10 Ways to Avoid an Alabama DUI

10 Ways to Avoid an Alabama DUI

DUI in Alabama? Being arrested in Alabama for driving under the influence can be a terrifying and stressful experience. Fear, uncertainty, and unfamiliarity with the criminal justice system sometimes causes a person facing an Alabama DUI to “freeze” and just try to ignore the driving under the influence charge. This article focuses on how to not get a DUI in Alabama, written by two top-rated DUI lawyers.

Co-author of the recently-released drunk driving book, Alabama DUI Defense, Birmingham DUI attorney Whitney Polson guides citizens about how to beat a DUI in Alabama, by knowing BEFORE a police encounter, and DURING a possible DUI investigation by police in Alabama. Lack of knowledge of what to do and what NOT to do dooms most accused drunk driving suspects facing an Alabama DUI. Whitney’s dad, Birmingham criminal defense attorney Mark Polson, wrote his first drunk driving book chapter in 2004, and is equally dedicated to helping driver sin Alabama avoid a DUI.

Fortunately, the steps set forth below about fighting Alabama DUI cases can help you avoid a drunk driving arrest, in some situations, and (if arrested for DUI) assist you learning how a criminal defense attorney approaches how to beat a DUI conviction. Learning the rules of how to get out of a DUI involve many different aspects and DUI defense strategies. For example, knowing how to deal with a police officer investigating you for DUI in Alabama will also make you better prepared in the future, if you are pulled over for a traffic ticket and are suspected of DUI.

Our DUI law firm is committed to both educating drivers in Alabama about their legal rights, and helping accused citizens fight pending Alabama DUI charges. Our job as Birmingham DUI attorneys, is to help minimize the impact that a driving under the influence charge may have on your life. We cannot go back and keep a DUI Alabama arrest from occurring, but (almost 100% of the time) by knowing DUI law Alabama, we can make things better after the Alabama DUI arrest is made.

  • DON’T DRIVE AFTER YOU HAVE CONSUMED ALCOHOL.Because DUI is the only “crime of degree” in America, meaning that an adult can dink SOME alcohol and drive, and not violate the law, at some point, that same drinking driver crosses a “line” that takes him or her from legal to illegal. No bell or whistle is heard — it just happens. Plus, since the smell of alcohol on your breath will make a police officer think that he or she has an Alabama DUI, your refusal to take the state-administered breath test can lead to a prosecution for DUI in Alabama, just based on the police officer’s “opinion” that you had consumed too much alcohol to drive safely. In addition, most drivers in Alabama who are asked by a police officer, “When was you last drink?”, or similar question about alcohol consumption will answer the question affirmatively. So, the best rule is to NOT DRIVE after drinking any alcohol. It’s that simple. Use a designated driver. Call a cab. Use your Uber or Lyft app. Hire a limo for the night. Call a friend, family member, or significant other to pick you up. Walk. Ride the bus. Charter an airplane. You do not want a “DUI Alabama” notation to be part of your permanent criminal history. Whatever you need to do—don’t drive after having consumed alcohol. CAUTION: Police who have attended the ARIDE course, that teaches Alabama DUI officers how to identify subtle symptoms of a drugged driver, are now beginning to ask drivers that they observe commit a traffic offense, or who are stopped at a DUI checkpoint, or who have been involved in any car accident, “Are you taking any medications?” DO NOT ANSWER THIS QUESTION., because police will now arrest you for DUI-drugs, even if the medications are prescribed. The only information the police are entitled to at a roadside pullover, or sobriety checkpoint is your correct name and your address. If you answer that you have taken certain types of medication, like anxiety drugs, depression medications or prescription painkillers, you will likely be arrested for DUI, and be given a blood test for determination of possible drug impairment, and a DUI drugs criminal case.
  • If you do choose to drive after having consumed some alcohol, KNOW YOUR LEGAL LIMIT AND (using the number of standard drinks and the passage of time) YOUR ESTIMATED BAC LEVEL AT THE TIME OF DRIVING.For its DUI-alcohol criminal offense, Alabama is not a “zero tolerance” state—yet. So, while it is not illegal for underage drivers or adult drivers to consume some alcohol and drive a car, it is illegal if you drink an amount of alcohol that renders you incapable of safely operating your vehicle or that is sufficient to push your blood alcohol level over the legal limit, for your age classification. About one-half of a standard beer or small glass of wine may put most drivers at the 0.020 level or higher. Alabama DUI laws hold underage drivers to a 0.020 grams percent OR LESS “over the limit” standard, for being over the legal limit (about half a beer or half a glass of wine). Any operator of a commercial motor vehicle (CMV), with a CDL license, is held to a 0.04 grams percent BAC level. Adults are permitted a 0.08 grams percent BAC level. If you do not know how to estimate this important number for your height, weight and gender, go to this quick and reliable BAC Calculator page for that information.
  • KNOW THE RULES OF THE ROAD AND MAINTAIN YOUR VEHICLE. Every DUI lawyer knows that the most minor traffic infraction and or equipment violation that is in violation of Alabama traffic laws will give a police officer the requisite legal justification to use their emergency equipment to stop your vehicle. Late at night, when police expect drunk driving to occur, police are especially vigilant about looking for Alabama DUI drivers. Minor traffic infractions, such as not using a turn signal before making a lane change, having your high beams on, not coming to a complete stop at a stop sign, etc., often are the cause for a traffic stop that leads to a subsequent DUI investigation and arrest. Similarly, a cracked front windshield, improper window tint, improper tag light, burned-out brake light, etc., also are popular equipment violations that lead to a traffic stop by police, and an Alabama DUI investigation and possible arrest for drunk driving.
  • HAVE YOUR ALABAMA DRIVERS LICENSE, INSURANCE, AND REGISTRATION IN A READILY AVAILABLE LOCATION IN YOUR VEHICLE.Many DUI arrests in Alabama stem from an initial warrantless stop of a motorist at a DUI checkpoint, safety checkpoint, or at an Alabama driver’s license check point, as authorized by the United States Supreme Court. If your documentation is readily available, you will draw less attention to yourself when asked to produce it. This is true even if you are not stopped at a DUI roadblock. Remember, name and address ONLY. No discussion or drinking, or prescription drugs that you take, where you are coming from or where you are going to. REMAIN SILENT. If you are arrested, your DUI arrest will have little to no evidence of an impaired driver, since you have not “delivered” that evidence out of you own mouth by TALKING.
  • BE POLITE, COURTEOUS, AND RESPECTFUL TO THE POLICE.Just because you have been stopped by the police and you have consumed alcohol prior to driving, this is not necessarily a DUI in Alabama. Remember, in ALL states, merely drinking and driving is NOT a crime for adult drivers, until and unless your BAC is over the legal alcohol limit. Don’t panic, because driving after drinking does not mean you will be arrested for drunk driving. However, be aware that YOUR WORDS can be the central piece of evidence that later convicts you. Alabama criminal laws and the U.S. Constitution permit an officer to ask you questions and “investigate” traffic offenses or possible criminal activity with little or no proof that any crime has been committed.

Before you are cuffed, or otherwise placed in police custody (arrested), any answers given to questions asked of you by the police can be later used against you. Remember, only your name and address are required to be given. Don’t admit drinking, taking prescribed medication, where you have been or where you are going. Plus, officers may ask for permission to search YOU or YOUR VEHICLE. Politely decline. Because you are likely being recorded, once the ticket is issued, ask, “May I go now?” If denied to right to leave, take out your cell phone and call your lawyer. If the officer stops you from doing this, tell him or her you want to speak to your lawyer. If denied that right, when your Birmingham DUI lawyer gets to Court, this restraint may later be deemed to be police detention amounting to “custody.”

  • EVERY FIELD SOBRIETY TEST IS VOLUNTARY.Why would anyone AGREE to a test, who does not HAVE to take the test to keep their driver license, and especially when that “test” can put you in jail and possibly falsely convict you, to submit to a test they know nothing about, and which is subjectively graded? Most common answer from uninformed clients: “I thought it would help me be on my way, once I did what the officer wanted me to do.” Politely decline, and do not take ANY roadside sobriety test, including the HGN (eye test), any agility exercises, and verbal tests, or any held-held breathalyzer test. Don’t confuse THIS portable breath alcohol test conducted at the roadside with the OFFICIAL, implied consent alcohol breath test described below. Everything BEFORE cuffs are put on your wrists is OPTIONAL, VOLUNTARY, and carries NO PENALTY for not participating.

If police suspect you of intoxicated driving or DUI-drugs, you will be asked to step out of the vehicle and submit to roadside agility and DUI eye test procedures that are OPTIONAL, VOLUNTARY, and now a required test under Alabama DUI laws. No law in Alabama mandates that a motorist driving a non-commercial vehicle must submit to police ordered roadside field sobriety tests. ALL FIELD SOBRIETY TESTS ARE 100% VOLUNTARY, under Alabama DUI law. These so-called “field sobriety” evaluations do not come CLOSE to being “scientific” tests, like the SAT college exam test, the ACT college exam test, or an IQ (intelligent quotient) test, all of which have 90% OR BETTER repeatability (reliability). NO police field sobriety test comes close to matching this 90% or better “testing and measurement” requirement. Multiple factors — from a variety of causes or sources — dictate that you politely DECLINE to submit to these so-called tests, and these are the following:

  1. The distraction from the location of where the tests are offered creates an immediate disadvantage. Police investigating an Alabama DUI typically pull you over on the shoulder of the road. Tractor trailers, cars, SUVs, school buses, and other rapidly moving traffic create noise, wind, and a safety distractions. In addition, for the horizontal gaze nystagmus test, if the officer does not hold the stimulus in the proper “position,” and then move the stimulus at the correct speed and on a horizontal plane, the test subject can display “clues” even with no alcohol in his or her system. It is imperative that the person taking the HGN test (horizontal gaze nystagmus test) or “DUI eye test,” NOT have any visual distractions in the background of where he or she is facing. If additional, potential other “causes” for your eye movements exist, causing your focus to stray, the results of this psycho-physical test will NEVER be accurate or reliable. Plus, it can be very embarrassing when a citizen is standing outside his or her own neighborhood.
  2. Like the popular board game Jenga®, that requires competitors to stack polished, wooden blocks on a tabletop, an un-level table will restrict the height of the stacked pieces to ever go higher than about 20 levels. A level surface may allow stacking as high as 27 to 30 levels. Similarly, when asked to perform one of the two divided attention field sobriety test exercises (WAT or OLS), the slope and grade of a road or any adjacent sidewalk are built to shed water, and this means that the likelihood of you making a minor misstep or miscue due to the non-level surface may be mistakenly interpreted by the officer as “impairment.’ (along a busy highway, on a surface that is both sloped and graded to disperse water to the shoulder of the road, etc.)
  3. Age is a huge “human” factor, with one British study showing that over 50% of people age 40 or older cannot perform the walk and turn (WAT) or one leg stand (OLS) evaluations TOTALLY SOBER. Old folks fail.
  4. Physical condition and health anomalies are other human factors that can prevent a person from being able to EVER pass certain field tests, regardless of age. A test subject’s prior or current orthopedic challenges make the same two agility exercises (WAT and OLS) virtually impossible for certain overweight individuals (those weighing 50 pounds or more above the person’s ideal weight). Simple rule: Fat folks fail.
  5. Physical impairment, from prior injury, prior surgery, congenital defects, scoliosis, inner ear disorders, vertigo, or organic brain damage SHOULD disqualify a person from being given the WAT test and OLS test. But, NHTSA manuals do NOT tell an officer to use common sense, and simply tell them to note what the suspect TELLS the person, and go forward with the so-called “sobriety tests.” Similarly, on the HGN test, improper administration of the evaluation to a person with a glass eye, prior eye surgery, chronic eye disease, or medication-induced nystagmus can never pass a horizontal gaze nystagmus test. Virtually no “reported” eye problem will deter the Alabama DUI officer from going forward with this pre-arrest test, because NHTSA training materials are totally deficient in warning an officer to NOT USE the HGN for subjects reporting any type of medical issues with their eyes.
  6. Mental impairment or mental disorder is another human factor that can also make “passing” the field sobriety test “battery” impossible. For example, a person with ADD, ADHD, or a similar defect in memory will never be able to listen to the complex instructions and execute the walk and turn test or one leg stand test like a “normal” test subject. Once again, even if a person tells the officer, “I have a learning disability,” the officer says something like, “I will take that into account.” But, the agility test goes on, and (predictably) is failed. For an HGN test, multiple types of prescribed medications for attention deficit will CAUSE nystagmus, and the officer cannot distinguish THIS source of nystagmus from alcohol-induced nystagmus.
  7. Ambient conditions that are beyond anyone’s control can create an unfair environment for giving SFSTs (standardized field sobriety tests). Weather conditions (extreme hot, cold, wind, rain, etc.) all will affect performance on the NHTSA standardized field sobriety tests. Conversely, the taking of field sobriety tests can later be argued in court as cooperation, and, though highly unlikely (due to the failure designed tests), you might pass.


If a motorist is legally pulled over, and later is legally arrested for DUI alcohol in Alabama, and was operating a motor vehicle on a public highway at the time of his or her drunk driving arrest, he or she is (under the Alabama implied consent laws) deemed to have consented to submit to a forensic alcohol breath test. When alcohol is NOT the suspected impairing substance, an officer may then be justified by the “exigency” (necessity) of obtaining the type of forensic test which can detect and quantify drugs other than alcohol) e.g., marijuana, cocaine, PCP, meth, prescription painkillers) to then read the implied consent notice in Alabama for blood, or urine, or both.

So, under Alabama DUI laws, the three types of forensic tests in Alabama are blood, breath and urine. Most, if not all, police agencies in Alabama use the alcohol breath test as their designated forensic test, for their Alabama DUI arrests. Under the Alabama implied consent laws, a motorist, before being commanded to take a blood alcohol test, will be told that his or her failure to take the designated breathalyzer test will result in the administrative suspension of his or her driving privilege for a period of at least 90 days. What the motorist is not told is that their driving privilege will be administratively suspended as well for at least 90 days if he or she takes the blood alcohol test and registers over the legal limit, all the while providing the prosecution with incriminating evidence to use at trial.

This aspect of a DUI arrest, relating to administrative license suspension, even BEFORE the criminal charge of drunk driving gets to court, creates great confusion of citizens arrested for DUI in Alabama. If a motorist does submit to the designated police blood alcohol test he or she HAS THE STATUTORY RIGHT (under the implied consent laws in Alabama) TO AN INDEPENDENT TEST OF THEIR BLOOD. Under Alabama DUI law, THE POLICE WILL NOT TELL YOU ABOUT THIS IMPORTANT RIGHT! The burden is on the detained driver to assert this RIGHT, to demand an independent blood alcohol test.

The motorist FIRST must submit the requested police-ordered test to have the right to an independent test. The motorist must make the arrangements and pay for the independent test. The police must accommodate and help the detained motorist with reasonable access to transportation so as to arrange for a request for an independent alcohol blood test. If an independent blood alcohol test is not afforded a motorist, this violation of the Alabama implied consent rights is grounds for a pre-trial hearing to seek suppression of the State’s breath alcohol test results. Under most circumstances, an implied consent violation will result in the suppression of the police breathalyzer test results.

8) If you choose to sleep in your car after having consumed alcohol DO NOT BE IN “ACTUAL PHYSICAL CONTROL” OF YOUR VEHICLE while you sleep. In Alabama, you can be convicted of “driving under the influence” even though the police (or other eyewitness) never witnessed you driving. Persons in Alabama have been convicted of DUI when found behind the wheel, even though the vehicle was parked and they were asleep in the vehicle. Like in most states, the driving while intoxicated laws in Alabama have been EXPANDED to criminalize driving drunk when the motorist was “in actual physical control” of the vehicle. Basically, if the key was available, and the sleeping person was under the influence, this sets of the potential for a DUI conviction. No bright line test exists to determine what is or what is not “actual physical control.” Your Birmingham DUI attorney will review all of the surrounding circumstances that must be put before a Judge at a pre-trial motion hearing, and examined. Below, these possible scenarios are discussed further.

If one must sleep in their vehicle after having consumed alcohol, the better practice would be to legally park the car on private property, turn the car off with the ignition key out of the ignition, sleep in either the passenger seat or, (better yet), in the back seat, and turn off all of the lights. Modern vehicles now have key fobs, and this may mean the lack of an ignition key. If the driver could demonstrate the “lack of intent to drive” by putting the ignition key or fob in the trunk, and get inside the car, in the back seat, and lock the doors with the internal lock, but (later) be able to push the button for the trunk release in the glove box for when he or she is later sober, this would be a better set of circumstances to argue “no actual physical control” of that vehicle. If the person gets out of the car, and walks over to a location outside the car, and places the ignition key, or fob under a rock or someplace safe (e.g., on a tree branch), before climbing into the back seat and internally locking the vehicle’s doors, this may demonstrate lack of “actual physical control.”

9) UNDERSTAND THAT YOU CAN BE CONVICTED OF AN ALABAMA DUI, EVEN IF YOU HAVE NOT CONSUMED ANY ALCOHOL. Alabama Code §32-5A-191 (the DUI Statute) has five subsections for which the police can elect to charge a motorist with DUI in Alabama. Subsection 1 and 2 deal exclusively with alcohol. Subsection 3 covers those under the influence of controlled substances (this subsection covers prescription medications, illegal drugs such as meth, marijuana, cocaine, heroin, etc.) Subsection 3 applies EVEN IF THE MOTORIST HAS A LEGAL PRESCRIPTION, if impairment exists (which usually comes from taking too much of the prescribed medication, or mixing it with other drugs or alcohol.) Subsection 4 applies to a combination of controlled substances and alcohol. Lastly, subsection 5 applies to ANY OTHER SUBSTANCE (this subsection of Alabama DUI laws covers any substance such as solvents, glues, paints, or over-the- counter medications (e.g., Benadryl) that render a motorist incapable of safely driving).


Our Birmingham DUI attorney firm has nearly 60 years of collective legal experience in the courtrooms of Alabama. Our DUI attorneys carefully review Alabama DUI case histories, and seek the best path to beat a DUI for that particular client. The attorney ratings for our Birmingham DUI lawyers is top tier. The partners at Polson Law Firm both enjoy sterling records for winning, as lawyers for DUI in Alabama criminal cases.

The starting point for learning how to beat a DUI is not by “sticking your head in the sand.” This tactic in an AL DUI arrest can cost you the right to drive. Get in touch with an experienced, dedicated Alabama DUI attorney as soon as you have posted bond and are able to start fighting your DUI Alabama case. Several important steps need to be taken to preserve driving privileges. Seek the best DUI lawyer, because major differences exist in the attitude and the local court connections of lawyers in criminal cases.

The majority of criminal defense cases our DUI law firm has handled for people charged with crimes in Alabama have been for DUI defense. So, we are criminal defense attorneys for all felonies and misdemeanors, but our criminal trial practice has focused on offenses involving alcohol and drugs, with almost all being driving under the influence of alcohol or driving under the influence of drugs.

Our DUI Attorneys are Recognized Legal Authorities in Alabama DUI Laws

Our Birmingham DUI attorneys regularly attend, lecture at, and submit materials to continuing legal education seminars devoted to DUI defense. More than a decade ago, Birmingham DUI Lawyer Mark Polson was asked to submit materials to be included in the appendix of one of the leading legal treatises on DUI in Alabama, titled The Prosecution and Defense of DUI Cases: A Practitioner’s Handbook, T. Brad Bishop, Samford Univ. Press (2004). In 2016, Birmingham DUI attorney Whitney Polson co-authored a new book on DUI laws in Alabama, Alabama DUI Defense. These efforts to help educate others on Alabama DUI law show our passion for being leaders among DUI Defense lawyers in Alabama.

Both Birmingham DUI lawyer Mark Polson and his son, Whitney Polson, Birmingham criminal defense lawyer, are AV rated (highest) by America’s oldest and most trusted lawyer ratings service, Martindale-Hubbell, and are also members of the following professional organizations: Criminal Defense Lawyers Association, the National College for DUI Defense, National Association of Criminal Defense Lawyers, Alabama Bar Association, Birmingham Bar Association, American Bar Association, Birmingham Criminal Defense Lawyers, and Association of Trial Lawyers of America (ATLA).

Our Birmingham criminal defense lawyers have handled thousands of Alabama DUI cases in almost every county in Alabama, as well as in the majority of the various Municipal Courts in Alabama, where a substantial portion of DUI arrests in Alabama are made and docketed. So, if you need a Mobile DUI attorney, or are considering DUI law firms in Huntsville AL, or a drunk driving lawyer for a Montgomery Municipal Court DUI case, or a Jefferson County DUI lawyer, we handle it all. We don’t charge extra to travel, because we know that people facing an Alabama DUI charge need our help.

To learn how our Birmingham DUI law firm can help fight your Alabama DUI case in any Court in Alabama, please contact us today for a FREE, professional case analysis.

We Can Come to You, if you were injured in an accident. We Fight DUI Alabama Charges across the entire State of Alabama, as well as other misdemeanor or felony criminal charges. Call our DUI attorneys at our office. 205-871-8838, or toll free at 1-844-776-5766 [1844-7POLSON]. Get a FREE Lawyer consultation, to see how we beat a DUI. When you only have one chance to win, why not go with an experienced Birmingham DUI attorney?

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