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

Recently a client from Birmingham, Alabama was charged with Burglary in the first degree.  He was charged in Pelham, Alabama over in Shelby County.  He went out drinking one night and all he remembers is waking up on a couch looking at the wrong end of a police issued revolver.  His shoes and socks were placed neatly outside the front door, he had taken off his shirt and went to sleep on someone couch, in a home that was not his own.  Burglary in the first degree is defined as knowingly or unlawfully entering or remaining in a building with the intent to commit a crime.  The Alabama Burglary in the first degree statute is below:

Burglary in the first degree.

(a) A person commits the crime of burglary in the first degree if he or she knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, the person or another participant in the crime:

1. Is armed with explosives; or
2. Causes physical injury to any person who is not a participant in the crime; or
3. In effecting entry, is armed with a deadly weapon or dangerous instrument or, while in the dwelling or immediate flight from the dwelling, uses or threatens the immediate use of a deadly weapon or dangerous instrument against another person. The use of or threatened use of a deadly weapon or dangerous instrument does not include the mere acquisition of a deadly weapon or dangerous instrument during the burglary.

(b) Burglary in the first degree is a Class A felony.

My client has an excellent defense to the charges.  The state of Alabama must prove he entered the home with the intent of committing a crime.  In my clients circumstances, it will be very hard to prove he entered the home while intending to commit a crime.  His shoes were off, he had taken off his shirt to sleep, and he was in fact sleeping as the police arrested him.  It seems fairly clear, that with a quality Alabama criminal defense lawyer and attorney representing his interests, he cannot be found guilty of burglary in the first degree.  My argument would be simple.  He was extremely drunk and entered the home thinking it was his friends home.  Thus, the state must prove beyond a reasonable doubt this is not the case. The facts and circumstances, along with a good Alabama DUI and criminal defense attorney, will assuredly result in a not-guilty verdict. 

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My firm believes in protecting the rights of those accused of driving under the influence in Alabama, regardless of where you were charged.  I represent clients charged with a DUI in Birmingham, Tuscaloosa, Auburn, Huntsville, Mobile, Hoover, Pelham, Mountain Brook, Homewood, Gardendale, Montgomery, Fultondale, Florence, Guntersville, Arab, Decatur, Cullman, Boaz, Fort Payne, Scottsboro, or charged in Jefferson County, Shelby County, Madison County, Montgomery County, or Mobile County.   My firm's Birmingham, Alabama location allows us to regularly defense those charged with a DUI throughout the state of Alabama.  I am the "go to guy" for an Alabama DUI defense lawyer and attorney.  I spend hundreds of hours a year just reading the latest DUI defense news and learning DUI defense from the best DUI defense lawyers and attorneys in the country. 

My firm also tries to make DUI defense affordable.  I understand that good DUI defense lawyers and attorneys are expensive, and everyone does not have the same access to these kinds of quality DUI lawyers.  At Eversole Law, we try to structure our fees so that anyone who has been accused of driving under the influence of alcohol or drugs can afford their defense.  As a result of our continued hope to bring quality DUI defense lawyers to those that may not have been able to afford such a defense in the past, on top of our already competitive pricing,  we offer payment plans, and we accept major credit cards.  Our goal is to help make sure everyone who needs a  high quality DUI defense lawyer is able to afford one. 

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Bail jumping is where a criminal defendant has been released from jail, with or without bail, and is scheduled to be in court but doesn't show up.  There are two kinds of bail skipping in Alabama: first and second degree.  Bail jumping in the first degree only occurs if you were charged with murder, or a class A or B felony.  Bail jumping in the first degree is a class C felony in itself.  Bail skipping in the second degree occurs when you are charged with any misdemeanor or class C felony, and don't show up for court.  Bail jumping in the second degree is a class A misdemeanor. 

Today, a Birmingham, Alabama client came into my office for an FTA(failure to appear) in Pelham, Alabama.  He has a brother from Hoover, Alabama who came into the office on similar charges as well.  They both needed advice on their Alabama failure to appear charges.  I told them that in order to prove bail skipping, the Shelby County prosecutor must show the brothers intentionally failed to appear for their respective court dates.  In theory, all the defense need do to beat the FTA charge is introduce evidence they did not miss their court dates intentionally.  Thus, if a brother takes the stand and testifies he missed the court date unintentionally, the prosecution must prove beyond a reasonable doubt he missed the court date intentionally.  This is a very hard burden of proof for the prosecution to meet. 

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As a Birmingham, Alabama DUI and Criminal Defense lawyer and attorney, I strongly condemn the death penalty.   Alabama is set to execute Thomas Arthur on September 26, 2007.  Although the death penalty is horrific and should not be endorsed by an advanced intellectual society, it is worse in the backward state of Alabama.  Mr. Arthur contends he is innocent and Governor Riley refuses to allow DNA testing that could exonerate Mr. Arthur.  According to the Innocence Project, fifteen death row inmates have been exonerated nationwide by DNA testing thus far, some just days before they were scheduled to be executed.  As the Innocence Project points out , if any of these men were on death row in Alabama, they would be dead by now.  If a state is going to continue the barbaric act of execution, it is unconscionable that with today's technology, every person scheduled to die does not receive DNA testing.  Shouldn't the state at least make sure, by every possible means, the people they execute are actually guilty?  Or does Governor Riley and the state of Alabama really care who we execute, as long as someone pays for the act they are alleged to have committed, and come election time, the politicians can act like they are tough against crime. 

Forty-two states now allow for post-conviction DNA testing.  As always, Alabama is one of the last holdouts to a bygone era.  There are a lot of great things about this state, it is my home, I love it, and its people dearly.  However, when it comes to the death penalty in general and DNA testing specifically, I think everyone should ask a simple question: "What would Jesus do?'

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I received a phone call yesterday from a perspective client in Birmingham, Alabama.  She received a DUI coming back from the Alabama Football game this past weekend.  She was charged with driving under the influence and possession of drug paraphernalia(a small pipe commonly used for smoking marijuana).  She was charged with the DUI in Shelby County, Alabama, in the city of Pelham.  She blew a .10, which is over the legal limit of .08% blood alcohol level, failed the field sobriety test, and threw up in the police car. 

It was her first offense and I will be able to negotiate a pre-trial diversion for the DUI charge and drug court for the paraphernalia charge.  Thus, when she completes an alcohol abuse program, pays her fines, and doesn't get another DUI within a year, her record is wiped clean. 

Drug court is also a version of pre-trial diversion.  Once you complete the program's specifications, fines, drug abuse counseling, drug tests, and stay out of trouble, your Alabama drug charges are removed from your record.  Thus, I will be able to get my client's record wiped completely clean. 

Sometimes however, this method is not the best solution.  Just because I can get your record clean after a DUI or drug possession charge in Hoover, Trussville, Mountain Brook, Vestavia, Moody, or all across Alabama, does not mean that is the best criminal defense strategy to employ.  Even if you get DUI diversion or drug court,  you just used up your get out of jail free card, so to speak.  If you ever receive another charge, those options will not be available to you.  Many times, a DUI or Drug charge can be challenged in court, and when the case is dismissed or you win a jury trial, you still have the option of using drug court or DUI pre-trial diversion to your benefit, if something like this ever happens again. 

 

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I defend clients across the great state of Alabama charged with driving under the influence.  My firm's central location in Birmingham, Alabama allows us to regularly defend clients throughout the state and in Jefferson County, including Mountain Brook, Hoover, Pelham, Vestavia Hills, Moody, Leeds, Homewood, Hueytown, Trussvile, Gardendale, Fultondale, Fairfield, Bessemer, Adamsville and Pleasant Grove.  As a Birmingham, Alabama DUI Defense Lawyer, I also defend clients in Tuscaloosa, Montgomery, Huntsville and Mobile, Alabama. 

My firm believes you are innocent until proven guilty of driving under the influence, or DUI/DWI.  We will fight for your rights in every Alabama County and in every Alabama Court.  You do not have to plead guilty to DUI charges, even if you blow above the legal limit.  There are many ways to challenge a DUI charge in court.  My firm focuses our practice on making these challenges.  We also believe in making quality DUI defense an affordable option for people who want to defend themselves against DUI charges.  When you cannot afford to lose, call Eversole Law,  and say "bye bye" to your DUI. 

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In recent criminal law news, O.J. Simpson did not enter a plea today.  His bail was set at $125,000 for an armed robbery at a Las Vegas casino.  O.J. was asked if he understood the charges against him and he is expected to be released soon.  O.J. is facing life in prison and is charged with ten felony counts:

• Two counts of first degree kidnapping
• Two counts of robbery with a deadly weapon
• Burglary while in possession of a firearm
• Coercion while in possession of a deadly weapon
• Two counts of assault with a deadly weapon
• Conspiracy to commit kidnapping
• Conspiracy to commit robbery

 

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Prosecutors filed formal charges against O.J. Simpson today.  O.J. faces ten felony charges including kidnapping and armed robbery.  The juice faces life imprisonment if convicted in the robbery.  He is accused of trying to steal sports memorabilia at the Palace Station casino.  O.J. is going to need a really, really good criminal defense attorney at this point.  His alleged cohorts are already coping pleas and ratting to save their own skin.  It is a shame that when a celebrity criminal defendant is involved, the district attorney is more concerned about nabbing the "big fish," and getting into the papers than justice.  This is the same scenario we saw with the Michael Vick escapade.  The other participants, who may have actually been more heavily involved in the crime, get a light sentence in exchange for testifying against the celebrity.  And how reliable is this testimony anyway? These are confessed criminals who are now trying to save their own skin, wouldn't they say or do anything to get off easier?  I certainly think so.  I think it is an injustice that this kind of accomplice testimony is allowed in court proceedings.  This type of testimony has to be more unreliable than say, hearsay for example.  Also, as an aside, how can a self-respecting criminal defense attorney represent a rat?

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Field sobriety tests are very inaccurate.  The tests are completely subjective and should not be used as proof of guilt in any court proceeding.  Has anyone ever passed a field sobriety test in Alabama?  I doubt it.  If the cop wants to arrest you, you can bet the night in jail that your performance on a field sobriety test will make little difference.  Apparently, cops are like superman, they have laser vision.  They are able to discern an inch difference in the placement of your feet on a dark highway with little to no light,  and are able to stand on one foot while counting for 30 seconds at a time, without ever moving a muscle or slightly adjusting their leg.  I don't know about you, but standing on one foot for thirty seconds is hard to do at all, sober or not.  Don't believe me, try it.  Make sure your foot does not touch your leg or almost touch the ground, and make sure you don't sway too much while doing so either.  I have heard all these grounds used as a cops reasoning to arrest someone for DUI.  As I have said on this blog several times, do not take a field sobriety test. 

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An Alabama women was charged with a DUI for, "riding under the influence."  This story is a couple months old, but helps make my point.  The crazy, "MADD" mothers against drunk driving have caused Alabama to go insane.  Alabama code 32-5A-191 specifically requires that in order to be guilty of driving under the influence, you must be driving or under the physical control, "of a motor vehicle."  Does anyone think this horse has wheels or an engine? How in the world can the language of the Alabama Statute be interpreted any other way than to require some kind of motorized vehicle?  According to Websters, the definition of motor vehicle is as follows:

 motor vehicle
Function: noun
: an automotive vehicle not operated on rails; especially : one with rubber tires for use on highways

This is just another crazy example of police powers run amok and MADD mothers running our legislature and courts.  I guess the horse had rubber horseshoes.  What's next, no bull-riding while intoxicated?  What fun would that be. 

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A first time DUI conviction can land you in jail.  You could face a year in jail for one DUI conviction.  One DUI can also have other serious consequences.  You can go to jail, pay large fines, lose your drivers license for 90 days, your car insurance will triple, you may lose your job or security clearance at work, and it could ruin your reputation with your friends, neighbors or co-workers.  Furthermore, a DUI conviction will stay on your record forever.  There is no expungement provision in Alabama.  

Most people charged with a DUI have much to lose.  Do not plead guilty until you speak with a criminal defense attorney that focuses their practice on DUI defense. Too many people blindly try to make these charges go away by quickly pleading guilty to the charges.  An Alabama DUI charge is a serious offense and you need to take it seriously.  Pleading guilty is normally the last option.  You are innocent until proven guilty and you should make the state prove your guilt in court.

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When you are arrested for a DUI in Alabama your case will be heard in a particular court.  The specific court your case is docketed in depends on several factors; including which police agency arrested you and how many Driving Under the Influence convictions you have.  If it's your first DUI or your second, the case is still a misdemeanor and your case will be in either a municipal or district court of the county in which you were arrested.  If you have three DUI convictions, your case is a felony and you will be scheduled for a preliminary hearing in the District Court of the county in which you were arrested.  A felony DUI conviction may also be heard originally in the Circuit Court of the county you were arrested, depending on how you were charged.

If you are arrested for a DUI in a municipality by a municipal police officer, your case will be heard in the municipal court of that city(i.e. Mountain Brook) if that city has a municipal court.  Municipal courts and district courts are what we lawyers call, "courts of limited jurisdiction."  This just means that these courts have no power to hear felony DUI cases.  A district court can, however, have preliminary hearings in felony DUI cases. 

There is no right to a jury trial in either a municipal or district court.  If one of these courts hear your case and you exercise your right to have a trial, then you will have a bench trial.  A bench trial is a trial before a judge only, with no jury.  If you chose to have a trial in either a district or municipal court and are convicted, you have a right to appeal that conviction to a circuit court of the county you were arrested for a new trial.  In order to perfect your right to a DUI conviction from a district or municipal court, you must file a notice of appeal within 14 days of conviction and post an appeal bond.  If you do not file within the time allotted you forfeit your right to any appeal.  You are entitled to a jury trial in circuit court.  If you lose in circuit court, you can always appeal that decision to the Alabama appellate courts.

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Have you been charged with a DUI in Alabama?  If so, you have only 10 days to request an administrative hearing or your license will be suspended.  You should receive notice of this fact from the arresting officer.  If you lose your license, your only option is to appeal the decision to the Circuit Court within 30 days. 

The license loss is distinct from any criminal penalties. This means that you can lose your license while being found "guilty," or "not guilty," in an Alabama DUI trial.  Makes you wonder what happened to the concept, "innocent until proven guilty."  In this case, it's not even, "guilty until proven innocent."  It's simply, "guilty."  Now some will argue that balancing this equation is the administrative hearing.  But does the administrative hearing really provide the same kind of safe guards that are enshrined into our Constitution and afforded those accused of crimes?  Furthermore, even if you somehow believe that taking someone's license for a crime he has not been proven to commit is fair, I would then scream Double Jeopardy.  It is supposedly illegal to charge someone with the same crime twice, no matter how you look at it, and no matter how it may have been interpreted, the prohibition against Doubly Jeopardy is not esoteric.  It's plain meaning will suffice. 

Sorry for the digressive rant.  Back to my original subject.  The 10 day rule applies to you if you meet any of the following conditions:

• BAC over .08 while driving or under control of a vehicle
• BAC at or above .02 and you are below the age of 21
• BAC over .04 at time of arrest for Commercial Drivers
• You refused to take breath test

If you do not request an administrative hearing within ten days of arrest you will lose your license. You could lose your license in this manner anywhere from 90 days to several years.  Factors to be considered in determining how long you could lose your license include:

1. Driving Category
2. Age
3. Driving Record

Moral of the story, hire an Alabama DUI & Criminal Defense attorney that focuses his practice on defending those accused of a DUI.  I spend hundreds of hours perfecting the defense of those accused of DUI.  I have read all relevant publications, including hundreds of DUI and Criminal Defense Blogs from all over the country.  I also regularly attend legal education seminars devoted to DUI defense. Not to mention , I obsessively update this blog to make it the best source of information available to those accused on a DUI in Alabama.  Combined I spend around 25-30 hours a week studying Alabama DUI & Criminal Defense Law.  The law is way too complicated these days for an attorney to be a jack-of-all-trades.  When your reputation, money, job, or freedom is on the line, you need an attorney that makes Alabama DUI & Criminal Defense his priority.  Riddle me this:  Did you get your plumbing fixed by the electrician?

 

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Probable cause is required for an arrest warrant in Alabama.  The Alabama Constitution provides that "no warrants shall issue to....seize any person or thing without probable cause."  A warrant for the arrest of a defendant is valid only if it reasonable appears from the evidence, that an offense has been committed, and there is probable cause to believe that the accused committed the crime.  Probable cause is determined by looking at the totality of the circumstances.   

An arrest warrant must contain the following elements:

• signed by issuing judge or magistrate
• must contain the name of defendant
• state the offense with which defendant is charged

An Alabama arrest warrant may be performed by any law enforcement officer with the State of Alabama. 

A defective arrest warrant is freely amended to remedy any defect.  Thus, an arrest warrant will be invalidated because of a defect in form. 

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A motorist being investigated for DUI should not consent to a blood alcohol test.  My advice to anyone who reads this blog before getting arrested for a DUI, is never take a breathalyzer, field sobriety test, or any test administered by the police or any of its agents.  However, most people do not realize they can decline to take the field sobriety or breath test.  The police, of course, will not inform you of your right not to consent prior to taking the breath test.  In fact, they will make a big show of how your license will be suspended for 90 days if you do not submit to the test. 

There are different types of blood alcohol tests in Alabama: urine, breath and blood.  The police  use the breath test almost exclusively.  If you do consent to a breath test for DUI, which is normal, most people do consent to testing, you have the right to get an independent test of your blood alcohol content.  In Alabama, the police will not inform you of your right to get an independent test of your blood alcohol content.  You must make the demand for independent testing yourself, and you must take the police administered test to exercise your right to independent blood alcohol testing. You will also have to make the arrangements for the independent test and you must pay all expenses.  However, the police must give you reasonable access to arrange for an independent test.  Their failure to provide you access to independent testing gives rise to grounds for suppression of the police administered blood alcohol testing. 

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Jeremy Stevens, the Tampa Bay Buccaneer's tight-end, was found guilty of DUI today.  The officer that testified against Stevens, said "he smelled of alcohol, had bloodshot eyes and slurred speech."  I find this interesting because this seems to be the standard refrain from police officers in DUI cases.  It's like they are issued manuals pieced together from old DUI case law.  Those three descriptions are testified to with such repetition, you would think everyone who ever drove a car after drinking, must poor kegs of beer over their heads, smoke a pound of hash, and get so stumbling drunk they talk like Otis from the Andy Griffith show.  

What is so shocking about this kind of testimony is its subjectivity.  Lets say the cop had a bad day, or you just pissed him off because you didn't kiss his bloody bum.  It becomes really easy for him to say, "You smell like alcohol, step out of the car."  It is also really easy to make up on the stand when pressured by defense counsel.  I know most cops would not do these things. But in my experience, I have seen it occur to often to believe it doesn't happen with some regularity. 

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Ha Ha Ha!  Fellow blogger, and the "Go to guy for DUI"(in California that is),  Hunter Biederman nails Judge Smails...umm...I mean William Kortemier for refusing to take a breath test.  See Hunter expose the fat cats for what they are.  Biederman illuminates the hypocrisy many in power dish out on a daily basis.  Now I am a big believer of the idea that you are not guilty, and innocent until proven guilty, in court, by a jury of your peers, and beyond a reasonable doubt.  However, I bet he is a kind of guy who deals harshly with alcohol offenders, and who will take advantage of every legal trick in the book to get out of his DUI, then look down his nose at us mere mortals.  The moral of this story ladies and gents, please, for the love of God, Allah, Buddha, Vishnu, Zeus, or Odin, DO NOT UNDER ANY CIRCUMSTANCE(UNLESS YOU HAVE NEVER HAD A SIP OF ALCOHOL IN YOUR ENTIRE LIFE-(AND YOU STILL PROBABLY SHOULDN'T) take a breath test, by the road or at the police station;  or take a field sobriety test(AT LEAST WITHOUT YOUR ATTORNEY PRESENT-AND YOU STILL PROBABLY SHOULDN'T)!

Be like the fat cats. They have the inside knowledge and power. They don't take DUI field sobriety tests. They don't take DUI breath tests. The reason the fat cats don't take DUI field sobriety tests or DUI breathalyzers is simple. They know it is much more difficult to prove driving under the influence of alcohol when you don't have physical evidence.  When you take a breath test or field sobriety test, you are literally just handing over evidence to help convict yourself.  You might as well drive your car through the police station window, while puking, with bottles of Jack Daniels rolling across the dash, stumble up to the first police officer you see, and slurringly say, "I'll have a double my good man."

 

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Contrary to modern assumptions, evidence of a blood alcohol content of .10% or greater does not create a presumption of guilt that you were under the influence of alcohol at the time of the offense.  Instead, evidence of .10% alcohol creates a rebuttable presumption that the measurement accurately reflects the blood alcohol concentration at the time of driving, but does not create a presumption of guilt, because the state must prove beyond a reasonable doubt that the defendant was driving or operating a motor vehicle with a blood alcohol concentration of 0.10%. Curren v. State, 620 So.2d 739 (Ala.1993), on remand 620 So.2d 745.

Therefore, it is still possible to contest your Alabama Driving Under the Influence charge even if you blow greater than .10%. 

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Summer Time brings new and inexperienced boaters to the lakes and waterways all over Alabama.  Many people are unaware that you can be convicted of Boating Under the Influence.  Here is Alabama's Boating Under the Influence Law below.  Notice how the penalties are the same for operating a car or a boat under the influence of alcohol or drugs:

§ 32-5A-191.3. Operation of vessel and other marine devices while under influence of alcohol or controlled substances.

(a) A person shall not operate or be in actual physical control of any vessel, or manipulate any water skis, aquaplane, or any other marine transportation device on the waters of this state, as the waters are defined in Section 33- 5-3, under any condition in which a person would be guilty of driving under the influence of alcohol or drugs pursuant to Section 32-5A-191 if the person was driving or controlling a motor vehicle.

(b) In the case of a vessel or other marine device described in subsection (a), where a law enforcement officer has probable cause to believe that the operator of the vessel or other marine device is operating in violation of this section, the law enforcement officer is authorized to administer and may test the operator, at the scene, by using a field breathalyzer or other approved device, as a screening device, to determine if the operator may be operating a vessel or device in violation of subsection (a). Refusal to submit to a field breathalyzer test or other approved testing device shall result in the same punishment as provided in subsection (c) of Section 32-5-192 for operators of motor vehicles on the state highways.

(c) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a controlled substance shall not constitute a defense against any charge of violating this section.

(d) Upon a first or subsequent conviction, a person violating this section shall be punished in the same manner and under the same conditions as a person convicted of driving under the influence of alcohol or drugs pursuant to Section 32-5A-191, or any successor section or sections providing for the offense of driving under the influence of alcohol or drugs, except that in any case where reference is made to the Director of Public Safety and the driving privilege or driver's license of the person, the reference shall be deemed to refer to the Commissioner of Conservation and Natural Resources and the vessel operating privilege or boater safety certification of the person convicted under this section.

 

Continue Reading...

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I have listed Alabama's Implied Consent law below in its entirety.  This law gives the state the right to test a person for alcohol if you have been lawfully arrested for an offense involving the use of an automobile on public highways.  The law states your license will be suspended for 90 days if you refuse a test.  However, a 90 day license suspension is much better than a DUI.  If you have any alcohol in your system at all, you should not incriminate yourself by taking any test administered by the police.  The breath tests are often inaccurate, and the field sobriety tests are completely subjective and easily manipulated.  Piss off a cop and the flawless way you touched your finger to your nose becomes something else in the cops report.  Just remember:  NEVER, EVER, TAKE ANY TEST ADMINISTERED BY THE POLICE WITHOUT YOUR ATTORNEY PRESENT!

§ 32-5-192. Implied consent; when tests administered; suspension of license or permit to drive, etc., for refusal to submit to test.

(a) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 90 days; provided if such person objects to a blood test, the law enforcement agency shall designate that one of the other aforesaid tests be administered.

(b) Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (a) of this section and the test or tests may be administered, subject to the provisions of this division.

(c) If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency as provided in subsection (a) of this section, none shall be given, but the Director of Public Safety, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor and that the person had refused to submit to the test upon the request of the law enforcement officer, shall, on the first refusal, suspend his license or permit to drive, or the privilege of driving a motor vehicle on the highways of this state given to a nonresident; or if the person is a resident without a license or permit to operate a motor vehicle in this state, the director shall deny to the person the issuance of a license or permit, for a period of 90 days, subject to review as hereinafter provided. For a second or subsequent refusal of such test within a five-year period, the director, upon said receipt of a sworn report, shall suspend his license or permit to drive, or the privilege of driving a motor vehicle on the highways of this state given to a nonresident for a period of one year; or if the person is a resident without a license or permit to operate a motor vehicle in this state, the director shall deny to the person the issuance of a license or permit, for a period of one year subject to review as hereinafter provided. If such person is acquitted on the charge of driving a motor vehicle upon the highways of this state while under the influence of intoxicating liquor, then in that event the Director of Public Safety may, in his discretion, reduce said period of suspension.

(d) Upon suspending the license or permit to drive or the privilege of driving a motor vehicle on the highways of this state given to a nonresident or any person, or upon determining that the issuance of a license or permit shall be denied to the person, as herein before in this section directed, the Director of Public Safety or his duly authorized agent shall immediately notify the person in writing and upon his request shall a

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