Elmore v. State
Decision Date | 20 May 1977 |
Citation | 348 So.2d 269 |
Parties | In re Dorothy Gray ELMORE v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General. SC 2096. |
Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, petitioner.
No brief for respondent.
Dorothy Gray Elmore was indicted, tried, and found guilty by a jury of driving while intoxicated. She appealed to the Court of Criminal Appeals which reversed the judgment of conviction. Elmore v. State, (decided March 30, 1976), Ala.Cr.App., 348 So.2d 265. We granted certiorari, and reversed and remanded, on a point unrelated to the one now presented. Elmore v. State (decided July 9, 1976), Ala., 348 So.2d 264.
On remandment, the Court of Criminal Appeals again reversed the judgment of conviction, on the following two grounds:
I. The motion to exclude the State's evidence should have been granted because the evidence was clear and unequivocal that no police officer saw petitioner operating an automobile while intoxicated upon a public highway.
II. The failure of the prosecution to lay a proper predicate for the admission into evidence of the results of the chemical test for intoxication.
The first issue presented is whether the evidence supports the inference that Elmore was driving on a public highway while intoxicated.
In its opinion, the Court of Criminal Appeals recounted the State's evidence, as follows:
As stated previously, the Court of Criminal Appeals held that since no officer saw petitioner operating an automobile upon a public highway on the date she was arrested, the petitioner's motion to exclude should have been granted. The actual holding of the Court of Criminal Appeals is as follows:
"The evidence is clear and unequivocal that no officer saw appellant operating an automobile upon a public highway in Mobile County on the date that she was arrested and therefore, the motion to exclude should have been granted." (Emphasis added.)
Cf. Davis v. State, 27 Ala.App. 551, 176 So. 379 (1937), wherein the Court of Appeals stated:
"It is true that no witness testified to seeing the defendant take a drink of whisky or any narcotic drugs, but there is testimony for the State tending to prove that at the time of the accident, which fixed the time of the prosecution, the defendant was under the influence of whisky; and the inferences to be drawn from that fact are: He was driving the automobile while in that condition. . . ." (Emphasis supplied.) 27 Ala.App. at 553, 176 So. at 381.
Likewise, in Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972), the defendant was convicted of manslaughter in the second degree as a result of an automobile collision. In outlining the evidence which tended to prove defendant's guilt, the Court of Criminal Appeals held that there was evidence appearing in the record from which the jury could reasonably infer that defendant was doing an unlawful act, i.e., driving under the influence of intoxicating liquors. The appellate court made this inference in spite of the fact that the State had no witness who testified to seeing the defendant driving. In addition, the officer testified that he arrived at the scene of the collision some fifteen minutes after the fatal accident. Admittedly, in Ayers, the defendant was "effectively trapped" in his automobile, whereas, in this case, petitioner was not trapped but was seated behind the steering wheel, but this is a distinction without a difference. Notwithstanding this factual distinction between this case and Ayers, we are of the opinion that the inferences drawn from Ayers are analogous to the case at bar.
Furthermore, we do not consider it likely that the defendant here could have had access to any significant amount of alcohol during this extremely brief period before Deputies McCormick and McAfee arrived. Montgomery v. State, 44 Ala.App. 129, 203 So.2d 695 (1967). Gamble v. State, 36 Ala.App. 581, 60 So.2d 696 (1952), is not factually controlling in this instance. Thus, we hold the Court of Criminal Appeals erred in its resolution of issue I.
As to the second issue, we consider the Court of Criminal Appeals ruled correctly and properly applied the rule announced in Patton v. City of Decatur, Ala., 337 So.2d 321.
The judgment of the Court of Criminal Appeals is therefore affirmed in part, reversed in part, and remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
I concur in Part I of the opinion, except I do not think that Gamble v. State, 36 Ala.App. 581, 60 So.2d 696 (1952), cited by the Court of Criminal Appeals, and also referred to and distinguished by the majority of this Court in Part I, is sound law. I believe that Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972), also cited by the majority, states the better rule, that is, that a driver's drunken condition after an automobile accident can be a fact from which the jury would infer that he was driving the automobile while in that condition.
As to Part II of the majority opinion, I respectfully dissent. The majority holds that before a chemical test for intoxication can be admitted into evidence, the state must introduce into evidence a duly certified and authenticated copy of the Rules and Regulations promulgated by the State Board of Health. The majority states that the Court of Criminal Appeals ruled correctly and properly applied the rule announced in Patton v. City of Decatur, 337 So.2d 321 (Ala. 1976). As I understand Patton, it holds that in a prosecution for driving while intoxicated, the trial court erred in admitting into evidence the result of a photoelectric intoximeter test where it was not shown that the duly adopted methods or regulations of the State Board of Health were followed in administering the test.
In Patton, this Court said:
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