Birmingham Criminal Defense Blog : Birmingham DUI & Criminal Defense Lawyer & Attorney : Eversole Law Firm : Criminal and DUI Defense : Serving Birmingham, Montgomery, Alabama

Imagine, if you will, this scenario: You get a big promotion at work and the fellas take you out to celebrate one Friday evening.  Long story short, you get tanked on the revelry....and the beer.  Instead of getting in your car and attempting a dangerous ride home, you decide to pass out in the car to be safe, parked safely in the parking lot across the street from the bar.  Next thing you know, a blue clad bobby is banging on your window and shining his light into your blood shot eyes.  Slip, boom, bam, your headed "downtown," to the station for a DUI.  But wait, you complain, how can I get a DUI when I wasn't even driving a car?  It's called, "driving" under the influence for a reason, right? 

Unfortunately, this injustice has occurred far too many times.  Yes, you can be convicted for a DUI in Alabama without ever driving your car.   A person may be convicted of a DUI in Alabama who is in actual physical control of his vehicle, but not yet driving; even where he is asleep in his parked vehicle.  Does this sentence actually make sense to anyone?  And yes,  this language comes directly from the case. How can you be in actual physical control of your vehicle if you are passed out asleep?  I thought the idea was to keep people from drinking and driving.  This law looks like the kind that has the opposite effect of its intentions.  

I could tell you want more absurdity.  Well here goes.  You can even be convicted of a DUI in Alabama even if the car doesn't work.  I am not joking, even though it sounds like a bad joke, or a nightmare depending on your point of view.  The Court in Mester v. State, 755 So. 2d 66 (Ala. Crim. App. 1999), ruled that a defendant was in "actual physical control" of his automobile even though the car was inoperable.   

I hope readers are starting to see why I believe so much in being a criminal defense attorney.  This kind of thing is anti-American.  Where does it say in the Constitution that you can't get snot slinging drunk if you want, and sleep in your car?  Criminal Defense Attorneys are truly, "liberties last champions." I salute you all. 

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Alabama law is well settled in that, to establish a prima facie case of driving while under the influence of alcohol under § 32-5A-191(a)(2), the state must prove beyond a reasonable doubt that the defendant:

• drove, or was in actual physical control of, a motor vehicle
• while he was under the influence of alcohol
• to such an extent that it affected his ability to operate his vehicle in a safe manner.

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Jurisdiction refers to the court's power to hear and determine cases.  A court must have proper jurisdiction before it can enter a valid judgment.  Proceedings held in a court without proper jurisdiction are void and unenforceable.

Alabama Municipal Courts have jurisdiction over a case if all three elements below are met: 

• there is a valid city ordinance proscribing the conduct
• the alleged offense must have been committed with the police jurisdiction of the city
• and the accused must be properly brought before the court

A municipality's jurisdiction is territorially restricted according to the size of the city.  In a city with less than 6,000 people, jurisdiction extends to all adjoining territory a mile and a half beyond the city's corporate limits.  For a city with more than 6,000 people, police jurisdiction, and thus the jurisdiction of the municipal court, extends to three miles beyond its corporate limits.

So, if you get pulled over for a DUI in Homewood or Mountain Brook, you will be subject to their municipal code, and will be charged in that city. 

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Jamie Spencer, my buddy down in Austin, makes an excellent point regarding prostitution and the law.  Jamie cleverly points out that that the definition of prostitution, at least according to Websters Dictionary, includes having sex.  If we followed the normally recognized definition you would actually have to consummate the "hooker,"and "john" relationship.  As it is, the law in Alabama is very much like the law Jamie writes about in Texas.  I have listed the law in Alabama below and you can see that, in Alabama as in Texas, the laws are similar.  You can be convicted of prostitution without ever having received what you paid for. 

• No person shall commit an act of prostitution as defined in Section 13A-12-120.
•  No person shall solicit, compel, or coerce any person to have sexual intercourse or participate in any natural or unnatural sexual act, deviate sexual intercourse, or sexual contact for monetary consideration or other thing of marketable value.
• No person shall agree to engage in sexual intercourse, deviant sexual intercourse, or sexual contact with another or participate in the act for monetary consideration or other thing of marketable value and give or accept monetary consideration or other thing of value in furtherance of the agreement.
• No person shall knowingly do any of the following:

(1) Cause or aid a person to commit or engage in prostitution.

(2) Procure or solicit patrons for prostitution.

(3) Provide persons or premises for prostitution purposes.

(4) Receive or accept money or other thing of value pursuant to a prior agreement with any person whereby he or she participates or is to participate in the proceeds of any prostitution activity.

(5) Operate or assist in the operation of a house of prostitution or a prostitution enterprise.

§ 13A-12-122. Violations.

Each violation of this division is a Class A misdemeanor.

 

 

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The Alabama Death Penalty should be abolished.  With all the overwhelming statistics out there of the unfairness of the process, DNA samples exonerating defendants who have been in jail for years, innocent men having been executed, the simple fact that African Americans are much more likely to be sentenced to death, etc. etc. I did not want to wax philosophical about the death penalty here, that will come in due time my friends.

I merely want to point several excellent organizations who do good work.  The Equal Justice Initiative of Alabama is a private, nonprofit organization that provides legal representation to indigent defendants and prisoners who have been denied fair and just treatment in the legal system.  The Innocence Project is a national litigation and public policy dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent further injustice.  Check them both out.  They are fighting the good fight and deserve our support. 

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The traditional example of what constitutes Alabama Manslaughter is an intentionally killing committed during the "heat of passion."  A killing that would normally be Murder is reduced to Manslaughter because of a legal provocation.  For instance, catching your spouse in bed with another person is legal provocation to kill your cheating spouse and his/her lover, if the killing is done "in the heat of passion," e.g., immediately after finding them together you grab a gun out of the drawer and shoot them 49 times each, without any sort of calming period in between.  I make sure my wife is well aware of this little diddy.  Just kidding. ha!

§ 13A-6-3. Manslaughter.

(a) A person commits the crime of manslaughter if:

(1) He recklessly causes the death of another person, or

(2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.

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The Alabama Murder statute is listed below for your Sunday morning reading pleasure.

§ 13A-6-2. Murder.

(a) A person commits the crime of murder if he or she does any of the following:

(1) With intent to cause the death of another person, he or she causes the death of that person or of another person.

(2) Under circumstances manifesting extreme indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to a person other than himself or herself, and thereby causes the death of another person.

(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.

(4) He or she commits the crime of arson and a qualified governmental or volunteer firefighter or other public safety officer dies while performing his or her duty resulting from the arson.

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Alabama theft of property law is contained in Alabama Code § 13A-8-2. Theft of property -- Definition.

A person commits the crime of theft of property if he or she:

(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;

(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property;

(3) Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen; or

(4) Knowingly obtains or exerts unauthorized control over any donated item left on the property of a charitable organization or in a drop box or trailer, or within 30 feet of a drop box or trailer, belonging to a charitable organization.

The state of Alabama has to prove three elements to convict a person of theft of property.

• that the defendant knowingly obtained the property of others
• defendant obtained that property by deception
• and defendant intended to deprive the others of their property

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Here is a fantastic NORML guide to Alabama's draconian drug laws. Come on people, do we really think we should be putting people away for a mandatory minimum sentence of three years for growing weed for personal use? Get an ornery judge, and the sentence could range from 10-99 years in prison.  There are better things we could be doing with our time and resources, surely.

I highly recommend everyone get involved and try to change these laws. Check out the National Organization for the Reform of Marijuana Laws to learn more. 

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Alabama Code § 13A-12-212. Unlawful possession or receipt of controlled substances.

"UPOCS" = Unlawful Possession of Controlled Substance

(a) A person commits the crime of unlawful possession of controlled substance if:

(1) Except as otherwise authorized, he possesses a controlled substance enumerated in Schedules I through V.

(2) He obtains by fraud, deceit, misrepresentation or subterfuge or by the alteration of a prescription or written order or by the concealment of a material fact or by the use of a false name or giving a false address, a controlled substance enumerated in Schedules I through V.

(b) Unlawful possession of a controlled substance is a Class C felony.

The State must prove all three following elements of the crime to sustain a conviction for unlawful possession:

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Listed below are the possible penalties for driving under the influence in Alabama. A DUI in Alabama is a taken very seriously:

• Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. In addition, on a first conviction, the Director of Public Safety shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days.
  
•  On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days or community service for not less than 30 days. In addition the Director of Public Safety shall revoke the driving privileges or driver's license of the person convicted for a period of one year.
  
• On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended. In addition, the Director of Public Safety shall revoke the driving privilege or driver's license of the person convicted for a period of three years.
  
• On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years. Any term of imprisonment may include hard labor for the county or state, and where imprisonment does not exceed three years confinement may be in the county jail. Where imprisonment does not exceed one year and one day, confinement shall be in the county jail. 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. Where probation is granted, the sentencing court may, in its discretion, and where monitoring equipment is available, place the defendant on house arrest under electronic surveillance during the probationary term. In addition to the other penalties authorized, the Director of Public Safety shall revoke the driving privilege or driver's license of the person convicted for a period of five years.

• In addition to the penalties provided herein, any person convicted of violating this section shall be referred to the court referral officer for evaluation and referral to appropriate community resources. The defendant shall, at a minimum, be required to complete a DUI or substance abuse court referral program approved by the Administrative Office of Courts and operated in accordance with provisions of the Mandatory Treatment Act of 1990, sections 12-23-1 to 12-23-19 inclusive. The Department of Public Safety shall not reissue a driver's license to a person convicted under this section without receiving proof that the defendant has successfully completed the required program

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In Alabama, a person under 21 has less rights than a person over 21.  A person under 21 could have gone to war, graduated from college, or could be a mom or dad, yet they are basically not allowed to have a glass of wine and drive home.  A person under the age of 21 in the State of Alabama cannot have more than .02 percent by weight of alcohol in his or her blood. This effectively makes it illegal for someone under the age of 21 to drive a car after having a glass of wine, which would put many people over the legal limit at this range. Here is this ridiculous law:

• A person who is under the age of 21 years shall not drive or be in actual physical control of any vehicle if there is .02 percentage or more by weight of alcohol in his or her blood. The Department of Public Safety shall suspend or revoke the driver's license of any person, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of, or subjected to a finding of delinquency based on this subsection. Notwithstanding the foregoing, upon the first violation of this subsection by a person whose blood alcohol level is between .02 and .08, the person's driver's license or driving privilege shall be suspended for a period of 30 days in lieu of any penalties provided in subsection (e) of this section and there shall be no disclosure, other than to courts, law enforcement agencies, and the person's employer, by any entity or person of any information, documents, or records relating to the person's arrest, conviction, or adjudication of or finding of delinquency based on this subsection.
  
  All persons, except as otherwise provided in this subsection for a first offense, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of, or subjected to a finding of delinquency based on this subsection shall be fined pursuant to this section, notwithstanding any other law to the contrary, and the person shall also be required to attend and complete a DUI or substance abuse court referral program in accordance with subsection (i).

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The Alabama Driving Under the Influence statute is transcribed for you below.  All it takes is a few beers to be legally intoxicated in this State.  A .08 percent alcohol is all that is needed for you to spend the night in jail, incur large court costs and attorney's fees, public humiliation, and possibly even lose your job. I understand that some people should be driving, and that some are dangerous to themselves and others, but the vast majority of people can drive just as well after a couple beers, if not better, than they did before the beer. 

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 person might drive better after a couple beers because he knows he has been drinking and will take more precautions while driving than normal. Furthermore, studies have shown that distracted driving(i.e. driving while eating, talking on the cell phone) are just as likely to produce accidents as "legally" drunken drivers. Watch out people, they will be coming after your cell phone and burger next, mark my words.

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