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Driver License Suspension & Revocation Actions As a Result of Alcohol Related Violations

Driver License Suspension & Revocation Actions As a Result of Alcohol Related Violations. Patrick Mahaney Montgomery, Alabama . Driver License Classification. Federal Commercial Motor Safety Act of 1986 Effective date in Alabama - 1989 Classification of Driver Licenses

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Driver License Suspension & Revocation Actions As a Result of Alcohol Related Violations

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  1. Driver License Suspension & Revocation ActionsAs a Result of Alcohol Related Violations Patrick Mahaney Montgomery, Alabama

  2. Driver License Classification • Federal Commercial Motor Safety Act of 1986 • Effective date in Alabama - 1989 • Classification of Driver Licenses • Class A: Combination Vehicle w/ 26,000 GVWR • Class B: Single vehicle or combination vehicle under 26, 000 GVWR • Class C: Passenger vehicle w/ 16 or more; transport hazardous materials • Class D: Standard operators license • Class M: Motorcycle only (w/ ‘B’ restriction for 14-15 yr old) • Class V: Vessel license

  3. Terms • Driver License: Any license issued under the laws of this state to operate a motor vehicle on public highways of the state • Driver (Driving) Privilege: The authorization to operate a motor vehicle on the public highways of this state, although the motorist may be unlicensed or licensed in another state.

  4. Terms • Suspension: Temporary or limited time period removal of driver license or privilege, or reinstatement conditioned upon compliance of a legal requirement. • Revocation: Complete and full removal of driver license or privilege. Revocation generally the result of conviction of a serious traffic offense. • Cancellation: The annulment or termination of driver license because of error or defect in application or issuance.

  5. What’s the Difference? • Suspension: Removal for limited time period (duration established statute or by Alabama Administrative Code) or unspecified period until motorist complies with a legal requirement. Reinstatement fee only. No SR-22 requirement or driver exam. • Revocation:Permanent removal of driver license for a period not less than 6 months. Must serve entire revocation period before eligible for re-licensing. Requires payment of reinstatement fees, proof of financial responsibility (SR-22) for a period of three (3) years, and complete entire driver exam.

  6. Driver License Suspension & Revocation for Alcohol Related Offenses • Administrative Driver License Suspension – Code of Alabama, 1975, section 32-5A-300 thru 309 • Implied Consent Law – Code of Alabama, 1975, section 32-5-192 • Driving Under the Influence – Code of Alabama, 1975, section 32-5A-191 • Statutory authorization for the Director to suspend/revoke – Code of Alabama, 1975, section 32-5A-195

  7. Effect of Conviction • The term “conviction” is a specific term of law. • The term “conviction” means a final conviction. • Also, the term means: “… an unvacatedforfeiture of bail … a plea of nolo contendere accepted by the court, the payment of fine, a plea of guilty or a finding of guilt …. shall be the equivalent to a conviction regardless of whether the penalty is rebated, suspended or probated.” Code of Alabama, 1975, section 32-5A-195(i). • The Department of Public Safety will not take action against an Alabama driver license until notice of final conviction is received. • Caveat: CDLs – payment of court costs is the equivalent of a conviction [If operating a “commercial vehicle” at time of the offense]

  8. Convictions and Court Costs - CDLs 49 CFR 383.5: "Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.” (emphasis added) [See, also, 32-6-49.3 for definition of the word "conviction.“] Effective November 2012, the Department of Public Safety is treating payment of court costs as the equivalent of a “conviction” if the licensee held a CDL and a CDL was required for vehicle operation at the time the citation was issued.

  9. Alabama Licensee: In-state ConvictionAttorney General Opinion 2012 – 0011 • If the license or privilege is suspended administratively under the Administrative License Suspension Act, there is no additional period of suspension or revocation if subsequently convicted of DUI. • If the license or privilege is not suspended administratively (AST-60 was not submitted timely; affidavit was defective, etc.), the Director is required to impose the full one year revocation for first offense conviction as required by statute for any conviction with a breath test result of .15% or greater; otherwise the standard 90 day suspension will apply if not subject to “double minimum punishment.” • The Director of Public Safety should not impose the one year period of revocation specified under Code section 32-5A-191(i) for a DUI conviction with a test result of .15% or greater if the administrative license sanction has already been ordered.

  10. Alabama Licensee: In-state ConvictionAttorney General Opinion 2012 – 0011 • If the license or privilege is suspended administratively under the Administrative License Suspension Act, there is no additional period of suspension or revocation if subsequently convicted of DUI. • If the license or privilege is not suspended administratively (AST-60 was not submitted timely; affidavit was defective, etc.), the Director is required to impose the full one year revocation for first offense conviction as required by statute for any conviction with a breath test result of .15% or greater; otherwise the standard 90 day suspension will apply if not subject to “double minimum punishment.” • The Director of Public Safety should not impose the one year period of revocation specified under Code section 32-5A-191(i) for a DUI conviction with a test result of .15% or greater if the administrative license sanction has already been ordered.

  11. DUI Convictions - Duration • First offense conviction with a BAC of .14% or less – 90 day suspension • First offense conviction with a BAC of .15% or greater – 1 year revocation • Second DUI conviction (within 5 years) – 1 year revocation • Third DUI conviction (no time limitation) – 3 year revocation • Fourth or subsequent DUI conviction (no time limitation) – 5 year revocation • Note: This list of driver license sanctions pre-supposes that no administrative action was taken prior to receipt of notice of conviction

  12. Driver License Removal - DUI For purposes of license removal: • Date of conviction, and not date of arrest, is the controlling date • DUI conviction applies equally to any in or out of state court or federal conviction • DUI conviction of whatever kind are entered, without regard to court’s approval of any plea agreement • Each license removal action must be served in full and in sequence of receipt to Department of Public Safety. • Includes all DUI convictions, in or out of state, received by the Department of Public Safety [Note: Out of state conviction is authorized an administrative review]

  13. Duration of License Removal -DUI Conviction The mandatory revocation period established by statute must be served in full, and each revocation period served, before becoming eligible for re-licensing. Alabama Dept. of Public Safety v. Barbour, 5 So. 3d 601 (Ala. Civ. App. 2008)

  14. Additional License Removals • Drug crime conviction – Code section 13A-12-290: 6 months mandatory license suspension (includes Y.O. and juvenile adjudications) • Breath test refusal – Code section 32-5-192 (c): 90 day suspension first refusal and 1 year suspension second or subsequent refusal (within a five year period). • Typical example: Traffic stop for DUI (first offense) with a breath test refusal and a small amount of marijuana. Convicted of DUI and possession of marijuana, 2nd degree. Result: 90 day suspension for breath test refusal (administrative under the AST-60), 90 day suspension for the first offense conviction, additional 180 days for the ‘drug crime’: 365 days of license suspension to be served.

  15. Implied Consent Law • Motorist must be under lawful arrest • Arrest must take place on a public road or highway – no application to an arrest on private property • Statute is alcohol only; no application to controlled substance DUI cases • Statute equally applicable to in/out of state motorists (“license or privilege”) • Motorist cannot be compelled to submit to a test; can lawfully refuse blood test (alternate test must be offered) [Common threat: “If you don’t take this test, you are going to be locked up for 24 hours.”] • Refusals reported on AST-60 forms • 1st Refusal/5 yrs – 90 day suspension • 2nd Refusal/5 yrs – 1 yr. suspension

  16. Administrative License Suspension • Reported on AST-60 form • Each arresting officer acts as agent of the Director of Public Safety • Tracks Implied Consent Law in application • Alcohol only DUI violations • No application to controlled substances • Must be .08% or more for license removal • No application to ‘Under 21’ .02% DUI cases • No application to any breath test less than .08% • License seizure must be an Alabama license • No application for seizure for out-of-state licensee* [*Department of Public Safety takes position ALS applies to out of state licensee’s driving privilege]

  17. Procedure: AST-60 forms • Must be completed and processed in 5 business days to Department of Public Safety • Must be sworn at time of submission (not necessarily at time of issuance) • Must include statement of probable cause • Motorist must make written petition for hearing within 10 calendar days of receipt of AST-60 • Department must conduct administrative hearing within 30 days of receipt of petition [Note: Sanction for DPS non-compliance not stated.] • Sole Issues at hearing: • Lawful arrest/Conforms to Implied Consent Law • Motorist drove or was in actual physical control of vehicle with .08% test result or test refusal • Decisions based on preponderance of the evidence standard

  18. Driver License Removal - ALS • 90 day suspension if no prior alcohol or drug-related enforcement contact* in past five years • One year suspension for one prior contact in past five years • Three year suspension for two or three prior contacts in past five years • Five year suspensionfor four or more prior contacts in past five years *Includes all breath tests, breath test refusals, and DUI convictions of any kind, in this state or any other state

  19. Appeals - ALS • Appeal for judicial review must be taken within 30 days after notice of final order issued. • Review process under ALS tracks procedure of the Alabama Administrative Procedures Act • Must be filed in the county where the arrest was made. • Filing of an appeal does not operate as an automatic stay; must file a stay order and have circuit court enter a stay. • Petitioner/plaintiff has burden of proof; decisions of the agency presumed correct as a matter of law

  20. Practical Considerations • Far greater likelihood that AST-60 will be processed first and motorist held to ALS suspension, than conviction in court and license removal for DUI conviction. • If licensee submitted to breath testing, only suffers one license removal per incident – This is extremely important in view of the Department’s ‘first in-first recorded’ method of license removal. • If DUI case subsequently is acquitted, dismissed, or nolprossed, and licensee had submitted to breath test with results of .08%, then Director must rescind suspension order and remove entry from MVR. • If licensee refused the breath test – no benefit of the ‘acquittal/dismisal/nol pros rule’ – licensee is held to full suspension under I.C. and ALS statutes. • If ALS license suspension goes into effect first, no subsequent revocation order if later convicted. [This statute is frequently ignored by DPS data entry; requires a ‘DQ’ to untangle.]

  21. Practical Considerations • Driving While Revoked: A conviction of DWR while under a revocation order will result in an additional 6 month removal order. If revoked, each revocation order will initiate new SR -22 requirement. • Driving While Suspended: Two convictions for driving while suspended will operate as ‘automatic’ revocation order. If revoked, start date for the SR-22 requirement. [Three (3) years duration from date of initial order.] • CDL Holder: A conviction of DUI* will result in a one year disqualification of CDL; second conviction will result in lifetimedisqualification (Subject to administrative review after 10 years). • [*Note: DPS is interpreting ALS suspension for breath test result of .08% as the equivalent of a conviction and holds the ALS hearing an “authorized administrative tribunal” under 49 CFR 383.5] • ALS suspension is 90 days for Class D license; one year disqualification for CDL endorsement. • Minor in Possession statutes: Conviction or adjudication of MIP requires a three month (90 day) suspension of driver license or privilege. Application for Y.O. has no effect.

  22. End of MaterialsWhat Are Your Questions? Law Office of Patrick Mahaney 8244 Old Federal Road Montgomery, Alabama 36117 www.mahaneylaw.com

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