Cumberland School of Law 2006 DUI Seminar

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Cumberland School of Law2006 DUI Seminar

• Patrick Mahaney
• Montgomery, Alabama

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Patrick Mahaney

• B.A., The Citadel (1973), J.D., Jones School of
  Law (1988)
• U.S. Army, 101st Airborne (1973-1977)
• 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, (2001-2006) in Kosovo, Jordan, and Iraq
• Executive Officer, U.S. Dept. of State
  Police Advisory Mission-
  Iraq (Dec. 2004-May 2006)
• Presently in private practice of law, Montgomery,
  Alabama with practice 100 concentrated in DUI
  and traffic law
• www.mahaneylaw.com

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Todays Outline

• Alabama DUI Law- Past, Presentand Future?
• Traffic Court statistics- 2005
• Comprehensive review of recent statutes and cases
  affecting DUI practice

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VBIED Attack on IP Station
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Moral of the Story- Dont Complain About Your
Commute to Work!
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How Did Alabama Traffic Law Originate?

• The states first traffic laws originated 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.

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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 operators 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.

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Alabamas First Rules of the Road

• The states 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 states 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
  states 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.

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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 Alabamas first
  systematic Rules of the Road incorporated a DWI
  statute prohibiting driving under the influence
  of intoxicating liquor
• By comparison to todays 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

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The 1980 Rules of the Road DUI

• One sentence constituted the entire DWI law for
  the state in 1927. The wording of the states 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.

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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

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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 states 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.

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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.

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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

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Population Trends State Population Up 15
Source Auburn University at Montgomery
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Alabama Driver License Statistics 60 More
License Holders 1980-2005 Source Alabama
Department of Public Safety
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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
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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.

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Supplemental and Supporting Legislation

• Chemical Tests for Intoxication Act, 32-5-190
  -194
• Consent to Chemical Testing for Accidents
  Involving Death or Serious Injury, 32-5-200
• 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, 32-6-19(b)

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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 2005. Receipts paid into state general
  fund.
• Traffic tickets revenue for the state and
  municipality
• How much money?

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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.
• 2005 -- 807,966 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!

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The MADD Agenda- In Effect in Alabama

• .08 Per Se Comments 32-5A-191(a)(1)
• Administrative License Revocation Comments
  32-5A-300, 304, 305
• Child Endangerment Comments Minimum sentence
  doubled 32-5A-191(n)
• Dram Shop Comments 6-5-71
• Fake ID Ala. Code 13A-10-14 and 28-3A-25(22)
• Felony DUI Comments 4th and subsequent
  offences
• Graduated Drivers Licensing Ala. Code 32-6-7.2

• Keg Registration Comments Passed 2004.
• Mandatory Alcohol Assessment/Treatment Comments
  On first offense 32-5A-191(b)
• Mandatory Alcohol Education Comments On first
  conviction required 32-5A-191(i)
• Mandatory BAC Testing for Drivers involved in
  fatal or serious injury collisions
• Mandatory Jail 2nd Offense
• Open Container Law that is Federally Compliant
  Comments32-5A-330
• Happy Hour Laws Comments Regulation 20-X-6-.14

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The MADD Agenda-In Effect in Alabama

• Primary Belt Law
• Repeat Offender Law that is Federally Compliant
• Selling/Furnishing Alcohol to Youth
• 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
• Youth Consumption of Alcohol Comments
  28-3A-25(a)(19)
• Youth Possession of Alcohol Comments
  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)

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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

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MADDs 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
• 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.

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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

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Recent Statutes

• 1. Act 2006-298 and Act 2006-654 Inclusion of
  out-of-state convictions for Five Year Period
  for second and subsequent DUI convictions
• 2. Act 2006-547 Arrest Warrants- domestication
  and endorsement requirement of out-of-county
  arrest warrants abolished
• 3. Act 2006-221 Reinstatement fees for motor
  vehicle registrations
• 4. Act 2006-622 Commercial Motor Vehicle
  Operator Licensees Ineligible for Deferred
  Prosecution (see also Act 2004-521)
• 5. Act 2006-579 Use of Electronic Tickets
  (e-tickets) approved. No signature bond is
  required.

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Other Changes to Driver Licensing and Rules of
the Road

• Child restraint law, 32-5-222, amended by Act
  2006-623
• Military exemption to driver license renewal, Act
  2006-415, so long as individual deployed on
  orders
• Emergency vehicle right of way Move Over
  provision, Act 2006- 546..ambiguous language in
  statute

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Recent Cases of Interest

• Hammonds v. State, -- So. 2d-- 2006 WL 1120652
  (Ala. Cr. App. April 28, 2006)Inconsistent
  verdict
• Edwards v. City of Fairhope, -- So. 2d-- 2006 WL
  1452915 (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 -- 2006 WL 825038 (Ala. Cr. App.
  Mar. 24, 2006) Petition for Writ of
  Prohibition denied

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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. 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.

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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 2788982 (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.

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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)

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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 publics safety and the
  individuals reasonable expectation of privacy.

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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

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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
  (4th 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.

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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