Criminal Defense Archives

Oct 14, 2020 | By Antonia DeFeo | Read Time: 6 minutes

Alabama DUI Laws Explained: Offenses and Penalties

In Alabama, as in other states, the penalties for driving under the influence depend on the circumstances of the case and the defendant’s criminal history. Alabama driving under the influence (DUI) and driving while impaired (DWI) penalties also differ depending on the type of driver and on the driver’s age. Our Birmingham, Alabama DUI attorneys will explain. What Is a DUI Under Alabama Law? Alabama DUI laws prohibit a person from driving or being in actual physical control of any vehicle while under the influence. A person is “under the influence,” if they are found to: Have a blood alcohol content (BAC) of 0.08 percent or more; Be under the influence of alcohol; Be under the influence of a controlled substance to a degree which renders him or her incapable of safely driving; Be under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or Be under the influence of any substance which impairs the mental or physical faculties of the person to a degree which renders him or incapable of safely driving. Under this rule, police can use either a BAC level or a reasonable belief of the driver’s impairment to charge the driver with DUI. Per Se DUI A DUI charge based on a BAC of 0.08 percent, rather than on a determination of impairment, is known as “per se” driving under the influence. A per se DUI charge does not require any additional proof of impairment. Under 21 Years Old DUI If you are under the age of 21, you can be charged with DUI in Alabama if you have a BAC of 0.02 percent or higher. School Bus & Day Care Drivers If you are a school bus or day care driver, you can be charged with DUI if you have a BAC of 0.02 percent or higher. Commercial Drivers If you are a commercial vehicle driver, you can be charged with a DUI if you have a BAC of 0.04 or higher. Actual Physical Control Under Alabama DUI law, you can be charged with DUI even if you weren’t driving at the time of arrest. Under the statute, driving includes being in “actual physical control” of a vehicle. Actual physical control is defined as “the exclusive power, and present ability, to operate, move, park, or direct a motor vehicle at the moment.” Whether a person is in actual physical control of a vehicle depends on the specific circumstances of the case. Can You Refuse a Breath Test? Alabama drivers operate under an implied consent law. This law provides that any person who operates a vehicle within state consents to a blood, breath, or urine BAC test, just by operating the vehicle. A driver is required to consent to a BAC test following a lawful DUI arrest. An arrest is valid under this rule if the arresting officer had reasonable grounds to believe the driver is under the influence. A driver can refuse a specific type of BAC test in favor of another. For example, a driver may refuse a blood test but consent to a breath or urine test. A police officer cannot force a driver to undergo a BAC test unless they have a warrant or other additional authority. A driver may refuse all forms of testing but, in doing so, risks the consequences. A first refusal results in an automatic 90-day driver license suspension. A second or additional refusal within a five year period will result in a one-year license suspension. Additionally, refusal can be used as evidence in court to suggest the driver’s guilt. Alabama Penalties for Successive DUIs If you were convicted of DUI in Alabama, the penalties you face depend on the specific facts of your case and your criminal history. Of particular importance is whether you’ve been convicted of DUI in the past. The penalties for DUIs under Alabama law increase with each successive charge. In Alabama, the time period or “look back period” for successive offenses is 10 years. For example, if you were convicted of a DUI twelve years ago and you were recently charged with a DUI offense, you will likely receive the most lenient penalties. First DUI The first DUI offense carries the most lenient sentencing consequences. The penalties for a first DUI offense are: Up to one year in jail; Between $600 and $2,100 in fines; or Both. Additionally, you will face a 90-day driver license suspension. For more serious cases, a mandatory ignition interlock may be required even if it’s your first offense. An ignition interlock device is a breathalyzer installed in an individual’s vehicle. The device prohibits the vehicle from starting unless the driver blows an acceptable BAC. The court may order an ignition interlock if: You refused to submit to a BAC test after your arrest; Your BAC level was 0.15 percent or higher; You were involved in a car accident that injured someone else; or You were arrested for a DUI with a child under 14 in the car. Someone convicted of a first DUI offense can agree to the installation of an ignition interlock device instead of the 90-day license suspension. In addition to jail time, fines, and a potential ignition interlock, a first offense DUI conviction in Alabama requires mandatory probation. Second DUI A second DUI conviction carries more significant penalties than a first offense. The court may sentence a second offender to: A one-year driver license revocation; Between five days and one year in jail; Between $1,100 and $5,100 in fines; and Installation of an ignition interlock for a minimum of two years. For a second DUI offense, the court can order an ignition interlock requirement of up to four years if the offender refused a BAC test or had a BAC of 0.15 percent or higher. Third DUI A third DUI conviction carries significant potential penalties, including: A three-year driver license revocation; Between 60 days and one year in jail; Between $2,100 and $10,100...

Sep 15, 2020 | By Antonia DeFeo | Read Time: 4 minutes

Criminal Defense

Alabama Criminal Punishment Guidelines: Sentences & Fines

Every state has its own set of laws that define what acts and omissions constitute criminal offenses, and Alabama is no different. This is done via a number of statutes that are consolidated into Title 13A of the Alabama Code, often referred to simply as the Criminal Code. The Criminal Code defines the crimes and lays out the potential punishments for each offense. Whether you’re charged with a felony, misdemeanor, or a violation, it is always a good idea to talk to a lawyer. Crime Classification: The Three Categories Alabama’s criminal code categorizes illegal behavior into three different categories by severity of both action and possible punishment. The three categories ranked from least to most serious are: violations, misdemeanors, and felonies. Violations in Alabama Violations are the least severe of the three criminal classifications in Alabama. Any potential jail sentences are limited to a maximum of 30 days in county jail, as opposed to state prison. Examples of violations include such things as traffic tickets. Usually someone charged with a violation receives a fine of under $200.00. When it comes to violations, most people assume it is easier to plead guilty to a violation charge and then just pay the fine. But be careful. If it’s a traffic ticket, a guilty plea goes against your driving record. Misdemeanor Offenses in Alabama These are considered less serious than felonies, and thus are punished less severely. Misdemeanor charges are classified into three classes by severity. It is important to note that misdemeanors have an AND/OR distinction when it comes to punishment. That means a conviction could carry prison time, a fine, or both. Class A – Examples of Class A misdemeanors include possession of marijuana for personal use and theft of goods under $500. Punishment range is up one year in prison and/or $6,000 fines. Class B – Examples include resisting arrest and tampering with witnesses. The punishment range for this class is up to six months in prison and/or $3,000 in fines. Class C – The punishment range for this class is up to three months in prison and/or $500 in fines. Common Class C misdemeanors include trespassing, harassment, and disorderly conduct. When you’re convicted of a misdemeanor in Alabama, there are some circumstances where you may be able to avoid prison time. You may be eligible for a community corrections program or for drug court. In addition, if you have no other criminal history (especially a violent criminal history) a judge may suspend part of your sentence and place you on probation, as long as you obey certain guidelines. Felony Offenses in Alabama The most serious type of crime in Alabama is a felony. Felonies are crimes that can potentially carry a sentence of more than a year in state prison or death. There are four different classes of felonies, from the most serious Class A offenses to the least serious Class D offenses. Class D is a new felony class that went into effect on January 30, 2016. Class A – The most serious level of crime in the state, punishable by life in prison or a term of 10 to 99 years. Examples of Class A felonies include first-degree rape (sex by force, with an incapacitated victim, or a child under age 12), first-degree domestic violence, and of course, murder. There are 19 situatuations where a convicted murder may receive the death penalty, also known as capital punishment. Class B – Statutory sentencing guidelines range from two to 20 years in prison. Examples include first-degree manslaughter, first-degree assault, and second-degree (statutory) rape. Class C – The standard sentence for a Class C felony is a term between 366 days and 10 years. They include: breaking and entering, robbery with actual or threatened force, and child custody interference. Class D – This felony can carry a sentence of 366 days to five years in prison. Credit card fraud and possession of a controlled substance are a few that fall into this new category. Where the convicted person’s sentence falls in the statutory range depends on the circumstances surrounding the offense and the perpetrator’s criminal history. To help ensure fair and effective sentencing, the state established the Alabama Sentencing Commission in 2000. A felony can also have fines attached. The Criminal Code’s guidelines are: For a Class A felony, not more than $60,000; For a Class B felony, not more than $30,000; For a Class C felony, not more than $15,000; For a Class D felony, not more than $7,500 Talk to a Birmingham Attorney About Your Legal Issue Today Have you been arrested for or charged with a crime in Alabama? The consequences of a conviction could be severe and change your life forever. That is why you need to speak with a qualified criminal defense attorney as soon as possible about your case. At Dagney Johnson Law Group, we are a small family firm that has represented Alabamians for over 40 years. Located in Birmingham, we want our clients to feel comfortable and cared for throughout the legal process. Give us a call at (205) 937-6564, or submit our contact form to set up a consultation.

Sep 15, 2020 | By Antonia DeFeo | Read Time: 4 minutes

Criminal Defense

Expunging a Criminal Record in Alabama: Everything You Need to Know

If you are arrested and charged with a crime in Alabama, you may be afraid of the long term impact the charge will have on your life. You may not be able to apply for an occupational license and generally find it difficult to get steady employment. Like most other states, Alabama has a law that allows people to eliminate certain criminal arrests and charges from their permanent record through a process known as expungement. Here are the laws governing criminal expungement in Alabama, who qualifies, and what to do if you think you are eligible. What is Expungement? Expungement is the legal process through which a person can remove a criminal arrest, charge and prosecution from their permanent Alabama criminal record. Once approved by a judge, the criminal proceedings are treated as if they never happened. If they are asked about the charge they have no legal duty to disclose that the incident ever happened, with the exception of a few rare circumstances. Any court, clerk, or state agency is required to respond that any record does not exist if they are asked, except in limited circumstances. The person does, however, must still disclose the record to government regulatory agencies, licensing agencies, utility agents and affiliates, and banks and other financial institutions. What Types of Cases Qualify for Expungement? It is important to note that criminal convictions are NOT eligible for expungement. Under current Alabama law, only these cases are eligible: Acquittal after a trial Case no-billed by a Grand Jury (not enough evidence for indictment) Dismissal after completion of drug court or other diversion program Charges are dismissed (with or without prejudice) Legally, a case that is dismissed without prejudice may be refiled at a later date, because no double jeopardy has attached. Because of this, the law requires that the case was dismissed at least two years prior to filing for expungement, that the case has not been refiled, and that the person has not been convicted of any other crime (excluding minor traffic violations) in the past two years. For charges dismissed WITH prejudice for a felony, the person must wait 90 days before filing. What Crimes Qualify for Expungement? In Alabama, a person can file for expungement to remove non-violent felonies, misdemeanors, violations, traffic violations, or municipal ordinance violations from their record. Prior to 2017, no violent felony charges could be expunged, but an amendment has changed this. Some violent felonies may be eligible for expungement now if the person was found “not guilty” at a bench or jury trial. How Do I Start the Expungement Process? An expungement does not happen automatically, so being proactive is the key. Seek the advice of a criminal defense attorney who has experience with the expungement process, and they can guide you through the process. First, you and your attorney will fill out and file a petition for expungement in the proper court. It doesn’t matter in what court specifically your original case was based (municipal, traffic court, etc.), all expungements must be approved by a judge in the circuit criminal court where the original case was heard. Having an attorney’s expertise on this can help you avoid paying unnecessary fees by having to file and refile your petition in the right court. Will I Need to Go to Court? Maybe. After your petition is filed, the prosecutor’s office has a certain number of days to file an objection to the expungement. If they do, you may need to schedule a hearing with a judge. They will ask both sides questions about the circumstances surrounding your case, and then issue a ruling based on the expungement factors set forth by Alabama law. What are the Expungement Factors in Alabama? From Alabama Code § 15-27-5: Nature and seriousness of the offense committed Circumstances under which the offense occurred Date of the offense Age of the person when the offense was committed Whether the offense was an isolated or repeated incident Other conditions which may have contributed to the offense (economic hardship, personal stressors, etc.) An available probation or parole record, report, or recommendation Whether the offense was dismissed or nolle prossed as part of a negotiated plea agreement and the petitioner plead guilty to another related or lesser offense Evidence of rehabilitation, including good conduct in prison or jail, in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful business or employment history, and the recommendation of his or her supervisors or other persons in the community. Any other matter the court deems relevant, which may include, but is not limited to, a prior expungement of the petitioner’s record The court is not limited strictly to the listed factors above, and can consider anything they deem relevant that could positively or negatively affect whether expungement is the right choice. This is why having an attorney to assist you is vital, not just in drawing up the petition but also bringing the court’s attention to other positive evidence and information that could encourage your expungement being approved. Talk to a Birmingham Attorney About Expungement Today Are you looking to move past an arrest or criminal charge that is negatively affecting your career or another aspect of your life? An expungement can help give you a clean slate and allow you to move forward without anxiety. That is why you need to speak with a qualified criminal defense attorney as soon as possible about your case. At Dagney Johnson Law Group, we are a small family firm that has represented Alabamians for over 40 years. Located in Birmingham, we want our clients to feel comfortable and cared for throughout the legal process. Call us at (205) 937-6564, or send us an online message to schedule a consultation. The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.