The 2016 regular session of the Alabama Legislature has come to a close. Every year one or more bills seek to change Alabama’s DUI law. This year was no different. It’s time to take a look at 2016’s legislative hits and misses as it relates to Alabama DUI defense. The bill I will address in this post did not ultimately pass, but I address it first for two reasons. One, it would have made more sweeping changes to Alabama DUI law than any other bill considered this year. And, two, similar bills seem to come up each year, and one of these days, it one may pass.
The bill which would have made the most sweeping changes to Alabama’s DUI statute this year was Senate Bill 255 (SB255). This bill passed the Senate but ended up stagnating and ultimately dying in the House. SB 255 would have significantly changed subsection (a) of Alabama’s DUI statute, Alabama Code 32-5A-191.
That subsection currently reads:
(a) 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.
If SB255 had passed it would read:
(a) A person shall not drive or be in actual physical control of a vehicle while:
(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
(2) There is greater than five nanograms Delta-9-tetrahydrocannabinol (THC) per milliliter of blood or any quantifiable amount of any Schedule 1 or 2 controlled substances or any quantifiable amount of any of the following substances in the person’s blood or oral fluid:
a. Alprazolam
b. Carisoprodol/meprobamate
c. Clonazepam
d. Diazepam/nordiazepam
e. Lorazepam
f. Tramadol
g. Zolpidem
[NOTE: Later in the proposed statute it is stated that it is an affirmative defense to a violation of this subsection if the person has a valid prescription for the substance or is otherwise authorized to use the substance.]
(3) Under the influence of alcohol, a controlled substance, or any other substance, or any combination of those substances, to a degree which renders him or her incapable of safely driving.
[NOTE: It is stated later in the act that it is NOT an affirmative defense if the individual has a valid prescription for the substance(s) found in his or her body.]
(4) There is 0.02 percent or more by weight of alcohol in his or her blood and the person is under the age of 21 years;
(5) There is 0.02 percent or more by weight of alcohol in his or her blood and the person is a school bus or day care driver acting in performance of his or her duties;
(6) There is 0.04 percent or more by weight of alcohol in his or her blood and the person is driving or in actual physical control of a commercial motor vehicle as defined in 49 CFR Part 383.5 of the Federal Motor Carrier Safety Regulations as adopted pursuant to Section 32-9A-2.
SB255 would have changed the “look-back” time frame for prior convictions when calculating mandatory minimum punishments. Under current law, the look-back period for determination as to whether the current DUI offense is a 1st, 2nd, 3rd or subsequent DUI conviction, the court should look back 5 years from the date of conviction of the current DUI offense. The proposed law changes the look back period to 5 years from the current offense arrest date.
Other minor changes to the law that SB255 would have made include:
- Mandatory drug screening if the conviction involves controlled substances.
- Release time from jail following an alcohol DUI arrest is lowered to when a subject falls to 0.05% or less, 0.02 if a minor; If it is a controlled substance DUI they must be held 12 hours in jail before eligible for release.
- The time period for suspension of the registration of their vehicle if convicted of DUI within 10 years (up from 5).
The major flaw in SB255 was that it would have subjected thousands of people to the risk of being arrested for DUI, spending the night in jail and having an arrest record for merely having a prescription for certain medications. It would have made it okay for law enforcement to arrest a driver for merely having a quantifiable amount of certain medications, not in their blood, but their saliva. It would have placed the burden on the person arrested to come forward and present a valid prescription. The medications on the naughty list include Xanax, Clonopin, Valium, Ativan, Ultram and Ambien in any amount that is measurable. A quantifiable amount should never be, the threshold for violation of a criminal law of this sort. Unfortunately, I suspect we will see a similar bill introduced again next year.
In my next post I hope to address SB259 (Alabama Act No. 2016-152), which did pass the legislature, and which includes a significant change to the law for CDL holders.
About the Author: Phillip B. Price, Sr. the senior partner at Price, Flowers & Ward Law Firm. He is a former Dean of the National College for DUI Defense (NCDD), the premier national organization for DUI defense attorneys. He is the only attorney in North Alabama who is Board Certified as a Specialist in DUI Defense. He has been representing citizens accused of DUI in Alabama for over 35 years. In 2012, he received the prestigious Erwin-Taylor Award from the NCDD. He is the author the Alabama DUI Handbook, published by Thomson Reuters ®.
If you would like to contact the author, please visit: http://www.alabamaduiattorney.com/
