Lunceford v. City of Northport, 6 Div. 664

• Citation: 555 So.2d 246
• Decision Date: 10 November 1988
• Docket Number: 6 Div. 664
• Parties: Rodney Joe LUNCEFORD v. CITY OF NORTHPORT.
• Court: Alabama Court of Criminal Appeals

Page 246

555 So.2d 246

Rodney Joe LUNCEFORD v. CITY OF NORTHPORT.

6 Div. 664.

Court of Criminal Appeals of Alabama.

Nov. 10, 1988.

James A. Hall of Mountain & Mountain, Tuscaloosa, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Rodney Joe Lunceford was convicted of driving under the influence of alcohol. He raises two issues on this appeal from that conviction.

I

The defendant argues that the results of a breath test for intoxication should not have been admitted into evidence because he was not driving on a "public highway."

The defendant was observed sitting in an automobile parked behind a drug store in a shopping center. This was a private parking lot and not a public highway.

The offense of driving under the influence (DUI) as defined by Alabama Code 1975, § 32-5A-191, applies "upon highways and elsewhere throughout the state." § 32-5A-2(2) (emphasis added). Unlike Alabama's predecessor offense of DWI codified as § 32-5-70, Hilyer v. Dixon, 373 So.2d 1123, 1124 (Ala.Civ.App.), cert. denied, Ex parte Dixon, 373 So.2d 1125 (Ala.1979), the present offense of DUI may be committed on private property. See generally, Annot., 29 A.L.R.2d 938 (1970); 7A Am.Jur.2d Automobiles and Highway Traffic § 301 (1980).

The admission into evidence of the results of chemical tests to determine blood-alcohol content is authorized by § 32-5A-194. That section is not limited to acts committed upon public highways. Subsection (a) of that section provides:

"Upon the trial of any civil, criminal or quasi-criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual control of a vehicle while under the influence of alcohol or controlled substance, evidence of the amount of alcohol or controlled substance in a person's blood at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath or other bodily substance, shall be admissible." § 32-5A-194(a).

Alabama's "implied consent statute" is contained in § 32-5-192 and is a part of the Alabama Chemical Test For Intoxication Act. See § 32-5-190 et seq. The implied consent statute is limited to public highways.

"Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor." § 32-5-192(a) (emphasis added).

The defendant was charged with DUI in violation of a municipal ordinance of the City of Northport. In § 15-51 of the Northport City Code, the city adopts the infrared absorption intoxilyzer as the test to be administered "to determine the alcoholic content of the blood of any person lawfully arrested ... while the person was driving ... on the public highways." (Emphasis added.)

This case was tried before a circuit judge sitting without a jury. The arresting officer testified that she told the defendant that she "was going to take him to Metro for a breath test, that [she] felt like he had too much to drink and [she] asked him if he was willing to take a breath test and he said yes." The trial judge admitted the test results into evidence because the defendant consented to take the test: "[T]he Court is of the opinion that the test is admissible on the basis of it being a consensual test. * * * [T]he implied consent statute is inapplicable to this case."

Section 32-5A-194 authorizes the admission into evidence of the results of a chemical test to determine blood-alcohol content. However, before those results can be admitted into evidence, a proper predicate must be laid.

"This predicate may 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).[ ¹ See Estes v. State, 358 So.2d 1050 (Ala.Crim.App.), cert. denied, 358 So.2d 1057 (Ala.1978). 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). See Commander v. State, 374 So.2d 910 (Ala.Crim.App.1978). 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. Parker v. State, 397 So.2d 199 (Ala.Crim.App.1981), Patton v. City of Decatur, 337 So.2d 321 (Ala.1976). 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 trial judge correctly concluded that the implied consent statute did not apply to this case. "[D]riving upon the public highways is a necessary predicate for application of the implied consent statute...." People v. Kissel, 150 Ill.App.3d 283, 103 Ill.Dec. 646, 647, 501 N.E.2d 963, 964 (1986). "[T]he implied consent statute requires a nexus between driving upon a public highway at the time of or shortly before his arrest and being subjected to the requirements of the statute at the request of an officer." Kissel, 150 Ill.App.3d at 285, 103 Ill.Dec. at 647, 501 N.E.2d at 964; People v. Foster, 170 Ill.App.3d 306, 120 Ill.Dec. 651, 654, 524 N.E.2d 681, 684 (1988).

"The legislature has determined that only those who drive or are in actual control of a vehicle 'upon the public highways' of the State shall be deemed to have consented to chemical testing. As it is undisputed in the present cases that defendants were observed driving their vehicles only upon privately-owned parking lots we conclude they were not subject to the provisions of the implied consent statute.

"We do not consider, as suggested by the State in its brief, that our holding would necessarily exempt all drivers who may be finally stopped and arrested on private property from the requirements of the implied consent statute. Where there is evidence that a person drove or was in control of a vehicle upon a public highway while under the influence of alcohol or other drug, as required by the statute, he will be deemed to have consented to testing under the statute whether actually arrested on the highway or on private property." Kissel, 150 Ill.App.3d at 286-87, 103 Ill.Dec. at 648, 501 N.E.2d at 965.

The implied consent statute is applicable where the arresting officer has probable cause to believe that the defendant had been driving on a highway even though he did not actually see the defendant drive on the highway. People v. Wingren, 167 Ill.App.3d 313, 118 Ill.Dec. 62, 68, 521 N.E.2d 130, 136 (1988).

Ex parte Love, 513 So.2d 24 (Ala.1987), stands for the principle that a blood sample taken before a motorist's arrest and without his express consent is inadmissible under the express terms of the implied consent statute. "[T]he requirement of a lawful arrest in the Alabama 'implied consent' statute grants to the motorist in question a procedural right, and ... the failure to accord that right renders the blood sample illegal for the purpose of its admission as evidence against the motorist who objects to its admission." Love, 513 So.2d at 30. The court found that "the Alabama statute gives a procedural protection beyond that apparently mandated by federal decisions." Love, 513 So.2d at 30.

However, here, the implied consent law does not apply because the defendant was arrested for DUI on private property and there was no evidence that he had been driving on a highway. ² "Note that it is the act of operating a vehicle on the public highways that brings the statute into operation." "Interpretation of Implied Consent Laws by the Courts," Traffic Institute, Northwestern University, at 21 (1972). The implied consent statute has been limited in its application by the legislature to persons who operate a motor vehicle upon the public highways of this state. § 32-5-192(a). Consequently, the procedural protections afforded by the Alabama implied consent statute do not apply to a motorist arrested for DUI on private property and, in such a case, the taking of a breath sample can be justified on the basis of voluntary consent. Cf. Ex parte Love, 513 So.2d at 29 ("[I]n the absence of our statute's limiting language, we could justify the taking of the blood sample on the basis of a lawful arrest without a warrant, the basis of a lawful arrest with a warrant, or the basis of voluntary consent or other waiver.").

Here, the defendant was lawfully arrested for DUI before the chemical test for intoxication was requested or performed. The due process protections of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), were satisfied. Had the defendant refused to submit to the test, his license could not have been revoked under the implied consent law.

In People v. Kissel, supra, the appellate court held that a trial court erred in suppressing the results of a breathalyzer test after determining that the implied consent statute was inapplicable because the defendants only operated their vehicles on private property. The appellate court remanded the cause to the trial court for a determination of the voluntariness of the consent to take the test.

"The State also contends that even should it be determined that the implied consent statute was inapplicable at the time of the arrests of defendants Charles Kissel and James Slezak that the trial court erred in suppressing the results of Kissel's breathalyzer test and the statements made by Slezak in refusing to submit to testing when...