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

As a Birmingham criminal defense attorney, I have seen a wide of criminal indictments for crimes ranging from drug manufacturing and computer fraud to assault and murder. If there is one thing I am certain of, that is every citizen’s right to a fair criminal trail and to be considered innocent until proven guilty.

Just last month, two men from Lauderdale County, AL, were charged with extorting money from individuals in northern Alabama. According to news articles, the two posed on numerous occasions as private investigators using their false personas as a way to get money from their alleged victims.

The two men are reportedly both from Florence, Alabama. According to reports, 44-year-old Mark Douglas Wilson and 47-year-old Gregory Jones Harrison were charged with second-degree extortion by law enforcement authorities -- this is a Class C felony and punishable by up to 10 years in prison following a conviction. The recent arrests came following allegations against the two and a subsequent probe by the Alabama Bureau of Investigation.

Officials at the ABI allege that Harrison and Wilson presented themselves as private investigators working under contract with the ABI to conduct investigations into criminal activities. The two men are accused of attempting to extort large sums of money from the various individuals they had targeted.

According to information provided by the ABI, the suspects apparently explained to the victims that their names were included on a list of persons involved in criminal activity and that they would be arrested in an upcoming roundup by law enforcement. The extortion came in the form of promises to remove those person’s names from the fictitious list in exchange for certain payments.

Investigation into the alleged extortion arrangement commenced after the ABI was contacted by a local businessman who said he had been approached by Harrison and Wilson. The investigation reportedly lasted a little more than one week. Following the arrest the two suspects were placed in the Lauderdale County Detention Center until they were released on bail of $1,000 each.

 

Two local men charged with extortion, TimesDaily.com, January 23, 2010

 

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Being accused, or worse, convicted of a sex crime can ruin a person’s life. Police and law enforcement agencies throughout Alabama regularly arrest individuals for a range of offense related to criminal sexual behavior. From Mobile and Birmingham to Huntsville and Tuscaloosa, child pornography (also referred to as kiddy porn), sexual assault, rape and other crimes of a sexual nature are some of the most stigmatized offenses recognized by the public. Defending against charges such as these takes experience and knowledge of our vast legal system.

As a Birmingham criminal defense lawyer, I have represented many individuals accused of various offenses, including sex crimes, white-collar crime and drug possession and manufacture. Every one of the cases I handle has one thing in common: the prosecution must prove guilt beyond a reasonable doubt. Because citizen is guaranteed that he or she is considered innocent until proven guilty, this is a guiding principle behind out system of laws.

According to a recent news article, a Causey Middle School teacher was arrested in January on child sex abuse charges. Based on police reports, a Mobile County school official revealed that Charles Milton Lewis, Jr. had previously been accused of exposing himself to a Causey student. The accusation was apparently not proven and therefore was not included in the teacher's personnel file, according to the school system.

Lewis, as 50-year-old a science and reading teacher at Causey, was jailed on January 12 in Baldwin County on charges of sexual abuse of a child under age 12 and contributing to the delinquency of a minor, according to the sheriff's department. At the time of the news report, the man was being held in the Baldwin County Corrections Center.

According to reports, Lewis is accused of exposing himself as well as fondling a nine-year-old boy who spent an evening at the teacher’s home in July of last year. Reportedly an acquaintance of Lewis, the boy is not a student at Causey, according to a spokesperson for the Mobile County school system.

School system officials have stated that Lewis' personnel file in the system's human resources department contains no reported instances of any inappropriate behavior. According to reports, however, the accusation of sexual misconduct came to light in the form of a formal letter of complaint to the school system last fall.

However, according to a school spokesperson, the letter was not placed in Lewis’ personnel file because the central office “gets complaint letters all the time and the allegations were unsubstantiated.” School policy prohibits filing anything in personnel files that is not substantiated.

Lewis has been on paid administrative leave since January 6, following an arrest for drunken driving two days earlier. According to reports, he was involved in an early morning crash on January 4 in Baldwin County. Police say that his blood alcohol content was 0.11 percent at the time of the crash.

Teacher in sex abuse case exposed himself to Causey school student, complaint claims, AL.com, January 15, 2010

Investigation of Mobile teacher deepens, Fox10TV.com, January 14, 2010

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Today we are continuing with our discussion about 20 ways to beat a DUI charge in Alabama.  If you have been charged with Driving Under the Influence of Alcohol, here is part two of our 20 ways to beat your DUI.  Here goes another five ways an experienced and knowledgeable Alabama DUI lawyer or Alabama DUI attorney can beat your Alabama DUI charge:

6.  Rising Blood Alcohol Level:

A DUI suspect can blow a .15 at the police station; but have had a .07 BAC when he got pulled over. Why? Because alcohol takes an average of 50 minutes, but can take as long as three hours, to absorb fully into your bloodstream and create your peak blood alcohol level. This is critical if the DUI traffic stop occurred relatively soon after you finished drinking.

Your BAC was probably still rising when you blew in the machine. This means that even if your BAC was above .08 when the blood draw or breath test occurred at the police station (or hospital), it may well have been below .08 when you were actually driving. There is no law against having a BAC above .08 at a police station; it’s only the blood alcohol level while actually driving that counts for DUI purposes.

7.  Alabama Law Requires a 20 minute Observation Period Before The Breath Alcohol Test:

Alabama regulations require the officer to watch the DUI suspect continuously for at least 20 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this “mouth alcohol” into the breath machine triggers an exaggeratedly high BAC reading.

Officers rarely follow this required observation procedure. They usually perform paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DUI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test result, and can sometimes get the test thrown out of court altogether.

8.  Inaccurate Blood-Breath Partition Ratio -- Ratio is should be based upon  Individual Differences:

DUI breath testing assumes that “breath alcohol” accurately reflects blood alcohol based on a 2100-to-1 partition ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies reveal that the ratio of blood to breath varies greatly among individuals.

A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And there’s no way to determine what a given person’s ratio is, or what it was at the time of the DUI breath test.

9.  The Police Officer Failed To Read You Your Miranda Rights:

Police must advise you of your Miranda Rights in a DUI case if (1) you are in custody and (2) they question you seeking to illicit an incriminating response. If the officers continued to interrogate you after placing you in custody for DUI, and did not first read you your Miranda rights and obtain a valid waiver, then your post-custodial statements will likely be excluded from evidence.

10.  Alcohol On Your Breath Does NOT Mean You Are Under the Influence:

In explaining why he believes you were drunk, the DUI officer almost always mentions smelling “a strong odor of alcohol on the suspect’s breath.” But the officer looks foolish on cross-examination when he admits that alcohol itself (ethanol) has no odor. Rather, it’s the mixing agent or flavoring that produces the odor we associate with alcohol. If you doubt this, go to the market and buy a 6-pack of a non-alcoholic beer. It tastes and smells just like beer; but it contains no alcohol.  Also, vodka is a colorless and odorless alcohol.  You could drink a gallon vodka and your breath would not smell.

Indeed, laboratory studies show that police officers’ perceptions of how strongly a person’s breath smells of alcohol simply doesn’t correlate with his/her actual blood alcohol level. All that can be gleaned from the “odor of alcohol on the breath” is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be “under the influence” or to have a BAC .08 or higher.

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DUI convictions are not hopeless or inevitable.  I am often asked by potential clients how realistic it is to fight and win against an Alabama DUI charge.  I tell them one thing, clients retain my firm, and pay me very well, for one reason, to fight Alabama DUI charges and win.  Pleading guilty to an Alabama DUI charge is not the answer in most circumstances. 

DUI prosecutors will point out several factors to try and prove you were driving under the influence of alcohol:  odor of alcohol on your breath, erratic driving, you were disheveled and appeared intoxicated, poor field sobriety test performance, and the results of a breath or blood alcohol test.  What they will not point out, and what you must rely on an experienced Alabama DUI defense lawyer and attorney to point out for you, is that each of these "evidence" types are ambiguous, subject to multiple interpretation, unreliable, and subject to faulty assumptions.  Over the next few posts I will outline 20 possible DUI defenses a good Alabama driving under the influence of alcohol attorney or lawyer will use to win a not guilty verdict in your DUI trial. 

1. Factors Other Than Alcohol Can Cause Poor Performance On DUI Field Sobriety Tests

   Even if you performed less than perfectly on the DUI field sobriety tests, this may be attributable to unfair test conditions such as:

   • The tests occurring on uneven surfaces or slippery terrain
   • The distraction of flashing lights and traffic whizzing by
   • The test area being too dark or amidst glaring lights
   • Cold temperatures, rain or wind
   • Unsuitable footwear—such as boots, high heels or dress shoes
   • Nervousness, anxiety and/or frustration

   Most people who had nothing to drink would still struggle with the FSTs under these conditions. The upshot is this: even if you struggled on the roadside tests, this may well be attributable to the setting and circumstances rather than attributable to you being intoxicated.  If you do not believe me, simply try the standardized field sobriety test at home, in a comfortable setting, on a steady floor, without any nervousness or anxiety.  This is often enough, when combined with a skilled DUI defense litigator to raise reasonable doubt in jurors minds as to whether or not you were indeed intoxicated.

2. There Are Often Innocent Explanations For The Symptoms Of Intoxication

   Police officers almost always claim to have observed certain “objective symptoms of intoxication” in the DUI suspect. The standard list includes:

   • Bloodshot and watery eyes
   • Slurred speech
   • A flushed face and
   • An unsteady gait

   DUI police reports feature pre-printed boxes for these symptoms that officers merely check off. Of course, the officers almost never photograph, videotape or audiotape the DUI suspect so that jurors can later judge for themselves whether and to what extent these symptoms were present.

   In any event, non-alcohol causes often explain these observations. For example, fatigue, allergies and eye strain cause bloodshot eyes. Nervousness, embarrassment and anger over the DUI traffic stop cause flushing. Intimidation and fluster cause slurred speech.

   The officer rarely takes these innocent explanations into account. The DUI defense attorney must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it is with intoxication.

3. Breath Testing Machines Mistake Other Chemicals for Alcohol

   DUI Breath alcohol testing machines also detect non-alcohol compounds, which they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol.

   The presence of any of these compounds in the DUI suspect’s lung tissue will likely cause a false, or falsely high, blood alcohol reading. We find that people frequently ingest these compounds at work or in other environments where the chemicals are present.

4. The Presence of Mouth Alcohol Can Contaminate The Breath Alcohol Test Results

   Ideally, DUI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath testing machine can be “tricked” by latent alcohol in the mouth—often caused by burping, belching, or the recent use of cough syrup, cold medicine, mouthwash or breath spray.

   When the breath testing machine picks up mouth alcohol rather than deep lung air, it gives BAC readings greatly higher than the true BAC. This becomes a particular problem for DUI arrestees with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (as all of these conditions tend to produce mouth alcohol).

5. Field Sobriety Tests Wrongfully Convict 33% of DUI Suspects and Provide A Very Poor Measure Of DUI Impairment

   Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a very inaccurate measure of whether a DUI suspect is impaired. According to NHTSA, for example, the one leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate.  Not only do these stats. presume a perfectly administered test, they also assume every person is physically the same, without disability, inner ear problems, or infirmity in any way. 

   This means that if people were convicted based on these roadside tests, one third of them would be innocent and wrongly convicted. Or, viewed another way, when officers arrest DUI suspects based on failing these tests, one in three suspects is wrongfully arrested.

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As an Alabama criminal defense lawyer and attorney I have devoted my life to defending those accused of crimes.  I routinely represent clients in Birmingham and throughout the state of Alabama in Alabama DUI charges, Alabama Theft Charges, Alabama Drug Charges and crimes, Alabama and Federal Criminal Appeals, Sex Crimes including rape and sexual assault, as well as Alabama traffic and speeding tickets. 

I will defend your Constitutional Rights no matter the charge and no matter the circumstances.  Just because someone has been accused of an Alabama DUI or Drug Crime does not mean they are guilty.  Criminal charges are often obtained against innocent people or people who the state cannot convict.  You will increase your likelihood of a successful resolution to your situation by immediately contacting an attorney or lawyer who focuses his practice on Alabama criminal and DUI defense.  The very nature of a criminal conviction means that all criminal charges are serious charges and deserve serious attention.  Even a single DUI conviction for example can land you in jail, promises significant fines in the thousands, loss of drivers license, you could possibly lose your job, your security clearance at work, or maybe not even get a job because of the background checks that many companies are performing these days.  Your car insurance will surely sky rocket and you could lose your neighbors respect.  Likewise, just one conviction for possession of a controlled substance requires a minimum one year jail sentence. 

The state and the Alabama prosecutors must present evidence in court that would allow a jury of your peers to find you guilty beyond a reasonable doubt.  My job as an Alabama criminal defense lawyer and attorney is to make sure the jury has that kind of doubt.  Beyond a reasonable doubt is a high standard to leap and a good Alabama DUI and criminal defense attorney can accomplish wonders.  In fact, in many instances, especially in DUI and Drug charges, it is possible to have these cases dismissed or reduced prior to any trial.  If you have been charged with a crime in Alabama, and you cannot afford to lose, call the Alabama criminal defense lawyers and attorneys at Eversole Law today.  My contact information listed on this site rings my personal cell phone directly.  I will answer your call and handle your case from beginning to end. 

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I practice Alabama criminal and DUI defense in the following counties and municipalities: 

In the Birmingham, Alabama Metro area the lawyers and attorneys of Eversole Law routinely defend Alabama criminal and DUI cases in the following courts:

Jefferson County Circuit Court, Jefferson County District Court, Adamsville Municipal Court, Argo Municipal Court, Birmingham Municipal Court, Bessemer Municipal Court, Branchville Municipal Court, Fairfield Municipal Court, Fultondale Municipal Court, Gardendale Municipal Court, Homewood Municipal Court, Hoover Municipal Court, Hueytown Municipal Court, Irondale Municipal Court, Kimberly Municipal Court, Leeds Municipal Court, Morris Municipal Court, Mountain Brook Municipal Court, Odenville Municipal Court, Pleasant Grove Municipal Court, Springville Municipal Court, Trussville Municipal Court, Vestavia Municipal Court, Warrior Municipal Court

In the Shelby County, Alabama area the lawyers and attorneys of Eversole Law routinely defend Alabama DUI and criminal cases in the following courts:

Shelby County Circuit Court, Shelby County District Court, Alabaster Municipal Court, Calera Municipal Court, Columbiana Municipal Court, Harpersville Municipal Court, Helena Municipal Court, Hoover Municipal Court, Pelham Municipal Court, Vincent Municipal Court

Other areas of Alabama the lawyers and attorneys of Eversole Law routinely defend DUI cases include:

Tuscaloosa County Circuit Court, Tuscaloosa County District Court, Tuscaloosa Municipal Court, Northport Municipal Court, Chilton County Circuit Court, Chilton County District Court, Jemison Municipal Court, Thorsby Municipal Court, Blount County Circuit Court, Blount County District Court, Blountsville Municipal Court, Altoona Municipal Court, Talladega County Circuit Court, Talladega District Court, Talladega Municipal Court, Lincoln Municipal Court, Sylacauga Municipal Court, Childersburg Municipal Court, Tallapoosa County Circuit Court, Tallapoosa County District Court, Alex City Municipal Court, Dadeville Municipal Court, Lee County Circuit Court, Lee County District Court, Auburn Municipal Court, Opelika Municipal Court, Montgomery County Circuit Court, Montgomery County District Court, Montgomery Municipal Court, Prattville Municipal Court, Elmore County Circuit Court, Elmore County District Court, Wetumpka Municipal Court, Millbrook Municipal Court, Bibb County Circuit Court, Bibb County District Court, Cullman County Circuit Court, Cullman County District Court, Cullman Municipal Court, Hanceville Municipal Court, Madison County Circuit Court, Madison County District Court, Huntsville Municipal Court, Madison Municipal Court, Etowah County Circuit Court, Etowah County District Court, Gadsden Municipal Court, Calhoun County Circuit Court, Calhoun County District Court, Anniston Municipal Court, Oxford Municipal Court, Jacksonville Municipal Court, Orange Beach Municipal Court, Gulf Shores Municipal Court, Loxley Municipal Court, Foley Municipal Court, Crenshaw County Circuit Court, Crenshaw County District Court, Escambia County District Court, St. Clair County Circuit Court, St. Clair County District Court, Pell City Municipal Court, Walker County Circuit Court, Walker County District Court, Jasper Municipal Court, Hollywood Municipal Court, Morgan County Circuit Court, Morgan County District Court, Decatur Municipal Court

THIS LIST IN NON-EXHAUSTIVE. WE DEFEND DUI & CRIMINAL CASES IN ANY COURT IN THIS STATE.

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In some circumstances it is possible to negotiate a deferred prosecution for an Alabama DUI charge.  A deferred prosecution is basically where the person charged with an Alabama DUI agrees to plead guilty.  However, as long as the defendant completes certain requirements(which differ slightly by jurisdiction), the Alabama DUI charges are dropped.  A typical Alabama DUI deferred prosecution requires the defendant to pay fines, attend alcohol abuse classes, take random drug and alcohol screenings, and complete community service.  Normally the defendant will have approximately six months to complete these requirements.  If these requirements are met, the prosecution dismisses the Alabama driving under the influence charge.  Deferred prosecution is sometimes advisable when there are no other grounds to have your Alabama DUI charge dismissed, when an attorney believes he cannot win a jury trial, or when the client/defendant wants to end his DUI nightmare quickly and for less money.  It is a beneficial strategy because your permanent record is at stake.  Just one DUI conviction can end jobs, increase insurance, stay on your record forever, etc. etc.  Deferred prosecution eliminates most of the serious and lasting consequences of an Alabama DUI charge.  Deferred prosecution can be offered to those with multiple Alabama DUI convictions as well.

As an Alabama DUI lawyer and attorney, I have participated in numerous deferred prosecution negotiations.  It is essential that anyone charged with a DUI in Alabama hire an experienced Alabama DUI lawyer who can get you the best deal possible.  Deferred prosecution is not guaranteed nor offered to everyone.  Unfortunately, I have seen way too many Alabama DUI defendants go to court without hiring an attorney and end up with a permanent criminal record when they would otherwise qualify for deferred prosecution. 

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A few weeks back a client received a DUI on Highway 280 in Birmingham, Alabama around 3:00 a.m.  The police officer cited blood shot eyes, slurred speech and he noted the suspect smelled of alcohol.  The officer then gave my client a standardized field sobriety test which, according to the cop, my client failed.  My Alabama DUI client was then taken into custody and arrested for driving under the influence of alcohol.  Once back at the station my client blew a .18 into a breathalyzer machine.  That is over twice the legal .08 blood alcohol limit in Alabama.  This was my client's second Alabama DUI conviction as well.  Upon the cases dismissal, my client turns to me and exclaims, "You are a life savior, thank you so much!" 

My former client literally skipped out of the courthouse and was so happy he wrote:

"Steven D. Eversole is one of the best DUI lawyers in Alabama.  He focuses his practice on Alabama Dui defense, walks you through the entire process, makes you comfortable, and then kicks ass in the courtroom.  If you can't afford to lose, do yourself a favor and call the Alabama Dui lawyers and attorneys at Eversole Law."  Former Client

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Alabama's "war on drivers," over the past week netted 170 people charged with a DUI, and 2,214 people charged with seat belt/child restraint infractions, just to name a few.  Hazardous driving is up as well:  That includes DUI, speeding, following too closely, improper lane change and seat belt/child restraint violations.  Last year, 5,384 people were arrested for hazardous driving behavior.  This year, that number was 11,564. 

The Department of Public Safety and your elected officials sell this kind of manure to the public based upon a simple misleading idea.  They tell you that this kind of enforcement will lower the number of traffic deaths.  Well....is there proof in the pudding?  Unfortunately no, traffic deaths were up this year compared to last years numbers.  This year's "take back the highway's campaign," with it's increased numbers of DUI's, speeding tickets, and seat belt infractions did not lower the number of people killed on Alabama highways.  In fact, the number of people killed on Alabama highways increased from 17 to 21, even with the increased ticketing, DUI checkpoints, arrests and police patrols. 

The way I see it is simple:  It's all about the money.  The municipalities, and indeed the State of Alabama itself, need the revenue generated by these "crackdowns" on mostly good, honest, and hardworking Alabama citizens.   

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Thanksgiving Holiday Travelers in Birmingham, Hoover, Pelham, Trussville, Homewood, Tuscaloosa, Vestavia, Mountain Brook, Gardendale, Fultondale, Leeds, Moody, Pell City, Huntsville, Montgomery, Florence, Scottsboro, Mobile and throughout Alabama should be aware that Alabama is  again "taking back the highways."  Governor Bob Riley and the Alabama Department of Public Safety have joined forces once again to flood the Alabama roadways with police officers looking for any excuse to make money.  They intend to target speeding, failure to yield the right of way, following too closely, driver inattention, and DUI.  These speed traps are just another means of raising revenue.  I guess the Governor has decided that the people of Alabama are more secure by having its police on the roadways instead of protecting our communities.  And I have a question, how do you target driver inattention?  Make sure you don't drive through a fast food joint for a burger on the way to grandma's house this thanksgiving, it might get you a ticket.  If you are charged with an Alabama DUI, a speeding or other traffic ticket this Thanksgiving, make sure to call an experienced Alabama DUI and Criminal Defense attorney and lawyer.  Remember, refuse to take a field sobriety test, a breath test or any test administered by an Alabama police officer or their agents without the presence of your attorney.  Know your rights and fight back!  The nanny state of Alabama, lead by the MADD Mothers Against Drunk Driving and money hungry bureaucrats, is at it again. 

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An Ozark, Alabama man was tasered and accused of a DUI while having a seizure.  Police in Ozark, Alabama used a taser on a sober man having a seizure behind the wheel of his parked car last week.  Police fired their tasers at the man three times.  Now, the police say the man smelled of alcohol and have charged him with a DUI even though his blood work has shown no signs of alcohol.  I see this kind of police misconduct and abuse of power every day.  Is it any wonder the people have lost faith in these people.  I do not believe a word a police officer utters out of his mouth.  Every time someone is arrested for drunk driving in Alabama, I hear the same refrain: "he smelled of alcohol, his eyes were bloodshot, he appeared disheveled, blah...blah..blah..."  These cops must have bloodhound noses.  Isn't it quite convenient that every time someone is arrested for a DUI the police give the exact same reasons for arrest? Does anyone really believe that the Alabama DUI charge is anything but an attempt to deflect blame for tasering a man in a medical emergency three times?  And can someone please tell me the law the man broke in the first place?  Did these cops feel endangered by a man having a seizure?  If it wasn't so maddening it would be funny.  I hope this municipality gets its ass sued off.  These officers should be immediately fired and charged with battery.  Anyone want to bet these SOB's get charged or disciplined?  I bet not.  The law is different for those with power and for those without.  This is just one more reason why anyone accused of an Alabama DUI or any Alabama crime needs an experienced Alabama DUI & Criminal Defense Attorney. 

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I am happy to inform everyone I have been selected into the National College of DUI Defense.  The National College of DUI Defense is an organization designed to promote, educate and recognize exceptional DUI defense lawyers and attorneys.  As an Alabama DUI defense lawyer, I make it a priority to stay on top of recent legal issues in DUI defense.  The DUI College requires me to attend yearly DUI seminars and lectures from some of the best DUI lawyers and attorneys in America.  I will also be called upon to give presentations on Alabama DUI law and procedure.  It is an honor to be selected into the National College of DUI Defense.  It is also one more step in becoming one of the best DUI lawyers in the country. 

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The Alabama Governor is jumping on the recent editorial bandwagon and beginning to call for tougher Alabama DUI laws.  As I surmised in a recent previous post, Alabama needs the all important highway money and is caving to political pressure from Washington to increase Alabama DUI penalties.  Whats even worse, the Alabama Governor even tells a Montgomery, Alabama newspaper the real reason he wants tougher Alabama DUI laws.  His reasoning, Alabama could lose two million dollars in Federal Highway traffic enforcement funds. 

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Part three of Alabama DUI frequently asked questions are contained below.  Remember, it doesn't matter if you have been charged with a DUI in Mountain Brook, Hoover, Homewood, Vestavia Hills, Pelham, Trussville, Fultondale, Gardendale, Hueytown, Huntsville, Montgomery, Tuscaloosa, Mobile, Cullman, Decatur, Florence or Bessemer.  Our Alabama DUI defense lawyers regularly represent clients all across the state.  These Alabama DUI FAQ's are questions I receive repeatedly from clients throughout the great state of Alabama:

1. Can I have my record expunged after an Alabama DUI conviction?  Unfortunately no.  If you are convicted for an Alabama DUI, that conviction will always appear on your record. The only exception being for youthful offenders.  If the court grants you youthful offender status, that record is sealed and cannot be used against you for sentencing enhancing purposes. 
2. Can you win an Alabama DUI case?  Resoundingly, yes!  You can win an Alabama DUI case in many situations.  Even DUI defendant's are presumed innocent ,until proven guilty, by a jury of their peers, and beyond a reasonable doubt.  This is true despite the best efforts of the MADD Mothers Against Drunk Driving and your Alabama State representatives.  Any talented Alabama DUI defense attorney will tell you the police make mistakes in almost every case.  The trick is to find these mistakes and use them to your advantage.  Many times a case can be thrown out by the judge or dismissed on the prosecutions motion before trial.  It is your Constitutional Right to make the State prove its Alabama DUI case.  Many times, with a lawyer who focuses his practice on Alabama DUI defense, the State's case becomes very hard to prove indeed. 
3. Why do I need an Alabama DUI lawyer and attorney?  You need an Alabama DUI lawyer who focuses his practice on Alabama DUI defense.  It is that simple.  Some lawyers only practice Alabama DUI and Criminal Defense.  Other Alabama lawyers practice Real Estate Law.  Which one do you want working on your DUI case?  To put it another way, if you have a gallbladder problem, you don't go to a podiatrist. 
4. How do I "beat" and Alabama DUI charge?  As I mention above, there are many ways to "beat" a DUI conviction, even if you blow over the legal limit.   An experienced Alabama DUI lawyer will look at multiple methods to attack the charge.  First, the DUI lawyer should look at the stop itself.  A police officer must have at least reasonable suspicion to make a stop on the highway.  A good DUI lawyer will look at all the circumstances surrounding the stop of your vehicle, and make sure all State and Constitutional Laws regarding search and seizure have been followed.  If you performed a standardized field sobriety test, that test should be scrutinized for mistakes by the officer, and if you have taken a Breathalyzer then that machine and its operation must be analyzed completely.  From lack of probable cause to make an arrest,or reasonable suspicion to make a stop, the police not conforming with all the rules regarding breath tests or performing field sobriety tests inaccurately, there are many ways to "beat" an Alabama DUI charge. 
5. What happens if I refuse a breath test?  If you are driving on a public highway and you refuse a breath test, your license will be suspended for ninety days and your refusal to submit to a breath test can be used against you in court.  Many times it is possible to take administrative legal action to regain your license and there are many legal reasons why someone would not want to blow into a breathalyzer.  Furthermore, even if the 90 day license suspension is maintained, that suspension is much better than a DUI conviction.  I would never take a breath test, especially without my attorney present.  That being said, even if you blow well above the legal limit, there are many ways to fight your Alabama DUI charge. 

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Alabama DUI frequently asked questions part II:

1. What is the legal blood alcohol limit in Alabama?  The legal blood alcohol limit in Alabama is .08%.  This means that if your blood alcohol is at .08% or higher, you can be charged with driving under the influence in Alabama.
2. What are the penalties for one Alabama DUI conviction? One Alabama DUI conviction has serious consequences.  Just one conviction exposes you to public ridicule, court costs, could land you in for a year, a ninety-day license suspension, up to a $2100 fine, DUI school, possible loss of job or security clearance at work.
3. If I lose my license, can I get a temporary license for work?  Unfortunately and unfairly no, you cannot get a temporary license to drive to work in Alabama.  This is just one more reason why it is imperative to aggressively fight your DUI charge.
4. Will a DUI conviction affect my car insurance?  Absolutely yes.  In fact, your car insurance will most likely be canceled and you will be required to purchase high risk insurance that is very expensive.
5. What is the difference between a license suspension for a DUI conviction and an Alabama administrative license suspension?  In Alabama, they like to punish people twice for the same offense.  An Alabama administrative license suspension occurs if you have been arrested for a DUI regardless of whether or not you have been found guilty of a DUI.  In fact, your license will be suspended before you are even tried.  If you are arrested for a DUI in Alabama, you must make a formal application to challenge your license suspension within ten days of your arrest.  Otherwise, your license will be suspended for 90 days.  This is just one more reason why you should contact an Alabama DUI lawyer and attorney as soon as possible after your arrest.   

 

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Many people in Alabama have similar questions concerning Alabama DUI law.  As a result, in my next several posts, I will compile a list of frequently asked questions pertaining to Alabama DUI laws:

1. What should I say when a police officer asks if I have been drinking?  There is not really a right or wrong answer to this question(as long as you don't say, six beers and four tequila shots officer).  Seriously though, you are not required to answer potentially incriminating questions.  The best answer is "I would like to speak with my attorney before answering that questions."  However, if you say you had a couple beers or a glass of wine that is not enough to cause intoxication, is not incriminating and may help explain the smell of alcohol on your breath.
2. Do I have the right to an attorney after being stopped by a police officer in Alabama? The short answer is no, not until you have been arrested.  You can, and still should ask for one.
3. Should I take a Field Sobriety Test in Alabama? No! There is no reason to give a jury more evidence to convict.  The officer has normally already decided to arrest you anyway.  A field sobriety test just gives them more ammunition at trial, and the tests are completely subjective.  However, if you do take a field sobriety test and fail, there are several means to attack that evidence at trial. 
4. How much does an Alabama DUI lawyer and attorney cost? Costs vary from DUI lawyer to DUI lawyer.  A lawyer who focuses his practice on DUI defense will cost more than a general practitioner in a small town.  Fees can range anywhere from $500 to $15,000 depending on the DUI lawyer and circumstances of the case.  I will say that a quality DUI defense can be expensive.  A good analogy I heard one time goes like this, when you need a tumor removed, do you go the cheapest doctor you can find?  However, my office tries to make sure even those with limited funds can afford a quality DUI defense. We have fixed fees, accept major credit cards, and even work out flexible payment plans in some circumstances.
5. Can I be convicted of a DUI without consuming alcohol? Yes, in Alabama you can be convicted of a DUI without consuming alcohol.  You can be convicted of an Alabama DUI by being under the influence of a controlled substance(i.e. marijuana or prescription medications), even legal prescription medications prescribed by a doctor(percocet), or any other substance that renders you incapable of driving safely, i.e. glues, paints, or even over-the-counter medications.

 

     

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Lawrence Taylor, one of the best DUI attorneys in the world, shines a bright light on questionable police tactics in his DUI blog. Mr. Taylor documents an Inside Edition segment that documents law enforcement DUI quotas across the country.  Law enforcement agencies across the country are afraid of losing highway dollars from the federal government, and are pressured to make DUI arrests as a result.   Mr. Taylor documents several instances from the Inside Edition story where innocent people were taken to jail after submitting to roadside field sobriety tests.  These individuals had nothing to drink and the charges were later dropped.  It is logical to assume Alabama is as concerned about its federal highway money as other states, and its also logical to assume Alabama's law enforcement agencies also have DUI quotas. 

After reading Mr. Taylor's blog, the moral of the story is clear:  DUI laws and DUI enforcement across the country are insane and unconstitutional, and if you are pulled over anywhere, especially in the State of Alabama and are suspected of a DUI, do not take any test administered by an Alabama police officer or an agent for the police, even if  you haven't had anything to drink.  If you are charged with a DUI in Alabama you should immediately contact an Alabama DUI lawyer and attorney that focuses his practice on Alabama DUI defense.

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The Anniston Star, in Anniston, Alabama ran an excellent article on chief justice of the Alabama Supreme Court yesterday.  Ms. Sue Bell Cobb is the first woman to be elected to the top judicial spot in Alabama.  She has been affectionately labeled "Chief" by the Supreme Court staff.  Ms. Cobb previously served admirably on the Alabama Court of Criminal Appeals and is a wonderful advocate for justice.  I encourage everyone to read more about Alabama first female chief justice. 

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FreeAdvice.com has an excellent article on how a drunk driving conviction can affect your record.  Even one Alabama DUI conviction can have serious consequences and will remain on your permanent record forever.  If you have been charged with an Alabama DUI in Birmingham, Mountain Brook, Vestavia Hills, Homewood, Hoover, Pelham, Trussville, Tuscaloosa, Montgomery, Huntsville, Mobile, Decatur, Florence, Cullman, or anywhere in the state of Alabama, you need to hire a criminal defense lawyer who focuses his practice on DUI defense.  My DUI and criminal defense practice is centrally located in Birmingham, Alabama and I regularly defend DUI clients throughout the state of Alabama.  My office attempts to make high quality DUI and criminal defense affordable.  On top of our already competitive rates, we take credit cards, cash, checks, and we offer convenient payment plans.  Our firm will fight for your rights.  With a competent Alabama DUI defense attorney, you have an excellent chance of having your case dismissed, thrown out, or found not guilty by a judge, jury or appellate court.

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The Alabama Criminal Appeals Court changed Alabama DUI law today and shortened sentences for those with multiple Alabama DUI convictions.  In the past, any four Alabama DUI convictions resulted in a felony.  Now, in order to constitute a felony, the four Alabama DUI convictions must be within a five year period.  Thus, if you have three DUI convictions within a five year period, but then receive a fourth Alabama DUI conviction in six years, that DUI conviction is not a felony.  In the past, that fourth DUI conviction, regardless of how many years have passed, would have resulted in a felony DUI conviction.   

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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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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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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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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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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.

                         

The factors to be weighed in determining whether the defendant was in fact intoxicated at time of the offense are:

(1) the testimony of the witnesses,

(2) access to alcohol, and

(3) the amount of time between the commission of the offense and the observation of the defendant.

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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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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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