Tom McCutcheon
Q: My friend was pulled over after having a couple of beers. The police officer gave him a sobriety test and he blew a .05 and they charged him with DUI. I didn’t think that was the legal limit. What should he do?
Kayla
Tuscumbia, AL
A: The Alabama Supreme Court ruled that it is not illegal for a person of legal age to enjoy a glass of wine with dinner.
The Alabama State Legislature has passed laws governing the rules of the road including laws relating to driving under the influence. Basically there are two separate ways to be guilty of driving under the influence. The first is a statutory amount of alcohol that as a matter of law is deemed to be driving under the influence. If a person’s test on an approved breathalyzer is .08% or more it doesn’t matter how well they drive or how sober they appear. They are guilty of DUI by statute. The second way to be guilty of driving under the influence is the inability to safely operate a motor vehicle. The law presumes that someone is not unable to operate a car safely at .04% or less. The law gives the officer discretion between .04% and .079%. At .08% and above the issue has been decided by the Legislature.
A police officer would have to have probable cause to make the traffic stop and would have to be certified to use the breathalyzer and that breathalyzer would have to be certified for the results to be admissible. Of course, officers use field sobriety tests and observe the results. The law also provides that you may be found guilty of DUI due to alcohol or another substance that impairs your ability to operate an automobile safely.
In this case, the officer would have to testify and prove (although his testimony may well be proof) that your friend was impaired to the extent they could not safely operate a car before he or she could be found guilty by a judge or jury. Typically, the first hearing is in a municipal or district court without a jury and if an appeal is promptly filed within the time allowed by law an appeal may be taken to a court with a jury.
You have the right to refuse to participate in or take any test, however, under the implied consent rules contained in your driving privileges your license will be suspended for ninety days if you refuse. As always my advice is to be polite to the police officer no matter how unreasonable he may seem to you at the time. Remember that you are on film while outside the police car and being recorded while inside the car so asking for a “break” isn’t going to sound good later.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-349-2529
