Article reprinted with permission THE HUNTSVILLE TIMES LIBRARY 03/21/93 Local Attorney Builds Reputation Taking DUI Cases

BY: DALE JAMES Times Life Writer

First one tire crosses the center line. Then two. Slowly, the car veers back into the proper lane.

Officer Tim Evans of the Huntsville Police Department's DUI Task Force falls in behind the suspect driver but does not immediately stop him.

"If I was to pull him over now," Evans explains, "Phil would be all over me. I've got to have probable cause that will stand up in court."

"Phil" is Phillip B. Price Sr., a Huntsville attorney with a growing reputation for expertise in defending DUI cases. Most recently, that reputation earned him an invitation to address the National DUI Defense seminar in Las Vegas.

It also has earned him the grudging respect of the DUI Task Force officers who must face him in court.

"You better believe Phil has studied up on his stuff," advises Evans. "So you better know your stuff, or he's just going to make you look bad up there."

A neatly bearded man whose smile underscores the point he is making, Price says, "I call myself a criminal defense lawyer primarily, with a special emphasis on defending cases that have to do with DUI." Price dates his interest in such cases to 1983, when Alabama law was changed to make revocation and suspension of drivers license mandatory upon conviction for driving under the influence.

"My opinion at the time was that, because of those changes, there would be a great increase in litigation," recalls Price. Pause. Smile. "And there was."

DUI is a misdemeanor offense in Alabama, but the penalties can be steep. First-time offenders face a 30-day jail sentence, usually suspended for 6 months to one year; a 90-day license suspension; a fine of from $250 to $1,000; and attendance at a highway intoxication seminar.

Second-time offenders face a mandatory 48 hours in jail; a one-year license suspension; a fine of from $500 to $2,500; and attendance at a level II highway intoxication program.

Add to that attorney's fees if you choose to plead not guilty, and costs go even higher.

Current Alabama law states that anyone with a blood-alcohol level of 0.10 percent or higher is considered legally drunk. There is growing momentum in the Legislature to lower the level to 0.08 percent.

"If they do," Price predicts, "it's going to mean even more litigation."

When defending a DUI case, Price looks at four specific areas. The first is probable cause. Just as police must have probable cause before searching a person, so they must have probable cause before pulling motorists over on suspicion of driving under the influence. In most instances, probable cause involves some traffic violation … speeding, weaving or the like.

Blood-alcohol level is determined most often by breath-analysis test. Because drivers may legally refuse to take the test (those who do face a mandatory suspension of their license), police must remain alert for other signs that indicate a driver may be intoxicated. It's known as building a case.

Once a driver has been stopped, the officer begins building his case by simple observation. Does the driver smell of alcohol? Are his eyes bloodshot? Does he slur his words?

Such observation, naturally, is subjective. And in Price's eyes, that suggests the possibility of differences of opinion. "Someone … I think it was Lincoln … once said that there are two sides to every case," he points out. "If there wasn't, there wouldn't be any need for litigation."

Price maintains files of the arrest reports made by each member of the DUI Task Force. He pulls one and reads from half a dozen reports at random. In each case, the officer describes the suspect as appearing to stumble upon stepping out of his car. And in each case, the exact same language is used.

Six different cases, six different drivers allegedly behaving in exactly the same manner.

Raising a questioning eyebrow, Price says, "You can draw your own conclusions from that." Pause. Smile. Then an ominous, "Veracity is always an issue."

The second area Price looks at in defending DUI cases is that of field sobriety tests.

Those include such things as reciting the A-B-Cs, counting backwards from, say, 79 to 52, or walking a straight line. All simple enough tasks for any sober person, all calculated to trip up anyone whose mind may be befuddled by alcohol.

An officer may also ask the driver to take a field breath test. The device used to administer such tests is known as an Alco-sensor. It's not considered a precision instrument and is not admissible in court.

"It's an arrest meter, that's all it is," says Price. "If it reads red, you're going in."

The third area Price looks at is breath-testing.

Huntsville police use an Intoxilyzer 5000 to administer the breath test that is submitted as evidence in court. Price is intimately acquainted with the workings of the Intoxilyzer 5000. He owns one. And he uses that knowledge to call into question the reliability of such tests. He particularly questions the process used to calibrate the machine between cases and the use of but a single test, subject as it is to line-voltage fluctuations and a host of other Murphy's Law possibilities.

Argues Price, "The integrity of a single breath test to determine the level of alcohol in the blood is suspect at best. Good science dictates a minimum of two tests on the unknown before drawing any reliable conclusions."

He has even been known to try and plant a reasonable doubt in the minds of jurors by demonstrating that it is possible to register a blood-alcohol reading of as high as 0.46 … a level that would leave most people comatose … on an Intoxilyzer 5000 just by swishing alcohol in his mouth before blowing into the machine.

"Phil can work wonders with a jury," concedes Evans.

The fourth area Price looks at is whether or not video has been used to document his client's arrest.

Huntsville's DUI Task Force currently does not use video cameras. In cities where video is used, conviction rates for DUI offenses often increase. But Price points out that the use of cameras can have a quite different effect.

"In cities where they've went to videos," he says, "slurring of speech was cited as cause for arrest in virtually every case before police started using videos. After they started using videos, there has been as much as a 75 percent decrease in the number of people arrested for DUI who were said to have slurred speech."

Pause. Smile. "That speaks for itself."

For all his expertise, however, Price readily acknowledges that the best defense against a charge of DUI is still not to drink and drive in the first place.

"I have had numerous cases," he sighs, "where people have come in and I just had to tell them, 'There's nothing I can do for you.' "