Author: John T. Kirk, Patrick Mahaney, Whitney Polson, and James Nesci
ISBN 10: 1-936360-69-1
ISBN 13: 978-1-936360-69-7
Copyright Date Ed: September 1, 2021
Pages: 536
Binding Information: Casebound plus DVD
Size: 8.5 ✕ 11 Inches (US)

For even the most experienced attorney admitted to practice in the state of Alabama, defending a DUI case has always presented special challenges. Today, mounting a successful defense is more difficult than ever. But now you have the advantage with Alabama DUI Defense: The Law and Practice, 5th Edition. This text and supplementary DVD contains the most important and up-to-date information to help you attain a successful verdict.

Written by John T. Kirk, Patrick Mahaney, Whitney Polson, and James Nesci, all members of the prestigious National College for DUI Defense, Alabama DUI Defense: The Law and Practice, 5th Edition ensures that you have the most current materials dealing with the scientific and technological concepts and information available to successfully defend a DUI case in the state of Alabama. The authors provide the most recent and most relevant information available in the key areas of DUI law and practice including: DUI investigations, Field Sobriety Testing, Drug Recognition Evaluation, Blood and Breath Testing, Blood Alcohol Calculations, Pre-Trial Motions and Practice, Trial Practice, Sentencing and Probation, and much, much more!

The 5th Edition is expanded from the previous edition and includes over 200 additional cases, new sections on lawyer advertising, marketing, and use of social media for law practice, newly developed science and technology for testing blood and other substances to include liquid chromatography and mass spectrometry, blood testing for drugs, Alabama breath test protocol, field sobriety testing (2013 and 2015 SFST Manuals), blood and breath testing uncertainty, boating under the influence and related offenses, the most current Alabama statutory law, and much more, making this text the single most important book to have with you during all phases of a DUI case, from the initial client call to your of ce to the conclusion of the trial phase. The 5th Edition also has three new sub-sections: dealing with the military client, admissibility into Canada, and accident investigation for attorneys.

Many practical tips and text notes are included throughout the book to assist the attorney in preparing and presenting an effective defense. Included on the bonus DVD are practice forms and motions specifically keyed to Alabama law that will greatly assist the busy defense attorney, so you can locate, review, and print them out in a matter of seconds. The bonus DVD included with the Fifth Edition contains all new material, including the NHTSA 2013 and 2015 SFST and DRE Manuals, studies, articles, and visual detection videos.

Included are the NHTSA Student and Instructor Manuals for 2013 & 2015, the DRE pre-School & DRE School Manuals, and the ARIDE for 2013—the latest edition from NHTSA! Some vendors sell these together for $500 or more. They are all included on the 5th edition DVD at no extra charge!

Lawyers & Judges has published twenty state-specific DUI defense reference books. A practitioner in Colorado raved in the Colorado Lawyer that Colorado DUI Defense: The Law and Practice is “a must-have resource” and would make “a nice gift for the lawyers in your life who practice DUI defense.” The Wisconsin Lawyer reviewer gave Wisconsin OWI Defense: The Law and Practice a touchdown review, calling the book “the best book I have read pertaining to Wisconsin operating-while-intoxicated (OWI) law, and one of the best in dealing with the substance of OWI law.”

Topics Include:

New! Chapter 1: Lawyer Advertising
Updated! Chapter 2: Client Relations
Updated! Chapter 3: Driving and Boating Under the Influence & Related Statutes
Updated! Chapter 4: Driver License Law
Updated! Chapter 5: Pre-Trial Investigations
Updated! Chapter 6: Pre-Trial Motion Practice
Updated Chapter 7: Plea Offers, Collateral Consequences, & Sentencing
Updated! Chapter 8: Trial
Updated! Chapter 9: DUI Investigations: Driving, Boating and Field Sobriety Testing
Updated! Chapter 10: Drug Recognition Evaluation
Updated! Chapter 11: Chemical Testing
Updated! Chapter 12: Blood Alcohol Calculations for Attorneys
Updated! Chapter 13: Expert Witnesses
Updated! Chapter 14: DUI Jury Trial Warpack

Table of Contents

Tables of Cases
Preface
How to Use this Book

Chapter 1: Lawyer Advertising
1.1 Ethical Issues in Advertising
The Origins of Lawyer Advertising
Alabama State Bar Rules Concerning Lawyer Advertising
Rule 7.1 Communications concerning a lawyer’s services
Rule 7.2 Advertising
Rule 7.3 Direct contact with prospective clients
Rule 7.4 Communication of fields of practice
Rule 7.5 Firm names and letterheads
Summary
1.2 Advertising Resources
A. Phone Book Advertising
B. Internet Advertising
C. Giveaways
D. Television
E. Print 1.3 Marketing Advice

A. Tiftickjian's Ten Marketing Tips to Build a Better Practice and Life

1.4 Social Media
A. Ethical Concerns
B. Confidentiality vs. Privilege
C. The 3 Tenets of Social Media: Timeliness, Honesty, and Transparency
D. Facebook
E. Twitter
F. Social Media as a Research Tool
G. Final Thoughts on Social Media

Chapter 2: Client Relations
2.1 Meeting the Prospective Client
2.2 Client Intake Questions
2.3 Client Intake Interview
2.4 Legal Service Contract
2.5 Fees
2.6 IOLTA
2.7 Communication
2.8 Client File Retention
2.9 Pilots and Merchant Marines
2.10 Non U. S. Citizens—Immigration Consequences
2.11 Canadian Travel

Chapter 3: Driving and Boating Under the Influence and Related Statutes

3.1 Introduction

3.2 2018 Legislative Acts Affecting DUI and Driver Licensing
3.3 Driving Under the Influence
3.4 Boating Under the Influence
3.5 Ignition Interlock 3.6 Homicide by Vehicle
3.7 Implied Consent Law (General)
3.8 Implied Consent Law (Serious Injury or Fatal Traffic Accident)
3.9 Administrative License Suspension Act Reckless Driving
3.10 Pedestrian Under the Influence
3.11 Open Container Law

Chapter 4: Driver License Law
4.1 Overview
4.2 Basic Terms and Definitions
Driver License
Driving Privilege
Suspension of Driver License
Revocation of Driver License
Cancellation of Driver License
Driver License Compact
Nonresident Violator Compact
National Driver Register
Problem Driver Pointer System
4.3 Administrative License Suspension Act
4.4 Implied Consent Law
4.5 Dealing With Specific Issues of the Alabama Administrative License Suspension Act
Due Process in the Suspension or Revocation of a Driver License
Driver License Removal Authority and Duration for Driving Offenses
CDL Disqualifications
Non-driving/non-motor vehicle violations and offenses resulting in driver license removal
4.6 Commercial Driver License Issues 4.7 Federal Commercial Driver License Issues
4.8 Driver License Required; Welch Hearings; Driving While Suspended or Revoked
4.9 Leading Driver License Caselaw
Endnotes

Chapter 5: Pre-Trial Investigations
5.1 Overview
5.2 Proper Filing Techniques
5.3 Documents Provided by the Client
A. Jurisdiction: Municipal Courts and Municipal Police Officers
5.4 Selecting and Using a Private Investigator
5.5 Visiting the Scene
5.6 Photography and Videos
5.7 Diagrams and Aerial Photography
5.8 Accident Reconstruction
5.9 Event Data Recorders (Black Boxes) 5.10 Speed, Time & Distance Calculations
5.11 Roadblock (a.k.a. “DUI Checkpoint”) investigations
A. Alabama Law Regarding Police Roadblocks
5.12 Police Radio Codes
5.13 Pre-Trial Interviews - Emergency Personnel and Civilians Appendix 5.1 An attorney's Guide to Accident investigation

Chapter 6: Pre-Trial Motion Practice
6.1 Overview
6.2 Procedural Motions
6.3 Substantive Motions
6.4 Motions in Limine
6.5 Pre-Trial Evidentiary Hearings
Endnotes

Chapter 7: Plea Offers, Collateral Consequences, & Sentencing Hearings
7.1 Overview: Plea Offers
7.2 Waiver of Rights
7.3 Collateral Consequences
7.4 Immigration Consequences
7.5 Exposure of Prior Offenses
7.6 Subsequent Offenses
7.7 Out of State, Timing and Juvenile Prior Offenses
7.8 Pre-Trial Diversion
7.9 Youthful Offender Plea
7.10 Misdemeanor Plea Offers
7.11 Felony Plea Offers
7.12 Sentencing
7.13 Expungement
Endnotes Appendix 7.1 Representing a Military Client for DUI/DWI Appendix 7.2 Overcoming Criminal Inadmissibility into Canada

Chapter 8: Trial
8.1 Overview
8.2 Voir Dire and Jury Selection
8.3 Jury Instructions
8.4 Opening Statements
8.5 Cross-Examination
8.6 Direct Examination
8.7 Closing Argument
8.8 Sentencing
Endnotes

Chapter 9: DUI Investigations: Driving, Boating, and Field Sobriety Testing
9.1 Introduction
9.2 Driving Behavior National Highway Traffic Safety Administration (NHTSA)
9.3 Standardized Field Sobriety Testing (SFST) Six Validation Studies
9.4 Standardized Field Sobriety Test Battery
9.5 Horizontal Gaze Nystagmus (HGN)
9.6 Walk and Turn
9.7 One-Leg-Stand
9.9 Refusal of SFSTs and General Admissibility
9.8 Commonly Used Non-Standardized/Non-Validated Field Sobriety Tests
9.9 Advanced Roadside Impaired Driving Enforcement (ARIDE)
9.10 Field Sobriety in the Marine Environment

9.11 Videotaping the Driving and investigation

Appendix 9.1 The Aging Process and Field Sobriety Tests
by Mimi Coffey, Esq.

Appendix 9.2 DWI—Modern Day Salem Witch Hunts
by Mimi Coffey, Esq.

Appendix 9.3 Fear and the DWI Field Sobriety Tests
by Mimi Coffey, Esq.

Appendix 9.4 The Fallacy of the Police Administered ‘Finger to Nose’ Test to Determine Alcoholic Sobriety
Patrick Mahaney, Dr. Jimmie L. Valentine, Ph.D, and Dr. Valerie Valentine Acevedo, D.O.

Chapter 10: Drug Recognition Evaluation
10.1 Overview
10.2 DRE Nationwide Statutory Law Comparison
10.3 DRE Admissibility Case Law
10.4 The 12-Step DRE Protocol
10.5 Deconstruction and Analysis of the 12-Step DRE Protocol
10.6 Effects of Various Drugs
10.7 Drug Evaluation Classification Protocol (DECP) Training Program
Endnotes

Chapter 11: Chemical Testing
11.1 Preliminary Breath Testing
11.2 Statutory and Case Law on Preliminary Breath Testing
11.3 PBT Safeguards
11.4 Commonly Used PBT Devices
11.5 Henry’s Law and the Blood-to-Breath Ratio

11.6 Federal Register
11.7 Evidential Breath Testing in Alabama
11.8 Infrared Spectroscopy
11.9 Basic Operation
11.10 Breath Testing: Methods of Attack
11.11 Blood Testing: From the Vein to the Lab
11.12 Headspace Gas Chromatography
11.13 Hospital Blood Analysis
11.14 Uncertainty of Measurement
11.15 Blood Testing for Drugs

11.16 Blood Testing for Drugs other than THC:LCMS
References
Endnotes

Chapter 12: Blood Alcohol Calculations for Attorneys
12.1 Overview: Blood Alcohol Calculations for Attorneys
12.2 Determining the One-Drink Potential
12.3 Elimination and Retrograde Extrapolation
12.4 White’s Retrograde Extrapolation
12.5 Partition Ratio Conversions
12.6 Serum and Plasma Conversions

12.7 Unit of Measure Conversions 12.8 Temperature Conversion

Chapter 13: Expert Witnesses
13.1 Overview
13.2 Pretrial Preparation
13.3 Direct Examination of the Defense Expert Witness
13.4 Cross of the State’s Expert Witness
13.5 Direct Examination of the State’s Expert as a Defense Witness

Chapter 14: DUI Jury Trial Warpack
14.1 Actual Physical Control
14.2 Aggravating Circumstances and “Double Minimum Punishment”
14.3 Appeals and Trial de novo
A. Right to an Appeal
B. Abatement of Appeal by Death
14.4 Arrest—in General
A. “Arrest at the Scene” of an Accident
B. U.T.T.C. Procedure for Arrest after Hospitalization
C. U.T.T.C. Procedure for Leaving the Scene of an Accident
14.5 Authentication of Records
14.6 Blood Draws A. Leading U.S. Supreme Court decisions B. Alabama Decisions Law Relating to Blood Draws
14.7 Breath Tests and Breath Testing
14.8 Burden of Proof
14.9 Chain of Custody—In General
14.10 Circumstantial Evidence
14.11 Closing Argument—Ethical Considerations
14.12 Comment on the Defendant’s Silence
14.13 Confrontation
14.14 Corpus Delicti
14.15 Defenses and Right to Present a Defense
14.16 Destruction of Evidence
14.17 Discovery and Rule 16
14.18 Double Jeopardy
14.19 Driving with Drugs or Controlled Substances
14.20 DRE Admissibility
14.21 Evidence and Specific Traffic-Related Cases
14.22 Expert Witnesses and Opinion Testimony Offered by Expert Witnesses
14.23 Field Sobriety Test Admissibility
14.24 Guest Statute
14.25 HGN
14.26 Implied Consent—In General
A. Implied Consent—Serious Motor Vehicle Accident
14.27 Independent Test 14.28 Jurisdiction
14.29 Jury Instructions and DUI Trial—In General
14.30 Miranda Warnings
14.31 Opinion Testimony
14.32 Pardon—Effect of Pardon
14.33 Pleas and Plea Negotiations
14.34 Probation—DUI
A. Probation Standards
B. Termination of Probation
14.35 Prior Convictions
14.36 Proof of Municipal Ordinance
14.37Probable Cause
A. Probable Cause to Search—Odor of Marijuana
14.38 Public Trial Right
14.39 Reasonable Suspicion
A. Reasonable Suspicion and Detention of Motorist B. Detention of Motorist
14.40 Reckless Driving—Alabama Case law
14.41 Refusal to Submit to Chemical Testing
14.42 Relation Back and Retrograde Evidence
14.43 Restitution and DUI Cases
14.44 Right to Counsel—In General
14.45 Searches—In General
A. Search of Vehicle Incident to Arrest
B. Drug Dog Searches
C. Pat-Down Searches
D. Impounding of Vehicle and Inventory Searches
E. Searches of Commercial Motor Vehicles and Highly Regulated Business
14.46 Sentencing—In General
A. Sentencing Juvenile DUI and Youthful Offender DUI
B. Service of Sentence
C. Vindictiveness in Sentencing
14.46 Urine Tests
14.47 Voluntary Statements, Admissions, and Confessions
Endnotes

About the Author
Index

DVD Table of Contents

ARIDE Folder

ARIDE Training Manuals (sub-folder)

2007 ARIDE Course Manual

2013 ARIDE Instructor Guide

2013 ARIDE Participant Manual

2018 ARIDE Instructor Guide

2018 ARIDE Participant Manual

ARIDE Training Power Point Files (sub-folder)

ARIDE Instructor Guide Session 1

ARIDE Instructor Guide Session 2

ARIDE Instructor Guide Session 3

ARIDE Instructor Guide Session 4

ARIDE Instructor Guide Session 5

ARIDE Instructor Guide Session 6

ARIDE Instructor Guide Session 7

ARIDE Instructor Guide Session 8

ARIDE SFST Training Videos (sub-folder)

ARIDE HGN Training Video

ARIDE One-Leg-Stand Training Video

ARIDE Walk-and-Turn Training Video

BD Vacutainer Recall Folder

1. Genuine Recall Notices (sub-folder)

BD Certificate of Compliance, August 22, 2018

BD Vacutainer Recall Letter, May 30, 2019

BD Amended Recall Notice, June 12, 2019

SIRCHIE BD Recall Notice, June 17, 2019

BD Gold-Top SST Recall Notice, PAS-A8-1146-FA

2. Fraudulent Recall Notices (sub-folder)

1. FRAUDULENT RECALL NOTICE WARNING

2. Fraudulent BD Vacutainer Recall Notice

3. BD Statement Fraudulent Recall Notice

Cliniqa Documents Folder

Cliniqa Email, August 20, 2013

Cliniqa Memo, November 5, 2013

Drug Evaluation Classification Program (DECP) Manuals & Material Folder

DRE Training Manuals (sub-folder)

1989 DRE School Student Manual

1991 DRE School Student Manual

1993 DRE Pre-School Student Manual

1993 DRE School Student Manual

1999 DRE School Student Manual

2002 DRE Pre-School Student Manual

2002 DRE School Student Manual

2004 Drugs that Impair Instructor Manual

2004 Drugs that Impair Student Manual

2010 DRE School Student Manual, Part 1

2010 DRE School Student Manual, Part 2

2013 DRE 7 Day Course Instructor Guide

2013 DRE 7 Day Course Participant Manual

2015 DRE Student Manual

2016 DRE Condensed Instructor Development Course,

Participant Manual

2017 DRE Condensed Instructor Development Course,

Instructor Guide

2018 DRE Instructor Guide

2018 DRE Participant Manual

2018 DRE Pre-School Instructor Guide

2018 DRE Pre-School Participant Manual

Drug Influence Evaluation (sub-folder)

Drug Influence Evaluation Blank Report Form

International Association of Chiefs of Police (IACP) DRE Standards (sub-folder)

2015 IACP DRE Standards

2016 IACP DRE Standards

2017 IACP DRE Standards

2018 IACP DRE Standards

2020 IACP DRE Standards (April Revision)

2020 IACP DRE Standards (October Revision)

IACP DECP State Coordinators, October, 2019

Recertification and Assurances Form R11/2019

U.S. Department of Transportation Folder

DOT Specimen Custody Form 8/30/21

Forms Folder

AA Attendance Form

Law Enforcement Phlebotomy Folder

NHTSA Publication: Law Enforcement Phlebotomy Toolkit

NHTSA Driving Cues Pamphlet Folder

Cars (sub-folder)

Guide for Detecting Drunk Drivers at Night (HS 805 711)

The Visual Detection of DWI Motorists

Motorcycles (sub-folder)

2005 The Detection of DWI Motorcyclists

2013 The Detection of DWI Motorcyclists

Older Drivers (sub-folder)

1998 Older Drivers Pamphlet

NHTSA Driving, Drugs & BAC Studies Folder

Alcohol, Drugs & Driving Studies (sub-folder)

Drugs & Human Performance Fact Sheet 2014

Drugs & Human Performance Fact Sheet, 2004

Drugs of Abuse in Aviation Fatalities-Marijuana

Effect of Marihuana & Alcohol on Visual Search

Performance

Effect of Marihuana Dosage on Driver Performance

Effect of Marihuana and Alcohol on Visual Search

Performance

Feasibility of Chemical Testing for Drug Impairment

Field Evaluation of the LAPD Drug Detection Procedure

Field Test of On-Site Drug Detection Devices

Identifying Types of Drug Intoxication

Impact of Legalization & Decriminalization of Marijuana on the DWI System

Institutionalizing the DECP in the United States

Marihuana Contact Test, Evaluation & Development

Marijuana & Actual Driving Performance

Marijuana & Driver Behaviors Among Fatal Operators

Marijuana-Impaired Driving, A Report to Congress

Marijuana, Other Drugs & their Relation to Highway

Safety, 1979

Marijuana, Other Drugs & their Relation to Highway

Safety, 1980

National Roadside Study of Alcohol & Drug Use by

Drivers

NHTSA Extra Eyes Report

The Role of Alcohol, Marijuana & Other Drugs in the

Accidents of Injured Drivers, Volume 1

The Role of Alcohol, Marijuana & Other Drugs in the

Accidents of Injured Drivers, Volume 2

The Role of Alcohol, Marijuana & Other Drugs in the

Accidents of Injured Drivers, Revised

Traffic Safety Culture & Cannabis Use

Visual Search & Urban City Driving Under the Influence of Alcohol & Marijuana

Drug Evaluation Classification Program (DECP) Studies (sub-folder)

Evaluation of the DECP on Enforcement & Adjudication

Field Evaluation of the LAPD Drug Detection Procedure

Institutionalizing the DECP in the United States

Exploring the Predictive Validity of DECP Evaluations

Driving Cues Studies (sub-folder)

Final Report, Visual Detection of DWI, 1980

Interim Report, Visual Detection of DWI, 1979

Michigan Driving Study, 1974

The Detection of DWI at BACs Below .10, Final Report

The Detection of DWI Motorcyclists

DUI-Alcohol Studies (sub-folder)

Alcohol Impairment of Impairment on Steering

Arrest Procedures for Driving While Intoxicated

ASAP Enforcement II

ASAP Enforcement IV

Comparison Study & Evaluation of SCRAM Use,

Recidivism & Characteristics

Drunk Driving & Enforcement, An Assessment of

Effectiveness

National Roadside Study of Alcohol & Drug Use by

Drivers

NHTSA FARS Missing BAC Imputation Method

Open Container Laws & Alcohol Involved Crashes

NHTSA Per Se Laws Review

SCRI Driver Characteristics & Impairment at Various

BACs, 2000

State of Knowledge of Alcohol Impaired Research on Repeat DWI Offenders

Survey of DWI Courts

Traffic Safety Facts 2004

Traffic Safety Facts for Motorcycles 2004

Use of Warrants for Breath Test Refusals

Non-Chemically Impaired Driving (sub-folder)

Drowsy Driving Study

Medically Impaired Driving

Roadblocks & Check-Points (sub-folder)

Deterrent Capability of Sobriety Checkpoints

Law Enforcement Use of Sobriety Checkpoints & Saturation Patrols

Roadblock Study, 1992

NHTSA SFST Manuals Folder

1984 NHTSA SFST Student Manual

1987 NHTSA SFST Student Manual, Version1

1987 NHTSA SFST Student Manual, Version2

1992 NHTSA SFST Student Manual

1995 NHTSA SFST Student Manual

2000 NHTSA SFST Student Manual

2002 NHTSA SFST Student Manual

2004 NHTSA SFST Student Manual

2004 NHTSA SFST Refresher Course Instructor Manual

2006 NHTSA SFST Student Manual

2008 NHTSA SFST Refresher Course Participant Manual

(8-hour)

2008 NHTSA SFST Refresher Course Participant Manual

(4-hour)

2009 NHTSA SFST Student Manual

2013 NHTSA SFST Student Manual

2015 NHTSA SFST Student Manual

2015 NHTSA SFST Refresher Course Instructor Guide

2015 NHTSA SFST Refresher Course Participant Manual

2018 NHTSA SFST Student Manual

2018 NHTSA SFST Refresher Course Instructor Guide

2018 NHTSA SFST Refresher Course Participant Manual

2018 NHTSA SFST Refresher Course PowerPoint

(sub-folder)

2018 NHTSA SFST Refresher Course PowerPoint

2018 Optional Session—Legal Issues (sub-folder)

2018 DWI Detection PowerPoint Lesson Plan Parts 1-18

(sub-folder)

NHTSA SFST Validation Studies Folder

Marine Environment Studies (sub-folder)

Marine Environment FST Draft Study, 1987

Marine Environment FST Study, 1990

NHTSA SFST Validation Studies (sub-folder)

1977 Psychophysical Tests for DWI Arrests

1980 The Visual Detection of Driving While Intoxicated

1981 Development and Field test of Psychophysical Tests for DWI Arrests (SCRI)

1983 Field Evaluation of a Behavioral Test Battery for

DWI

1995 Colorado SFST Validation Study

1997 Florida SFST Validation Study

1998 San Diego SFST Validation Study

Other SFST Evaluations (sub-folder)

An Assessment of Behavioral Tests to Detect Impaired Drivers, 1981

NHTSA Videos Folder

Driving & Checkpoints (sub-folder)

NHTSA Use of Sobriety Checkpoints for DUI (video)

NHTSA Visual Detection of DWI Motorists (Early Version) (video)

NHTSA Visual Detection of DWI Motorists (Later Version) (video)

Motorcycles (sub-folder)

NHTSA Detection of DWI Motorcyclists (Early Version) (video)

NHTSA Detection of DWI Motorcyclists (Later Version) (video)

SFST Training Videos (sub-folder)

NHTSA SFST (video)

HGN (video)

One-Leg-Stand (video)

Walk-and-Turn (video)

Alabama State-Specific Material Folder