Cumberland School of Law 2006 DUI Seminar Patrick Mahaney Montgomery, Alabama

Patrick Mahaney B.A., The Citadel (1973), J.D., Jones School of Law (1988) U.S. Army, 101 st Airborne ( ) 22 years service with the Alabama Department of Public Safety (1978 – 2000) State trooper and former state asst. atty. general for the Dept. of Public Safety Retired Lt. Colonel, Alabama National Guard and U.S. Army Reserve 5 years U.S. Dept. of State international police service, ( ) in Kosovo, Jordan, and Iraq Executive Officer, U.S. Dept. of State Police Advisory Mission- Iraq (Dec May 2006) Presently in private practice of law, Montgomery, Alabama with practice 100% concentrated in DUI and traffic law

Today’s Outline Alabama DUI Law- Past, Present…and Future? Traffic Court statistics Comprehensive review of recent statutes and cases affecting DUI practice

VBIED Attack on IP Station

Moral of the Story- Don’t Complain About Your Commute to Work!

How Did Alabama Traffic Law Originate? The state’s first traffic laws originated in 1911 Act 535 of the 1911 Legislature was titled “The Motor Vehicle Law” -- effective October 1, 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 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 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 The wording of the state’s DWI statute remained generally unchanged until : 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.

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 administration 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, a complex series of events took place: Single-issue public interest groups (M.A.D.D.) The financial consequences of partial or complete loss of federal highway funding if certain federal mandates were not achieved (90% Ala. road building is federal money) Media interest in traffic enforcement issues (Birmingham News) Media savvy politicians eyeing an easy target for favorable press Result: Creation of a complex, sometimes over-lapping, and oftentimes punitive traffic code, all with serious and long-term consequences for citizens facing traffic offenses.

What Court and How Many Cases? District Court 67 Districts/102 Elected Judges Original and exclusive jurisdiction in all traffic cases made by state and county officers 349,562 Traffic cases disposed in 2005 Municipal Court 263 Courts/137 Appointed Judges Prosecutions for municipal ordinance violations and state law misdemeanors or violations incorporated into the municipal code made by municipal officers 458,404 Traffic cases disposed of in 2005

Population Trends: State Population Up 15% Source: Auburn University at Montgomery

Alabama Driver License Statistics: 60% More License Holders Source: Alabama Department of Public Safety

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%

32-5A-191 in a Nutshell The current DUI statute has five kinds, or alternative methods of proof, of the regular “driving under the influence” violation and three “special circumstance” DUI violations. In a nutshell, the violations are the following: Section (a): The per se violation of.08% of more by weight of alcohol violation The “under the influence of alcohol” violation The “under the influence of a controlled substance” violation The “combined influence” of alcohol and a controlled substance violation The “under the influence of any substance” violation Section (b): The “under the age of 21 years” DUI -- a per se type subsection for motorists under the age of 21 with a threshold of.02% blood alcohol. Section (c): The school bus or day care driver DUI- a per se type subsection for any person operating a school bus or day care vehicle with a threshold of.02% blood alcohol. The commercial motor vehicle DUI- a per se type subsection for any person operating a commercial motor vehicle with a threshold of.04% blood alcohol.

Supplemental and Supporting Legislation Chemical Tests for Intoxication Act, § Consent to Chemical Testing for Accidents Involving Death or Serious Injury, § Evidentiary Standards for Chemical Tests, §32-5A-194 Driver License Cancellation, Suspension, or Revocation, §32-5A-195 Suspension of Driving Privilege for Alcohol Related Offenses (Administrative Per Se Law), §32-5A-300 Open Container Law, §32-5A-330 “Tow and Impound” Law, § (b)

Traffic Law as a Source of Revenue Traffic law constitutes a major source of funding for the state and municipalities The Department of Public Safety collected $46 million in driver license fees and sales of records in Receipts paid into state general fund. Traffic tickets = revenue for the state and municipality How much money?

What does 807, 966 tickets equal? Assumption: each UTTC is ‘valued’ at approximately $150 per ticket: $20 fine and $130 court costs. [Fines are paid into the state, county, or municipal general fund depending on which agency makes the arrest.] ,966 traffic tickets all courts At a 70% compliance/pay rate = $84 million revenue per year, with 85% of the amount designated as “court costs” Bottom Line: The state court system can not operate without traffic ticket revenue!

The MADD Agenda- In Effect in Alabama.08 Per Se Comments: 32-5A-191(a)(1).08 Per Se Administrative License Revocation Comments: 32-5A-300, 304, 305Administrative License Revocation Child Endangerment Comments: Minimum sentence doubled; 32-5A-191(n)Child Endangerment Dram Shop Comments: Dram Shop Fake ID Ala. Code 13A and 28-3A-25(22)Fake ID Felony DUI Comments: 4th and subsequent offencesFelony DUI Graduated Drivers Licensing Ala. Code Graduated Drivers Licensing Keg Registration Comments: Passed 2004.Keg Registration Mandatory Alcohol Assessment/Treatment Comments: On first offense 32-5A-191(b)Mandatory Alcohol Assessment/Treatment Mandatory Alcohol Education Comments: On first conviction required; 32-5A-191(i)Mandatory Alcohol Education Mandatory BAC Testing for Drivers involved in fatal or serious injury collisions Mandatory Jail 2nd Offense Open Container Law that is Federally Compliant Comments:32-5A-330Open Container Law that is Federally Compliant Happy Hour Laws Comments: Regulation 20-X-6-.14Happy Hour Laws

The MADD Agenda-In Effect in Alabama Primary Belt Law Repeat Offender Law that is Federally CompliantRepeat Offender Law that is Federally Compliant Selling/Furnishing Alcohol to Youth Sobriety Checkpoints Comment: By case law decisionSobriety Checkpoints Social Host Comments: Limited to intoxicated underage people.Social Host Vehicle Sanctions While Suspended Ala. Code (b)Vehicle Sanctions While Suspended Vehicular Homicide Comments: Two types: Homicide by vehicle - felony A-192; criminally negligent homicide while DWI - class C felony 13A-6-4(a) and (c)Vehicular Homicide Victim Rights Constitutional AmendmentVictim Rights Constitutional Amendment Youth Attempt at Purchase Youth Consumption of Alcohol Comments: 28-3A-25(a)(19)Youth Consumption of Alcohol Youth Possession of Alcohol Comments: 28-3A-25(a)(19)Youth Possession of Alcohol Youth Purchase Comments: Exceptions: For law enforcement purposes only; and 28-3A-25(a)(19)Youth Purchase Zero Tolerance Under 21 Comments:.02 BAC; (b)Zero Tolerance

… 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 KilledMandatory BAC Testing for Drivers who are Killed Mandatory Server Training Penalties for Test Refusal Greater than Test FailurePenalties for Test Refusal Greater than Test Failure Plate Sanctions Preliminary Breath Tester Vehicle Confiscation Vehicle ImpoundmentVehicle Impound

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 (DWS), 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

Recent Statutes 1. Act and Act : Inclusion of out-of- state convictions for “Five Year Period” for second and subsequent DUI convictions 2. Act : Arrest Warrants- domestication and endorsement requirement of out-of-county arrest warrants abolished 3. Act : Reinstatement fees for motor vehicle registrations 4. Act : Commercial Motor Vehicle Operator Licensees Ineligible for Deferred Prosecution (see also Act ) 5. Act : Use of Electronic Tickets (“e-tickets”) approved. No signature bond is required.

Other Changes to Driver Licensing and ‘Rules of the Road’ Child restraint law, , amended by Act Military exemption to driver license renewal, Act , so long as individual deployed on orders Emergency vehicle right of way “Move Over” provision, Act …..ambiguous language in statute

Recent Cases of Interest Hammonds v. State, -- So. 2d WL (Ala. Cr. App. April 28, 2006)—[Inconsistent verdict] Edwards v. City of Fairhope, -- So. 2d WL (Ala. Cr. App. May 26, 2006) – [Subject matter jurisdiction] Ex Parte McConathy, 911 So. 2d 677 (Ala. 2005) – [Forfeiture under state law] Ex parte Howard, in re: State of Alabama v. Howard, - -So. 2d WL (Ala. Cr. App. Mar. 24, 2006) – [Petition for Writ of Prohibition; denied]

Recent Cases- Search and Seizure Ex parte Aaron, 913 So. 2d 1110 (Ala. 2005): [vehicle stop- anonymous tip] and Ex parte Shafer, 894 So. 2d 781 (Ala. 2004): [vehicle stop – anonymous tip] State v. McPherson, 892 So. 2d 448 (Ala. Cr. App. 2004) and Peters v. State, 859 So. 2d 451 (Ala. Cr. App. 2003): nearly identical facts; different rulings 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 (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 Seizure 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. And if your client is arrested in a traffic accident related DUI, see-- Muldoon v. State, -- So. 2d --, 2006 WL (Ala. Cr. App. Sept. 29, 2006): A defendant is not entitled to dismissal of the UTTC even if the arresting officer lacked probable cause to effect arrest and even if an arrest warrant separate from UTTC should have been obtained. Motion to suppress is the proper remedy.

Blood and Breath Tests Arrest required, or maybe not….see, Adams v. State, 907 So. 2d 1079 (Ala. Cr. App. 2005) Independent blood tests, but only if you ask for one….see, Ex parte Yelverton (In re Yelverton v. City of Dothan), 929 So. 2d 438 (Ala. 2005)

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]

Concluding Thoughts Traffic law procedure is complex, hyper-technical, highly punitive, and requires no intent (no mens rea element) Prosecution or defense of traffic law cases requires detailed knowledge of Constitutional law (4 th Amendment law), rules of criminal procedure, state statutory law, and administrative regulations of state agencies Successful prosecution or defense requires the ability to negotiate pleas and “work with what you got” as trial preparation is minimal.

Final Thought Buy the Book! “Alabama DUI, Traffic, and Driver License Law Handbook” by Judge Wm. Bowen and Patrick Mahaney To be published by the University of Alabama ABICLE in November or December 2006