Ex parte Boyd

• Decision Date: 06 April 2001
• Citation: Ex parte Boyd, 796 So.2d 1092 (Ala. 2001)
• Parties: Ex parte Lee BOYD. (Re Lee Boyd v. State of Alabama).
• Court: Alabama Supreme Court

796 So.2d 1092

Ex parte Lee BOYD.

(Re Lee Boyd v. State of Alabama).

1990740.

Supreme Court of Alabama.

April 6, 2001.

J. Brent Burney of Burney & Burney, Decatur, for petitioner.

Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for respondent.

WOODALL, Justice.

Lee Boyd was indicted for felony driving under the influence of alcohol in violation of § 32-5A-191(h),Ala.Code 1975.Two of the three prior convictions relied upon by the State to indict Boyd were more than five years old.Boyd filed a motion to dismiss the indictment, arguing that ActNo. 97-556, 1997 Ala. Acts 985, unconstitutionally removed the phrase "within a five-year period" from § 32-5A-191(h).The circuit court found that ActNo. 97-556 does not violate Ala. Const.1901, § 45.Therefore, the court denied Boyd's motion to dismiss, and he pled guilty, reserving the right to appeal the denial of his motion.On appeal, the Court of Criminal Appeals affirmed the circuit court.Boyd petitioned this Court for certiorari review.We granted his petition.

Boyd argues that the title of ActNo. 97-556 begins with a general statement that the proposed purpose of the Act is to make certain amendments to § 32-5A-191.The Act then expressly indexes four particular amendments to the statute dealing with the collection and disbursement of fines.The title does not mention the elimination of the five-year limitation period contained within § 32-5A-191(g) and (h).Boyd argues that because the title does not state a general purpose of amending § 32-5A-191, but instead lists particular proposed amendments to § 35-5A-191, the inclusion, within the body of the act, of changes regarding the elimination of the five-year limitation period, violates § 45 of the Constitution.

Section 45 states:

"The style of the laws of this state shall be: `Be it enacted by the legislature of Alabama,' which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures.Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length."

(Emphasis added.)

In Bagby Elevator & Electric Co. v. McBride,this Court stated the purpose of the provision:

"`The object of the constitutional provision has been held to be three fold, first, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, and in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire; second, truly to inform members of the legislature who are to vote upon the bill, what the subject of it is so that they may not perform that duty, deceived or ignorant of what they are doing; and third, to prevent the practice of embracing in one bill several distinct matters, none of which, perhaps could singly obtain the assent of the legislature, and then procuring its passage by a combination of the minorities in favor of each of the measures, into a majority that will adopt them all.Lindsay v. United States Savings & Loan Ass'n [Co.],120 Ala. 156, 24 So. 171, 42 L.R.A. 783;Walker v. Griffith,60 Ala. 361.'"

292 Ala. 191, 194, 291 So.2d 306, 308(1974)(quotingState v. Hester,260 Ala. 566, 72 So.2d 61(1954)).See alsoKnight v. West Alabama Envtl. Improvement Auth.,287 Ala. 15, 246 So.2d 903(1971);Opinion of the Justices No. 215,294 Ala. 555, 319 So.2d 682(1975).

When deciding whether an act violates § 45, this Court

"`is committed to the principle that this requirement as to clear expression of the subject of a bill in the title is not to be exactingly enforced in such a manner and to cripple legislation, or is it to be enforced with hypercritical exactness, but is to be accorded a liberal interpretation.'"

Knight,287 Ala. at 22, 246 So.2d at 908, quotingOpinion of the Justices No. 174,275 Ala. 254, 257, 154 So.2d 12, 15(1963).

It is well established that this Court should be very reluctant to hold any act unconstitutional.

"Another guiding principle of particular importance is that courts seek to sustain, not strike down, the enactments of a coordinate department of government.Every legislative act is presumed to be constitutional and every intendment is in favor of its validity."

Wilkins v. Woolf,281 Ala. 693, 697, 208 So.2d 74, 78(1968)(overruled on other grounds, Tanner v. Tuscaloosa County Comm'n,594 So.2d 1207(Ala.1992)).

The title to the Actsub judice states:

"AN ACT

"To amend Section 32-5A-191 of the Code of Alabama 1975, as last amended by ActNo. 96-705, S. 182, 1996 Regular Session, relating to driving under the influence of alcohol and drugs and fines on convictions therefor, to further provide for the $100 fine for distribution to the Impaired Drivers Trust Fund, after administrative costs; to further provide for the collection and distribution process of certain funds to the Impaired Drivers Trust Fund presently specified in Section 32-5A-191.1 and to repeal Section 32-5A-191.1,Code of Alabama 1975, relating to the fines designated for the Impaired Drivers Trust Fund; and to provide for a delayed effective date."

The body of ActNo. 97-556 states:

"Be It Enacted by the Legislature of Alabama:

"Section 1.Section 32-5A-191 of the code of Alabama 1975, as amended byActNo. 96-705, S. 182 of the 1996 Regular Session, is amended to read as follows:

"`§ 32-5A-191.

"`(a) A person shall not drive or be in actual physical control of any vehicle while:

"`(1) There is 0.08 percent or more by weight of alcohol in his or her blood;

"`(2) Under the influence of alcohol;

"`(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;

"`(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or

"`(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.

"`(b) A person who is under the age of 21 years shall not drive or be in actual physical control of any vehicle if there is.02 percentage or more by weight of alcohol in his or her blood.The Department of Public Safety shall suspend or revoke the driver's license of any person, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of, or subjected to a finding of delinquency based on this subsection.Notwithstanding the foregoing, upon the first violation of this subsection by a person whose blood alcohol level is between .02 and .08, the person's driver's license or driving privilege shall be suspended for a period of 30 days in lieu of any penalties provided in subsection (e) of this section and there shall be no disclosure, other than to courts and law enforcement agencies, by any entity or person of any information, documents, or records relating to the person's arrest, conviction, or adjudication of or finding of delinquency based on this subsection.

"`All persons, except as otherwise provided in this subsection for a first offense, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of, or subjected to a finding of delinquency based on this subsection shall be fined pursuant to this section, notwithstanding any other law to the contrary.

"`(c) A school bus or day care driver shall not drive or be in actual physical control of any vehicle while in performance of his or her duties if there is greater than .02 percentage by weight of alcohol in his or her blood.A person convicted pursuant to this subsection shall be subject to the penalties provided by this section except that on the first conviction the Director of Public Safety shall suspend the driving privilege or driver's license for a period of one year.

"`(d) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a controlled substance shall not constitute a defense against any charge of violating this section.

"`(e) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment.In addition, on a first conviction, the Director of Public Safety shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days.

"`(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year.The sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than 48 consecutive hours or community service for not less than 20 days.In addition the Director of Public Safety shall revoke the driving privileges or driver's license of the person convicted for a period of one year.

"`(g) On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the

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