2018 Alabama DUI Penalties & Interlock Law

2018 DUI Penalties and Interlock for Alabama

WHO SHOULD YOU HIRE TO DO YOUR DUI DEFENSE?

• First, look for attorney's qualifications.  The National Trial Lawyers Associations selected Dani Bone as a Top 100 Lawyer in the Country for 2018.   The National Trial Lawyers Associations selected Sam Bone as a Top 40 Lawyer Under 40 for 2015.  

• Next, look at our reviews online for our services and compare them to other attorneys in the area to decide whether we should be your lawyer. 

Etowah County DUI Lawyers Dani & Sam Bone

What are the penalties for a first offense DUI in Alabama?

1st Offense in last 5 years

• Up to 1 year in jail and a fine between $600 to $2100; no minimum suspended sentence

• 90 day suspension of license; Suspension stayed if the offender if ignition interlock device installed for 90 days.

Click here to Download the Updated 2018 Explanation of Rights & Plea of Guilty for Alabama

What are the penalties for a second offense DUI in Alabama?

2nd Offense in last 5 years

• Up to 1 year in jail; Mandatory sentence of not less than 5 days or community service for not less than 30 days. Fine between $1,100 and $5,100;

• Revoked license for 1 year; 24 months of ignition interlock device; Suspension/revocation stayed after 45 days if the offender if ignition interlock device installed for 24 months.

What are the penalties for a third offense DUI in Alabama?

3rd Offense in last 5 years

• Up to 1 year in jail; Mandatory sentence of not less than 60 days Fine between $2,100 and $10,100;

• Revoked license for 3 years; 24 months of ignition interlock device; Suspension/revocation stayed after 60 days if the offender if ignition interlock device installed for 24 months.

You need to take your DUI offense seriously right from the start. Don't take chances with your future or your ability to drive. Contact us right now. We treat every client with respect and work hard every day to deliver favorable results. Contact the DUI litigators Dani V. Bone & Sam D. Bone at to discuss your case at (256) 547-1005.

Gadsden DUI Lawyers Dani & Sam Bone

Court Referral Requirement for DUIs in Alabama

Any person convicted of violating this section shall be referred to the court referral officer for evaluation and referral to appropriate community resources. The defendant shall, at a minimum, be required to complete a DUI or substance abuse court referral program approved by the Administrative Office of Courts and operated in accordance with provisions of the Mandatory Treatment Act of 1990, Sections 12-23-1 to 12-23-19, inclusive. The Department of Public Safety shall not reissue a driver's license to a person convicted under this section without receiving proof that the defendant has successfully completed the required program.

Pre-Trial Diversion or Preferred Prosecution Programs in Alabama

Any person charged in a district, circuit, or municipal court with a violation of this section or a municipal ordinance adopted in conformance with this section who is approved for any pretrial diversion program or similar program shall be required to install an ignition interlock device for a minimum of six months or the duration of the pretrial diversion program, whichever is greater, and meet all the requirements of this section and Section 32-5A-191.4.  A participant in a pretrial diversion program shall be eligible for indigency status if the program enrolls indigent defendants and waives fees for indigent defendants. Any driver's license suspension period pursuant to Section 21 32-5A-304 shall be stayed and then commuted upon the successful completion of the pretrial diversion program, or any other form of deferred prosecution agreement.

DUI enhancements in Alabama

Passenger under age 14: When any person over the age of 21 years is convicted of violating this section and it is found that a child under the age of 14 years was a passenger in the vehicle at the time of the offense, the person shall be sentenced to at least double the minimum punishment that the person would have received if the child had not been a passenger in the motor vehicle. Further, the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license of the  person convicted for a period of 90 days and the person shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of one year from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. Upon receipt of a court order from the convicting court, upon issuance of an ignition interlock  restricted driver license, and upon proof of installation of an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of one year provided in this subsection shall start and the suspension period revocation period, or both, as required under this subsection shall be stayed.

BAC 0.15 or over: When any person convicted of violating this section is found to have had at least 0.15 percent or more by weight of alcohol in his or her blood while operating or being in actual physical control of a vehicle, he or she shall be sentenced to at least double the minimum punishment that the person would have received if he or she had had less than 0.15 percent by weight of alcohol in his or her blood. Further,, on a first offense, the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license of the  person convicted for a period of 90 days and the person shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of one year from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. Upon receipt of a court order from the convicting court, upon issuance of an ignition interlock restricted driver license, and upon proof of installation of  an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of one year provided in this subsection shall start and the suspension period revocation period, or both, as required under this subsection shall be stayed.

If someone else besides the offender was injured at the time of the offense: If on a first offense, the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license of the  person convicted for a period of 90 days and the person shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the  offender for a period of one year from the date of issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle. Upon receipt of a court order from the convicting court, upon issuance of an ignition interlock  restricted driver license, and upon proof of installation of an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of one year provided in this subsection shall start and the suspension period revocation period, or both, as required under this subsection shall be stayed.

What happens if I refuse to blow when I am pulled over?

• If, on a first conviction, any person 14 refusing to provide a blood alcohol concentration,  the Secretary of the Alabama State Law Enforcement Agency shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days and the person shall be required to have an ignition interlock device installed and operating on the designated motor vehicle driven by the offender for a period of one year from the date of issuance of a driver's license indicating that the person's driving privileges are  subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle.

• Upon receipt of a court order from the  convicting court, upon issuance of an ignition interlock restricted driver license, and upon proof of installation of  an operational approved ignition interlock device on the designated vehicle of the person convicted, the mandated ignition interlock period of one year provided in this subsection shall start and the suspension period, revocation period, or both, as required under this subsection shall be stayed.

• The duration of the time an ignition interlock device is required by this section shall be one  additional year if the offender refused the prescribed chemical test for intoxication.

What is the cost of ignition interlock in Alabama?

• Any person ordered by the court to have an ignition interlock device installed on a designated vehicle, and any person who elects to have the ignition interlock device installed on a designated vehicle for the purpose of reducing a period of suspension or revocation of his or her driver's license, shall pay to the court $200 which may be paid in installments.  

• In addition to paying the court clerk seventy-five dollars ($75) per month for the first four months following the conviction or the voluntary installation of the ignition interlock device, the defendant shall pay all costs associated with the installation, purchase, maintenance, or lease of the ignition interlock devices to an approved ignition interlock provider pursuant to the rules of the Department of Forensic Sciences, unless the defendant is subject to Section 32-5A-191.4(i)(4).

• The Department of Public Safety may set a fee of not more than one hundred fifty dollars ($150) for the issuance of a driver's license indicating that the person's driving privileges are subject to the condition of the installation and use of a certified ignition interlock device on a motor vehicle.

Request for Indigent Status for Interlock:

• Defendant requests indigent status for Interlock: “Any convicted offender granted indigency status for the purpose of ignition interlock shall not be required to pay the costs associated with installing and maintaining the device nor required to pay any interlock fees …”

ALEA requires each approved manufacturer to provide up to 5% of that manufacturers’ market share for indigent use. Paragraph (i)(5). Any manufacturer who fails to meet the five percent threshold shall be subject to a $500 civil penalty for each indigent defendant that is not afforded a free interlock.

Request for Indigent Status for Court Referral:

• Defendant requests indigent status for Court Referral: “Any person determined to be indigent by the court may request waiver of all or part of the fees established by this chapter. In such cases where a waiver of fees is granted, such waiver shall be limited to the time when the offender is unable to pay. If the offender becomes able to pay during the course of monitoring or treatment, or another future date, the waiver of fees may be revoked.” Ala Code 12-23-18

Ala. Code 12-23-7 provides“that indigents shall not be required to pay for treatment or monitoring provided by court referral officers.”

2018 Alabama DUI Explanation of Rights

On July 1, 2018 a new DUI law became effective. Gadsden Lawyer Sam Bone has created a DUI Explanation of Rights to explain to those charged with the DUI what the consequences of a conviction for DUI will have or even the consequences for a pretrial diversion plea.

Here is a link to download the explanation of rights:

What changes did the legislature create with the new law?:

• Changes the current six month “voluntary” installation of interlock on first offense conviction with a BAC of less than .15% and the immediate issuance of an interlock restricted driver license to only 90 days.

• Amends the current two-year interlock duration for first offense convictions with a BAC of .15% or greater, or test refusal, to one year duration.

• Amends the current 180-day mandatory license removal (followed by mandatory interlock for three years) for third offense DUI to only 60 days.

• Amends the current five year duration for mandatory interlock for any fourth or subsequent offense to a four year duration.

• Removes any ambiguity in the of interpretation of the “double minimum punishment” provision (sub-section i) when dealing with interlock: “This section does not apply to the duration of time an ignition interlock device is required by this section.”

• Removes any “double punishment” interlock requirement when convicted of transporting a child under 14 years of age (sub-section j): “This section does not apply to the duration of time an ignition interlock is required by this section.”

• Amends the $75 per month payment to the clerk’s office for four months to a single $200 payment (“which may be paid in installments”).

• Adjusts the percentages paid from the $200 assessment to the following:

  • o 17% to the Alabama Interlock Indigent Fund

  • o 30% to the State Judicial Fund, but only if the case is prosecuted in a district or circuit court; otherwise, the 30% goes to the municipal court and must be used for the operation of the municipal court.

  • o 30% to the Highway Traffic Safety Fund (ALEA)

  • o 23% to the District Attorney

• Provides for one year additional interlock duration if a convicted offender is operating a vehicle at any time an interlock device is required, is ordered to submit to an evidentiary breath test and refuses testing.

Pre-Trial Diversion Provision [New]: The underlying purpose of SB 1 and HB 8 was to “close the loop” in the numerous Pre-Trial Diversion or ‘Deferred Adjudication’ programs that are administered by many district or municipal courts by requiring interlock for all DUI arrests that entered a pre-trial diversion program. Act 2018-517 requires the following compliance:

• The person accepted into any pre-trial diversion program must install ignition interlock for a period of six (6) months or the duration of the pre-trial diversion program, whichever is longer. Important note: “A participant in a pre-trial diversion program shall be eligible for indigency status if the program enrolls indigent defendants and waives fees for indigent defendants.” (emphasis added) New Code section (v)(1).

• If enrolled in a pre-trial diversion program and an interlock installed, ALEA shall issue an interlock restricted driver license and shall stay any suspension of driver license, and then commute any suspension upon successful completion of pre-trial diversion or deferred adjudication. New Code section (v)(2).

• Upon receipt of any interlock violation or termination from any pre-trial diversion program, ALEA shall suspend or revoke the driver license pursuant to 32-5A-304 and the subject shall serve out the entire suspension period. New Code section (v)(3)

• This section of law has no application to commercial driver license (CDL) statutes or regulations. New Code section (v)(4)

• The maximum period of probation under Code section 15-22-54 is extended until all ignition interlock requirements have been met. New Code section (z)

• The “50 mile” rule: “….no person may be required to install an ignition interlock device if there is not a certified ignition interlock provider available within a 50 mile radius of his or her place of residence or place of business or employment.”New Code section (aa)

Changes to Indigent Status [Amendments to Code section 32-5A-191.4]

• Removal of the 50/50 fee split between the Alabama Interlock Indigent Fund and the convicted offender to all fees paid out of the fund: “Any convicted offender granted indigency status for the purpose of ignition interlock shall not be required to pay the costs associated with installing and maintaining the device nor required to pay any interlock fees …” Paragraph (i)(4)

• ALEA shall require each approved manufacturer to provide up to 5% of that manufacture’s market share for indigent use. Paragraph (i)(5).

• Any manufacturer who fails to meet the five percent threshold shall be subject to a $500 civil penalty for each indigent defendant that is not afforded a free interlock.

Credit to Patrick Mahaney at Mahaney Law for the detailed list of changes.

4 Tips for asking your fiance for a prenup in Alabama

Asking your fiance for a Prenuptial Agreement can lead to arguments and heartache. Here are some tips for making the process of asking for a prenup much easier.

Discuss your Alabama prenup well in advance of your wedding date

The time right before your wedding can be a very stressful period. Don't add to the stress by asking for a prenup too late. Ask your spouse at least six months before your wedding date. Some Prenuptial Agreement may be challenged as invalid if it they are drawn up and signed too close to the wedding date. This short notice may be argued as coercion since it may be hard to back out of a wedding if your entire family and friends have already traveled to your wedding.

Be prepared

Plan where and when you are going to talk to your spouse about the prenup. Don't choose a public place, as this type of discussion may lead to strong emotions and arguments. Discuss with your lawyer the reasons why you want a prenup in the first place to make sure that it would make sense for you to get one in the first place.

Get a mediator
If your spouse-to-be reacts in a bad way or refuses to sign a Prenuptial Agreement, consider getting a mediator to step in. Visiting a relationship counselor, member of the clergy or even an attorney may help. A meditator may be able to explain the practical reasons of having a prenuptial agreement in place.

Create the Prenuptial Agreement together
If you make the process of creating the Prenuptial Agreement a shared experience, the value of the document will not be one-sided. Discuss the prenuptial agreement with your fiance before a thorough interview with your attorney. You can work at your own speed in a comfortable place, before you enter the environment of an attorney's office. Choosing this method will reduce stress and save a lot on legal fees.

Statute of Limitations in Alabama for Both Civil and Criminal Cases

Statutes of limitations are laws passed by legislative bodies in common law systems to set the maximum time after an event within which legal proceedings may be initiated. When the period of time specified in a statute of limitations passes, a claim might no longer be filed, or, if filed, may be liable to be struck out if the defense against that claim is, or includes, that the claim is time-barred as having been filed after the statutory limitations period. When a statute of limitations expires in a criminal case, the courts no longer have jurisdiction. Most crimes that have statutes of limitations are distinguished from serious crimes as these may be brought at any time.

Statute of Limitations in Alabama for Civil Cases

What is the Statute of Limitations in Alabama for Contracts?

Answer:

Written: 10 yrs. if under seal; 6 yrs. if not;

Oral: 6 yrs.

Ala. Code 6-2-33 provides, "The following actions must be commenced within 10 years. . .(1) Actions founded upon any contract or writing under seal."

What is the Statute of Limitations in for Alabama Libel or Slander?

Answer: 2 years

What is the Statute of Limitations in Alabama for Fraud?

Answer: 2 years from accrual of action (discovery)

Ala. Code 6-2-3 provides, "In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action."

Do you have a potential injury case? Dani V. Bone & Sam D. Bone, Attorneys at Law are proud to have earned our clients’ respect. We invite a thorough review of our credentials and welcome any questions you may have regarding our legal services. For additional information, please view our attorney profiles or contact our firm now.

What is the Statute of limitations in Alabama for Negligence?

Answer: 2 years

What is the Statute of limitations in Alabama for Trespass or false imprisonment or assault and battery?

Answer: 6 years

Ala. Code 6-2-34 provides, "The following must be commenced within six years:. . . (1) Actions for any trespass to person or liberty, such as false imprisonment or assault and battery . . .(2) Actions for any trespass to real or personal property;"

Answer: 2 years

What is the statute of limitations for medical malpractice in Alabama? 

Answer: Two years next after the act, or omission, or failure giving rise to the claim, and not afterwards. However, if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may the action be commenced more than four years after such act.

Do you have a potential injury case? Dani V. Bone & Sam D. Bone, Attorneys at Law are proud to have earned our clients’ respect. We invite a thorough review of our credentials and welcome any questions you may have regarding our legal services. For additional information, please view our attorney profiles or contact our firm now.

What is the statute of limitations for unpaid rent in Alabama?

Answer: 6 years

What is the Statute of Limitations for collecting a debt on an account in Alabama?

Answer: 6 years on stated liquidated account and 3 years on open unliquidated account

What is the statute of limitations for minors to sue someone? 

Answer: If you are below 19, you have three years, or the regular period after your nineteenth birthday to sue.  For instance, you would have until 21 years old to sue for negligence. 

Ala. Code 6-2-8 provides, "(a) If anyone entitled to commence any of the actions enumerated in this chapter, to make an entry on land or enter a defense founded on the title to real property is, at the time the right accrues, below the age of 19 years, or insane, he or she shall have three years, or the period allowed by law for the commencement of an action if it be less than three years, after the termination of the disability to commence an action, make entry, or defend.  No disability shall extend the period of limitations so as to allow an action to be commenced, entry made, or defense made after the lapse of 20 years from the time the claim or right accrued.  Nothing in this section shall be interpreted as denying any imprisoned person the right to commence an action enumerated in this chapter and to make any proper appearances on his or her behalf in such actions."

Statute of Limitations in Alabama for Criminal Cases

Have you or a loved one been charged with a crime? Dani V. Bone & Sam D. Bone, Attorneys at Law are proud to have earned our clients’ respect. We invite a thorough review of our credentials and welcome any questions you may have regarding our legal services. For additional information, please view our attorney profiles or contact our firm now.

What is the statute of limitations in Alabama for misdemeanor cases?

Answer: In Alabama, all misdemeanor charges are subject to a statute of limitations of one year.  Under Alabama law regarding criminal procedure, and unless otherwise provided in the Alabama Code, the prosecution of all misdemeanors in a circuit or district court must be commenced within 12 months after the commission of the offense.  See Alabama Code § 15-3-2.

What is the statute of limitations in Alabama for Felony cases?

Answer: Most Alabama felony offenses have a statute of limitations period of five years.  See Alabama Code § 15-3-1.  However, there are notable exceptions to the five year statute of limitations on felony offenses.  These exceptions are listed below:

The following Alabama criminal offenses do not have a statute of limitations:

• Capital Offenses
• Felony’s involving the use of, or attempted use, or threat of violence against a person
• Felonies involving serious physical injury or death
• Any sex offense involving a person under 16 years old
• Felony arson offenses
• Felony forgery offenses
• Felony counterfeiting
• Felony drug trafficking offenses

When is a Prosecution “commenced” for Purposes of the Statute of Limitations

Answer: A prosecution is “commenced” for purposes of the statute of limitations when there is an indictment issued, a warrant issued, or where the defendant is bound over to the grand jury.  See Alabama Code § 15-3-7.  A prosecutor may “stop the clock” by issuing a warrant or an indictment.  However, special rules apply to such situations, such as the requirement that the initial warrant or indictment must be for the same offense as that which is ultimately prosecuted.  Also, in a recently decided Alabama Court of Criminal Appeals case, the court held that a void indictment does not “toll” the statute of limitations.

Have you or a loved one been charged with a crime? Dani V. Bone & Sam D. Bone, Attorneys at Law are proud to have earned our clients’ respect. We invite a thorough review of our credentials and welcome any questions you may have regarding our legal services. For additional information, please view our attorney profiles or contact our firm now.

What is the statute of limitations in Alabama for Rape in the 2nd degree or statutory rape?

This crime is a Class B felony. No time limit for the prosecution of any capital offense; any felony involving the use of, attempted use of, or threat of, violence to a person; any felony involving serious physical injury or death of a person; and any sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death. See Kirby v. State, 500 So. 2d 79, 80 (Ala. Crim. App. 1986), a case which held that: no time limit for the offense of rape because rape is classified for limitations purposes as an offense which may be punished capitally; therefore, statute of limitations for felony offenses does not apply to rape. See also Ex parte Beverly, 497 So.2nd 519 (Supreme Court of Alabama, 1986), a case which held that the Alabama legislature never intended for rape to cease being a “capital offense” for purposes of the statute of limitations as a result of any court invalidating Alabama’s capital punishment laws. See also Chamblee v. State, 527 So.2d 173, 174 (Ala. Crim. App. 1988).

What is the statute of limitations of limitations in Alabama for Sodomy in the 1st degree? 

Answer: This crime is a Class A felony. For all felonies, within five years after commission of the offense, except those specified in Section 15-3-3, Section 15-3-5 or any other felony that has a specified limitations period; or 1. No time limit for the prosecution of any capital offense; any felony involving the use of, attempted use of, or threat of, violence to a person; any felony involving serious physical injury or death of a person; and any sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death.

What is the statute of limitations of limitations in Alabama for Sodomy in the 2nd degree? 

Answer: This crime is a Class B felony. For all felonies, within five years after commission of the offense, except those specified in Section 15-3-3, Section 15-3-5 or any other felony that has a specified limitations period; or 1. No time limit for the prosecution of any capital offense; any felony involving the use of, attempted use of, or threat of, violence to a person; any felony involving serious physical injury or death of a person; and any sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death.

Have you or a loved one been charged with a crime? Dani V. Bone & Sam D. Bone, Attorneys at Law are proud to have earned our clients’ respect. We invite a thorough review of our credentials and welcome any questions you may have regarding our legal services. For additional information, please view our attorney profiles or contact our firm now.

What is the statute of limitations of limitations in Alabama for Sexual Misconduct?

Answer: A recent decision held that provision in sexual-misconduct statute, stating that consent is no defense, was unconstitutional as applied to defendant; however, the state could continue to enforce statute in different circumstances where it is not unconstitutional. See Williams v. State, 2015 WL 4066693, *4-5 (Ala. Crim. App. 2015) for more detail. This crime is a Class A misdemeanor. 1. For all misdemeanors, within one year after commission of the offense; or No time limit for the prosecution of any sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death.

What is the statute of limitations in Alabama for sexual torture?

Answer: This crime is a Class A felony. For all felonies, within five years after commission of the offense, except those specified in Section 15-3-3, Section 15-3-5 or any other felony that has a specified limitations period; or 1. No time limit for the prosecution of: any capital offense; any felony involving the use of, attempted use of, or threat of, violence to a person; any felony involving serious physical injury or death of a person; any sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death.

Gadsden, Alabama lawyer Sam Bone answers your questions about how to prove a slip and fall case

Gadsden and Etowah County Slip and Fall Laws

 

There are many types claims made as a result of injuries on another person’s property under Alabama’s common law. These claims are commonly referred to as premises liability cases or “slip and fall,” or “trip and fall” cases.  They can occur inside or outside of a building, in parking lots, sidewalks, entry ways, yards, or many other places.  Typically, these claims involve injuries caused by debris or liquids on floors, falling merchandise, uneven floors or defects in floors, poor lighting, and other hazardous conditions.  Many of these conditions can be traced to violations of applicable building or life safety codes.

Premises Liability Lawyer Gadsden, Alabama

Premises Liability cases can be some of the most difficult cases to prove under Alabama law.   There are many factors that have to be considered to determine whether you have a valid claim against a property owner or business.   The business or property owner is not responsible for an injury just because it occurred on their property.  In order to recover, the injured person must prove that the business or property owner did something or failed to take some action that caused the injury.

The majority of premises liability cases occur at a business or in a common area outside of a business. The Alabama Supreme Court defines the duty a business owner owes to customers (or “business invitees”) as follows:

 “The owner of a premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.”

Kmart Corp. v. Basset, 769 So.2d 282 (Ala.2000).  However, “the mere fact that a business invitee is injured does not create a presumption of negligence on the part of a premises owner.”  Hose v. Winn-Dixie Montgomery, Inc., 658 So.2d 403, 404 (Ala.1995).  Rather, “a premises owner is liable in negligence only if it fails to use reasonable care in maintaining its premises in a reasonably safe manner.”

What is the burden in a premises liability case?

As the injured party, you and/or your attorney typically have the burden of proving by a preponderance of the evidence that you were injured as a result of a dangerous or defective condition that was known or should have been known to the business or property owner.   Such knowledge may not be required in the event that the business or property owner created the condition that caused the injury or in the event that a fixture on the premises caused the injury.

Open and Obvious Alabama

A business or property owner is not responsible for an injury if the dangerous or defective condition was “open and obvious” to a reasonable person or if the injured person failed to use reasonable care to prevent their own injury.  These defenses can often prevent a recovery in cases where the injured person failed to recognize spilled liquids or debris and the hazards would have been apparent.

If you are injured in a business or on another person’s property it is critical to gather any available evidence.  If you are able, use a camera or a mobile phone to photograph the area where you fell and document the hazard that caused you to fall.  In addition, obtain the names and telephone numbers of anyone who may have witnessed your injury.  This evidence will be very important when proving your case.  Be sure to report the incident to store management and describe your injuries.  This allows the business or property owner to document the incident and make a report.  However, do not provide a written description of the incident or a recorded statement until you have had the opportunity to consult with an attorney.

Call us today at 256-547-1005

If you have questions about an injury at a business or on another person’s property, our attorneys at Dani V. Bone & Sam B. Bone, Attorneys at Law, can help you determine the cause of the injury and whether you may be successful in presenting your claim.  We are also able to help accumulate the necessary evidence and advise you about the defenses to your claim.

If you or a loved one have been injured and it is after hours, please fill this form out and we will immediately call you.

Protection from abuse FAQ Etowah County

Gadsden Lawyer Sam Bone answers your questions about Protection from Abuse in Gadsden and Etowah County

 

What is a Protection Order in Etowah County?

A "Protection Order," sometimes referred to as a "Restraining Order," is a court order issued under the Protection from Abuse Act (PFA) which provides limited protection for people who have been threatened, harassed, or physically abused. It can be sought against the victim's spouse, former spouse, common-law or former common-law spouse, person with whom the victim has a child, person with
whom the victim has a dating relationship, or a current or former household member. “A household member is a person maintaining or having maintained a living arrangement with the defendant where he or she is in, or was engaged in, a romantic or sexual relationship”.

A Protection Order may be sought by the victim, if 19 years of age or older, or by a legally-responsible person on behalf of a minor or incapacitated adult. The person seeking the Protection Order will be referred to as the "plaintiff" throughout this site. While it is not necessary to have the assistance of an attorney, obtaining a Protection Order can have significant legal consequences, especially involving issues such as custody of children and property division. It is recommended that the plaintiff seek legal counsel to assist in
this matter.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

Who is covered by a Protection Order in Etowah County?

   Persons covered by a Protection Order include the victim, minor children of the victim, and designated household or family members. These individuals will be referred to as "the victim" throughout this site.  The alleged abuser will be referred to as "the defendant".

   If the victim lives in Alabama, or even if he or she has just moved here, he or she can petition the court for a Protection Order. A Protection Order is effective throughout the State as well as in other states. It is effective for one year, unless the judge specifies a longer or shorter time period. Also, any Protection Order issued by the court of another state shall be enforced as if it were an order of this state.

   Generally, protection orders may be issued only if there have been one or more recent acts of abuse or threatened abuse. A judge may dismiss your petition if you claim that the abuse or threat occurred many months ago, or if you only think that something might happen in the future.

What can a Protection Order include?

   TEMPORARY PROTECTION ORDERS:  

After the Petition is filed, the judge must decide whether to issue a "Temporary Protection Order" based on the Petition. If the Temporary Protection Order is issued, it may include some, or all, of the following:

• Order the victim's home or work address, the phone number, or other related information deleted from all records filed with the court concerning the Protection Order.
• Restrain the defendant from committing or threatening to commit acts of abuse, or from harassing, annoying, telephoning, contacting, or otherwise communicating directly or indirectly with the victim, victim's minor children, or any other designated family or household member.
• Order the defendant to stay away from the victim's residence and place of work, school or day care or any other specific place frequented by the victim or victim's minor children or by any other designated family or household member.
• Award the victim temporary custody of any minor children and restrain the abuser from removing the children from the victim's custody. The order may be used to require law enforcement personnel to accompany the victim to get the children to protect the victim or the children from harm.
• Remove the defendant from the residence, regardless of who owns the residence.
• Prohibit the defendant from selling, disposing, destroying, hiding, or mortgaging mutually owned or leased real estate or personal property.
• Order other relief as necessary to provide for the safety and protection of the victim, minor children and other designated family or household members.

   FINAL PROTECTION ORDERS:  

After a Petition for a Protection Order is filed, a hearing will be held at which the plaintiff will need to prove, through testimony and evidence, that the abuse occurred. The defendant is allowed to be present and offer evidence against the allegations in the petition. The defendant may be represented by an attorney. After that hearing, the judge must decide whether to issue a Final Protection Order. If a Final Order is issued, it may contain any, or all, of the provisions in the Temporary Protection Order, and may also include:

• Order specific child visitation for the defendant, which may include supervised visitation in the presence of a third party or withholding visitation completely, if necessary. 
• Order the defendant to pay the plaintiff's attorney's fees and court costs.

• Order the defendant to pay child support for children the defendant has a legal obligation to support.

• Order the defendant to provide temporary support for the victim/spouse and grant the victim possession (not ownership) of the residence or household.

• Order the defendant to provide the victim temporarily with a vehicle if the victim has no other means of transportation and the defendant has control of more than one vehicle or alternate means of transportation.

   WHILE THE ABOVE RELIEF IS AVAILABLE, THE COURT IS NOT REQUIRED TO ORDER ALL OF IT IN EACH CASE. WHETHER THE JUDGE ENTERS AN ORDER, AND WHAT IS INCLUDED IN THE ORDER, WILL DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE.  EVEN WITH A PROTECTION ORDER, THE VICTIM MAY STILL NEED TO FIND A SAFE PLACE TO LIVE.  IF THE DEFENDANT VIOLATES THE TERMS OF THE PROTECTION ORDER, THE DEFENDANT MAY BE ARRESTED AND BROUGHT TO COURT.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

What does a Protection Order not do?

   It may not fix the problem. Although a Protection Order can be an important tool in helping the police and courts to discourage abuse, IT MAY NOT COMPLETELY STOP THE DEFENDANT FROM TRYING TO HURT THE VICTIM. The Protection Order can result in the appropriate punishment of the person against whom the order was issued if he or she violates that order.

It is not a decree of divorce, but the victim should be prepared to live apart from the abuse, at least for a time. If the victim is unsure about taking this action, he or she may wish to consult an attorney, domestic violence shelter (Harbor Haus -(256-734-6100), trusted friend, or a family member before filing a Petition.

   While the judge may allow the victim to use or possess certain property, a Protection Order cannot be used to make permanent property divisions. It is not to be used solely for custody matters, although the judge may determine and award temporary custody. It should not be used to "scare" someone to improve his or her behavior. If a petition is filed, the plaintiff should be prepared to proceed in court.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

Where can I get a Protection Order in Gadsden & Etowah County?

Protection From Abuse “FORMS” may be obtained at the Circuit Clerk's Office, Etowah County Courthouse, going to the Etowah County Sheriff's Office, or by  going to www.alacourt.gov and clicking on e-forms, civil form C-02. The plaintiff must ask the court for a  Protection Order either in the county where the victim lives or in the county where the victim has temporarily relocated to avoid further abuse. A Protection Order may be issued even if the victim does not have an ongoing court case against the defendant or the defendant does not have pending criminal charges arising from the abuse in the county where the victim lived. If there is a pending case, then the plaintiff must file for protection in the county in which the case is pending. It is recommended that the plaintiff file in the county in which the victim resides, if possible.

How can I ask the Court for a Protection Order in Gadsden and Etowah County?

Standard court forms must be filed with the clerk to ask for a Protection Order. These forms are available in the clerk's office in each county courthouse. Neither the clerk nor members of a judge's staff are required to provide assistance in completing the forms. They are not permitted to give legal advice. An attorney should be sought for assistance.

It may be difficult for the plaintiff to provide written details of the abuse the victim has suffered, but it is important to answer the questions in the Petition and to provide as much detail as possible. If the defendant owns a firearm or other weapon and has threatened to use it to harm the victim, the court should be made aware of this fact.

Additional paper may be used to complete the deposition. The completed Petition and Deposition should be taken to the clerk's office. The judge may or may not issue a Protection Order and set a date for a hearing. 
If any temporary orders are signed by the judge, they are good only until the final hearing unless otherwise extended by the judge. They are not permanent orders!

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

Is there a charge for a Protection Order?

   No. There is not a fee to file a petition for protection

What happens after the judge signs the Protection Order?

After the judge signs a Temporary Protection Order, a date is set for a court hearing. ALL PFA’S GRANTED WILL BE SET FOR A HEARING. The clerk's office will give to the Sheriff's Department a copy of the order signed by the judge, a copy of
the PFA Petition, and a notice of the date of the court hearing. The Sheriff's Department will attempt to serve copies of these papers
on the defendant. The plaintiff should ensure that the Sheriff has the defendant's work and home, day and night addresses, physical description, vehicle description, tag number of any vehicles owned by the defendant and any other information that may be helpful in locating the defendant. It is crucial that the defendant be served with the court order before the court date. If not, the hearing may be postponed because the judge cannot take testimony from the plaintiff and the plaintiff's witnesses until the defendant is officially
served.

All PFA’s are processed and submitted to the Judge on the day they are filed. The Judge should make a ruling regarding the PFA within 3 days. If the plaintiff does not receive an order or notice of court date after several days of filing for the PFA, then he or she should contact the clerk's office. The plaintiff/victim must appear for the hearing or face potential consequences which may include, but are
not limited to, dismissal of the case, being responsible for court costs, or loss of child custody. If the Plaintiff cannot attend the hearing, a written notice must be submitted to the Clerk’s office prior to the hearing date. Only the court may dismiss the case.

What should I expect at the hearing?

   The defendant may appear and be represented by an attorney. If the plaintiff does not have an attorney, the plaintiff should be prepared to proceed with the case without one. Some judges may not delay the hearing to allow time for the plaintiff to hire an attorney. All parties and witnesses should arrive at the courthouse early and make sure they are in the right place. Since other cases may be set for that day, the plaintiff's case may not be called immediately.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

Should I bring the children?

   Children should not be brought to the hearing unless they will testify. Since children may be a distraction, it is preferable to find someone to keep them, or, if necessary, the plaintiff should bring a friend or family member to court that can help watch them.

What about witnesses/evidence?

   Any person who witnessed the abuse may be called to testify at the hearing. If the witness agrees to come, it is not necessary for the court to issue a subpoena (an order by the court to appear and testify).  If a witness will not come voluntarily, the plaintiff may ask the clerk how to subpoena the witness. If the defendant requests custody, witnesses may be needed to testify regarding the defendant, victim and children and provide information that will help the court to make its decision.  For this reason, the plaintiff may wish to contact an attorney for assistance. In any case, the law allows the victim to bring a friend or family member to court for support.

   Evidence that the plaintiff may wish the court to consider, including pictures, witnesses, police reports, hospital records, expenses incurred as a result of the abuse, etc., may be brought to the hearing. The victim may be the most important witness and what he or she tells the judge is very important to the court's decision. Also, the court may need additional information, such as current pay stubs of the defendant and victim, a list of furniture, or other personal property in the defendant's possession.

Will I see the defendant?

   The defendant will probably be in court and may be waiting in the same general area. If the plaintiff/victim does not feel safe, or if anyone tries to interfere with him or her while waiting for the hearing, the plaintiff should bring this matter to the attention of the judge's staff, law enforcement officer, bailiff, or someone who works in the courthouse. Once notified, the court staff may be able to find another waiting area until the hearing begins.

Should I talk to the defendant?

   The plaintiff/victim is not required to talk to or sit with the defendant unless instructed by the judge. If the plaintiff/victim is afraid or uncomfortable, the judge should be informed of this fact. Because of the stress of the situation, it may not be a good time to communicate effectively without the court's involvement.

Will I have to testify in Court?

   Yes. The defendant or the defendant's attorney can ask the plaintiff and witnesses questions. The plaintiff or the plaintiff's attorney can ask the defendant or the defendant's witness’s questions. Statements and answers to questions asked of witnesses in the hearing should be made loudly and clearly and are always made to the judge. The judge may allow notes, photos, or other evidence to be used to help witnesses recall specific details. All questions should be answered truthfully. If a witness does not know an answer, he or she should say so. If an incorrect answer is mistakenly given, it can later be corrected.

   Persons involved in the case should always remain calm and never argue with or show disrespect for the judge, any attorney, or the other party. Witnesses may say things that are not true or are intentionally upsetting. The plaintiff can ask to testify again to clear up anything that was said.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

When will I learn how the judge ruled?

   The judge may not make a ruling in court but may issue a decision later. Before leaving the courthouse, the plaintiff should ensure that the court has a current address so that a copy of the decision can be mailed to the plaintiff. The victim may request that the address be kept confidential by the court.

   The plaintiff will receive a copy of the court's order for protection, as will the defendant and law enforcement officials in your county. The plaintiff may wish to follow up with the local police and sheriff's departments to ensure that they have a copy of the order on file. If not, the plaintiff should request that a copy be sent to them or should provide them a copy. It is very important that the victim keep this order with him or her at all times. Copies should be provided to every place listed on the order, including the children's school, the victim's place of employment, etc. The plaintiff/victim should take responsibility for being sure this is done.

What happens if the defendant violates the Protection Order in Gadsden or Etowah County?

  The protection order cannot be enforced until the defendant is served. 

  Violations of a Protection Order may be punished as contempt of court and may be charged as a Class A misdemeanor for which the abuser may be arrested with, or without, a warrant.

   If the judge in a case finds that a defendant violated a Protection Order, the first violation is a Class A misdemeanor punishable by up to a year in jail and a fine of up to $2,000.00.

   A finding of a second violation of a protection order requires, in addition to any fine and sentence imposed, a minimum of 48 hours in jail. On a finding of a third violation, the defendant must spend 30 days in jail. Required jail time cannot be suspended.

   A law enforcement officer may arrest the violator of a protection order without a warrant at any time of the day or night when the officer has probable cause to believe that an act has been committed in violation of a valid protection order, even if the officer did not personally see the violation. The plaintiff may also request that a warrant be issued against the defendant by a judge or magistrate for violation of the protection order in either the district court of the county where the offense occurred or in the municipal court, if within municipal police jurisdiction.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

 Where can I go to get additional help?

While the plaintiff is not required to have the assistance of an attorney, obtaining a Protection Order can have significant legal consequences especially involving issues such as custody of children and property division. It is recommended that a plaintiff seek legal counsel to assist in this matter.  The Alabama State Bar Referral Service is available at 1-(800)-392-5660 for the names and phone numbers of attorneys who practice in the area of domestic relations. If the plaintiff cannot afford an attorney, the nearest Legal Services Office may be contacted:

Anniston 256-237-3615

Mobile 334-433-6560

Birmingham 205-328-3540

Monroeville 334-743-3234

Dothan 334-793-7932

Montgomery 334-832-4570

Florence 256-767-2020

Opelika 334-749-5011

Gadsden 256-543-2435

Selma 334-875-3770

Huntsville 256-536-9645

Tuscaloosa 205-758-7503

   Although a Protection Order can be an important tool in helping the police and the courts discourage incidences of domestic violence, it is a judicial order recorded on a piece of paper and not a shield which will stop bullets, knives, or fists. Often, when a defendant first gets a copy of the Protection Order, he or she may seek to increase the pressure, threats, and violence.  It may therefore be necessary for the victim to seek shelter and safety immediately and call the police. Local domestic violence shelters (Harbor Haus 256-734-6100) are available to offer assistance, especially in developing a safety plan for the victim and children and in planning to leave a violent relationship, if necessary.

Alabama's 18 domestic violence shelter programs throughout the state can provide immediate and safe refuge from violent attacks. A phone call to the 24-hour crisis line number listed below can make a difference and will connect the caller to the shelter program in
their area. At the shelter, the victim and children can receive safe, temporary housing, food, clothing, and the counseling and
assistance needed to establish the groundwork for providing a stable and nonviolent environment. For immediate, 24-hour access tonthe shelter program in your area, call the following number: 1-800-650-6522.

PUT YOUR TRUST IN A GADSDEN, ALABAMA PROTECTION FROM ABUSE / RESTRAINING ORDER / DOMESTIC VIOLENCE LAWYER WHO PUTS PEOPLE FIRST

Call 256-547-1005 or fill out our online inquiry form and schedule a free consultation. We can explain all the legal options available to you, enabling you to make an informed decision as to how to handle your case. You're in charge. You decide.

But don't take our word for it. Read the testimonials from our satisfied clients throughout Alabama on our Facebook Page and our Google Reviews. Case results matter here. 

How to change your name in Etowah County?

Name Change Lawyers | Dani Bone & Sam Bone 

Dani Bone & Sam Bone have handled hundreds of name changes. We know the system and can move your name change paperwork through the Court in an expeditious and anonymous manner. Let our Name Change Attorneys handle the paperwork and take the stress away from you so that you can live your life. If you have questions about a name change, call us today. We can help. 

1. First, you need to find out if you are eligible for a name change.
   
   Determine if you’re eligible. It doesn't do much good to go through the name-change process, only to find out in the end that you don’t qualify. Here are some things to be aware of:
   • You have to be 19 years of age or older to file the request
   • You can’t make the request to avoid paying a debt or a judgment against you, or to defraud someone
   • You must not be a convicted Criminal Sex Offender (under Alabama law) or a defendant in a criminal proceeding.
   • You can't be a party to any judicial proceeding in any court in any
     jurisdiction;
   • Must not  currently be a defendant to any criminal charge;
   • Cannot have been convicted of any felony or crime involving moral
     turpitude
      
2. Compile the identification documents you’ll need. Although required documentation varies from county to county, prepare to provide the following:
   • A certified copy of your birth certificate (not a photocopy)
   • Proof of residency, such as a lease, deed or utility bill (some Probate courts may require two such documents)
   • A driver’s license or other government-issued photo ID
   • Your social security card.
      
3. Find a copy of your marriage certificate or divorce decree. If you changed your name when you got married or divorced, the Probate court may want to review these papers.
    
4. Collect additional documents if you’re requesting a name change for a minor. If you’re looking to change the name of someone under 19 years old (a minor in Alabama), there’s additional paperwork you may need, such as:
   • A certified copy of the minor child’s birth certificate
   • The child’s social security cardProof that the father listed on the name-change Petition is the child’s natural father (if his name isn’t on the child’s birth certificate).
   • A certified copy of the court order or blood test confirming this will be required
   • A certified copy of any court order terminating the parental rights of the child’s father or mother, if applicable
      
5. Bring your necessary documents to your lawyer.
   • Dani Bone & Sam Bone have handled hundreds of name changes. We know the system and can move your name change paperwork through the Court in an expeditious and anonymous manner. Let our Name Change Attorneys handle the paperwork and take the stress away from you so that you can live your life. If you have questions about a name change, call us today. We can help. 
   • Your lawyer will have the necessary forms to Petition for a Change of Namea the Probate Court. 
6. Attend the hearing. Some county Probate courts will require you to attend a hearing before they’ll grant you the name-change. Usually the hearing involves going over items in your Petition, including answering any questions the Probate judge might have about the Petition or the documents you've provided. This is perfectly normal, and the fact that the court requires a hearing doesn't mean there’s a problem with your request.
7. Get a new social security card. Once the Probate court gives you the official document changing your name, you still have a lot of work to do. Applying for a new social security card should be a top priority. You can get more information on this at http://www.socialsecurity.gov.
8. Change your driver’s license and other motor vehicle documentation. In Alabama, you’ll need to contact the local motor vehicle office and the Department of Public Safety. Check http://www.dmv.org/al-alabama/dmv-office-finder.php#AL-Department-of-Public-Safety-DPS-Offices for more information.
9. Obtain a new birth certificate. You can do this by contacting the Bureau of Vital Statistics in Montgomery, Alabama.
10. Contact credit card companies and banks. You’ll probably need to have new credit and/or debit cards issued with your new name. Also reach out to your bank, regarding any accounts, loans, etc. that may require attention because of the name change. You’ll undoubtedly find other companies that you may want to notify, as you move forward.

Gadsden Criminal Lawyer Dani Bone Discusses Criminal Procedure on NBC 13

Gadsden and Etowah County attorney, Dani Bone, appeared on NBC 13 with Birmingham Injury Lawyers Hollis Wright about criminal procedure on 05/20/2018.  

Gadsden Criminal Defense Lawyer Dani Bone

1. What is the difference between criminal law and civil law? And what determines whether an act is criminal?

 Civil law is matter between individuals, such as Mr. Doe vs. Mr. Jones suing each other for things such as negligence or contract disputes.  Criminal law involves the State on behalf of the people against an individual for breaking specific codified criminal laws.  The state is represented by the district attorney also called the prosecutor.  The various criminal acts and statutes are found in the Alabama Code Title 13A.  That section list all the acts determined to be criminal by the State of Alabama.  These laws were drafted with public safety and morals in mind.  

2. In general what are the steps one may go through in the criminal process in Etowah County, Alabama: 

The general sequence of events in the criminal law process is as follows:

The Arrest by Gadsden City police or Etowah County—

The police arrest an individual when they have probable cause to believe that a crime has been committed. The arrest may be made on the police officer's initiative at the time of the alleged crime, or after a warrant has been issued and the subject of the arrest surrenders to the police. Technically an "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. 

Booking & Bail in Etowah County Jail-

After an arrest, the individual is processed into police custody ("booking"), and a determination of his or her eligibility for release from custody in exchange for the posting of a set amount of money ("bail") is determined. In order to post a bond an individual can deposit the exact amount of bond in cash, which is refunded when the case is over; or can use a bail bondsman, which usually charges 10% to 15% of the amount of the bond, which is not refundable; or can post a house for the value of the bond.

Gadsden, Alabama Bondsmen, A Gilchrist Bail Bonds,  Eagle Bail Bond LLC, A Absolute Bail Bonding LLC, Big Boy's Bail Bonding, Enj Bail Bonding, Ed Jones, 

The Arraignment in Alabama —

This is a hearing in which you learn of the charges against you. It provides an opportunity for the prosecutor and your defense attorney to discuss a possible negotiated plea, if that is your desire.  

Grand jury hearing in Alabama—

If you have been charged with a felony, your case may be sent to a grand jury that will decide if you should be indicted.  You may wish to testify in this hearing, although this is usually not advisable.

Preliminary Hearing in Alabama -

Usually held soon after the arraignment, a preliminary hearing is where the judge determines whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

Plea bargaining in Alabama—

Many times this occurs during the preliminary hearing but can happen at other times as well.  Plea bargain are basically what they sound like, your attorney attempts to negotiate reduced charges, separate less severe charges, or reduced fines, jail time, etc. in exchange for you to pleading guilty.  While these are difficult decisions to make, in some cases it can be a better alternative than risking a trial and the possibility of a harsher sentence. The vast majority of cases are resolved through a plea bargain.   

Pre-trial motions in Alabama —

Pre-trial motions are used to learn more about the government's evidence against you and uncover potential weaknesses in its case. They can also use these to suppress evidence or to seek a dismissal of the charge.

Trial- In a criminal trial, a jury examines the evidence to decide whether, "beyond a reasonable doubt," the defendant committed the crime in question. A trial is the government's opportunity to argue its case, in the hope of obtaining a "guilty" verdict and a conviction of the defendant. A trial also represents the defense's chance to refute the government's evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged.

3. At what point in this process should a person contact an attorney in Alabama?

 As soon as possible, preferably prior to giving any statement to the police.  Since every statement made can be used against you, you should make sure to secure all of your rights by securing a criminal lawyer as soon as possible.  Furthermore, the criminal attorney will want to begin working on your defense early while evidence, whether physical or in the form of witnesses are fresh and available.  Delaying the hiring of an attorney can potentially create problems for you and the attorney in the future. 

4. What separates misdemeanors from felonies in Alabama and what types of sentences could be levied after either a plea bargain or guilty verdict?

 For each crime listed in the Alabama Criminal Statutes a determination is made whether that crime is a misdemeanor or felony.  Basically the difference between the two is the length of the particular jail time.  Misdemeanor’s are crimes that are limited to jail terms of 0 days up to 1 year, whereby felonies are crimes which can carry jail terms starting from 1 year and a day up until life or if the case is seriousness the death penalty.  Both misdemeanors and felonies are broken down into three classes, A, B, C.  A class “A” felony or misdemeanor are the most serious and carry the more severe punishments.  Examples of felonies are: Murder Rape Possession of a controlled substance 

 There are many types of sentences or punishments which can be levied dependant on the type of crime an individual is convicted of.  Factors may come into play such as past convictions, severity of the crime etc.  Finally some crimes have statutory punishments in which a judge must follow without the ability to use his/her discretion.  An example would be mandatory jail time for second time DUI convictions within 5 years of the first conviction.  

Examples of types of punishments include but are not limited to the following:   Capital Punishment, Incarceration, Probation and Fines 

5. When an individual is approached by a police officer, is he/she required to answer questions posed by the officer in Alabama? What if the police officer asks for consent to search my car or my house in Alabama?

Biographical information such as your name, address and phone number and any information about your identity should be given, but you are not required to answer anything else.  You should always be aware that anything you say can be used against you.  You should not submit to questioning without the presence of an attorney.

Unless the officer has a warrant, you should politely decline.  Never consent to a search unless there is a warrant. The Constitution protects from unreasonable searches and seizures, therefore unless the office has enough cause to secure a warrant for his search then you have no duty to consent.

6. You often hear the term Miranda warning in Alabama or “being read ones rights,” what is that and when must it be given and what is its purpose? 

 Once a person is in custody of police, which is determined by whether he/she is currently deprived of his or her freedom to leave, the police must recite the Miranda warning if they wish to continue questioning the individual and use the his/her answers as evidence at trial.  The Miranda informs the individual that they have the right to consult an attorney and anything they say can be used against them.   However if a person is not in custody a Miranda warning is not required and anything the person says can be used in against the person.  However even if the police do not give the Miranda warnings, the person can still be charged, except the police/prosecutor will not be able to use anything the person said as evidence at trial.

  

7. Alabama has just enacted new DUI laws beginning September 1, 2011.  Briefly what is a DUI and how can someone be charged with one?

 The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol. To find a person guilty under the first definition, a jury must be convinced beyond a reasonable doubt that the person's blood alcohol content (BAC) exceeded a certain amount. In most states the legal limit is .08 (or 8 percent). Therefore, if it is proven that the person's BAC at the time of the incident was .08 or greater, he or she can be convicted of drunk driving, regardless of how much alcohol was actually consumed.

In contrast, the second definition does not refer to any particular BAC; it focuses on the driving behavior of the person. If the person's driving is impaired by the consumption of alcohol, he or she can be found guilty of drunk driving. Instead of presenting evidence of the BAC to a jury, the prosecution seeking a conviction under this definition generally presents testimony about the person's driving and consumption of alcohol. A police officer will often describe the impaired driving that lead him to pull the person over and the person's ability (or lack thereof) to perform field sobriety tests, such as walking a straight line. Evidence is also usually presented concerning the person's consumption of alcohol. If the jury then concludes that the prosecution has met its burden of proof, it will convict the person of drunk driving. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.

DUIs are serious business.  Being convicted of DUI can seriously affect your life and your future. A DUI conviction can result in jail time as well as the loss of driving privileges. You will be assessed heavy fines and court costs as well as increased cost or loss of your automobile insurance. Finally a DUI conviction can negatively affect your employment, via being denied certain jobs or losing your current employment.

8. Must I be driving in order to be charged with a DUI in Alabama?

 No, in Alabama you can be charged with a DUI even if not actually driving the car at the time of arrest.  You can be charged with DUI even if not seen driving through the use of circumstantial evidence to prove that the person had actual physical control of the vehicle.  Actual physical control is the power and ability to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment.  Examples of actual physical control would be having possession of the vehicles ignition key, sitting in the driver’s seat and having the capability to start the engine and drive.  In other words, if you are intoxicated sitting in your car, even if it is not in motion you could be charged with a DUI.

9. Am I required to perform the roadside sobriety test or the roadside handheld breathalyzer in Alabama?

 No.  You can decline both of these tests.  However you can still be arrested if the officer believes he has probable cause to still charge you with DUI.  This is usually done by noting your speech, motor skills, etc. Note that once you are in custody you will be asked to take the breath test at the police station.  In Alabama, when a person applies for an Alabama driver’s license they automatically are agreeing to the Alabama implied consent law. Which means that if you are stopped on suspicion of DUI you agree to submit to a blood, breath or urine test to prove your intoxication level.  Failure to submit to this test for a first time offender will result in an immediate 90-day license suspension with no chance of obtaining driving privileges during that 90-day period. If it is determined that the refusal is a second or subsequent refusal within the past five years, there is a 1-year license suspension with no chance of obtaining driving privileges during that 1-year period.

10. Briefly what are penalties for your first DUI and subsequent DUIs in Alabama?

 Cost and penalties associated with DUI can be quite severe.  It could take a long time to go through every potential penalty, cost, fine or repercussions related to a DUI conviction be it your first or subsequent.  That is why you need to seek immediate help from a competent DUI attorney.  However briefly the penalties for your first and subsequent DUIs are as follows:

 1st DUI – imprisonment not more than one year, or fine of not less than $600 nor more than $2,100, or by both fine and imprisonment.  In addition the driving privileges are suspended for after conviction for a period of 90 days.

 2nd DUI – a second conviction within 5 years of the first will result in a fine of not less than $1,100 nor more than $5,100 and by imprisonment for not more than one year.  There is a mandatory jail time of not less than five days or community service for not less than 30 days and revocation of driving privileges for a period of one year.

 3rd DUI – on a third conviction, a fine not less than $2,100 nor more than $10,100 and by imprisonment for not less than 60 days nor more than one year, to include a minimum of 60 days in jail. The driving privileges are revoked for a period of three years.

 4th DUI – On the fourth or subsequent convictions, you are charged with a felony and punished by a fine of not less than $4,100 nor more than $10,100 and by imprisonment of not less than one year and one day nor more than 10 years.  Mandatory sentence of 10 days, whereby the remainder of the sentence may be suspended or probated if person meets certain conditions.  Driving privileges are revoked for a period of five years.

 Again this is a brief breakdown there are many other repercussions and unforeseen issues.  However recently there have been enhancements to the above.

11. Governor Bentley just enacted two new tough DUI laws, what are they in Alabama?

On June 9, 2011 Governor Robert Bently signed into law Act 11-613 the “ignition interlock” bill which goes into effect September 1, 2012 and Act 11-621, and the “double minimum punishment” bill which goes into effect September 1, 2011.  Both of these bills increase the punishment and severity of DUI convictions if you meet certain conditions.

The “double minimum punishment” bill allows for the following: 

•  This bill provides that UPON CONVICTION for DUI, any offender with a blood-alcohol content of 0.15 or greater will be sentenced to double what he or she would have received had his or her BAC been less than 0.15. This same sentence enhancement is currently used when someone is convicted of DUI while a child under the age of 14 is present in the vehicle at the time of the offense (subsection (n) of the current DUI statute).

• This bill also provides that the offender’s license shall be suspended for “at least one year”. This only comes into play for a first offense. Currently, a first offense only mandates a 90 day DL suspension; however, should the offenders BAC be 0.15 or greater, the DL suspension shall be for one year.

• The effect on a first offender will be that the DL suspension will be for one year instead of the current 90 days and the minimum fine goes from $600 to $1200. For a second offense, the minimum mandatory jail time goes from five days to 10 days and the minimum fine goes from $1100 to $2200. For a third offense, the minimum mandatory jail time goes from 60 days to 120 days and the minimum fine goes from $2100 to $4200. For a fourth or subsequent offense, the minimum jail time goes from 10 days to 20 days and the minimum fine goes from $4100 to $8200.

The “ignition interlock” bill allows for the following:

• This law goes in to effect September 1, 2011, however, as stated in section 3 of the bill, the substantive provisions do not go into effect until September 1, 2012. 

• An ignition interlock is a device installed on the car of the DUI offender’s choosing that the offender is required to blow into prior to cranking his or her vehicle. If the person has a BAC of 0.02 or higher, the vehicle will not start. The device will also require a “rolling restart” which means that it must be blown into every few minutes to keep the vehicle cranked. This keeps the offender from driving to a bar, leaving the car running while he drinks and allowing him to enter a cranked vehicle to drive home. The portion of the device to be blown into is a long tube, so blowing into it will require no more effort than using a straw.

• How this will work: When someone is convicted of DUI, his or her driver’s license will be suspended as it is under current law. When the offender applies for DL reinstatement, they will get a special DL that indicates they can only operate a vehicle equipped with an interlock device. The offender will have to show proof of installation of an interlock device prior to getting their DL reinstated.

• The ignition interlock is NOT mandatory for a first offender UNLESS the offender had a BAC of 0.15 or higher, refused to submit to a chemical test, had a child in the vehicle under the age of 14 or if someone other than the defendant was injured at the time of the offense. The offender will then be required to have an interlock installed on their vehicle for two years. For a second offense, the offender will be required to have an interlock device for two years after the one-year DL revocation is served. For a third offense, after the defendant has served a three-year DL revocation, the offender will be required to have an interlock installed for three years. For a fourth or subsequent offense, the offender will be required to have an interlock device for five years following the five-year DL revocation.

• The device is leased from and interlock provider and costs the offender approximately $2-$3 per day and the offender must have their device serviced every 30 days.

• If the offender is found to have incurred any violations with the interlock, the provider will report those violations to the court and the time the offender is required to have the interlock is extended six months. Such violations include blowing into the device with a BAC at or above .02 four or more times in a 30 day period, attempts to tamper with or circumvent the device and failure to get service within a 30 day period.

12. How soon after my DUI arrest should I contact an attorney in Alabama?

 Immediately.  For one, if you’ve been arrested for Alabama DUI, the law allows only 10 days for your lawyer to make a request with the Alabama Department of Public Safety for a hearing to save your Alabama Driver’s License.  DUIs are not to be taken lightly due to the severe consequences especially in light of the new laws recently passed that can arise from a conviction.  You need to find a qualified DUI attorney as soon as possible who can make sure your rights are protected.

III.  FOUR FACTOIDS

• You should contact counsel immediately if you have a criminal issue that arises.  Failure to take a criminal case seriously could have a permanent impact on your employability, credit, etc.

• Out of state DUIs can be used for sentence enhancements in Alabama.

• Alabama generally has no provision for hardship driver permits if your driver’s license is suspended due to DUI.  

• You only have 10 days after being arrested for a DUI to make a request with the Alabama Department of Public Saftey to prevent suspension of your driver’s license until your DUI case has been completed.

• On June 9, 2011 Governor Robert Bently signed into law Act 11-613 the “ignition interlock” bill which goes into effect September 1, 2012 and Act 11-621, and the “double minimum punishment” bill which goes into effect September 1, 2011.  Both of these bills can greatly increase the fines, costs and punishments for those convicted of a DUI.

Do I need a lawyer for an uncontested divorce in Alabama?

In Alabama, an uncontested divorce essentially means that the spouses have agreed to divorce and how to separate their lives. In an uncontested divorce, one spouse files for divorce based on a no-fault ground (incompatibility or irreconcilable differences) and the other spouse agrees.

In addition, both spouses have to reach agreement on all major issues involved in a divorce. The issues that must be agreed upon include child custody, division of property, and division of debt. Because child support is usually determined automatically according to the child support guidelines, it’s not usually subject to negotiation and therefore doesn’t need to be agreed upon for an uncontested divorce in Alabama.

But, hiring an experienced divorce lawyer can help you figure out ways to manipulate the guidelines and ways around the child support guidelines.

Because there is no need for a trial or multiple court appearances, the biggest benefit of an uncontested divorce is that is it significantly less expensive than a contested divorce. Uncontested divorces are also quicker.

You don't have to hire a lawyer in order to obtain an uncontested divorce in Alabama, in other words you can represent yourself. Even though there is no court battle in an uncontested divorce, lawyers can still assist spouses through the uncontested divorce process by providing advice, making sure paperwork is completed correctly, and filing the paperwork in a timely manner.

1. The Alabama Judge is approving the contents of the paper work - not the paper work.
    

   There is more to getting a divorce than just doing the paper work correctly. Judges turn down "perfect" paper work every day because of what is written in them and not because of the format they are written in.
   
   Even if you and your spouse are 100% in agreement on all issues the Judge can still refuse to approve your terms for a variety of reasons including the fact they personally think it just will not work or it is not (in their opinion) in the best interest of both parties or the children. An Alabama divorce lawyer can help you write up the agreement you have reached in such a way that it will be approved by the local Judges or make suggestions for alternatives to things he or she knows a Judge will not approve.
   
   For instance, if you and your spouse agree that there should be no child support in a divorce.  You must word the papers the right way or the judge will not approve it.  Or worse, you could word it in a way where your spouse could immediately file for child support following signing the papers.
   
   Another example is how each courthouse has different rules for uncontested divorces.  Etowah County, Alabama judges require a walk-through where they take testimony from the Plaintiff.  In Cherokee County the court will sign the divorce after 30 days of signing it without a walk-through.  In Mobile County, the court requires that a Commissioner be appointed to take testimony.  Without an attorney, you probably won't know the rules of the local jurisdiction. 
   
   Our law firm has DIY software for Etowah County and surrounding areas that we can sell for a fraction of the cost of hiring a lawyer would cost and you will have the satisfaction of knowing it is done correctly. If you want more information on these forms, email me at samueldanibone@gmail.com.
    

2. Pro se litigants (people without lawyers) can be inconvenient to clerks and judges
    

   Do not be surprised if you are not welcomed with open arms in court when you are handling your case without a lawyer. Pro se litigants are tolerated by the courts because they understand that legal representation is financially out of the scope of many people but do not expect to be treated in any special manner. Judges are humans too who dislike the burden of having to turndown improperly filed paperwork only to review it again a few days later.
   
   With a lawyer, the judge has confidence that the paperwork is done correctly. 
   
   In every aspect of your case you will be held to the same exact standard the lawyers are held. In fact you are often held to a higher standard than the lawyers because Judges will offer practical suggestions to a lawyer as how to fix something that the Judge is not happy with but will not offer the suggestions to a person handling their own case out of fear that the suggestion being giving could be viewed as giving legal advice. If there is a procedural or substantive problem with your papers the Judge will probably tell you to hire a lawyer and put the case on hold until you do it.
   
   For instance, a judge may tell a lawyer to change the wording on some child support forms and he will accept it.  But he may not feel comfortable doing the same to a pro se litigant. 
   
   Our law firm has DIY software for Etowah County and surrounding areas that we can sell for a fraction of the cost of hiring a lawyer would cost and you will have the satisfaction of knowing it is done correctly. If you want more information on these forms, email me at samueldanibone@gmail.com.
   
    

3. It is illegal for judges, staff of judges, and clerks to give you legal advice in Alabama
    

   Under the current laws of Alabama, Judges and court staff are strictly not allowed to give you any legal advice. Some people end up going to court over and over again because of a very minor procedure error or omission but neither the Judge or the court personal are able to explain the problem to them and how to fix it because that would be giving them legal advice.
   
   RULE 3.10: of ABA MODEL JUDICIAL CODE provides that, "A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family,* but is prohibited from serving as the family member’s lawyer in any forum."
    

4. If you hire an attorney your part is basically over once the agreement is reached.
    

   If you hire an uncontested divorce lawyer to do your divorce for you, once you and your spouse reach an agreement you are basically done and can turn everything else over to the lawyer to handle. Your lawyer will draft your agreement in a manner that it will be approved by the court and recommend changes and suggestions regarding things that might not be approved. You lawyer can handle getting the papers to your spouse for signing and answering any questions they might have about the paper work. Your lawyer will file the singed documents for you at the Clerk's office and will take care of any issues that might come up in the filing process. If the Judge does not require you to attend a final hearing it is the job of the lawyer to get the final decree signed, filed and a copy to both parties. If there is a hearing then the lawyer acts on your behalf and makes any changes the Judge needs until the divorce is final.
    

5. In divorce with minor children, there are lots of extra, mandatory forms that must be filed in each and every case
    

   All the time, a client walks into my office and hands me the divorce package they got from the Gadsden Public Library and tells me it was just too confusing and they gave up on trying to figure it out. Another group of my clients come from people who did complete the papers but the Judge told them they would not sign them based on the way they were completed.
   
   Often times in divorces I do with minor children, the Judge has me make changes to one or more of the documents that I have prepared either because the Judge changed the child support amount or the Judge made us make changes to the parenting plan.
   
   The reason for all of these changes is that the now required forms where passed by the Alabama legislature that requires certain child support forms be filed with each case.  Hiring a lawyer can make sure that you have the necessary forms completed.
    

6. Alabama Divorce Judges can refuse to accept Custody and Visitation arrangements even if both parents have agreed to them.
    

   Alabama Circuit Court Judges have broad discretion in whether or not they approve custody and visitation arrangements even when both parents have agreed to them in advance.
   It often comes to a shock to parents to learn that once they decide to divorce that they lose the right to have the final say so on how their children will be raised.  If the agreement you and your spouse have reached involves asking the court for visitation other than the standard of one parent having primary custody and the other parent having every other weekend and odd/even holidays it is imperative that you talk to a local lawyer to find out how the local judges feel about what you are proposing so you are not surprised if the Judge says no.
    

7. You can hire an uncontested divorce lawyer for about the price you pay a document preparation service.
    

   There really is no reason not to hire an uncontested divorce lawyer to handle your divorce when you can hire one for about the same amount that you would pay a legal document provider to type your divorce papers. In cases with minor children you do often end up paying a lawyer more money up front in fees but it is money well spent since it cuts down on the time you have to spend to figure out the complicated child support guidelines. For some one who does not do it on a regular basis, it can take a whole day just to complete the paper work for a divorce with minor children.
   
   To that time add in another half day off from work to get it signed, copies made and filed with the Clerk's office.  In the long run hiring an uncontested lawyer to do the case should save you time and money than handling you divorce on your own.

What is a youthful offender hearing in Alabama?

If your case is set for a youthful offender hearing, you will first need to meet with your county's State probation office. Section 15-19-1 provides that an Investigation and examination by state probation should take place.  After such investigation and examination, the court, in its discretion, may direct that the defendant be arraigned as a youthful offender, and no further action shall be taken on the indictment or information; or the court may decide that the defendant shall not be arraigned as a youthful offender, whereupon the indictment or information shall be deemed filed.

            The Alabama Youthful Offender Act allows criminal courts in Alabama  to grant youthful offender status to defendants whose crimes or offenses occurred before they turned 21 years of age.

THE PROCESS FOR GETTING YOUTHFUL OFFENDER STATUS

A defendant must request youthful offender status, and the courts in Alabama have an obligation to inform eligible defendants of the right to request the status.  Once the request is made, the court will typically request an investigation by a probation officer into the background of the defendant and the facts and circumstances with which they are charged.  The trial court has a great deal of discretion in the decision to grant or deny youthful offender status.  In our experience, courts consider a wide variety of factors in making the decision, some appropriate and some not so appropriate.  Nevertheless, it is important to present information to the court as to factors.  Some common factors considered include:  prior contact with criminal justice system, age, maturity, family relationships, role in the offense, seriousness of the offense, school attendance and history, potential for rehabilitation, and community ties.  The court will hold a hearing at which your attorney may present information and evidence on your behalf.

POTENTIAL PUNISHMENT UNDER YOUTHFUL OFFENDER STATUS

Alabama Code § 15-19-6 provides that if the underlying offense was a felony offense, a person given youthful offender status faces the following potential punishment:

• ·         Incarceration in the custody of the Board of Corrections for up to 3 years
• ·         Probation for up to 3 years
• ·         Suspension of the sentence with probation
• ·         Suspension of the sentence without probation
• ·         Fines, with or without probation (typically up to $1,000)

Where a youthful offender is placed on probation, they are placed under the supervision of the appropriate probation agency.

Alabama Code § 15-19-6 provides that if the underlying offense was a misdemeanor offense, a person given youthful offender status can be punished as provided by law for such misdemeanor.

THE EFFECT OF YOUTHFUL OFFENDER STATUS

By establishing the Alabama Youthful Offender Act, the Legislature not only provided an alternative method of sentencing minors, but, in fact, created a procedure separate and apart from the criminal procedure dealing with adults accused of the same offense.  Ex parte Jackson, 415 So.2d 1169 (Ala.1982). Youthful Offender Act proceedings are not “criminal” in nature. Raines v. State, 294 Ala. 360, 365, 317 So. 2d 559, 562 (1975).  Therefore, an adjudication and grant of youthful offender status is not a “conviction” as that term is used in relation to Alabama criminal law.  The Alabama Supreme Court describes the workings of the Youthful Offender Act as follows:

 The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential, rehabilitative system. A determination that one is a youthful offender (1) does not disqualify the youth from public office or public employment, (2) does not operate as a forfeiture of any right or privilege, (3) does not make him ineligible to receive any license granted by public authority, and (4) shall not be deemed a conviction of crime; and (5) the record shall not be open to public inspection except upon permission of the court. Title 15, s 266(6), Code of Alabama.  Raines v. State, 294 Ala. 360, 363, 317 So. 2d 559, 561 (1975).

When a court grants youthful offender status, the adjudication essentially ended the adult criminal prosecution.  The Youthful Offender Act states in Ala. Code § 15-19-1, where an application for youthful offender is granted, “no further action shall be taken on the indictment or information.” Ala. Code § 15-19-1.

YOUTHFUL OFFENDER RECORDS ARE SEALED FROM PUBLIC VIEW

Under Alabama Code § 15-19-7, fingerprints and photographs and other records of a person adjudged a youthful offender are not open to public inspection with two exceptions.  First, a court may, in its discretion, permit the inspection of papers or records.  Second, prosecutors have access to fingerprints, photographs, and other records of a person adjudged a youthful offender contained in the court file regardless of the jurisdiction from which the file originates.

What is a "Super DUI" in Alabama? What are the penalties for a 0.15 BAC DUI Conviction?

What is the penalty for First (1st) Conviction DUI in Alabama?

• Imprisonment - Up to 1 year in municipal or county jail (no minimum mandatory sentence)
• Fine - $500 - $2,000, plus an additional $100 fine assessed for Impaired Drivers Trust Fund (§32-5A-191.1)
• Mandatory - 90-day license suspension, DUI school attendance

What is the penalty for First (1st) DUI conviction over 0.15 BAC in Alabama?
 

• Minimum one year imprisonment, although sentencing court has the authority to suspend entire sentence
• Fine between $1,200 and $4,200
• Driver's license suspended for one year
• Required DUI class
• Ignition interlock device (in-car breathalyzer) installed for two years

What is the penalty for a Second (2nd) Conviction DUI in Alabama?

• Imprisonment - 48 consecutive hours, up to 1 year, or not less than 20 days community service
• Fine - $1,000 - $5,000, plus an additional $100 fine assessed for Impaired Drivers Trust Fund (§32-5A-191.1)
• Mandatory - Not less than 48 hours consecutive imprisonment, or community service of not less than 20 days
• DL Revocation - 1 year

What is the penalty for a Second (2nd) DUI conviction over 0.15 BAC in Alabama?

• If second conviction within five years, up to one year in jail
• At minimum, either 10 days in jail or 60 days of a community service
• Fine between $2,200 and $10,200
• Driver's license suspended for one year
• Ignition interlock device installed for four years

What is the penalty for a Third (3rd) Conviction DUI in Alabama?

• Imprisonment - 60 days in municipal or county jail, up to 1 year
• Mandatory - 60-day imprisonment which cannot be probated or suspended
• Fine - $2,000 - $10,000, plus an additional $100 fine assessed for Impaired Drivers Trust Fund (§32-5A-191.1)
• DL Revocation - 3 years

What is the penalty for a Third (3rd) DUI conviction over 0.15 BAC in Alabama?

• If third conviction within five years, minimum 120 days up to one year in jail
• Fine between $4,100 and $20,200
• Driver's license suspended for three years
• Ignition interlock device installed for six years

What is the penalty for a Fourth (4th) or Subsequent Conviction Within 5 Years?

• Class C Felony (§32-5A-191):
• Imprisonment - 1-10 years
• Fine - $4,000 - $10,000
• DL Revocation - 5 years

What is the penalty for Fourth (4th) DUI conviction over 0.15 BAC in Alabama?
 

• If fourth conviction within five years, felony DUI with minimum term of imprisonment of two years and two days up to a 10 years
• Fine between $8,200 and $20,200
• Driver's license suspended for five years
• Ignition interlock device installed for ten years

What are presumptive sentencing guidelines in Alabama?

The sentencing guidelines calculate the sentence for some crimes based on your previous criminal record.  It can mean the difference between going to prison or not and how long you spend in prison.  Your guidelines score determines whether you'll be sent to prison or go on probation, and how long you'll spend in prison or how long the split or suspended sentence is.

How are the Alabama sentencing guidelines configured?

The guidelines use a combination of the following:

• Seriousness of the offense
• The number of prior felony convictions
• Number of prior adult convictions for misdemeanors
• Whether you have served more than 1 year in jail
• Prior felony probation or parole revocation
• Prior juvenile delinquency or YO adjudications
• Possession/use of a deadly weapon or dangerous instrument

Does the Judge have to Follow the Guidelines?

There are two different kinds of guidelines offenses: presumptive and voluntary.  Presumptive guidelines are mandatory, and voluntary guidelines are not.  

All violent crimes are voluntary guideline offenses, as are most kinds of burglary.  All of other crimes listed below are presumptive guidelines offenses.

But even if you score non-prison under the guidelines, the judge can send you to prison if there's an aggravating factor.  The most common aggravating factor is being on probation/bond when the offense occurred, but there are others.  These allow the judge to go above the guidelines.

There are some restrictions on when aggravating factors can be presented, and you have the right to a jury trial on them.  

Likewise, even if you score prison, this doesn't mean you will go to prison.  The judge can consider mitigating factors, such as making full restitution or attending drug treatment.  These allow the judge to go under the guidelines.  Furthermore, front end diversion is considered a prison sentence, so you can remain out of jail even if you score prison.

Also, if there is a prison sentence, you can also do your prison sentence through community corrections since you are technically a state inmate in community corrections. 

    Only felonies are guideline offenses.

    The following drug crimes are Alabama presumptive guidelines offenses:

• Possession of a Controlled Substance (including attempt, conspiracy, and solicitation) 

• Possession of Marijuana in the First Degree (including attempt, conspiracy, and solicitation) 

• Manufacturing Controlled Substance (including attempt, conspiracy, and solicitation) 

• Distribution of a Controlled Substance and Marijuana (including attempt, conspiracy, and solicitation) 

• Possession with Intent to Distribute (including attempt, conspiracy, and solicitation) 

• Felony DUI

• Distribution of Marihuana

• Distribution of controlled substance

Gadsden lawyer Dani V. Bone is an aggressive criminal defense lawyer that opened his law practice in 1997.  Sam D. Bone was named a top 40 lawyer under 40 by the National Trial Lawyer's Association in 2015.  If you need quality representation, call 256-547-1005.

    The following property offenses are Alabama presumptive guidelines offenses:

• Forgery (all degrees)

• Possession of Forged Instrument (all degrees)

• Theft (all kinds and all degrees)

• Receiving Stolen Property (all degrees)

• Possession/Use of a Credit/Debit Card

• Unauthorized Use/Breaking and Entering Vehicle

• Burglary 3rd if an unoccupied business (all other kinds are voluntary)

• Unauthorized breaking and entering a vehicle

• Theft of services

Gadsden lawyer Dani V. Bone is an aggressive criminal defense lawyer that opened his law practice in 1997.  Sam D. Bone was named a top 40 lawyer under 40 by the National Trial Lawyer's Association in 2015.  If you need quality representation, call 256-547-1005.

The following offenses are voluntary guidelines offenses:

• Assault 2nd
• Robbery 3rd
• Assault 1st
• Rape 2nd
• Sodomy 2nd
• Robbery 2nd
• Rape 1st
• Sodomy 1st
• Manslaughter 
• Robbery 1st
• Murder

Gadsden lawyer Dani V. Bone is an aggressive criminal defense lawyer that opened his law practice in 1997.  Sam D. Bone was named a top 40 lawyer under 40 by the National Trial Lawyer's Association in 2015.  If you need quality representation, call 256-547-1005.

What is cash bond in Alabama?

What is a bond in Alabama?

First off, let's explain what bond or bail is.  A bond is used as a form of guarantee, or promise. Basically, the money serves as a guarantee that a suspected criminal will show up for a court hearing. Similarly, a contractor might pay a bond to guarantee he will complete a project in accordance with his contract. Each type of bond requires some type of backing, or collateral, which generally comes in the form of cash. This cash may be provided by an individual or by a bondsman, which acts on behalf of individuals.

Overview of Cash and Surety Bonds

The biggest difference between a surety and cash bond is that a surety bond involves three parties, while a cash bond involves only two parties. Consider a bail bond of $100,000 as an example. With a cash bail bond, the defendant or one of his family members pays the entire $100,000 in cash to the court or jail. When the defendant shows up for court, he gets his $100,000 back, less any fines, courts costs, fees etc. charged by the court.

With a surety bond, the defendant hires a bondsman to pay the bail money. In exchange for putting out the $100,000, the surety company charges a fee to the defendant, usually around 10 percent of the bail. When the defendant shows up for court, the bail company gets the $100,000 back from the courts. The bondsman makes his money by scraping the 10%. 

What is a cash bond?

Cash bonds are relatively simple and easy to understand. The defendant simply puts up the cash and gets released pending the trial. He gets the majority of his money back afterward, less minor court costs and fees. There is no need to contact a surety company or attempt to qualify for a bond.

What types of cases have a cash bond?

In Etowah County, the District Attorney's office will generally immediately put a cash bond on the following cases:

• Trafficking
• Murder
• Sex Cases
• Drug Cases that involve a weapon

Disadvantages of Cash Bonds

The biggest disadvantage of a cash bond is the need to come up with a large amount of cash. Many people don't have access to large quantities of cash, which could leave them stuck in jail pending a trial. In our county, a cash bond is basically a no bond.  I have only had one client pay a $10,000 or more cash bond. 

The State uses cash bonds as a way of complying with the Rules of Criminal Procedure but still guaranteeing that you stay in jail. 

What can be done to change a cash bond to a surety bond?

First, you need to get an attorney.  The quicker you get your attorney involved the better possibility of changing the bond.  If I am hired, I immediately do two things: 1) File an entry of appearance in the case; 2) File a bond motion.  After I file those motions, I then speak to the District Attorney to see if they are willing to negotiate a bond. Often times, they may want to wait a bit of time to get all of the investigators' reports and interviews before they agree on anything.  If the DA does not agree, you will then have the opportunity to argue that the bond should be lowered in front of the District Judge.  

What will the judge take into account when deciding to change your bond in Alabama?

Rule 7.2(a) provides that Any defendant charged with an offense bailable as a matter of right may be released pending or during trial on his or her personal recognizance or on an appearance bond unless the court or magistrate determines that such a release will not reasonably assure the defendant’s appearance as required, or that the defendant’s being at large will pose a real and present danger to others or to the public at large. If such a determination is made, the court may impose the least onerous condition or conditions contained in Rule 7.3(b) that will reasonably assure the defendant’s appearance or that will eliminate or minimize the risk of harm to others or to the public at large. In making such a determination, the court may take into account the following:

1. The age, background and family ties, relationships and circumstances of the defendant.

2. The defendant’s reputation, character, and health.

3. The defendant’s prior criminal record, including prior releases on recognizance or on secured appearance bonds, and other pending cases.

4. The identity of responsible members of the community who will vouch for the defendant’s reliability.

5. Violence or lack of violence in the alleged commission of the offense.

6. The nature of the offense charged, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance.

7. The type of weapon used, e.g., knife, pistol, shotgun, sawed-off shotgun.

8. Threats made against victims and/or witnesses.

9. The value of property taken during the alleged commission of the offense.

10. Whether the property allegedly taken was recovered or not; damage or lack of damage to property allegedly taken.

11. Residence of the defendant, including consideration of real property ownership, and length of residence in his or her place of domicile.

12. In cases where the defendant is charged with a drug offense, evidence of selling or pusher activity should indicate a substantial increase in the amount of bond.

13. Consideration of the defendant’s employment status and history, the location of defendant’s employment, e.g., whether employed in the county where the alleged offense occurred, and the defendant’s financial condition.

14. Any enhancement statutes related to the charged offense.

What happens if the District Judge denies your bond motion? 

If the District Judge denies your bond motion, you are not without other options.  You can then file a civil suit called a Petition for Habeus Corpus.  

Petition for Habeus Corpus in Alabama

A writ of habeas corpus is used to bring a prisoner before the court to determine if the person's imprisonment or detention is lawful.  A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, the amount of bail, and the jurisdiction of the court.
As a fundamental instrument for safeguarding individual’s freedom against arbitrary and lawless state action, the writ of habeas corpus serves as a procedural device, by which executive, judicial, or other governmental restraints on personal liberty are subjected to judicial scrutiny.  

The purpose of the writ of habeas corpus is not to determine the guilt or innocence of a prisoner, but only to test the legality of a prisoner's current detention.  In other words, the writ of habeas corpus only functions to test jurisdictional defects that may invalidate the legal authority to detain the person, and the reviewing court only examines the power and authority of the governmental authority to detain the person, and does not review the correctness of the authorities’ conclusion to detain the person.
The Write of Habeus Corpus allows you to have a hearing in front of a new Circuit Court judge to determine your bond.

What happens if the Circuit Judge Denies your Habeus Petition to change your bond?

At that time, you can wait until after you are indicted, you will then have a new Circuit Judge to file a bond motion in front of. 

Rule 7.2(b) of the Alabama Rules of Criminal Procedure provides the recommended bail schedule.

Recommended Range Felonies:

• Capital felony $50,000 to No Bail Allowed
• Murder $15,000 to $ 150,000
• Class A felony $10,000 to $ 60,000
• Class B felony $ 5,000 to $ 30,000
• Class C felony $ 2,500 to $ 15,000
• Drug manufacturing and trafficking $ 5,000 to $1,500,000
• Class D felony $1,000 to $ 10,000

Misdemeanors (not included elsewhere in the schedule):

• Class A misdemeanor $ 300 to $ 6,000
• Class B misdemeanor $ 300* to $ 3,000
• Class C misdemeanor $ 300 to $ 1,000
• Violation $ 300 to $ 500
• Municipal Ordinance Violations $ 300 to $ 1,000
• Traffic-Related Offenses:
• DUI $ 1,000 to $ 7,500
• Reckless driving $ 300 to $ 1,000
• Speeding $ 300 to $ 500
• Other traffic violations $ 300 to $ 500

Advantages of Surety Bonds

The primary advantage of a surety bond is that the defendant does not have to come up with enough cash to cover the entire bond. He simply pays a small percentage to the bond company and may get part of this payment back. If he shows up for court, he has no cash at risk for things like fines and fees and can instead work out a payment plan based upon ability to pay. 

Disadvantages of Surety Bonds

Surety companies don't automatically grant bonds to anyone who asks. Instead, they require people to apply for the bond, then weigh the potential risks and returns before deciding to issue the bond. People that are high flight risks may not qualify. Particularly, if there is a likelihood that they could skip town and go back to Mexico. As a result, that company may charge more than 10%. Surety bonds also have a higher fee associated with them than cash bonds. For example, a defendant may have to pay a small fee to the court when using a cash bond, but he has to pay both court fees and surety company fees when using a surety bond. 

What can be done if my child's parent violates a visitation order in Alabama?

Steps you can do if the other party violates a custody order in Alabama

by Sam D. Bone, Gadsden Custody Attorney

Parents may violate a visitation order by keeping a child for too long or failing to pick up a child at the right time. You have many options to use if your court order is being violated. Here are a few options:

• Call the police: Call the police if you are unable to resolve the issues on your own. Most of the time, the police will not involve themselves in a child custody matter since it is a civil case instead of a criminal case.  However, you can often times at least ask for a police report or incident report to be filed.  This can show that you at least showed up for the exchange and gives you documentary proof.
• Get a receipt: If your exchange between the two of you is supposed to take place at Walmart or a gas station, then buy a drink at the store.  This will show documentary proof on your credit card and your receipt that you actually showed up for the visitation.  
• Seek Legal Assistance: Alert your attorney about the violations. Your attorney can send a letter notifying the other parent about legal penalties for not obeying the court order or if the case is ongoing they can contact the other party's attorney.  A lot of times the other attorney may have had a communication issue with their client and did not adequately explain the visitation order with their client.  They can sit down with their client and explain to them that they need to comply with the order.  This can fix things a lot of times.  Or, the attorneys can come up with a game plan to make up for the missed visitation by giving more visitation in exchange for the missed visitation. 
• File a Motion with the Court: You can file a motion for contempt of court if the other parent continues to violate the court order. You can also request attorney’s fees and other costs with this motion. Make sure you have good reason before you involve the court.  The court does not want to get involved with petty issues. However, if it is the right thing to do involving the court can help in modifying the other parent's behavior.

Violations of court orders can occur at any time throughout the custody and visitation process. Common infractions that result in contempt include non-payment of ordered child support or alimony, not following a court-approved visitation agreement and disregarding a court-ordered asset distribution.

I recommend that you hire an attorney for this process to make sure that it is done right.  

What is contempt of visitation or custody order in Alabama?

However, it is important to note the key phrases intentionally or willfully. To be found in contempt, it must be proven that the accused party:

1. Knew the order existed,
2. Had the ability to comply with the order but violated the conditions knowingly, and
3. Lacks just cause or excuse for the violation.

What is the punishment for not following a visitation order or custody order?

Disobeying a court child custody order may result in harsh consequences:

• Non-violating parents could petition the court for enforcement of the order.
• Violating parents may need to appear in court and explain why they violated the court order.
• The court could find the violating parent in contempt of court, which could lead to jail time.
• The violating parent could also lose custody rights previously granted by the court.