ACT 11-621 "DOUBLE PUNISHMENT"
Act 11-621 adds an entirely new section [32-5A-191(i)] to the existing DUI statute. The new section doubles the minimum punishment which may result from a conviction for a DUI in cases where your client has a breath alcohol concentration of 0.15% or higher, establishes a minimum sentence for misdemeanor offenses, and requires a 1 year revocation of your client's drivers license. This new law, however, creates a direct conflict with the current DUI laws and certain provisions of the drivers license suspension laws.
1. The Act requires that a conviction for DUI that results from a breath alcohol reading of 0.15% or greater "shall be sentenced to at least double the minimum punishment that the person would have received if he or she had had less than o.15 percent by weight of alcohol in his or her blood."
This is a significant change in the punishment faced by those who are convicted of a DUI offense. Since there is no minimum jail sentence required on a first offense, the punishment for most will not be increased by this change to the law. However, for those convicted of 2nd and 3rd offenses with a blood alcohol concentration over 0.15%, the penalties have just doubled to a minimum of 10 days in custody for a 2nd offense and a minimum of 120 days for a 3rd offense.
2. "If the adjudicated offense is a misdemeanor, (including 1st, 2nd, and 3rd offense convictions) the minimum punishment shall be imprisonment for one year, all of which may be suspended except as provided for in Section 32-5A-191(f) [dealing with a 2nd offense DUI conviction] and Section 32-5A-191(g)" [dealing with a 3rd offense DUI conviction].
This creates a clear conflict which will have to be straightened out by the Courts or the Legislature in the future. First, this provision conflicts with existing sections of 32-5A-191 which sets no minimum punishment for a 1st offense [32-5A-191(e)], a 5 day minimum sentence for a 2nd offense [32-5A-191(f)] and 60 day minimum sentence for a 3rd offense [32-5A-191(g)]. You can see the confusion that this creates for Judges around the State. If the minimum sentence for a misdemeanor DUI conviction is one year, then does a person convicted of a 3rd offense face a minimum sentence of 120 days [double the 60 day minimum in 32-5A-191(g)] or a minimum sentence of two (2) years if convicted with a blood alcohol level of 0.15% or higher.
3. "the Director of Public Safety shall revoke the driving privileges or drivers license of the person convicted for a period of not less than one year."
Again, this creates a conflict with existing law. First, Section 32-5A-191(e) authorizes the Director of Public Safety to suspend the driving privilege or driver's license of a person convicted of a first offense for a period of 90 days. Second, the Alabama Administrative License Suspension Act [found in 32-5A-304(c)] states that "If a drivers license is suspended under this section for having 0.08 or more weight of alcohol in the blood of the person and the person is also convicted on criminal charges arising out of the same occurrence for violation of 32-5A-191, then the suspension imposed under this section shall be imposed but no period of suspension or revocation shall be imposed under 32-5A-191."
ACT 11-613 "IGNITION INTERLOCK DEVICE"
Act 11-613 amends the provisions of 32-5A-191(e) through 32-5A-191(h) to require the installation of an ignition interlock device installed on their vehicle for a minimum period of two years upon conviction of a DUI under certain circumstances.
First Offense DUI - 32-5A-191(e)
If a person is convicted of a DUI under this section and any of the following factors are present (1) with a blood alcohol concentration of 0.15% or greater; or (2) refuses to take a breath alcohol test; or (3) if a child under the age of 14 is present in the vehicle at the time of the offense; or (4) someone else was injured at the time of the offense, the the Director of Public Safety shall suspend the drivers license for a period of 90 days and require the person to install an ignition interlock device for a period of 2 years from the re-issuance of the person's drivers license.
Second Offense DUI - 32-5A-191(f)
If a person is convicted of a DUI under this section, the Director of Public Safety shall require the person to install an ignition interlock device for a period of 2 years from the re-issuance of the person's drivers license. The 2 year period is doubled if the person refused to take a breath test or had a blood alcohol concentration of 0.15% or higher.
Third Offense DUI - 32-5A-191(g)
If a person is convicted of a DUI under this section, the Director of Public Safety shall require the person to install an ignition interlock device for a period of 3 years from the re-issuance of the person's drivers license. The 3 year period is doubled if the person refused to take a breath test or had a blood alcohol concentration of 0.15% or higher.
Fourth Offense DUI - 32-5A-191(h)
If a person is convicted of a DUI under this section, the Director of Public Safety shall require the person to install an ignition interlock device for a period of 5 years from the re-issuance of the person's drivers license. The 5 year period is doubled if the person refused to take a breath test or had a blood alcohol concentration of 0.15% or higher.
Additional Costs
In addition to the cost of having the ignition interlock device installed and monitored (a cost which has not been determined since there are no certified installers in the State of Alabama), the driver must pay an additional $75.00 per month to the court for the first four (4) months following his or her conviction. This is an administrative fee that will be divided by the Courts and Public Safety.
There will also be an additional fee of not more than $150.00 for the issuance of a special drivers license that lets law enforcement know that you are required to have an ignition interlock device installed on the vehicle that you are operating.
Additional Penalties
If a person is required to have an ignition interlock device installed on their vehicle, the Act establishes additional penalties for ignition interlock driving violation. The person would be guilty of a Class A misdemeanor and an additional six (6) months shall be added to the use of the ignition interlock device if the person is convicted of (1) a breath sample of 0.02% is recorded more than four (4) times in any month; or (2) the ignition interlock device is tampered with or bypassed; or (3) the person fails to have the ignition interlock device serviced or calibrated every 30 days. Upon a second violation, the person would be required to serve a minimum of 48 hours in jail plus an additional six month shall be added to the use of the interlock device. Upon a third or subsequent violation, the person would have to serve a minimum of 5 days in jail and have the period of use extended by a period of 1 year.
If a person is found to be operating a vehicle without an ignition interlock device, after having been ordered to the use of the device, that person will be taken into custody and their vehicle will be impounded. The law does not say how long the person will remain in custody.
CONCLUSION
For the person charged with a DUI offense in the State of Alabama, the consequences of being convicted after September 1, 2011 have become significant. Not only will a DUI conviction after September 1, 2011 become more expensive in both time and money, but it will also become more burdensome with the inclusion of the ignition interlock device.
For the practitioner, there are a lot of new components in the DUI laws which must be studied and learned. To provide our clients with effective and competent representation, we will need to learn all of the changes and how they impact our future clients. Additionally, we will need to find the weak points in the new laws (the areas where they conflict with existing law) and use those to our client's advantage to minimize the impact that these tougher DUI laws have on our clients.
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