Leu v. City of Mountain Brook
| Citation | 386 So.2d 483 |
| Decision Date | 01 April 1980 |
| Docket Number | 6 Div. 798 |
| Parties | Frank Russell LEU, III v. CITY OF MOUNTAIN BROOK. |
| Court | Alabama Court of Criminal Appeals |
John Tucker, Birmingham, for appellant.
Carlos E. Heaps, Birmingham, for appellee.
Appellant was charged by complaint with the offense of driving "while intoxicated or under the influence of a narcotic drug or other drugs" within the corporate limits or police jurisdiction of the City of Mountain Brook. He was represented by counsel of his choice and interposed a plea of not guilty. The jury found appellant guilty as charged and assessed a fine against him of $100.00. The trial court adjudged appellant guilty as charged in the complaint and, in accordance with the verdict of the jury, imposed a fine against him of $100.00 and the court costs.
Don Isaacs, a police officer of the City of Mountain Brook, testified that, at about 8:40 p. m., on October 9, 1977, he observed appellant driving a motor vehicle in an erratic manner within the City limits of Mountain Brook. Officer Isaacs was in plain clothes and patrolling in an unmarked car. He radioed for a uniformed officer in a marked car to intercept appellant's car and gave the location. Isaacs continued to follow appellant and saw his car swerve off the side of the street and then make a wide left turn crossing over into the oncoming traffic lane. According to Isaacs appellant was driving from one side of the street to the other and kept crossing the center lane and he was afraid appellant was going to wreck his car and hurt someone as well as himself. He decided to stop appellant instead of waiting for the uniformed officer to arrive. He turned on his blue light and siren and finally stopped appellant.
Isaacs went to appellant's car and noticed a strong odor of alcohol on appellant's breath and his face was flushed. Appellant had difficulty in getting out of his car and could hardly walk. His speech was badly slurred.
When Officer Gene Holtage arrived in the marked patrol car appellant was removed from his car and put in the patrol car with Officer Holtage who transported him to the station house. Isaacs followed them to headquarters, and was present when Officer Holtage, who was certified by the State Board of Health as qualified to operate the photo-electric intoximeter machine, attempted to administer the test to appellant. Appellant made three attempts to blow into the machine but was unable to exhale a sufficient amount of air to obtain a meter reading.
Officer Isaacs testified that he had seen many people who were intoxicated and that based upon his experience and his observation of appellant it was his opinion that appellant was intoxicated on the night he was arrested. Appellant was placed in jail and charged with driving an automobile while intoxicated.
Officer Gene Holtage gave appellant the Miranda rights and warnings and explained the requirements of taking the PEI test. He set up the machine and appellant made three unsuccessful attempts to blow into the tube which inflates the bag. He further testified that appellant had a strong odor of alcohol on his breath. His speech was very slurred and slow, his face was very flushed and his eyes were glassy looking. He stated appellant was unsteady on his feet and he had to assist him in walking up the steps and into the police station. While walking down the hall inside the station appellant fell against the side of the wall and had to be helped. Based upon his observation of appellant and his actions he expressed the opinion that appellant was very intoxicated.
Appellant testified that, on Sunday, October 9, 1977, he remained at home until about 6:00 p. m. when he drove to the Vestavia Country Club where he was a member. He said prior to that time he had nothing alcoholic to drink. He stated that upon arriving at the Club he had two beers over ice and went into the steam room where he stayed approximately twenty-five minutes. He testified that he had two more beers after leaving the steam room.
Appellant stated that he had a prescription for Valium issued to him by his personal physician and that about 45 minutes prior to leaving the Club he took one Valium tablet. He left the Club around 8:15 p. m. and did not feel at all unusual, nor did he experience any difficulty in talking or walking. He said when he was stopped by the officer he had the feeling that something was happening to him, that something was wrong, but he did not know what it was. He did recall being carried to the police station and attempting to blow into the photo-electric intoximeter and his inability to do so.
Dr. Ralph L. Tieszen, Sr., testified on behalf of appellant and stated that he is a Medical Doctor, licensed by the State of Alabama, with a specialty in internal medicine. He said that Valium is not a narcotic drug and is not habit forming; that Valium is a tranquilizer and muscle relaxant. He did say that Valium is a controlled substance. He stated that when Valium and alcohol are combined in the body the alcohol gives an increased effect to the Valium. The effects which could be produced by such a combination include slurred speech, difficulty in walking, glassy eyes, and inability to breathe properly. He said appellant's inability to blow into the intoximeter on the night of his arrest was consistent with his ingestion of beer and Valium earlier that evening.
Dr. Tieszen stated that while one can of beer combined with Valium could possibly produce symptoms similar to appellant's, and three cans of beer would probably produce those symptoms, certainly four cans of beer would do so.
James A. Green, Jr., testified that he talked to appellant at about 6:30 p. m. on October 7, 1977, at the Vestavia Country Club and he did not appear to be abnormal in any way.
Donald Cannon stated that he spoke with appellant the same night as both were leaving the Club and walking to the parking lot. The time was between 8:15 and 8:30. He did not observe anything abnormal in appellant's looks, speech or walk.
Appellant's major insistence of error on this appeal is that Ordinance No. 640 of the City of Mountain Brook, under which he was prosecuted, is unconstitutional in that it is inconsistent with the State statute prohibiting driving a motor vehicle while intoxicated, Section 32-5-170 Code of 1975.
Section 32-5-170, Code of 1975, provides in pertinent part as follows:
"It shall be unlawful for any person . . . while under the influence of narcotic drugs, or any person who is intoxicated, to drive a motor vehicle upon any highway of this state . . ."
Section 12-14 of the Code of the City of Mountain Brook, Alabama, as amended, provides in pertinent part as follows:
Appellant insists that the Mountain Brook Ordinance is inconsistent with Section 32-5-170, Code of 1975, supra, because it enlarges the prohibition against a person driving a motor vehicle while under the influence of narcotic drugs to include driving while under the influence of "any other drug . . . which renders him incapable of safely driving . . ."
Section 11-45-1, Code of 1975, reads as follows:
(Emphasis supplied.)
The restriction that a municipal ordinance shall not be "inconsistent with the laws of the state" is in recognition of Section 89 of the Alabama Constitution of 1901 which provides as follows:
"The legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state."
See Ott v. Moody, 283 Ala. 288, 216 So.2d 177.
It has been held that whether a local ordinance is inconsistent with the laws of the State is to be determined by whether the local law prohibits anything which the State law permits. Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322; Ligon v. City of Gadsden, 21 Ala.App. 312, 107 So. 733.
Appellant states, in brief:
It seems clear to us, however, that Section 32-5-170, Code 1975, does not permit a person to drive while under the influence of drugs which render him "incapable of safely driving or operating a vehicle." The State statute prohibits a person from driving while under the influence of "narcotic drugs or while intoxicated."
The word "narcotic" has been defined as:
1. "A drug . . . that in moderate doses allays sensibility, relieves pain and produces profound sleep but that in poisonous doses produces stupor, coma or convulsions."
2. "Something that soothes, relieves or dulls."
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...is to be determined by whether the municipal law prohibits anything which the State law specifically permits. See Leu v. City of Mountain Brook, Ala. Cr.App., 386 So.2d 483, cert. denied, Ala., 386 So.2d 488 (1980) ; Atkins v. City of Tarrant City, Ala. Cr.App., 369 So.2d 322 (1979). See al......
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...is to be determined by whether the municipal law prohibits anything which the State law specifically permits. See Leu v. City of Mountain Brook, Ala.Cr.App. 386 So.2d 483, cert. denied, Ala., 386 So.2d 488 (1980); Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). See also A......
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...is to be determined by whether the municipal law prohibits anything which the State law specifically permits. See Leu v. City of Mountain Brook, Ala.Cr.App., 386 So.2d 483, cert. denied, Ala., 386 So.2d 488 (1980); Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). See also ......
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