Hosmer v. City of Mountain Brook, 6 Div. 125

• Decision Date: 27 January 1987
• Docket Number: 6 Div. 125
• Citation: 507 So.2d 1038
• Parties: Cynthia Diane HOSMER v. CITY OF MOUNTAIN BROOK.
• Court: Alabama Court of Criminal Appeals

Page 1038

507 So.2d 1038

Cynthia Diane HOSMER v. CITY OF MOUNTAIN BROOK.

6 Div. 125.

Court of Criminal Appeals of Alabama.

Jan. 27, 1987.

Rehearing Denied Feb. 24, 1987.

Certiorari Denied May 29, 1987

Alabama Supreme Court 86-774.

Richard C. Shuleva of Swatek & Shuleva, Alabaster, for appellant.

Carlos E. Heaps of Heaps & Ramsey, Birmingham, for appellee.

PATTERSON, Judge.

Appellant, Cynthia Diane Hosmer, was found guilty of driving while under the influence of alcohol (D.U.I.) and driving with a suspended license, in violation of the City of Mountain Brook municipal Ordinance Number 796 ( § 1-6.1), ¹ which adopts §§ 32-5A-191 and 32-5A-195, respectively, Code of Alabama 1975, as offenses against the City of Mountain Brook. In the D.U.I. case, appellant was sentenced to a two-day jail term, which was suspended, and was fined $400 and court costs of $88.50. For the driving with a suspended license conviction, appellant was fined $100 and court costs of $88.50.

On October 24, 1984, at approximately 4:35 a.m., Officers Ken Jones and Chris Graves of the Mountain Brook Police Department were on routine patrol when they observed appellant's vehicle "weaving in and out of her traffic lane." The vehicle was stopped and appellant "fell back against the car when she stood up." The officers detected the odor of alcoholic beverage about appellant's person and she staggered when she walked. In the officers' opinions, appellant was under the influence of alcohol to the extent that a field sobriety test was unnecessary.

Appellant was transported to police headquarters, where she agreed to take a breath test; however, after repeated attempts, appellant would not "give an adequate sample." Appellant was subsequently charged with D.U.I. A driver's license check revealed that appellant's driver's license was suspended, and she was also charged with driving with a suspended license.

Appellant testified in her own defense and admitted drinking one "White Russian" and a small portion of a second. According to appellant, she had had surgery approximately five months prior to her arrest, and a tube had been placed in her esophagus. During the course of the evening, appellant had eaten a small piece of chicken which had become lodged in the tube. While appellant was driving the vehicle, she began to choke so she reached for a coffee cup. These actions caused her to weave her vehicle in and out of her lane. Appellant attempted, to no avail, to explain this to the officers. She was unable to give an adequate breath sample because she was still choking when asked to blow into the sample collector. She was not allowed to clear the food from her throat until after she had repeatedly failed to give an adequate breath sample.

Appellant first contends that the Uniform Traffic Ticket and Complaint (U.T.T.C.) was "fatally defective" because it failed to specify the violation of a municipal ordinance on appellant's copy of the U.T.T.C. which she received at the scene. Officer Jones testified that when he originally issued the D.U.I. ticket to appellant, he indicated on the ticket that appellant had violated § 32-5A-191. The next day, prior to the court's copy of the U.T.T.C. being sworn to, the magistrate informed Jones that the municipal ordinance which appellant violated must also be indicated. The magistrate then, on the court's copy and in the officer's presence, wrote the citation to the municipal ordinance which adopted § 32-5A-191 and checked the municipal ordinance box provided on the U.T.T.C. Appellant now contends that the U.T.T.C. was materially altered and, therefore, void because it did not apprise appellant of the charge against her since her copy of the U.T.T.C. did not contain the additional information.

In Ex parte City of Dothan, 501 So.2d 1136 (Ala.1986), the Alabama Supreme Court reviewed its prior decision in Ex parte Dison, 469 So.2d 662 (Ala.1984), and determined that Dison had been incorrectly decided. In overruling Dison, the court, in City of Dothan, discussed a number of cases dealing with prosecution initiated at an inferior trial court level and appealed for a trial de novo. The court noted, as follows:

"A similar line of cases has held that, where a defendant has proceeded to trial in an inferior court without demanding a written complaint of the accusation against him, then that defect in the proceeding is deemed to have been waived. In the case of Aderhold v. City of Anniston, 99 Ala. 521, 12 So. 472 (1892), the defendant was arrested without any affidavit being made or an arrest warrant being issued. In the recorder's court (the inferior trial court), the defendant pleaded not guilty, was tried, and was convicted. On appeal to the city court, the defendant argued for the first time that because the prosecution was begun without an affidavit or warrant he could not be tried for the offense. This Court held that, 'not having raised those objections in the Recorder's Court, but having there voluntarily appeared to answer the charge, and having pleaded and gone to...