Curtis v. City of Sheffield, 8 Div. 385

• Decision Date: 15 July 1986
• Docket Number: 8 Div. 385
• Citation: 502 So.2d 829
• Parties: James Lee CURTIS v. CITY OF SHEFFIELD.
• Court: Alabama Court of Criminal Appeals

Page 829

502 So.2d 829

James Lee CURTIS v. CITY OF SHEFFIELD.

8 Div. 385.

Court of Criminal Appeals of Alabama.

July 15, 1986.

Rehearing Denied Aug. 12, 1986.

Bryce U. Graham, Tuscumbia, for appellant.

B.T. Gardner, Jr., Florence, for appellee.

McMILLAN, Judge.

This appeal follows the conviction of the appellant, James Lee Curtis, for the offense of driving under the influence of alcohol (D.U.I.) in violation of § 32-5A-191, Code of Alabama (1975). For the reasons given below, the decision of the trial court is hereby affirmed.

On September 24, 1984, Officer Randy Evans of the Sheffield Police Department was on routine patrol. He testified that on that night he twice observed the appellant cross the yellow line of a road while operating his vehicle. Officer Evans stopped the appellant and smelled the "odor of alcohol" on the appellant's breath and noticed that his "eyes were red," and that his "speech was slurred." Officer Evans testified that he "felt like [appellant] was under the influence ... [of] alcohol" and therefore placed him under arrest. After being advised of his "implied consent" rights, appellant voluntarily agreed to take a Photo-Electric Intoximeter (P.E.I.) test to determine whether he was under the influence of alcohol. The P.E.I. test, administered by Officer Evans, indicated that the appellant was under the influence; subsequently, the appellant was charged with D.U.I. Further, the appellant testified that he had been drinking bourbon and Coke the evening of his arrest.

The signature on the traffic ticket and complaint which cited the appellant with the offense of D.U.I. was identified as that of Officer Evans and verified by "Polly Lindsey, Clerk." Polly Lindsey was later identified by Officer Evans's testimony as the "court clerk."

Officer Leroy DeMorse, the custodian of the P.E.I. records, testified that the P.E.I. machine is used "during the ordinary course of business" and the records contain the P.E.I. log of entries of test results and any relevant information regarding the operation of the machine. At trial, Officer DeMorse testified on the substance of various log entries, although the P.E.I. log was never admitted as evidence; counsel for the appellant examined the log during this testimony.

I.

Appellant contends that the trial court did not have proper jurisdiction of this case because the record did not contain a sworn complaint of the D.U.I. citation as a basis for this criminal action against the appellant. However, the appellant's claim is without merit. The record contains a copy of the D.U.I. citation issued by Officer Evans to the appellant. Thus, the court did have proper jurisdiction to try, convict, and sentence the appellant.

II.

The appellant next contends that it is reversible error to prosecute and convict the appellant on a sworn complaint or affidavit of the arresting officer in the form of an Alabama Uniform Traffic Ticket, where the verifying signature on the complaint reads "Polly Lindsey, Clerk." The appellant alleges that the verification is legally insufficient under the standard established by Reach v. Quinn, 159 Ala. 340, 48 So. 540 (1909); Ex parte Dison, 469 So.2d 662 (Ala.1984); and Cherry v. State, 491 So.2d 1001 (Ala.Cr.App.1985). This standard requires not only that the proper public officer sign the complaint, but further, that his official title be included "to justify the officer in executing it." Reach v. Quinn, supra, 48 So. at 541. The appellant contends that "Polly Lindsey, Clerk" does not satisfy this standard. However, this standard was recently abandoned in this jurisdiction by our Supreme Court's decision in Ex parte State: re Cherry v. State, 491 So.2d 1003 (Ala.1986), which reversed the holding in Cherry v. State, supra and opted for "the general rule" which "takes better account of the procedural avenues available to our courts (specifically the doctrine of judicial notice) and reaches a result which is more logical and practical than that which would be reached by applying the reasoning from Reach." Ex parte State: re Cherry v. State, 491 So.2d 1003. This "general rule allows a court to take judicial notice of the official capacity of the signer of a document, even though the title does not appear on the face of the document, and thus recognizes the document's validity even without the official's title being stated thereon." Ibid. This case, however, does not relax the requirement that a proper designated official's signature must appear on the complaint or affidavit for it to be verified.

Therefore, in order for "Polly Lindsey, Clerk" to be sufficient verification, Polly Lindsey must be a proper, designated official for the purpose of acknowledging that the statement has been taken from the affiant or arresting officer under oath. Rule 18, subd. II(B), Alabama Rules of Judicial Administration, provides the following:

"(B) Municipal Court Magistrate Agency Division

"(1) The municipal court magistrates agency division shall be composed of magistrates selected as follows:

"(a) All clerks of municipal courts. ..." (Emphasis added.)

The legislative intent of Rule 18, subd. II(B) establishes that all municipal court clerks are magistrates as a matter of law. Opinion of the Clerk No. 27, 386 So.2d 210, 212 (Ala.1980); Section 12-14-51(c), Code of Alabama (1975). Furthermore, Rule 18, subd. II(B)(2)(a) has empowered the municipal court magistrates to issue arrest warrants. Opinion of the Clerk No. 27, 386 So.2d 210, 212 (Ala.1980). In the present case, Officer Evans swore to the complaint under oath administered and acknowledged by the court clerk; thus, the complaint was properly verified.

III.

Last, appellant contends that evidence concerning the P.E.I. test results and other information regarding the testing was not properly admitted as evidence. At trial, Officer DeMorse testified to the substantive information contained in the P.E.I. log and the Rules and Regulations of the State Board of Health, without the documents ever being admitted as evidence; he also testified that he had been approved to administer the test, but his certification card was never admitted as evidence.

Evidence of the amount of alcohol found in a person's blood, breath, or urine is admissible under § 32-5A-194, Code of Alabama (1975).

"A proper predicate must be laid for the admissibility of such evidence, however. [Citation omitted.] This predicate must be established by showing, first, that the law enforcement agency has adopted the particular form of testing that was in fact used. Alabama Code 1975, § 32-5A-192(a). [Citation omitted.] Second, there must be a showing that the test was performed according to methods approved by the State Board of Health. Alabama Code 1975, § 32-5A-194(a)(1). [Citation omitted.] This may be proved by the introduction of the rules and regulations the officer followed while administering the test and the officer's testimony that he did, in fact, follow those rules when he administered the test in question. [Citations omitted.] Third, there must be a showing that the person administering the test has a valid permit issued by the State Board of Health for that purpose. Alabama Code 1975 § 32-5A-194(a)(1)." Ex parte Bush, 474 So.2d 168, 170 (Ala.1985).

The P.E.I. logbook may be admitted as evidence under the business record exception to hearsay as long as a proper foundation is laid. Ex parte Bush, supra at 170; Parker v. State, 397 So.2d 199, 202 (Ala.Cr.App.), cert. denied, 397 So.2d 203 (Ala.1981); Bagony v. City of Birmingham, 365 So.2d 336, 338-39 (Ala.Cr.App.1978). In the present case, the P.E.I. logbook was never admitted as evidence; however, Officer DeMorse testified that the entries in the logbook were made in the regular course of business and that test results were recorded during the ordinary course of business; this testimony laid the proper predicate for admissibility of the logbook as a business record. Ex parte Bush, supra, at 171. Additionally, the rules and procedures issued by the State Board of Health to be followed by police officers in administering the P.E.I. test are admissible, Parker v. State, supra, at 202. However, these rules were never admitted as evidence in the present case. Officer Evans testified that the test given was the standard test of the Sheffield Police Department and was approved by the State Board of Health. Finally, a valid certification card is admissible as evidence that an officer was approved to operate the P.E.I. machine when the test was given. Harper v. City of Troy, 467 So.2d 269, 171 (Ala.Cr.App.1985). Although Officer Evans's certification card was never admitted into evidence, it was available for inspection at trial, just as the P.E.I. logbook and the rules and procedures for the P.E.I. testing were available.

Although this documentary evidence was admissible...