Alabama DUI Defense: The Law and Practice, Fourth Edition PDF eBook

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Author: John T. Kirk, Patrick Mahaney, Whitney Polson, and James Nesci
ISBN 10: 1-936360-48-9
ISBN 13: 978-1-936360-48-2
Copyright Date Ed: September 30, 2016
Pages: 432 pages
PDF eBook

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, 4th Edition. This text 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, 4th 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 Fourth Edition is expanded from the previous edition and includes over 100 additional cases, new sections on lawyer advertising 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, the new 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 office to the conclusion of the trial phase.

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
New! Chapter 2: Client Relations
Updated! Chapter 3: Driving and Boating Under the Influence
Updated! Chapter 4: Driver License Law
New! Chapter 5: Pre-Trial Investigations
New! Chapter 6: Pre-Trial Motion Practice
New! Chapter 7: Plea Offers, Collateral Consequences, & Sentencing
New! Chapter 8: Trial
New! Chapter 9: DUI Investigations: Driving and Field Sobriety Testing
New! Chapter 10: Drug Recognition Evaluation
Updated! Chapter 11: Chemical Testing
Updated! Chapter 12: Blood Alcohol Calculations for Attorneys
New! Chapter 13: Expert Witnesses
Updated! Chapter 14: DUI Jury Trial Warpack
New! Appendix A: The Aging Process and Field Sobriety Tests by Mimi Coffey, Esq.
New! Appendix B: DWI - Modern Day Salem Witch Hunts by Mimi Coffey, Esq.
New! Appendix C: Fear and the DWI Field Sobriety Tests by Mimi Coffey, Esq.
New! Appendix D: The Fallacy of the Police Administered 'Finger-to-Nose' Test to Determine Alcoholic Sobriety by Patrick Mahaney, Dr. Jimmie L. Valentine, Ph.D., and Dr. Valerie Valentine, D.O.

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 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 Representing the Military Client for DUI/DWI
2.10 Pilots and Merchant Marines
2.11 Non U. S. Citizens—Immigration Consequences
2.12 Canadian Travel

Chapter 3: Driving and Boating Under the Influence and Related Statutes
3.1 Introduction
3.2 Driving Under the Influence
3.3 Ignition Interlock
3.4 Boating Under the Influence
3.5 Implied Consent Law (General)
3.6 Implied Consent Law (Serious Injury or Fatal Traffic Accident)
3.7 Administrative License Suspension Act Reckless Driving
3.8 Pedestrian Under the Influence
3.9 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 Driver License Required; Welch Hearings; Driving While Suspended or Revoked
4.8 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 Roadblock (a.k.a. “DUI Checkpoint”) Investigations
A. Alabama Law Regarding Police Roadblocks
5.11 Police Radio Codes
5.12 Pre-Trial Interviews - Emergency Personnel and Civilians

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

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 and Field Sobriety Testing
9.1 Overview: National Highway Traffic Safety Administration (NHTSA)
9.2 Driving Behavior
9.3 Standardized Field Sobriety Testing (SFST) Validation Studies
9.4 Analysis and Summary of the SFST Validation Studies
9.5 Standardized Field Sobriety Test Battery
9.6 Horizontal Gaze Nystagmus (HGN)
9.7 Walk and Turn
9.8 One-Leg-Stand
9.9 Refusal of SFSTs and General Admissibility
9.10 Commonly Used Non-Standardized/Non-Validated Field Sobriety Tests
9.11 Advanced Roadside Impaired Driving Enforcement (ARIDE)
9.12 Videotaping the Driving and Investigation
References

Chapter 10: Drug Recognition Evaluation
10.1 Overview
10.2 DRE Nationwide Statutory Law Comparison
10.3 Per Se Nationwide Statutes Comparison
10.4 Impairment Nationwide Statutes Comparison
10.5 Nationwide Defenses Comparison
10.6 Implied Consent Laws Comparison
10.7 DRE Admissibility Case Law
10.8 The 12-Step DRE Protocol
10.9 Deconstruction and Analysis of the 12-Step DRE Protocol
10.10 Effects of Various Drugs
10.11 Drug Evaluation Classification Protocol (DECP)
10.12 Drug Evaluation Classification Training Program
10.13 Alabama DRE/DECP Statistics

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

Chapter 12: Blood Alcohol Calculations for Attorneys
12.1 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 Unit Conversions

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
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 Jury Instructions and DUI Trial—In General
14.29 Miranda Warnings
14.30 Opinion Testimony
14.31 Pardon—Effect of Pardon
14.32 Pleas and Plea Negotiations
14.33 Probation—DUI
A. Probation Standards
B. Termination of Probation
14.34 Prior Convictions
14.35 Proof of Municipal Ordinance
14.36 Probable Cause
A. Probable Cause to Search—Odor of Marijuana
14.37 Public Trial Right
14.38 Reasonable Suspicion
A. Reasonable Suspicion and Detention of Motorist
14.39 Reckless Driving—Alabama Case law
14.40 Refusal to Submit to Chemical Testing
14.41 Relation Back and Retrograde Evidence
14.42 Restitution and DUI Cases
14.43 Right to Counsel—In General
14.44 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
14.45 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

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

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

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

Appendix D: 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.

About the Author
Index