Adams v. State

• Decision Date: 21 September 1990
• Docket Number: 3 Div. 357
• Parties: Beverly ADAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 156

585 So.2d 156

Beverly ADAMS v. STATE.

3 Div. 357.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Nov. 30, 1990.

H. Lewis Gillis, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of improper lane usage and driving under the influence in Montgomery County Court. She was fined $20 on the improper lane usage charge and given a three months' suspended sentence in county jail and placed on unsupervised probation for one year on the driving under the influence charge. She was further ordered to complete DUI school.

I

The appellant argues that, because the citation which she was originally issued by the police officer, charged her with driving under the influence of alcohol and controlled substances, it materially varied from the evidence presented at trial, which only proved driving under the influence of alcohol. The appellant further contends that this citation should not have been amended in the complaint filed in circuit court without her consent; however, there was no amendment. Nerud v. City of Mountain Brook, 517 So.2d 652 (Ala.Cr.App.1987).

The record indicates that the circuit court complaint properly charged that the appellant:

"[D]id drive or was in actual physical control of the vehicle while there was .09 percent or more by weight of alcohol in her blood, or while she was under the influence of alcohol, or while she was under the influence of a controlled substance to a degree which rendered her incapable of safely driving, or while she was under the combined influence of alcohol and a controlled substance to a degree which rendered her incapable of safely driving, or while she was under the influence of any substance which impaired her mental or physical faculties to a degree which rendered her incapable of safely driving, in violation of Section 32-5A-191(a) of the Code of Alabama 1975 as amended".

However, the original citation, which the appellant alleges contained the erroneous charge, is not included in the record for our review. "The burden is on the appellant to make sure the record is correct and complete." Sanders v. City of Birmingham, 542 So.2d 325, 327 (Ala.Cr.App.1988). Furthermore, this issue was not preserved for review by proper objection. Vance v. City of Hoover, 565 So.2d 1251 (Ala.Cr.App.1990). Therefore, this issue is waived.

II

The appellant alleges that she should not be held liable for the commission of a traffic offense which resulted directly from her obeyance of the order and directions of a state trooper. Specifically, the appellant argues that when the trooper stopped at the appellant's vehicle to investigate or to see if he could render any assistance, and found the appellant asleep, his order made to her to move the car resulted in her being arrested for DUI. The appellant argues that § 32-5A-4, Code of Alabama (1975), makes it clear that no person shall wilfully fail or refuse to comply with any lawful order or direction of any police officer who has lawful authority to direct, control or regulate traffic. Therefore, if she had failed to obey his order, she would have violated that statute.

The record indicates that, on the night in question at approximately 7:40 p.m., a state trooper observed a vehicle parked just off of I-85 Highway, headed south. The state trooper stopped in order to determine whether he could render assistance and, he further testified, to determine "what was going on", because the vehicle was parked there and the windows were rolled down. The trooper testified that, when he approached the vehicle, he observed the defendant lying in the vehicle, with her head on the passenger's side and her feet on the driver's side. He further testified that her skirt was pulled up, so that the lower part of her body was revealed. He testified that he walked around to the passenger's side of the vehicle and "beat on the window to get her attention." He testified that she "finally started moving" and that "by shining the light in her face, then I [the trooper] got her attention." The trooper then advised her that her car did not "need to be here" and that she "need[ed] to go on." The trooper then returned to his vehicle and next observed her driving into traffic. He further testified that he then "saw all the traffic in front of me just like stopping." He subsequently determined the reason to be that the appellant's vehicle was weaving from one lane to the next and the cars "had diverted action to avoid her." The trooper testified that he pulled her over, approached her car, and asked if she had been drinking. He testified that he could detect the odor of alcohol from her breath and he asked her to step out of her vehicle. Furthermore, she was unsteady on her feet and she failed the alco-sensor test and field sobriety test which the trooper administered to her. The appellant was then arrested for DUI and issued a citation for improper lane usage. She was transported to jail where she was administered the Intoxilyzer 5000 test. She registered .091 percent of alcohol in her blood. The trooper then interviewed the appellant, who testified that she had drank three Margaritas and taken some medication before she began driving home. She stated that she felt she could not safely operate the vehicle, therefore she pulled off the road. She admitted to the trooper that she had been driving under the influence at the time she was stopped.

Because all of the State's evidence tending to prove the appellant's guilt of DUI and improper lane usage was derived after she was ordered back on the highway, this cause is due to be reversed. A person cannot be arrested or convicted for committing an offense which she was ordered, by an officer with lawful authority, to commit. See Brown v. State, 38 Ala.App. 312, 82 So.2d 806 (1955) (An intoxicated passenger in a private vehicle may not be ordered out of the vehicle and onto the highway by a police officer and then convicted of appearing on a public highway while intoxicated.)

Thus, in People v. Jensen, 37 Ill.App.3d 1010, 347 N.E.2d 371 (1976), a defendant was convicted of driving a vehicle on a public highway while his license was suspended after he was observed by a forest ranger in a forest preserve, just prior to its closing time, who requested the defendant to remove his vehicle. In holding that the defendant should have been allowed to raise the defense of entrapment, the court stated:

"The evidence was sufficient to show the possibility of active inducement by the ranger. The ranger's request that the defendant move his vehicle was a strong inducement going beyond mere persuasion since the ranger was in uniform and acting under color of authority. Ill.Rev.Stat.1973, ch. 95 1/2, § 11-203 provides that 'no person shall wilfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control, or regulate traffic.' "

Id. 347 N.E.2d at 375.

In People v. Jensen, supra, as in the instant case, the authority's intent was not proven to have been to entrap the defendant. In People v. Jensen, there was evidence that the forest ranger did not know that the defendant's license was suspended until he subsequently stopped the defendant, who was driving while intoxicated. Clearly there is a strong public need for preventing drivers who are under the influence of alcohol or drugs from driving and endangering lives. ¹ Where the circumstances are such that a reasonable officer would suspect that a potential driver was under the influence, he should not order the driver back on the road. An officer who reasonably suspects an individual to be intoxicated or under the influence should not order him to drive. Many courts have condemned an officer's conduct in knowingly permitting an intoxicated person to drive, in order to secure a charge of driving under the influence or driving while intoxicated. See Parham v. State, 156 Tex.Crim. 578, 244 S.W.2d 809 (1952) ("Such a practice on the part of peace officers should not be condoned. To do so would endanger the safety of those upon the highway in order that an officer might establish a more serious case.") See also Turnham v. State, 491 S.W.2d 898, 900 (Tex.Cir.App.1973) Morrison, Judge (concurring) ("My brother Douglas cites Parham v. State, 156 Tex.Cir.R. 578, 244 S.W.2d 809, in footnote 1, supra, stating 'Years ago this Court stated that it did not condone such practice [of peace officers letting an intoxicated person get into a car and drive and then arrest him]'. I shudder to think that the majority is suggesting that the passage of years might dull a proposition so essentially sound.") See also State v. Zito, 11 Kan.App.2d 432, 724 P.2d 149, 151 (1986) ("[T]he better law enforcement practice would be to attempt to prevent an intoxicated person from driving".)

In the present case, the circumstances were such that a reasonable officer should have suspected that the appellant was under the influence. She was alone in a vehicle parked on the side of the highway at approximately 7:40 at night. Her body was twisted so that her torso was in the passenger's seat, her feet were in the driver's seat and her skirt was pulled up. The trooper testified that he had to beat on the window by her head and then shine his flashlight in her face before he could get her attention. Under these facts, intoxication by alcohol or drug usage was a strong possibility, see Beals v. State, 533 So.2d 717 (Ala.Cr.App...