Traffic Safety Resource Prosecutor

Category: Uncategorized

Relation of Implied Consent & Blood Tests

The U.S. Supreme Court’s decision in Birchfield v. North Dakota[i] deemed that breath tests were valid as a search incident to arrest, but did not extend this exception to blood tests.  The Court emphasized a preference for blood draw warrants and, absent situations that involve unquestionable consent or the exigent circumstances, we must look at utilizing them more frequently.  While the constitutionality of implied consent statutes was not questioned in Birchfield, going forward I have been of the belief that we can no longer strictly rely on implied consent.


For thirty years we have relied heavily on Alabama’s implied consent statute to cover the collection of blood, breath, or urine.  As more drugs appear on Alabama roadways, and in light of Birchfield, we must understand the scope and limitations of implied consent.  Implied consent only applies to alcohol cases[ii] unless there is a crash and someone other than the driver suffers a serious physical injury or there is a fatality[iii].  And only then may we use implied consent to look for amphetamines, opiates, and cannabis.  Today, law enforcement officers are encountering more individuals that are refusing the breath test as well as scenarios where the observed impairment indicators do not match the results of the breath testing instrument.  In each of these cases, I encourage law enforcement to obtain consent or a search warrant for blood.


Consent is the fastest way to obtain a blood sample.  The burden is on the State to show that consent was freely and voluntarily given.[iv]  Voluntariness is to be determined from the totality of the circumstances that the officer includes in his or her report.  When we start talking about the effect of impairment on a defendant’s ability to consent, we need to make sure that the consent is the product of a “rational intellect and a free will.”[v]  There will be those instances where the person is so impaired they cannot issue a valid consent.  The officer is not without recourse in these scenarios; a search warrant is always an option.  By obtaining a search warrant, an officer narrows what can be challenged in a court of law and can reduce his or her time in court.


The situations where the impairment does not match the observations or where there is a refusal, obtaining a blood sample is furthering the investigation.  This blood sample is providing the trial court with more evidence for evaluation in the pursuit of justice.  A prosecutor using this blood sample cannot admit it under the statutory predicate[vi].  He or she will have to admit those results utilizing the traditional evidentiary predicate.[vii]  Requesting and/or obtaining a blood sample in these situations does not impact implied consent.


You may also have questions in regard to your civil liability in these matters.  Unfortunately, I do not work in that world and would urge you to pose those questions to your agency’s legal department.  If there are any further questions or concerns on this or any traffic safety related issue, I am here to assist you.

1 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)

[ii] ALA. CODE §32-5-192 (2010)

[iii] ALA. CODE §32-5-200 (2010)

4 Bumper v. North Carolina, 391 U.S. 543 (1968)

5 Townsend v. Sain, 372 U. S. 293, 307 (1963)

[vi] ALA. CODE §32-5A-194 (2010)

[vii] Ex parte Mayo, 652 So.2d 201 (Ala. 1994)

2018 Changes to DUI Law

I wanted to take this opportunity to alert you to changes in the DUI code, 32-5A-191, that will impact us all beginning on July 1, 2018.  The way of determining sentencing ranges and the utilization of ignition interlock have been substantially altered during the most recent legislative session.  What follows is a short summary of the changes that take effect soon.

The DUI code section was first adopted in 1980.  During the early years of the DUI law, we have determined sentencing ranges based on conviction dates.  Since 2006, there has been a 5 year look back for DUI convictions, meaning that previous DUI convictions cannot be used to determine the appropriate sentencing range if that DUI conviction occurred more than 5 years from the conviction date.  Act 2018-546, sponsored by Senator Orr, changes the way we look at prior DUIs.  The change now allows prosecutors to go from conviction date to offense date.  This change allows for the time to stop running at the current offense date, so there is no concern about how long or how many appeals the defendant files in court.  Also, the look back provisions have been amended from 5 years to 10 years.  Finally, this bill amends this provision so that if an individual has a conviction for felony DUI (regardless of the conviction date), all future DUI arrests will be a felony.

Alabama’s ignition interlock law first came into effect in September 2011.  Act 2018-517, sponsored by Senator McClendon, addresses the ignition interlock provisions of DUI.  The most significant change to the interlock law is the requirement that any DUI admitted to a pretrial diversion program must include an ignition interlock device upon entrance into the program.  This subsection will sunset after five years.  The second change is an elimination of the doubling section as it applies to ignition interlocks.  Another alteration to the implementation of ignition interlock is the money involved with such programs.  Instead of a $75 fee for 4 months after conviction, the fee is $200 and may be paid in installments.  Also, if the court declares the defendant indigent, he or she is not required to pay the court fees associated with interlock, installation fee of the ignition interlock, or the maintenance fees for the interlock. These fees may be waived for those in a pretrial diversion program, as long as the program waives their fees for indigent defendants.  Finally, a new condition imposed by this act is that there must be an interlock provider within 50 miles of his or her residence, business, or employment or one does not have to be installed by a defendant.

Please never hesitate to contact me with your questions, concerns, or requests for assistance.

Traffic Stops & Identification

I have had a couple of different discussions about an individual’s requirement to produce identification during a traffic stop or at a checkpoint. This has been a growing trend throughout the Southeast and was the subject of a presentation at a conference I recently attended. The presentation was created by the Florida TSRP and uses Florida law, but I still think it is very relevant to what we discussed. The relevant Alabama law is as follows:

ALA Code 15-5-30: A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.

ALA Code 32-5A-4: No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer or fireman invested by law with authority to direct, control or regulate traffic.

ALA Code 32-6-9: (a) Every licensee shall have his or her license in his or her immediate possession at all times when driving a motor vehicle and shall display the same, upon demand of a judge of any court, a peace officer, or a state trooper. However, no person charged with violating this section shall be convicted if he or she produces in court or the office of the arresting officer a driver’s license theretofore issued to him or her and valid at the time of his or her arrest.
(b) For every person found in violation of this section or Section 32-6-1, a reasonable effort shall be made as soon as possible, but not later than within 48 hours, to determine the citizenship of the person and if an alien, whether the alien is lawfully present in the United States by verification with the federal government pursuant to 8 U.S.C. § 1373(c). An officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.

Sly v. State, 387 So.2d 913 (Ala. Crim. App. 1980)
A state trooper observed that a headlight on defendant’s automobile was defective. He pursued defendant for approximately one quarter of a mile with the blue light on his patrol car on before defendant stopped. The defendant refused to produce his driver’s license during the stop. The trooper stated that after defendant was arrested and on the way to the county jail, defendant stated that he did not stop because he thought that the trooper was a city police officer and that defendant had heard rumors that the city police were harassing the public. Defendant was charged and convicted of willfully failing or refusing to comply with a lawful order or direction of an officer invested by law with authority to direct, control, or regulate traffic. The prosecution was based on the failure of defendant to show the trooper his driver’s license. Defendant was convicted and the court affirmed. The court held that the trooper’s “request” to see defendant’s driver’s license constituted a lawful order and that observing a violation of the state traffic and vehicle safety regulations, the trooper had a statutory right to request and inspect defendant’s operating license. Further, defendant had a statutory duty to display the same.

Birchfield v. North Dakota

Alabama Law Enforcement Officers & Prosecutors,

On June 23, 2016, the U.S. Supreme Court delivered its latest decision on impaired driving, Birchfield v. North Dakota[i]. The ultimate issue was the constitutionality of criminalizing chemical test refusals.  The Court consolidated and addressed three cases: Birchfield, Bernard v. Minnesota, and Beylund v. Levi.  In Birchfield, the defendant was arrested, refused a blood test, and was charged with a violation of the refusal.  Similarly in Bernard, the defendant was arrested, refused a breath test, and was charged with a violation of the refusal.  Beylund, the defendant in the final case, actually submitted to a blood test after being given an advisory warning that there were criminal sanctions for refusal.

Justice Alito’s majority opinion established refusal laws serve a very important role in combating impaired driving, but the Court drew a distinction between breath tests and blood tests. The Court determined that there are far less privacy concerns with breath tests; therefore, while a breath test was a valid search incident to arrest, a blood test was not a valid search incident to arrest.  This determination allows for states to criminalize the refusal of a breath test, but not of a blood test.

Prosecutors, please note that this is a categorical exception and not subject to a case-by-case analysis. Breath tests are permissible based upon a valid arrest for impaired driving. This is the first time the U.S. Supreme Court has found breath testing valid as a search incident to arrest and the refusal of which can be criminally punished.  The Court also limited it’s ruling to criminal refus­al statutes, and left unchanged the civil or administrative license suspension consequences for refusal.  The constitutionality of implied consent statutes is reaffirmed by this Court stating, “prior opinions have referred approving­ly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply . . . and nothing we say here should be read to cast doubt on them.”[ii] This approval includes the admissibility of the defendant’s refusal as evi­dence in the criminal case under Neville[iii].

The State of Alabama and our implied consent statute[iv] is within the constitutional bounds set by this opinion and should remain largely unaffected.  However, the Court did strongly emphasize a preference for blood draw warrants, absent situations that involve consent or the exigent circumstances exception to the search warrant requirement.  The Court mentions a scenario involving an unconscious driver and states “when they arise, the police may apply for a warrant if need be.”[v]  I encourage all law enforcement to obtain search warrants in these cases, if the situation will allow it.  Otherwise, we must follow the “totality of the circumstances” test given to us in McNeeley[vi] and be able to articulate the specific facts that led us to using the exigency exception.  Going forward, I do not believe we can strictly rely on the implied consent statute any longer.

If there are any questions or concerns about this information, or any traffic safety related issues, I am here to address your needs.  Please do not hesitate to contact me.  We all have the common goal to reduce the number of impaired drivers and fatalities on our state’s roads.  By working as a team, we can continue to make great strides toward this goal.


[i] Birchfield v. North Dakota, 2016 WL 3434398, ___ S. Ct. ___ (June 23, 2016).

[ii] Id. at 36

[iii] South Dakota v. Neville, 103 S. Ct. 916 (1983).

[iv] §32-5-192, Code of Alabama (1975)

[v] Birchfield at 35

[vi] Missouri v. McNeeley, 133 S. Ct. 1552 (2013)