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By Stephen W. Shaw

Driving under the influence, or DUI, is a serious crime. It can have serious consequences for the livelihood and freedom of the accused. It is one of the few crimes where the initial behavior–consumption of an alcoholic beverage–is a legal act. However, once the person who consumes the alcoholic beverage decides to operate a motor vehicle, life-changing events can be triggered.

First, it is not unlawful to consume alcoholic beverages and operate a motor vehicle in Alabama. However, the amount of alcohol consumed can gradually increase in a driver’s body until the driver has a blood alcohol level so high that the law presumes criminal behavior.

This brings us to the most common question we are asked as attorney’s at social gatherings–how much can I drink and drive? The answer–it depends.

Ala. Code § 32-5A-191 (a) (1975) provides the elements of the crime of driving under the influence. The most common prosecutions are under subsection (a)(1) and (a)(2) which provide two different methods of proving the offense of driving under the influence of alcohol.1

Section 32-5A-191(a)(1) provides that “[a] person shall not drive or be in actual physical control of any vehicle while … there is 0.08 percent or more by weight of alcohol in his or her blood.”

Section 32-5A-191(a)(2) provides that “[a] person shall not drive or be in actual physical control of any vehicle while … [u]nder the influence of alcohol.”2

In a recent case, Mitchell v. State, 2019 WL 3070070 (Ala. Crim. App. 2019), the Alabama Court of Criminal Appeals reaffirmed the standard or the burden of proof of proving a prima facie case:

To establish a prima facie case of driving while under the influence of alcohol under § 32-5A-191(a)(2), [Ala. Code 1975,] the state must prove beyond a reasonable doubt that the appellant drove, or was in actual physical control of, a motor vehicle while he was under the influence of alcohol to such an extent that it affected his ability to operate his vehicle in a safe manner.

The Mitchell case provides a good analysis of what occurs during a DUI investigation. In Mitchell, the defendant passed a state trooper while the defendant was operating a motor vehicle 40 miles per hour over the posted speed limit. The trooper stopped the defendant, and as he approached the window, the officer smelled a strong odor of alcohol coming from the breath of the driver and from the vehicle. The defendant admitted that he had consumed alcohol. Further, the defendant had an open container of alcohol in his vehicle. The officer then testified as to the boisterous and unengaged conduct of the defendant who was speaking fast, repeating himself, and slurring his words. The defendant complied when he was asked to get out of his vehicle. The trooper administered a field sobriety test, but the defendant later alleged that his physical ailments may have contributed to his inability to perform the one-leg stand. He adequately performed the walk-and-turn test, however a portable field breathalyzer test indicated that his breath alcohol content was .138 (the legal limit was .08). The officer testified that the defendant was definitely under the influence of alcohol. The jury watched a video from the trooper’s body camera to help it to assess the defendant’s appearance and demeanor. The court of criminal appeals concluded that the evidence presented was more than sufficient to establish a prima facie case of DUI.

This case is important to read because it analyzes the circumstances of the arrest and conviction from beginning to end. Did the officer have reasonable suspicion to initiate the stop? Was the officer diligent in his assessment of the defendant and the defendant’s ability to comply with his requests? What was the purpose of the field sobriety test, and what benefit did the jury have in assessing the raw footage of the body camera?

Common Questions

How much alcohol can someone consume and operate a motor vehicle? Studies vary on the answer to this question. The answer depends on the size of the individual who is being tested; how long since they consumed it; and their tolerance to alcohol. As a general rule, one 10-ounce drink of 86 proof alcohol, a 12-ounce beer, or a five-ounce glass of wine all contain about the same amount of alcohol.

However, observes generally note that one drink per hour, or a maximum of two to three drinks over three hours with a meal, will not significantly impair the ability to operate a motor vehicle–but, again, it depends and there really are no hard-and-fast rules.

Probably the simplest and best answer is to say when in doubt do not drive. The availability of driving services makes this instruction a lot simpler to follow.

Initial Stop and Investigation

If I am pulled over what do I do? When a law enforcement officer turns on the blue lights behind your client, this can cause a lot of reactions and panic. Your client has a duty to pull over at the nearest safe location. While approaching the car, the officer has most likely called into headquarters to report the stop-and-run a check on the tag and already knows the name and address of the vehicle’s owner. The officer will then approach the window and ask the driver for his name and address. The client is obligated to respond to these questions and produce his driver’s license and insurance card. After that, caution should be taken in responding to any questions. Most of the time the officer will either have a body camera or a dash camera, or both, recording both the video and audio of everything that happens.

Following the initial interview, the officer may wish to conduct a further evaluation. The client will be asked to exit the car and perform several tests for the purpose of determining whether, in the officer’s opinion, there is probable cause to arrest the defendant for driving under the influence. These are known as field sobriety tests. The officer may ask two or more questions simultaneously to the driver, which might be interrupting or distracting questions or unusual questions. The purpose of asking for two things simultaneously from the driver, such as driver’s license and insurance or registration, is to test for impairment to see if the driver can retain the two questions and respond. The officer then would look to see if the driver forgets to produce both documents, produced documents other than the ones requested, fails to see his license or insurance card while searching for them, fumbles or drops his wallet, purse or items, or is unable to retrieve the documents using his fingertips. All of these actions are carefully observed by the officer. The officer may then direct the driver to step out of the vehicle. Once the driver has exited the vehicle, the officer then will instruct him on the other tests which he is about to perform.

Walk-and-Turn Test

The most common test is the walk-and-turn test. This test, like all divided attention tests, has two stages. The officer tells the client what to do, and he observes whether the client can keep his balance while listening to the instructions. The officer also looks to see whether the defendant starts to walk too soon, stops while walking, does not touch heel-to-toe, steps off the line (or imaginary line), uses his arms to balance, makes an improper turn, or takes the incorrect number of steps. Although this is not a pass-fail test, it assists the officer in looking for visible signs of impairment. It also provides an opportunity for you in defending a case to show how well your client complied.

The test is generally administered with these instructions:

1. Put your left foot on the line, then place your right foot on the line ahead of your left, with the heel of your right foot against the toe of your left foot.
2. Do not start until I tell you to do so.
3. Do you understand? (Must receive affirmative response)
4. When I tell you to begin, take nine heel-to-toe steps on the line (demonstrate) and take nine heel-to-toe steps back down the line.
5. When you turn on the ninth step, keep your front foot on the line and turn taking several small steps with the other foot (demonstrate), and take nine heel-to-toe steps back down the line.
6. Ensure you look at your feet, count each step out loud, keep your arms at your side, ensure you touch heel-to-toe, and do not stop until you have completed the test.
7. Do you understand the instructions?
8. You may begin.
9. If the suspect does not understand some part of the instructions, only the part in which the suspect does not understand should be repeated.

One-Leg Stand

This is another divided attention test. The officer is looking for swaying while balancing, using arms to balance, hopping, or putting down the foot too early. According to the National Highway Traffic Safety Administration (NHTSA), a person with a BAC above .10 can maintain balance for up to 25 seconds, but seldom as long as 30 seconds.

The test is generally administered with these instructions:

1. Stand with your feet together and your arms at your side (demonstrate).
2. Maintain position until told otherwise.
3. When I tell you to, I want you to raise one leg, either one, approximately six inches off the ground, foot pointed out, both legs straight, and look at the elevated foot. Count out loud in the following manner: 1001, 1002, 1003, 1004, and so on until told to stop.
4. Do you understand the instructions?
5. You may begin the test.

Try this at your office and see how well you can follow the instructions given under more stressful conditions.

Your client can be convicted of a DUI in Alabama even if they have not consumed any alcohol. Section 32-5A-191 (a) (3) allows DUI convictions for driving under the influence of a controlled substance, and the controlled substance can either be an illegal substance or it can be a legal prescription. Section 32-5A-191 (a) (4) allows DUI convictions when there is a combination of a controlled substance and alcohol. Section

32-5A-191 (a) (5) allows DUI convictions for taking any other substance which render a motorist incapable of safely driving. This could include off-the-shelf items such as glue.

Added Precautions When Consuming Alcohol

If your client decides to consume any alcoholic beverages and operate a motor vehicle, he should keep in mind the following recommendations. Do not drink on an empty stomach; consume alcohol with meals or snacks. Be careful if you have had any sleep aids within the last 48 hours. Alternate water or soft drinks with alcoholic beverages. Be careful if someone offers to buy a round of drinks for the table. Many times, someone is cautious throughout the evening, but then gets less cautious and has “one for the road.” Avoid someone refilling half-empty glasses, like wine or draft beer. Last of all, do not participate in any “drinking games.”

All of these factors come into consideration in advising clients in advance or in defending a case. Did your client take pre-cautions? Did he operate his vehicle safely? Focus on what he did right and not solely on what the officer contends. Remember, jurors bring their common sense and life experiences to court. All of this can help you focus on the defense of the case and not rush to a resolution based on a client just wanting to get it over. The consequences of a conviction can have a long-lasting impact on your client.

Endnotes 
1 Sisson v. State, 528 So. 2d 1159, 1162 (Ala.1988). 
2 Pierce v. State, 217 So. 3d 64 (Ala.2016).