By, Phillip B. Price, Sr. ©, DUI Board Certified in DUI Defense Attorney
Most everyone knows what a DUI charge is. Most DUI’s are alcohol related. Simply put, one is arrested for DUI when the police claim that the person had too much alcohol to drink. In Alabama, there are currently 5 different ways to charge someone with driving under the influence (DUI). They are:
- Driving with a blood alcohol level of .08% or greater
- Driving after drinking alcohol to the point that the alcohol makes you an unsafe driver.
- Driving under the influence of a controlled substance
- Driving under the combined influence of alcohol and a controlled substance
- Driving under the influence of any substance that renders you incapable of safely driving
The penalties include the possibility of the loss of one’s driver’s license, possible jail, probation, counseling and/or treatment, fines, along with many other fees and secondary effects on one’s life.
I have been a DUI defense lawyer for over 35 years. I have seen the “legal” system make several changes in the DUI arena. There was a period of time when we could not settle a DUI case. You either pled guilty or went to trial. I have tried many, many DUI cases in my career; more than any other attorney north of Montgomery, Alabama, I would surmise. At one point, a circuit judge made me try 3 DUI jury trials in a row: one right after the other in the same week. Luckily, the juries in all three cases rendered “not guilty” verdicts! My point here is that I have seen the DUI “system” and laws change over the many years that I have been handling them.
One thing that has happened in the last decade is that there has been an increase in the number of “diversion” programs. “Diversion” basically means an alternative to being convicted after compliance with many court-sponsored obligations. In 2013 the Alabama legislature passed an act that authorized municipalities to establish a “pre-trial diversion program”, in lieu of prosecuting the DUI case. Some cities around the state did so and some did not. A diversion program, generally speaking, means that one accused of DUI pleads guilty to the DUI, and the judge does not impose judgment or sentence. Meanwhile, the person charged with DUI does certain things, including but not limited to: counseling, treatment, community service, Victim Impact Panel, so-called “color-coding”, among many other possible requirements. If the person successfully completes the program, he or she gets their DUI case dismissed upon the payment of many fees and court costs. If the person fails with any aspect of the program, they are automatically up for automatic conviction and will suffer the consequences thereof.
The City of Huntsville, Alabama passed diversion ordinance No. 13-845 in October of 2013. The city, at that time determined that the persons who would qualify for the benefits of diversion would be limited to those who took the breath test and scored below .12% BAC. If you refused the breath test or blew .12% BAC or greater, you did not qualify for the City of Huntsville diversion program. The City of Huntsville is presently in the process of passing a brand-new “diversion program”. Under the diversion program being presently considered by the Huntsville governing body, includes DUI offenders whose blood alcohol content is as high as .149% BAC. It also allows the new diversion program to those DUI arrestees who refused to take the breath test altogether. It does not exclude people who have been previously arrested for DUI.
So, it is a “no brainer” that the citizen accused of DUI should accept the diversion program with the City of Huntsville, right? NOT SO FAST! SEEK THE ADVICE OF AN EXPERIENCED DUI ATTORNEY! WHY? Keep reading.
2018 Alabama Interlock Law
In 2018, the Alabama legislature, at the “encouragement” of interlock lobbyists, passed a bill that requires any person who enters a diversion, or similar program, to install an interlock device on his or her vehicle for period of six months, or the length of the diversion program, whichever is longer. There is a fee for installation, a monthly fee for maintenance, along with other fees associated with the device. The interlock device is not specific for ethyl alcohol and it will beep intermittently and one must find a place to pull over and blow or the vehicle will go dead and will not start. One must normally blow into the interlock device and show a BAC under a .02%.
Administration Driver’s License Suspension
Typically, in every DUI arrest, the citizen will either refuse the breath test or take it and blow over .08% BAC. In most cases, the citizen will have his or her driver’s license confiscated and will also undergo a suspension of the driver’s license for a period of time. This can occur even if the person is undergoing diversion unless action is taken. There ARE things that can be done to keep this from happening in many/most cases.
Failing the Diversion Program means DUI conviction
Under the terms of the City of Huntsville’s proposed diversion ordinance, one has to plead guilty in the record in order to get diversion. If one messes up, the court can automatically impose a DUI conviction that the person pled guilty to in order to get diversion.
Effects of Guilty Plea
In certain circumstances, a mere plea of guilty, or an admission of guilt, can have negative ramifications. This is true even if the person is NOT convicted of the DUI that he or she had previously admitted to. The two circumstances that immediately come to mind are those associated with CDL holders and Immigrants. There are other circumstances as well that the mere admission of being under the influence can cause negative consequences.
There are diversion programs within the Alabama DUI litigation system. Most of the comments made herein apply to other diversion programs in the state as well as the diversion program proposed by the City of Huntsville, Alabama. Whether to undergo the particular program requires a detailed analysis. Price and Flowers Law Firm stands ready and able to help you with your DUI decisions. YOU MUST GET YOUR CASE EVALUATED EARLY! This written and submitted by: DUI defense attorney, Phillip B. Price, Sr., who is the ONLY attorney in North Alabama that is “Board Certified in DUI Defense” by the National College for DUI Defense, as sanctioned by the American Bar Association for the certification.
By, Phillip B. Price, Sr. ©
The Alabama legislature passed two new DUI laws during the 2018 legislative session. The first law (Act No. 2018-546) changed the “look-back” period to determine whether a DUI conviction is a 1st, 2nd, 3rd or 4th and so-on conviction. The look back period is now, as of July 1, 2018, 10 years from the date of the new DUI arrest. Prior law had the look back period of 5 years and the 5 years was computed from conviction date to conviction date. Also, the new law states that anyone arrested for DUI after July 1, 2018 who has a prior felony DUI conviction at any time in their past, will be automatically charged as a felony DUI in the post July 1, 2018 DUI arrest.
The other new DUI law (Act No. 2018-517) has several DUI related interlock changes. It was obviously a result of interlock lobbying efforts in the Alabama legislature. The most significant new law is one that says that anyone who undergoes a diversion program or similar program shall be required to install an ignition interlock device for a minimum of six months or the duration of the pretrial diversion program, whichever is greater”. (§32-5A-191(y)(1) Act No. 2018-517, p. 24.) People who choose to do this can have their driver license suspension stayed and commuted. There are several other interlock changes, many of which are reductions in the time that convicted DUI offenders will be obligated to have an interlock installed on their vehicle.
According to Alabama DUI defense attorney Phil Price, throughout 2016, he and his law partners have continued to see many people seeking to clean up their Alabama criminal record through Alabama’s expungement law. His firm has been able to get expungements for many of these people, often quite quickly and for much less than what they thought it would cost.
Prior to a couple years ago, Alabama did not have a true expungement law. Old arrests and charges remained on a person’s record forever. That has now changed. Now most criminal charges are eligible for an expungement proceeding, provided the charge was dismissed, nolle prossed, or the person was acquitted.
Having a record of an arrest or criminal charge can make it more difficult to find a good job and can prove an embarrassment, even where the charge is ultimately resolved in your favor. Having that old arrest and charge expunged from your record can help. However, getting a charge expunged is not guaranteed. The district attorney and any “victim” can object to the court granting the charge, and the judge ultimately makes the decision whether or not to grant an expungement. Having a attorney who knows the law to help you each step of the process can help maximize your change of success.
A quick call to Price, Flowers & Ward Law Firm for quick, free, no obligation, phone consultation can help you determine if an expungement proceeding is right for you. Call today at 256-536-6000.
Utah is poised to be the first state in the country to adopt .05 as the standard for driving under the influence of alcohol. Alabama’s DUI law could see the same change in the future. The Los Angeles Times is reporting that legislators in Utah have passed a law lowering the legal BAC for drivers to .05. It is expected that the governor will sign it into law. For many years now .08 has been the legal standard in all 50 states. Before that, .10 was the ubiquitous standard in America. The .05 standard has become the predominant legal limit throughout much of Europe, and the National Transportation Safety Board has been pushing for the stricter standard for years. This is just the first domino. We will likely see the .05 standard enacted in other states, including potentially Alabama in a the next few years.
From 1999 through the first half of 2016, Alabama exclusively used the Draeger 7110 MK-III for breath alcohol testing throughout the state. That is changing. The Alabama Department of Forensic Sciences (DFS) is now implementing a new breath alcohol testing device, the Intoximeter Datamaster DMT-FC. It will be in use very soon; the latter part of 2016 or early 2017. The device, which we will refer to as the DMT for brevity, was manufactured originally at National Patent Analytical Systems (NPAS), located in Mansfield, Ohio. Intoximeters, Inc. bought the breath test section of NPAS and will be the supplier of the devices to the state. Intoximeters, Inc. has added a fuel cell to the DMT along with some other tweaks for Alabama. The photo above is the Alabama version of the DMT. It claims to have duel technology, both infrared and electrochemical. It has a touchscreen, an electronic driver’s license reader, and a keyboard. There are three canisters of dry gas for calibration checks at three alcohol content levels. There will be a calibration check (cal-check) for all tests at a .02%. If a person blows a reading of .15% or higher, another cal-check will be done from a .15% dry gas canister. If a person blows a reading of below .15%, then the second cal-check will be done from the .08% canister. As the name “Datamaster” implies, the device will accumulate and store a lot of data, which is capable of being retrieved at a later time. Unlike its predecessor, there will be no breath temperature correction on the Alabama DMT, but there will be a reduction of every test result of approximately 10 per cent. The DMT also has shielding for radio frequency interference (RFI) as well as an external antenna for picking up any RFI.
The DMT for Alabama has an added feature that is not included on DMT machines in any other state. This added feature is an electrochemical fuel cell added in an effort to have a “duel technology” device. The Alabama DMT is known as the DMT-FC. The FC stands for fuel cell.
As of this writing in October of 2016, approximately 26 Datamaster DMT-FC breath-test devices are in the hands of the Department of Forensic Sciences, and more are on the way. One could say with a straight face that Alabama is reverting to 1970’s technology in the breath-testing program. Alabama is going back to the 3.5 micron wavelength measurement area on the infrared spectra and back to using the chopper wheel for breaking up the signal, both of which it had moved away from when it adopted the Draeger in 1999. Technology continues to change and more and more information can be retained by the software and retrieved long after a citizen takes a breath test.
One of the reasons for Alabama’s change from Draeger to Datamaster is the lack of availability of parts for the aging Draeger Alcotest 7110 devices. The state of Alabama has been using the Draeger since 1999. We will soon have new issues to defend on this new piece of equipment.
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