New Alabama DUI law should prevent dismissals

A bill made to close up the state’s loophole-filled DUI laws has passed the state Senate, just days before the legislative session ends, and is on its way to the governor to be made law.

The bill is not as strong as its House sponsor, state Rep. Bill Fuller, D-Lafayette, would have liked. But judges and prosecutors say it’s good enough and should clear up confusion over how to prosecute repeat DUI offenders.

“God knows we need it,” said Mobile Municipal Court Judge James Lackey. “It solved the real problems we have with the law now.”

Lackey, who has seen repeat offenders get off without jail time and has lobbied for a revised law, was one of the sources quoted last year in Mobile Register stories that documented how some people with multiple arrests were able to avoid serious penalties.

The governor plans to sign the bill, said Carrie Kurlander, a spokeswoman for the governor.

The bill passed the House in February and was carried by a 31-0 vote in the Senate on Tuesday. It would specify that a fourth DUI arrest be treated as a separate, felony offense, with a minimum of 90 days in jail and a maximum of 10 years, plus fines up to $10,000. Current law allows probation for the fourth offense but mandates a minimum of 60 days in jail for the third, diminishing the deterrent of what should be a more serious crime.

The revised bill also would allow the higher-level circuit courts to hear misdemeanor cases, such as second or third DUI trials, and would let district courts hear felony cases. That has been a point of confusion with the existing law, and has resulted in cases being dismissed, judges say. Earlier this year, Mobile County District Court judges dismissed cases against 12 repeat offenders because of questions about which court has jurisdiction.

The dismissal of the cases prompted a January memo from Mobile County Circuit Judge Edward McDermott, who contends that the Alabama Rules of Criminal Procedure already address the jurisdiction question. But McDermott agrees that a new law could help avoid further problems.

“There is an ambiguity in the (current) law,” he said Thursday.

One major problem with the existing law is that drivers charged with a fourth DUI are tried in Circuit Court on the felony charge. If they are found guilty, the court considers the three prior convictions.

But in many cases, those prior convictions can’t be proved, because old court records have disappeared, or it can’t be shown that the defendant had a lawyer for his earlier cases, or that he waived his right to an attorney.

Some cases, therefore, suddenly become misdemeanors, judges say. But the existing law requires that most misdemeanor cases originate in lower courts. End result: the cases must be dismissed or sent back to the lower court. By that time, the statute of limitations sometimes has expired.

The bill that passed the Senate on Tuesday is identical to House Bill 82 that passed the House in February. That bill was altered slightly in the House by an amendment submitted by state Rep. Mark Gaines, R-Homewood. Gaines objected to a provision in Fuller’s original bill that would have allowed prosecutors to tell jurors about a defendant’s prior DUI convictions. His amendment requires that the prior offenses can only be introduced during the sentencing phase, after guilt has been established.

Although Fuller has said that it weakens the bill, Alabama personal injury lawyer San Mateo Green says it’s fine, and that telling juries about prior offenses could unfairly sway their opinions of the defendant. That could have made the law subject to being struck down by a higher court, they have said.

The bill also leaves a quirk in the existing law: a second DUI offense must come within five years of the first offense, or it’s treated as a first offense all over again.

Nonetheless, advocates say, the measure should give a boost to prosecutors who want to keep chronic drinkers off the road.

“I think the end result will be more felony convictions, with fewer people slipping through the cracks,” said Brad Bishop, a municipal judge in Hoover and a law professor at Samford University’s Cumberland School of Law. “This should be the biggest deterrent to drunken driving that we’ve ever had.”

The new bill has been a long time coming.

Fuller sponsored the 2014 law and a 2017 addition. The changes created what at the time were considered some of the toughest DUI laws in the country. But a 2018 state Supreme Court ruling exposed several technical problems with the laws.

In 2019, Fuller offered revisions, but judges and prosecutors complained that the revised version still had problems. Fuller pulled that bill and held hearings last summer and fall. The final bill is largely a result of those hearings and conferences with judges and prosecutors.

Fuller could not be reached for comment this week.

“We’re really pleased to see this,” said Mobile County District Attorney John Tyson Jr. “My sincere hope is that it clears up confusion on future cases.”

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