Britton v. State

• Decision Date: 30 September 1993
• Docket Number: CR-92-0483
• Citation: 631 So.2d 1073
• Parties: William David BRITTON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1073

631 So.2d 1073

William David BRITTON, Jr. v. STATE.

CR-92-0483.

Court of Criminal Appeals of Alabama.

Sept. 30, 1993.

Rehearing Denied Dec. 3, 1993.

Certiorari Denied Feb. 4, 1994

Alabama Supreme Court 1930351.

Ralph E. Slate, Decatur, for appellant.

James H. Evans, Atty. Gen., and Joseph Marston III, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, William David Britton, Jr., was convicted of murder and was sentenced to 20 years' imprisonment.

The state's evidence tended to show the following. On February 12, 1990, about 4:30 p.m., the appellant was driving a pickup truck north on U.S. Highway 31 in Flint City in Morgan County when his truck crossed the southbound lane and struck and killed 11-year-old Anthony Conner, who was riding a bicycle on the shoulder of the highway. There were no other vehicles in the area at the time of the incident. A non consensual blood alcohol test showed that the appellant was intoxicated at the time of the accident, having between .129 percent and .189 percent by weight of alcohol in his blood. According to witnesses, the appellant's truck was traveling between 60 and 80 miles per hour in a 30 miles-per-hour zone. The appellant's application of his truck's brakes left skid marks at the scene of the accident curving to the left for a distance of 148 feet. The appellant refused to take a breath test for blood alcohol content at the time of the accident.

The appellant testified that he had consumed two and one-half beers before the accident and that, at the time, his truck was traveling 50 miles per hour in a 30 mile-per-hour zone. He further testified that, as he approached the point where the accident occurred, he was faced with a pickup truck traveling south in his northbound lane and that to avoid the truck, he "swerved" his truck to the right and back to the left, crossing the highway in front of the oncoming vehicle and running off the road into a ditch. He said that at no time did he see the victim or anybody on a bicycle and that he did not know that his truck had struck the victim and did not think that he had. He was arrested at the scene of the accident and charged with driving under the influence. He appeals, raising four issues.

I.

The appellant contends that the trial court committed reversible error in overruling his objection to the introduction of the result of a blood alcohol test taken over his objection while he was in custody. In support of his contention, he relies on the Alabama Implied Consent Act, § 32-5-192, Code of Alabama 1975, and Thrower v. State, 539 So.2d 1127 (Ala.Cr.App.1988), in which this court held that, if the state attempts to proceed under § 32-5-192, the police could not force the defendant to submit to a chemical test to determine his blood alcohol level over his objection and refusal to submit. The state contends, inter alia, that the results of the blood test were admissible under Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and that the Implied Consent Act is not the exclusive method for obtaining blood samples and admitting evidence of blood alcohol content. Schmerber held that a state could force a defendant to submit to a blood test to determine the level of alcohol in his blood without violating the defendant's Fifth Amendment right against self-incrimination, his right to due process, and his Fourth Amendment right to be free from any unreasonable search and seizure.

In this case, the appellant was arrested at the scene of the accident and was transported to the Morgan County jail. Immediately upon arriving at the jail, he was advised of the Implied Consent Act and was asked to submit to a breath alcohol test. He refused. The record reflects that, after his refusal, the chief of police of Flint City obtained a court order from the municipal court ordering the taking of a blood sample from the appellant. The appellant was taken to Decatur General Hospital, where a blood sample was taken by hospital personnel without his consent. His counsel was present at the time; he examined the court order; and he objected to the procedure on behalf of the appellant. After analysis, the blood test results indicated .089 percent by weight of alcohol in the appellant's blood. The blood sample was taken approximately four hours after the accident. An expert on the rate of absorption of alcohol in the human body, testifying for the state, stated that, in his opinion, if the appellant had .089 percent blood alcohol content approximately four hours after the accident, his blood alcohol content would have been between .129 percent and .189 percent four hours earlier, i.e., at the time of the accident. The appellant moved unsuccessfully before trial to suppress the blood test results, objected to the introduction of the evidence at trial, and raised the issue in his motion for a new trial.

In 1969, three years after the United States Supreme Court's decision in Schmerber v. California, the Alabama legislature enacted the Implied Consent Act, § 32-5-192, Act. No. 699, Ala.Acts 1969. The Act remedied many of the problems encountered in laying a foundation for the admission into evidence of intoxication test results, at least where the litigation arose from the operation of a motor vehicle. McGough v. Slaughter, 395 So.2d 972 (Ala.1981). "A party offering results from tests shown to be given in conformity with the statute is relieved of the burden of laying the extensive predicate generally necessary for admission of scientific test results." Id. at 975. However, strict compliance with the statute is required for the results of the tests made pursuant to the statute to be admissible. Id.

Compliance with the Implied Consent Act is not the exclusive means for admitting evidence of blood alcohol test results. Ex parte Love, 513 So.2d 24 (Ala.1987); Russo v. State, 610 So.2d 1206 (Ala.Cr.App.1992). "[I]f a party wishes to have the results of a blood alcohol test admitted into evidence he has two choices; either he must show that the tests were taken in conformity with § 32-5-19, or he must lay the proper foundation for their admission under general evidence principles." Whetstone v. State, 407 So.2d 854, 857 (Ala.Cr.App.1981).

We conclude that the authorities in this case did not proceed under § 32-5-192. They attempted to do so, but when the appellant refused to consent to the breath test, they obtained a court order from the municipal court, ordering that a blood sample be taken, and proceeded pursuant to that court order. This alternative procedure did not violate the appellant's Fourth Amendment rights. See Schmerber. Thus, contrary to the appellant's contention, § 32-5-192 does not apply here, and it is upon this fact that Thrower v. State is distinguishable from this case. If the evidence had been admitted under the Implied Consent Act, Thrower would be relevant, but the evidence here was neither obtained nor admitted pursuant to the Act.

We collaterally note that because the state did not proceed under the Act, it was incumbent upon it to lay a proper foundation for the admission of the appellant's blood alcohol test result under general evidentiary principles. This requirement was satisfied by stipulation. The appellant stipulated that the state did not have to prove the procedures followed in taking the blood, the chain of custody, and the testing procedures. The appellant also stipulated that the result could be admitted without the testimony of the person who performed the test.

The appellant further contends that the municipal judge did not have the authority to issue the order for the taking of the blood sample. We do not agree. Rule 16.2(b)(6), A.R.Cr.P., provides as follows:

"Upon motion of the state/municipality and solely in connection with the particular offense with which the defendant is charged, the court shall order the defendant to:

"....

"(6) Permit the taking of samples of defendant's ... blood....

"....

"The defendant shall be entitled to the presence of counsel at the taking of such evidence. This section shall supplement and not limit any other procedures established by law."

Rule 1.4(g) defines "criminal court" as "any court of the State of Alabama or any political subdivision thereof with trial jurisdiction over an offense, as defined in Rule 1.4(s)." Rule 1.4(s) defines "offense" as "conduct for which a sentence to a term of imprisonment, or the death penalty, or for which a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state." Rule 1.1 provides: "These rules shall govern the practice of procedure in all criminal proceedings in all courts of the State of Alabama, and political subdivisions thereof, except as otherwise provided by court rule."

Clearly, the municipal court of Flint City had the authority to issue the order, because at the time the order was issued, the appellant was under arrest for driving while intoxicated, a municipal offense. While the municipal court order is not in the record and apparently was not introduced, its absence does not prevent us from addressing this issue. The appellant does not question the sufficiency of the order, he questions only the authority of the municipal court to issue it.

For the above reasons, we hold that the trial court properly admitted the result of the blood alcohol test into evidence.

II.

The appellant contends that error occurred when statements made by him were admitted into evidence without proof of compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and without proof that the statements were voluntary. He refers in his brief to statements made by him at the scene of the accident to Chief of Police Charles Zanda and to Officer Michael Anthony Putman and to Councilman Carl Cowart while he was being transported to the Morgan County jail. He does not set out the specific statements in his...