Top Myths And Misconceptions About DUI In Alabama


That’s a definite myth. In fact, if you come to a trial, either in front of a judge or in front of a jury, the judge can consider the fact that you refused the Breathalyzer as evidence that you were intoxicated. If you’re having a trial in front of a jury, the judge can instruct the jury to consider the fact that you refused the Breathalyzer as evidence of your intoxication. It’s not per se, and by that I mean it doesn’t mean you were intoxicated, but they can use it as evidence that tends to show that you refused the Breathalyzer because you were intoxicated. On the other hand, there was a study done in Jefferson County several years ago that showed the conviction rate in jury trials for people who refused Breathalyzers was in the 50% range, and for those who took Breathalyzer tests, the conviction rate was above 90%.

Field sobriety tests are not subjective and not up to the police officer’s interpretation, or to the person taking the test. These are objective tests that were put in place by the National Highway Traffic Safety Administration. Each of the three standardized field sobriety tests is objective in nature. The police are looking for very specific scientifically studied signs that have been linked to intoxication. The average person might think they did well on the tests, but they don’t know what the police officer was looking for to determine whether they were intoxicated or not. Somebody might say, “I kept my leg up in the air for 30 seconds, I stood on one leg for 30 seconds” or, “I felt like I walked in a straight line, I didn’t waiver off the straight line.” But the officers were looking for signs beyond your ability to walk in a straight line. For example, the officer was watching to see whether you touched heel-to-toe on every step, whether you performed the turn after nine steps and in the appropriate manner, and whether you followed other instructions such as not starting too early – that type of thing.

You’re going to look to the jury, and potentially to the judge as if you had something to hide because you refused to take the standardized field sobriety and Breathalyzer tests. That is not to say that it isn’t better in some scenarios to refuse the test. Someone may have specific problems performing the field test, or feel unsure about the Breathalyzer and have a legitimate reason to refuse. Still, it could be in their favor not to refuse. If there are special circumstances, those will come out at trial. Often the police have a dash-cam that will show them following the driver in question and whether they were weaving in and out the road. The dash-cam might show the person getting out of the car unsteadily, or falling over and having to lean against the car. The police can use all those things to say, “Look, this person was intoxicated; that’s why they refused to do the field sobriety test or take the breath test”.

They might also say the person had bloodshot eyes and smelled of alcohol. None of those things make it a slam-dunk for the police, but the more of those things that are present, the more likely it is that a jury will believe the person refused to take the tests because he or she had something to hide. That’s why we tell clients, even if you’ve got a legitimate problem with the police stopping you, just tell them you want to receive a ticket for whatever they think you’ve done wrong and then go on about your business. If they don’t let you leave, you can assume you’re under arrest and you’ll want to talk to a lawyer.

That kind of shuts down the investigatory phase of a traffic stop because the way police get probable cause to make a DUI arrest is by observing people doing things they were asked by the police to do. By the time you get to the point where you’ve said, “I’m not going to do your standardized field sobriety tests,” you’ve already done a lot of things the police officer asked you to do like get out of the car, roll down your window, talk to them, etc., all of which has given them a chance to observe you. They can say you had slurred speech or sounded drunk. If you’re going to shut down the investigation, you need to shut it down right from the beginning. You don’t need to wait until they have asked you to start taking standardized field sobriety tests because by that time they are suspicious that you’ve been drinking.

We get that question in probably 75% of the DUI cases that we evaluate. That’s one of the first things people tell us when they come to meet with us: the police officer didn’t read them their Miranda rights. There’s an exception to Miranda for traffic stops and arrests that are made in an investigatory manner. If the police have pulled you over for swerving or speeding or running a stop sign or any other reason and they smell alcohol, see your bloodshot eyes, or think you have slurred speech, they will ask you to get out of the car and perform tests. If you don’t perform well on the tests, they now have probable cause to arrest you for a DUI and they don’t have to read you your Miranda rights. The assumption is that you were not under arrest while you were doing all the things they asked you to do.

There’s no law against the police being rude to you, or what you perceive as them being rude to you. And, not all police cars have dash cameras, so it may not be on tape. It is basically a myth that rudeness on the part of the police will make the case easier on you. On the other hand, if you get as far as a jury trial and there was a dash-cam that shows the police were being jerks, it certainly won’t hurt your case to be able to show that to a jury or to a judge. But again, that all depends on the other facts and circumstances surrounding your case.

If you fell out of your car, threw up on the ground and couldn’t even stand up – that type of thing — then it’s not going to matter whether the police officer was a jerk or not. But if it’s a close call case with a low Breathalyzer reading, or no Breathalyzer reading, and you did pretty well on the field sobriety tests, or even if you refused to participate in the investigation and the police officer was a huge jerk about that and doesn’t have much else to go on, that could swing the case in your favor.

There is a law against the police trying to coerce you to make a statement or anything like that if you’re under arrest, but as far as their trying to get you to participate in their investigation, they can use a little bit of trickery or deception to make you think everything is okay. We see that a lot in dash-cam videos and field sobriety tests where the officers are being very friendly to the person. The person doesn’t realize it, but they are really making their case a lot worse by continuing to do every single thing the officer asks them to do.

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No, not at all! That’s a huge misconception. The court, from a guilt or innocence standpoint, does not care whether you’re an alcoholic or not. If you’ve been proven to be intoxicated while behind the wheel, whether you are an alcoholic makes absolutely no difference. In certain situations, the court will take into account how many DUIs or other alcohol related incidents you’ve had in the past. If you’re not an alcoholic, and you haven’t had any legal trouble with alcohol before, that may help you; those are extraneous things. But from a purely guilt or innocence standpoint, it makes no difference whether you deem yourself to be an alcoholic or not. In fact, we have a retired judge who still comes back now and then in Jefferson County that likes to say to clients, when they plead guilty, “Are you the type of person that can drink or the type of person that can’t drink?” The clients have to answer that they are the type of person that can’t drink. The judge feels that if you’ve been arrested one time for drinking and driving, then you are the type of person that shouldn’t be drinking. Period!

Tolerance does play into your ability to perform standardized field sobriety tests. Let’s say the law in Alabama would not agree with me, but there is scientific data to back up tolerance in certain individuals. There is such a thing as a functioning alcoholic and there are some people that probably can drive a car better when they are intoxicated than when they aren’t because their body is so used to it, but that said, the blood alcohol level doesn’t lie. The test of your blood or your breath is going to show how much alcohol is in your system, whether you’re able to perform the field sobriety tests or not.

In that regard, if you’ve got somebody that can function well and has a high tolerance for alcohol, they may be able to complete the field sobriety tests, but if they take the Breathalyzer, the reading is still going to be what it is. Under the law, a 0.08 level is a per se violation. You cannot legally get away with saying, “Well, 0.08 shouldn’t apply to me because I can do all these field sobriety tests well.” Of course, it’s possible to convince a jury that a person wasn’t under the influence of alcohol, but it is very likely, if they’ve blown a 0.08 or higher, that they are walking out of there with a conviction unless a problem can be found with the case before it even gets to the jury.

In that scenario, the defendant would have to testify that he had only had three drinks and could show the receipt. The prosecutors could come back with a timeline of events, depending on when the person was arrested, and what time the receipt was closed out. We’ve had these types of issues before where we’ve tried, for example, to say to the prosecutors that we have a receipt for two drinks that was closed out at 11:30, 30 minutes before the arrest. The prosecutor will speculate about where you were for the hours prior to 11:30

So you have a timeline issue. If you’re a credible witness, you may convince the judge or jury that it’s the truth. But it’s not going to matter if you come into court having blown a 0.12 and you’re trying to say you only had two drinks. It’s just not going to be plausible. The drink receipt scenario is not one that plays out in the defendant’s favor often. Maybe in a refusal case, where you didn’t take a Breathalyzer but you did well on the field sobriety tests, and you testify you only had two drinks and have never had a DUI, it could bolster your case, but it’s definitely not a silver bullet.

If anything, it’s the opposite. In most courts, being in education or healthcare will only bring more attention to your case. Being an educator or nurse or doctor is just something else for prosecutors to harp on and use to make it look different than a “normal DUI case.” The prosecutors and judges will say, “This person is educating our children (or possibly trying to save a person’s life) and they are drinking and driving. Judges and prosecutors tend to believe that is a sign that there is probably an alcohol problem.

I’m not agreeing with that, I’m just telling you what the perception is. Don’t think that a judge will be more lenient with you because you’re a teacher or nurse or doctor. The truth is they will probably scrutinize your case even more because you hold responsible positions in society. They want to make sure they aren’t sending a nurse or doctor with an alcohol or a drug problem back into the world without proper punishment or attention or rehabilitation.

That scenario probably doesn’t come up much, but it’s definitely not one that I would want to bring to the court’s attention if I were the defendant or the defense lawyer. In my experience, when people try to make arguments to garner sympathy from the court, it backfires. In limited circumstances, yes, the court may have sympathy for the circumstances it deems worthy of sympathy, regardless of whether the defendant makes a point of bringing it to their attention or not. Over the years I’ve noticed people who come into court, but don’t look that hurt, or they’re wearing really nice suits. They are trying to elicit sympathy or give the judge the impression that this is all a misunderstanding. They might say they are a professional person, thinking that will curry favor with the judge. But this will only bring more scrutiny to their case. If the person goes before the judge and says, “I can’t deal with a license suspension” or, “I can’t take the alcohol classes” or, “I can’t pay the fine” because I’m a single mother,” nine times out of ten it will backfire on the defendant because the court will say, “The fact that you were a single mother should have been the reason you didn’t drink and drive.” You’re the only person your kids have, and that kind of thing, so I wouldn’t want to play that card by any stretch of the imagination.

That’s not necessarily true, but it’s still better when someone comes to me with a case where the medications have been prescribed than if they weren’t. From a DUI perspective, prescription drug cases are difficult for the state to prove. Somebody with a prescription will be viewed more favorably by the prosecutor and the judges. The caveat is there are many prescriptions out there and often a doctor has said, “Do not drive while you take this medication.” If you’ve got one of those prescriptions and you’re still driving and you’ve admitted to the police that you took the medication, you can still be convicted of DUI. In a situation like that, you need to talk to a lawyer and make sure that you get all the legal points flushed out.

If you’ve had a DUI in another state (and it depends exactly on what that person is talking about), and that DUI has already been punished, there’s not going to be any potential problem per se to move to Alabama. But if that person’s license is still under suspension in the other state, and they move to Alabama and try to get a driver’s license, Alabama is going to run a check in all 50 states. Then you’ve got all 50 states talking to each other about license suspension issues and will show up. If you’ve moved to Alabama from Tennessee and you’ve still got six months remaining on a one-year license suspension for a DUI, Alabama is not going to let you get a license until your suspension in Tennessee has cleared up.

If you’re in Alabama and you go to Florida on vacation and get a DUI, you better make sure you deal with however it needs to be dealt with in Florida. If Florida tells Alabama they are suspending your license for a year because you were convicted of a DUI in Florida Alabama will suspend your license as well. Florida does not have the authority to suspend your Alabama driver’s license, but they will notify Alabama, and Alabama will suspend the license. If you don’t deal with the court case in the other state, or if you didn’t show up for court and properly dispose of your case, a warrant for your arrest can be issued. Just because you’re across a state line doesn’t mean you won’t need to deal with whatever has happened as a result of being arrested for a DUI in the other state.

If you’re convicted of a DUI, you cannot expunge it in Alabama, period, ever, until the law changes or progresses. As it stands now, no conviction can be expunged in Alabama. If you went through a deferred prosecution program in Alabama, or otherwise had your case dismissed or were found not guilty of a DUI, then you have to wait one year from the final disposition of your DUI case to apply for expungement.

You can be convicted of a DUI even if you blow under a 0.08. The judge or jury can still find that you were under the influence of alcohol or, in some cases, they will say that you were under the influence of alcohol and another substance. That said, most of the prosecutors we deal with on cases where someone was arrested and blew under a 0.08 end up dismissing the case if there are no extenuating circumstances that will help bolster the prosecutor’s case. First of all, most prosecutors want to follow the law, so if you get under a 0.08, they tend to believe the person wasn’t intoxicated. And, it’s tough to take a case to a jury or a judge when the person did not blow 0.08 unless there are some other significant factors that show impairment.

If you’ve been arrested and blew under a 0.08, I’m not saying that you don’t need to worry about it, that’s it is going to go away. You still need to go to court and if I were you, I would still have a lawyer with me. If you show up without a lawyer, they may try to talk you into something you don’t understand. Still, you’re chances are better of getting it dismissed. On the other hand, if you’re under 21 years old and you’ve blown under a 0.08, that doesn’t matter in Alabama. There’s a per se intoxication beginning at 0.01 for persons under 21. That is considered high for someone under 21.

What do you mean by “go easy?” If you’re thinking “I’ve never had a criminal record, this is the first time I’ve been in trouble, the courts are going to go easy on me,” and there won’t be consequences, that’s wrong. You probably won’t serve jail time and you may even be able to get in to some sort of diversion program. But, because the court of original jurisdiction where you were arrested doesn’t have the only say about the suspension of your driver’s license, you can still have it suspended. In Alabama, when you’re arrested, the police take your driver’s license and mail it to the Department of Public Safety in Montgomery. They will initiate a driver’s license suspension 45 days after the date of your arrest whether you’re ever convicted of that DUI or not.

So, even if you walked into court and they told you, “Hey, sign up for this diversion program and don’t worry about anything,” you’re still going to have your driver’s license suspended for 90 days, maybe a year, and then get into a diversion program. If you don’t understand what the rules are, and someone else is telling you what the rules are, and it’s not a negotiated plea, what’s happened is that you’ve entered a diversion program and you have to do everything they tell you to do – if you fail to you can be convicted of a DUI. I would never go to court without a lawyer. Not having a lawyer to represent you means you risk not understanding what you’ve actually signed on for, what the disposition of your case is, and what it will be even if you do everything they tell you to do. You need to understand what is going to happen to you if you are pulled over while driving with a suspended license. Every time you’re pulled over and convicted of driving with a suspended license it’s an additional six months suspension time and another $500 fine. If you don’t have someone guiding you, it’s easy to get sucked into the legal whirlpool, so to speak, get whirled around and never be able to get out. For that reason, you shouldn’t care whether you have a history or not; you need a lawyer every time.

You could be arrested for a DUI in Alabama; they only have to prove that you were in actual, physical control of your vehicle. Even if you pulled off to the side of the road, put the car in park, turned the engine off, put the keys on the passenger seat, that’s still going to be actual physical control of your vehicle because you have the ability to crank that car up and drive. That’s all they have to prove in Alabama. They might have issues if you had pulled onto private property and were still arrested for DUI ; they will have some issues with asking you to take a Breathalyzer if you’re on private property because the law only applies to the public roadways – it’s complicated and these things can’t be explained in a one paragraph answer. It takes years of legal training and doing hundreds and hundreds of these cases to know what odds you’re looking at in a case like that, but to answer the question, if the police have arrested you while you were pulled off to the side of the road, taking a nap to sleep it off, you can still be convicted of a DUI and they are still going to try to convict you. So, you need to talk to a lawyer.

Wrong. You do not want to talk about any situation you are facing on Facebook or Twitter or Instagram or any other social media. That can have negative consequences because prosecutors and lawyers scour those sites now and they can use that stuff. It’s tricky from an evidentiary standpoint, but if you are up there testifying, they can certainly ask you about things you’ve posted on Facebook. It’s not advisable in any circumstance to talk about your legal problems on any social media site.

As a criminal defendant in the United States, you’re afforded with the right to remain silent and I think in most cases it’s a very valuable right. There are certain times — if the case is being disposed of in a favorable way — that it is good to come clean to the court: when you understand that you’re in a position where the court is going to help you and have sympathy for you, but it’s not a good idea to walk in there the first day and say, “I did it, I’ve got a drinking problem, I drink and drive all the time.” That’s not advisable. There are plenty of facilities in the country that can help people with alcohol and drug problems and while the courts are getting better at participating in those types of programs, the court is not set up to cure alcoholism or to help people with alcoholism. Those kinds of things can be handled personally, and you shouldn’t go into court and tell them everything you’ve ever done wrong.

That’s not true at all! Most of the cases we handle have successful outcomes. Again, it’s not just win or lose, nothing in the law is black and white, it’s all grey. You have to think about your expectations, decide what a successful result for you would be and the only way that you can really know the answer to that is to discuss with a lawyer what all the possible outcomes are. Then you can put things on a scale from best case to worst case. As the case and evidence stacks up, anything from the middle to the best case is going to be a successful result. A lawyer can tell you when you’re going to have to give up on the best case scenario and think about the next best case because the evidence against you is bad.

At your first meeting, you may sit down with a lawyer who says, “You’re going to have to think about the worst case scenario,” but who might, as the case develops, uncover evidence and as a result be able to say, “Hey, we’re sliding down here and this one may go away, so we might get the best case.” So, you don’t know right off the bat whether you’re going to win or lose, but the surest way to ensure that you lose and have the worst case scenario is to walk into court without a lawyer and plead guilty the first time you get to court. In that situation, all the negative impacts of a DUI are going to come down on you. You need a lawyer.

Not advisable, in my opinion. There is a plethora of information on the internet now, and people read all about everything. People want to try to be their own doctors, their own lawyers, their own financial planners, their own everything. A professional has not only spent years in school getting his law degree, he also has years of experience practicing law and gains more experience every day. I am in court weekly – daily – and I still don’t know everything there is to know. Surprising things happen all of the time. It’s a very bad assumption to think you can read something on Google or take a seminar and know all you need to know to handle a complicated DUI case, and it’s a recipe for trouble.

I don’t think there is a direct correlation between price and the level of expertise. I’m not saying that the most expensive attorney is going to be the best by any means. Many times that is simply not true. You should meet with and interview attorneys, then go with the one you are comfortable with from a knowledge and experience standpoint. I definitely would not just go with the cheapest. Although, if you met with three attorneys that you liked, you could feel the comfortable going with the lowest priced one. But to the extent it’s practical for you; my advice is to leave money at the bottom of the equation. Talk to them, get a comfort level, see if your personality matches, try to understand what they are going to do for you, try to get a picture of their experience, see how they can set out a road map or a game plan for you and go with who you feel comfortable with and can afford. Finances do play a role in decision making, but I would put that towards the bottom of my checklist if at all possible.

That’s not true at all in Alabama. If they pled guilty and were under 21, then they could have gotten what’s called youthful offender status, but it’s still up to the discretion of the judge whether that happens. If nobody asked about it, it may not have happened. A youthful offender will have his or her record sealed for all intents and purposes, but nothing in the law says that once you turn 21, your case goes away. So no, that’s not true.

Each DUI case is its own animal. No two are the same. Every case, even if the same person has had multiple DUIs, is different. Every has its own intricacies. Each time you need to go over the case with a lawyer to see where you stand, how the evidence stacks up, and what the best possible outcome is for that specific case.

If you’ve had your job for 20 years and you’re really good friends with your boss, that’s one thing and you’ll have to decide what your boss’s reaction will be. There are people that we’ve represented that say, “My boss wants this handled, but he is not going to fire me or anything like that because I’ve been working for him for 30 years.” That’s one thing, but what if you want to change jobs one day or move up within your company? If you’re a teacher or a nurse, for example, you’ve got licensing boards to deal with. Even if you think you’ll never leave your job, and your boss is your best friend, you really don’t know what will happen in the future. You need to try your best to make sure that the DUI gets dismissed, if at all possible, so that it doesn’t affect your future employment opportunities.

It depends on your job and what your employee handbook says. If you are a driver for your job and have company insurance, at some point your employer is probably going to find out about your DUI when they do an insurance check, so it may be advisable that you report the DUI. First you need to go over those things with a lawyer and talk about what the right circumstances are to report a DUI and when you don’t need to report it.

You certainly don’t have to disclose your health information to the attorney, but the attorney is probably looking at something that may help your case. He’s not the one who can decide which of those two things you value more, your health privacy or the possibility of beating your DUI case. Health issues can play a role in the results of field sobriety tests, which is why your attorney has asked you about your health. For example, if someone has bad legs or a musculoskeletal disease, that might affect their ability to perform some of these tests.

They might have just had knee surgery. They could have chronic dizziness, vertigo, or something like that. So, if you’re okay with trusting your lawyer to know your medical information, it could help your case. The lawyer is bound by the attorney-client privilege, so, just like your doctor, he’s not going to be able to disclose those things that you tell him anyway. I suggest, if at all possible, that you share all of that information with your lawyer so that he knows every possible angle that can help your case.

Every case is unique, every case has its own set of facts, every case has a different police officer, every case has different issues with respect to field sobriety tests and Breathalyzer tests so you need to talk to a lawyer. Whether you think it’s unbeatable or not is irrelevant. You need to talk to a lawyer and determine whether your case is beatable or not.

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