment for a given DUI conviction. One doubling provision is for offenders who are over 21 but has a child under 14 in the vehicle. The other doubling provision is for offenders with BACs of .15 or higher.

Subsection (j) of Alabama’s DUI statute deals with DUIs with underage passengers and provides: “(j) When any person over the age of 21 years is convicted of violating this section and it is found that a child under the age of 14 years was a passenger in the vehicle at the time of the offense, the person shall be sentenced to at least double the minimum punishment that the person would have received if the child had not been a passenger in the motor vehicle.” Alabama Code § 32-5A-191(j).

Subsection (i) of Alabama’s DUI statute deals with BACs of .15% or higher. While it states that the minimum punishment is to be doubled, it confuses matters by then stating that for misdemeanor DUIs the minimum punishment shall be imprisonment for 1 year, all of which may be suspended except for the mandatory minimum time-to-serve provisions of subsections (f) and (g). The full text of subjection (i) is as follows: “(i) When any person convicted of violating this section is found to have had at least 0.15 percent or more by weight of alcohol in his or her blood while operating or being in actual physical control of a vehicle, 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 percent by weight of alcohol in his or her blood. Upon the first violation of this subsection, the offender shall be ordered by the court to have an ignition interlock device installed and operating on his or her designated motor vehicle for a period of two years from the date of issuance of an ignition interlock-restricted driver’s license. If the adjudicated offense is a misdemeanor, the minimum punishment shall be imprisonment for one year, all of which may be suspended except as otherwise provided for in subsections (f) and (g).” Alabama Code § 32-5A-191(i).

The look back period for determining whether a DUI is considered a second offense is 10 years, specifically the prior conviction counts if the prior conviction occurred within 10 years of the date of the current offense. There are certain factors that can enhance the punishment for a second offense misdemeanor Alabama DUI conviction. However, the baseline range of punishment for a second offense DUI conviction is laid out below. Please note that the section of Alabama’s DUI statute dealing with second offenses specifically says “second conviction within a five-year period.” Thus, a person can have a prior DUI conviction and still be eligible for 1st offense sentencing, if the conviction is more than five years old. The baseline range of punishment for a 2nd offense DUI can be summarized as follows:

Jail/Imprisonment: 5 days to 1 year. The person must actually serve a minimum of 5 days or do a minimum of 30 days community service.

Fine: $1,100 to $5,100.

Driver License Revocation: 1 year (The defendant must serve a minimum of 45 days of the revocation before he/she may have it stayed during the mandated 2-year interlock period and commuted after the successful completion of the interlock period. Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

Ignition Interlock: 2 years.

Court Referral Program: Yes, the person must complete a mandated court referral program.

What is the punishment for a third offense DUI conviction in Alabama?

There are certain factors that can enhance the punishment for a second offense Alabama DUI conviction. However the baseline range of punishment for a third DUI offense in Alabama can be summarized as follows:

Imprisonment: 60 days to 1 year. The defendant must actually serve a minimum of 60 days.

Fine: $2,100 to $10,100.

Driver License Revocation: 3 years (The defendant must serve a minimum of 180 days of the revocation before he/she may have it stayed during the mandated 3-year interlock period and commuted after the successful completion of the interlock period. Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

Ignition Interlock: 3 years.

Court Referral Program: Yes, the person must complete a mandated court referral program.