Shelby County DUI FAQs

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Association:

• Turning with a wide radius
• Straddling center of lane marker
• “Appearing to be drunk”
• Almost striking object or vehicle
• Weaving
• Driving on other than designated highway
• Swerving
• Speed more than 10 mph below limit
• Stopping without cause in traffic lane
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposite or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

This is a fundamental question that must be addressed in every DUI case. Under the Constitution and laws of the United States and the state of Alabama, a law enforcement officer must have some legal basis to stop you, demand your driver license or identification, and hold you for investigation. Only an experienced and well-trained criminal defense lawyer will understand this highly technical and complex area of the law and be able to effectively represent you. Not all reasons offered by law enforcement officers are legal. In fact, in many instances, officers have no legal basis basis at all to ‘blue light’ a car and order the motorist to stop. A trained and experienced Alabama criminal defense attorney will be needed to examine the different aspects of your case and defend your legal rights aggressively.

No. There is no requirement under the Constitution or under Alabama law for law enforcement officers to automatically read a defendant in police custody their “rights.” Only if the police officer engages in direct questioning of the facts of the case once the defendant is placed in custody are the Miranda warnings required. If the court should find a Miranda violation has taken place, only the confession or admission given is suppressed (kept out of evidence); the case itself will proceed to trial.

The #1 all-time mistake is to simply plead guilty to a DUI arrest. Without an experienced and skilled DUI lawyer to assist you, you are giving up all rights to representation in the court and you are accepting whatever happens to you. This is a serious mistake which will later reflect adversely on credit ratings, job opportunities, ability to travel, own an auto, get an education, obtain a professional license, purchase auto insurance, and many other ways you may not be immediately aware. A DUI conviction will remain on your driver record for a minimum of five years. During this time, if you apply for a job that requires driving a company vehicle or requires a personal history statement, or for any other reason a background check is undertaken, a DUI conviction will almost surely restrict or even prohibit future employment opportunities. A qualified DUI defense attorney is essential to provide the effective representation you need.

Ordinarily, on first offense, an active jail sentence is generally not imposed. However, every court has the authority to impose an active jail sentence, even on first conviction. As a general rule, the court will impose a suspended jail sentence on first offense as a mechanism to require completion of the court referral program and payment of fines. If the fine and court costs are not paid when specified, the court is authorized to revoke the suspended sentence for non-payment. Under the Code of Alabama, probation for a misdemeanor remains in effect for two years, unless a shorter period of time is specified by the court. If the motorist receives a second DUI arrest while on probation from the first offense, the court can revoke the suspended sentence and order the person incarcerated. The time spent incarcerated for probation violation will not be counted as “credit” towards a second or subsequent conviction.

No – Alabama law does not recognize the plea of nolo contendre and no Alabama court is authorized to accept such plea. A defendant in a criminal case can only plead “guilty” or “not guilty” to that offense. Further, there is a specific section in the Alabama traffic code that states if an Alabama licensed driver entered a plea of “nolo contendre” in an out-of-state court that accepts such plea, the Alabama authorities will treat the “nolo contendre” plea as a finding of guilt and impose appropriate license sanction.

No – there is no authority under the Code of Alabama for the Department of Public Safety to issue a temporary or hardship driver license, and no court has any authority to give such a permit.

You can check the practice areas of listed attorneys on Martindale-Hubbell’s listing of lawyers in the United States. This publication is generally available in public libraries and county law libraries. However, many listed attorneys only show the college and law school attended and date of admission to the state bar. If you have access to the internet, a good place to check the professional credentials of an attorney is: www.martindale.com.

It is important that you ask that lawyer you are consulting the following questions while in the process of selecting the right lawyer for your DUI defense:

• How long have you practiced DUI defense?
• How many DUI cases have you personally undertaken in the past 12 months?
• Have you attended any CLE programs in the past focusing on DUI defense? Have you ever instructed a CLE program on DUI defense?
• Have you written or published in a professional magazine or legal journal any articles on criminal law or DUI defense?
• Are you a member of the National College for DUI Defense? Have you attended the training programs sponsored by the NCDD?
• What is your Martindale rating?

Be advised that 45 states and the District of Columbia participate in the Driver’s License Compact Act, meaning that an Alabama DUI conviction will be reported to your home state which will generally take action to suspend your driver license based on the conviction entered by an Alabama court. Consequently, even if you hold an out of state driver license, it’s imperative that you contact a local Alabama DUI attorney to represent you in this very important matter.

Yes – any person holding a CDL is subject to much tougher standards. If the motorist was operating a commercial motor vehicle at the time the arrest was made, an evidentiary test result of .04% is sufficient to convict the driver of DUI. If the CDL holder was operating a private motor vehicle at the time the arrest was made, and is subsequently convicted of DUI, the CDL endorsement will be “disqualified” (removed) for one year on first offense and lifetime for second offense.

A person can be convicted of DUI if the motorist’s driving was affected in any appreciable manner by the consumption of alcohol. Consuming 4 to 5 beers over a period of one to two hours will most likely result in a blood alcohol concentration between .06% to .09%, depending on body weight and absorption rate. (This estimate assumes each beer contains 12 fluid ounces of 3.2% alcohol.) Therefore, consuming 4 to 5 beers may be sufficient to violate either the “under the influence” standard or the per se standard.

Absorption rate is highly variable due to individual metabolism and whether or not the stomach was full or empty at the time of consuming alcohol. There is a widely held, but mistaken belief, that drinking alcohol on an empty stomach will cause intoxication, while drinking on a full or partially full stomach will not. This is simply false. All alcohol will be absorbed into the blood stream in 30 to 90 minutes after it is consumed. Body weight has some degree of influence on the estimated alcohol concentration: as a general rule, a larger person will have greater blood volume than a smaller person. Since ethyl alcohol mixes completely with blood, the larger blood volume in a large sized person will result in a somewhat lower blood alcohol concentration, as compared to a smaller individual. However, determining an accurate blood alcohol estimate based only on body weight and the total number of drinks consumed within a certain period is highly speculative. Only an evidentiary test can determine the exact blood alcohol concentration in that person at the time the test was given.

Under Alabama’s Implied Consent Law, there is an inherent legal ambiguity in the reading obtained from the breath test instrument at the time the test was given, and the actual blood alcohol concentration in the motorist while driving or in actual physical control of the vehicle. A qualified defense lawyer with a detailed understanding of breath test limitations can point out this potential error to the court and may be able to create sufficient reasonable doubt to acquit the motorist, even when the breath test result is .08% or greater.

No – a defendant in a criminal case is never required to testify and cannot be compelled to do so. For a variety of legal reasons, the defense attorney may not want the defendant to testify. However, the right to testify remains with the defendant and if the defendant elects to do so, he or she may testify in their own defense.

Unlike blood and breath tests obtained under the Implied Consent law, submitting to a “field sobriety test” is voluntary, but do not expect an officer to inform you of this. According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Heel-to-Toe and the Horizontal Gaze Nystagmus (HGN). At present time, due to court rulings, Alabama case law does not allow the results of the Horizontal Gaze Nystagmus to be admitted into evidence. However, the results of the other tests will be entered as evidence. But even under laboratory conditions, these tests have only been established to be accurate in predicting blood alcohol content above .10% in 66% to 77% of the time. In other words, under the best conditions and circumstances, there is a 1/3 error rate in determining sobriety or insobriety by using these so-called tests.

No, that is not correct. Under Alabama law, there is no statutory mechanism to “expunge” an arrest or a conviction. Although a recent attempt to enact an expungement bill was introduced in the state legislature, the expungement bill was not successfully passed.

It is correct that under a specific section of the Alabama Code, a person who was under the age of 21 at the time the offense occurred is entitled to petition the trial court for treatment as a “youthful offender.” This is a special status afforded individual, and is not a defense to a criminal offense. If the court grants Youthful Offender status, the trial will proceed on the merits. However, if the person is found guilty (the legal term is “adjudicated”), the finding by the court will not result in a criminal conviction. The record will be sealed by the court and the outcome not reported as a “conviction.” The grant or denial of Youthful Offender status is discretionary with the court, and there is no appeal process if the petition for Youthful Offender is rejected by the court.

Insurance companies commonly report that a full 25% of all automobile insurance losses are the direct result of DUI and alcohol related crashes. A person convicted of DUI, even first offense, represents a huge risk to the insurance carrier. Nearly every automobile insurance company will cancel the automobile insurance coverage if a DUI conviction is reported on the driver’s record, or at a minimum, re-write the policy and require significantly increased insurance premiums. “High risk” insurance, such as SR-22 insurance, often costs $300 to $400 per month to the individual. The Department of Insurance regulates all automobile insurance carriers in the state, and as a requirement to do business in this state, each insurance company must participate in the “high risk” insurance pool. It is not uncommon for a driver to be eligible for re-licensing, but unable to afford the costs of SR-22 insurance coverage, and thus unable to obtain a valid driver license. The high cost of “high risk” insurance is one of the hidden costs of a DUI conviction.

Alabama utilizes a two tier court system to try misdemeanor cases. The first level, or first tier, is the municipal court for cases made by municipal (city) police officers. There are over 230 municipal courts operating in Alabama. Each municipal court operates under its own schedule. In some cities, such as Mobile, Montgomery, Huntsville, and Shelby County, trial sessions are conducted daily or several times each week. In other cities, trials are held bi-weekly or monthly, depending on the court’s schedule. The district court is used for cases made by state and county officers. Each of Alabama’s 67 counties has one district court. In most district courts, trial sessions are generally conducted weekly or bi-weekly.

The trial in a municipal court is before a judge only. All testimony is given under oath; however, there is no court reporter and no trial transcript is made. The rules of evidence are often loosely applied. Trials in municipal or district court are generally short in duration and are often completed in less than 20 minutes. Trials taking longer than 30 minutes are out of the ordinary.

The prosecution will go forward with the arresting officer’s testimony using a form outline of standard questions. The defense attorney will then cross-examine the arresting officer. The key to winning any DUI case is by thorough and effective cross-examination of the arresting officer.

Next the prosecutor will offer a second witness, such as the “back-up” officer or the breath testing officer, if any, into evidence. The defense attorney will cross-examine all witnesses put on by the prosecutor.

The prosecution will then “rest” meaning the prosecution’s case is completed. The defense attorney will then call any witnesses for the defense side, to rebut the information given by the prosecution. The decision for the defendant to testify rests solely with the defendant.

There is a high conviction rate in the municipal and district courts. According to statistical data supplied by the Administrative Office of Courts, many defendants facing a DUI charge in municipal or district courts are convicted of that charge, most often by pleading guilty. However, if the case is tried on the merits and effective legal counsel is prepared to defend the client’s case, the conviction rate drops significantly. It is always in the defendant’s best interest to carefully evaluate the facts of the case, and if there are legal or factual grounds to challenge the prosecution’s case, the defendant should plead not guilty and demand a trial.

Every person convicted in a district or municipal court has the absolute right to appeal the lower court conviction to the circuit court of the county. However, there is a strict 14 day time period in which to file an appeal. If the appeal is not properly filed in the 14 day time period, the appeal is deemed “waived” and cannot later be filed.

The trial in circuit court is much more like the type of trial shown on television or in the movies – strict rules of evidence are applied, the procedure is much more formal, and the right to a jury trial is authorized in the circuit court. Additionally, a court reporter is present to record all witness testimony, objections from the attorneys, and rulings from the trial judge. The court reporter’s record later becomes the trial transcript and is the mechanism to file an appeal at a later time.

A jury trial in a circuit court is a time-consuming process, and generally requires nearly a full day, and may often go into a second day. The decision to request a jury trial, instead of a judge only “bench trial,” is a strategic decision best left to the attorney. When questions of law predominate, the attorney will generally argue the law to the trial judge, and the facts take a secondary role. However, where the facts are in dispute, the attorney will generally want a jury trial to hear the case and make a decision.

Jury trials represent the culmination of the attorney’s case. The bench trial in the municipal or district court is often viewed by many experienced attorneys as a “discovery” mechanism to determine the strength of the state’s case and the credibility of the arresting officer and/or witness officers. Since the officer’s prior testimony is sworn and under oath, an experienced attorney will either tape-record and later transcribe the officer’s testimony, or employed a certified court reporter to record the officer’s testimony. It is not unusual for the arresting officer to have forgotten key facts between the time of the lower court trial and the jury trial in circuit court, or to misstate the facts altogether. An experienced trial lawyer will use these mistakes to the advantage of the client in effort to show there is “reasonable doubt” in the prosecution’s case.

The prosecution must prove each element of the state’s case beyond a reasonable doubt. The defendant is presumed innocent as a matter of law. However, as noted in this Summary, Alabama’s DUI law is clearly designed to assist the prosecution in the obtaining of a conviction. Alabama’s Implied Consent statute and the case law interpreting the DUI statue, nearly always favors the prosecution. Only an experienced and skilled criminal defense lawyer can overcome these obstacles and arrive at the verdict you desire – “Not Guilty!”

There are over 9,000 practicing attorneys in Alabama, but only a dozen or so that limits their practice to only handling DUI cases together with criminal defense. It would be a mistake to think all attorneys are equally qualified to represent a DUI client. One of the biggest mistakes a person arrested for DUI can make is failing to seek out the legal services of an attorney who concentrates his or her practice in criminal defense and more importantly, in defense of DUI cases. Some of the credentials in selecting an attorney for DUI defense cases. Some of the credentials in selecting an attorney for DUI defense are fairly obvious:

• At a minimum, the attorney should concentrate his or her practice in DUI defense. An attorney who only rarely takes a DUI is seriously handicapped in providing effective representation. The issues involved in DUI require a thorough knowledge of the Alabama Rules of Criminal Procedure, the Alabama Criminal Code and the Alabama Traffic Code, the Alabama Rules of Evidence, and other areas of law directly related to criminal defense.
• The attorney should have substantial trial experience. Prior experience as a state court prosecutor or public defender is a distinct advantage in providing an effective criminal defense.
• The attorney should have in-depth knowledge of police techniques such as field sobriety tests, breath testing, field interrogation techniques and other police procedure.
• The attorney should have the available resources needed to devote to your case. This includes ready access to a private investigator to locate witnesses or verify the accuracy of the police report and the availability of forensic experts to review the breath test or blood test results.

Normally, the attorney will conduct a very thorough interview of the motorist before accepting the case. The attorney will review the traffic tickets, the breath test report, and all written documents associated with the arrest. The initial interview will often require one hour to ninety minutes in length. Every facet of the case and the applicable law will be discussed. The interview is completely confidential and all information is held in strictest confidence. If the attorney decides to accept the case, the attorney will then offer the motorist a detailed written contract to review. If the motorist agrees to the terms of the contract, the motorist then becomes the client, and the attorney will then start the representation process.

The attorney will file a Notice of Appearance and Plea of Not Guilty on behalf of the client. The next step is to file a petition for administrative hearing with the Department of Public Safety. The attorney will also file a petition for discovery on the district attorney to obtain all discoverable evidence permitted by law. Additionally, the attorney will file a request for breath test date with the Department of Forensic Science. Then the attorney will undertake a very detailed investigation of the traffic stop and the scene of the arrest. Digital photos or video may be taken of the location of the arrest and the field sobriety tests. Additionally, the attorney may hire a private investigator to conduct a field investigation and locate witnesses who may offer favorable evidence to assist in defense of the case. The attorney will also research applicable statutes and case law to determine legal defenses that may be utilized in this specific case and, if warranted, file a pre-trial motion to suppress the arrest on grounds the evidence was illegally obtained or failed to meet legal standards. Many DUI cases are won by the defense by successfully arguing pre-trial suppression motions. The time involved in preparation for an effective DUI defense will often exceed 15 to 20 hours of work prior to trial. The client should realize the key to an effective defense is preparation, preparation and more preparation.

The attorney’s fee is dependent on a number of factors which include:

• Whether the defendant has previously been convicted of DUI within the past 5 years, and whether the current offense is a second, third or fourth offense
• Whether the motorist is currently on probation as a result of a previous DUI conviction
• The defendant’s blood alcohol level at the time of arrest and any aggravating or mitigating factors
• Whether or not the motorist holds a commercial driver license (CDL)
• Whether or not there was an accident involved in the DUI arrest
• Whether or not any drug evidence was recovered as a result of the arrest
• Whether or not the motorist resisted arrest or attempted to elude law enforcement, and the seriousness or number of
• underlying driving offenses leading up to the DUI arrest

In cases where the motorist is arrested for fourth or subsequent (felony) DUI, the cost for an effective DUI defense will probably be significantly higher.

The highest priced attorney is not necessarily the best, nor will the least expensive attorney provide the most economical representation. It should be obvious that every defendant’s case is factually different from the next case, and each case must be determined on the fact and the law. It is always in the best interest of the defendant to ask questions, conduct a thorough inquiry into the attorney’s credentials, and make an informed decision.

YES! Call us at 205-871-8838.

Absolutely Not! There are many ways to defeat a DUI. In fact, we prevail on a high percentage of our DUIs even with breath test results as high as .13 and .14. We do not consider this to be unusual at all.

1. FIRST, It’s NOT AGAINST THE LAW TO DRINK AND DRIVE IN ALABAMA!
2. It is only against the law to drive if you have consumed so much alcohol that you are impaired to such a degree that you are unable to safely operate a motor vehicle. Many people drink within the limits of the law and simply are not impaired – even if their breath test results exceed the “legal limit” of 0.08.
3. While we cannot guarantee a victory we can say that there are many different ways to attack a DUI charge. In many instances the prosecutor simply has too many hurdles to overcome in order to sustain a conviction.

1. Field sobriety tests are what is referred to as “divided attention” tests – that is, they are tests which requires the subject to concentrate on both mental and physical tasks at the same time.
2. Officers are trained to compare the actual results of the test to expected results and make a determination of “impairment”.
3. The portable breath test device that is used to test your breath on the scene is not a admissible in court due to the fact that it is not deemed to be scientifically reliable.
4. There are only three tests that are scientifically reliable (and their reliability is questionable):
   
   • Walk and Turn – 68% reliable
   • One Leg Stand – 65% reliable
   • Horizontal Gaze Nystagmus (pen light test) – Generally the officer is not allowed to testify as to these results in court

No! There is no law that requires you to submit to these tests. The implied consent law applies to the submission to breath testing and does not apply to field sobriety tests. Therefore, you are not required by law to submit to field sobriety testing.

1. A blood alcohol level is that amount or concentration of alcohol that is in your blood at the time of the test.
2. The best way to determine the accurate concentration of alcohol in your blood is with a blood test – which, of course, must be done properly.
3. The way arresting officers measure your “blood” alcohol concentration is by measuring the concentration of alcohol in a portion of your breath. The result of this test is converted to a number that is “deemed” to be you blood alcohol concentration.

1. Yes and No!
2. The Alabama Code says that “any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, …, to a chemical test or tests of his blood, breath or urine for the purposes of determining the alcoholic content of his blood if lawfully arrested ….”
3. In other words, The implied consent law in Alabama requires you to submit to a breath test when directed you to do so IF you were driving on a public road and the officer has lawfully arrested you for DUI. This is the price we all pay for using the public roadways and sharing those roads with others.
4. If you are arrested on private property, and the officer did not see you driving on a public roadway, then the implied consent law does not apply.

1. Your license will be suspended for a minimum of 90 days absent legal action on your part.
2. The fact that you refused may be used against you in the court of law in a trial for the charge of DUI.

Not necessarily, under the implied consent law we are deemed to have given our “consent” to submit to breath tests if we use the public roads – thus “implied consent”. There are certain situations where Miranda may apply (that would depend totally on the facts of the case) but in the overwhelming majority of DUI arrests Miranda is not even a point of argument for the lawyer handling the case.

• 1st Offense:
  FINE: $600.00 - $2,100.00
  JAIL: Up to 1 year
  Driver’s License suspended for 90 days
• 2nd Offense:
  FINE: $1,100.00 - $5,100.00
  JAIL: Up to 1 year with a minimum, mandatory, 5 days to serve in jail that is not subject to probation
  Driver’s License revoked for 1 year if second conviction within 5 years
• 3rd Offense:
  FINE: $2,100.00 - $10,100.00
  JAIL: Up to 1 year with a minimum, mandatory, 60 days to serve in jail that is not subject to probation
  Driver’s License revoked for 3 years
• 4th Offense:
  FINE: $4,100.00 - $10,100.00
  JAIL: 1 year and 1 day up to 10 years (felony)
  Driver’s License revoked for 5 years
• Additionally, any person convicted of DUI:
  1. Shall be referred to a court referral officer for evaluation and referral to appropriate community resources.
  2. The Defendant shall, at a minimum, be required to 1) complete a DUI or substance abuse court referral program.
  3. High risk insurance and a substantial increase in cost.

Disclaimer: The following FAQ are intended for informational purpose only and under no circumstances should they be taken as legal advise. Even though your situation might be similar to a statement addressed below, it has unique issues that might greatly effect the representation of your case.