DUI Update for Alabama 2018
The following Alabama laws were enacted recently creating the need for the DUI Update for Alabama 2018.
1. Act 2018 – 546: This Act was sponsored by Sen. Orr and Sen. Reed as SB 90 and re-wrote sections of 32-5A-191 to amend the current five-year look back provision to a ten (10) year period. As of July 1, 2018, all DUI arrests in the state of Alabama are subject to a ten-year look-back provision for enhancement of sentence “if the prior conviction occurred within 10 years of the date of the current offense.” Therefore, the measuring time is the date of the previous conviction to the date of the current offense. This revision is a sentencing enhancement provision and is independent of the elements of the offense, which are unchanged.
Further, Act 2018-546 states: “If the person has a previous felony DUI conviction, then all of the person’s subsequent DUI convictions shall be treated as felonies regardless of the date of the previous felony DUI conviction.” The practical effect of that change is once a defendant is convicted of a felony DUI offense, any subsequent DUI arrest must be prosecuted as a felony at the circuit court (and the municipal or district court is without jurisdiction over the offense.)
Caveat: If the defendant has a felony conviction in any jurisdiction, state or federal, any subsequent DUI arrest in the state of Alabama must be treated as a felony, even though it may not be a fourth or subsequent offense. As example, third offense DWI (within ten years of the previous offense) in the state of Florida is automatically treated as a felony offense in that state.
2. Act 2018 – 517: This Act was sponsored by Sen. McClendon in the Senate as SB 1 and a companion House bill, HB 8, was sponsored by Rep. Mooney. This bill was intended to be the “interlock for all” bill. However, as events turned-out, this was not the case. Interlock is still not required for first offense convictions. A true first offense DUI conviction can accept the driver license suspension of 90 days and avoid interlock altogether, unless the conviction is an “aggravated” DUI with a breath test of .15% or greater or breath test refusal, in which case interlock is required.
There are a number of modifications to the current interlock requirements. Act 2018-517 amends 32-5A-191 in the following manner:
- Changes the current six month “voluntary” installation of interlock on first offense conviction with a BAC of less than .15% and the immediate issuance of an interlock restricted driver license to only 90 days.
- Amends the current two-year interlock duration for first offense convictions with a BAC of .15% or greater, or test refusal, to one year duration.
- Amends the current 180-day mandatory license removal (followed by mandatory interlock for three years) for third offense DUI to only 60 days.
- Amends the current five year duration for mandatory interlock for any fourth or subsequent offense to a four year duration.
- Removes any ambiguity in the of interpretation of the “double minimum punishment” provision (sub-section i) when dealing with interlock: “This section does not apply to the duration of time an ignition interlock device is required by this section.”
- Removes any “double punishment” interlock requirement when convicted of transporting a child under 14 years of age (sub-section j): “This section does not apply to the duration of time an ignition interlock is required by this section.”
- Amends the $75 per month payment to the clerk’s office for four months to a single $200 payment (“which may be paid in installments”).
- Adjusts the percentages paid from the $200 assessment to the following:
- o 17% to the Alabama Interlock Indigent Fund
- o 30% to the State Judicial Fund, but only if the case is prosecuted in a district or circuit court; otherwise, the 30% goes to the municipal court and must be used for the operation of the municipal court.
- o 30% to the Highway Traffic Safety Fund (ALEA)
- o 23% to the District Attorney
- Provides for one year additional interlock duration if a convicted offender is operating a vehicle at any time an interlock device is required, is ordered to submit to an evidentiary breath test and refuses testing.
Pre-Trial Diversion Provision [New]: The underlying purpose of SB 1 and HB 8 was to “close the loop” in the numerous Pre-Trial Diversion or ‘Deferred Adjudication’ programs that are administered by many district or municipal courts by requiring interlock for all DUI arrests that entered a pre-trial diversion program. Act 2018-517 requires the following compliance:
- The person accepted into any pre-trial diversion program must install ignition interlock for a period of six (6) months or the duration of the pre-trial diversion program, whichever is longer. Important note: “A participant in a pre-trial diversion program shall be eligible for indigency status if the program enrolls indigent defendants and waives fees for indigent defendants.” (emphasis added) New Code section (v)(1).
- If enrolled in a pre-trial diversion program and an interlock installed, ALEA shall issue an interlock restricted driver license and shall stay any suspension of driver license, and then commute any suspension upon successful completion of pre-trial diversion or deferred adjudication. New Code section (v)(2).
- Upon receipt of any interlock violation or termination from any pre-trial diversion program, ALEA shall suspend or revoke the driver license pursuant to 32-5A-304 and the subject shall serve out the entire suspension period. New Code section (v)(3)
- This section of law has no application to commercial driver license (CDL) statutes or regulations. New Code section (v)(4)
- The maximum period of probation under Code section 15-22-54 is extended until all ignition interlock requirements have been met. New Code section (z)
- The “50 mile” rule: “….no person may be required to install an ignition interlock device if there is not a certified ignition interlock provider available within a 50 mile radius of his or her place of residence or place of business or employment.” New Code section (aa)
Changes to Indigent Status [Amendments to Code section 32-5A-191.4]
- Removal of the 50/50 fee split between the Alabama Interlock Indigent Fund and the convicted offender to all fees paid out of the fund: “Any convicted offender granted indigency status for the purpose of ignition interlock shall not be required to pay the costs associated with installing and maintaining the device nor required to pay any interlock fees …” Paragraph (i)(4)
- ALEA shall require each approved manufacturer to provide up to 5% of that manufacture’s market share for indigent use. Paragraph (i)(5).
- Any manufacturer who fails to meet the five percent threshold shall be subject to a $500 civil penalty for each indigent defendant that is not afforded a free interlock.