Nagem v. City of Phenix City

• Citation: 488 So.2d 1379
• Decision Date: 22 April 1986
• Docket Number: 4 Div. 606
• Parties: Henry Joseph NAGEM, Jr. v. CITY OF PHENIX CITY, Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1379

488 So.2d 1379

Henry Joseph NAGEM, Jr. v. CITY OF PHENIX CITY, Alabama.

4 Div. 606.

Court of Criminal Appeals of Alabama.

April 22, 1986.

Buster Landreau of Faulk & Landreau, Phenix City, for appellant.

Sam E. Loftin, Phenix City, for appellee.

BOWEN, Presiding Judge.

Henry Joseph Nagem, Jr. was convicted in the circuit court of Russell County of driving while intoxicated, on appeal of his conviction for the same offense in the municipal court of Phenix City. Sentence was a $750 fine and six months' hard labor which was suspended upon his attending DUI school.

At approximately 6:00 on the morning of Saturday, April 6, 1985, Nagem drove his Ford Thunderbird automobile out of the parking lot of the Holiday Inn on the 280 Bypass in Phenix City and collided into the motorcycle driven by William Drummond. Nagem's car was damaged "on the front part" and the motorcycle was damaged on the side.

Drummond, who sustained a broken leg, testified that Nagem got out of his car, walked to where he was on the side of the road, and said, "I am sorry. I hit you." As Nagem was "standing there telling" Drummond "how sorry he was," Drummond told him to call an ambulance. Nagem began to run across the street to the Holiday Inn parking lot but then stopped and started walking. Drummond "yelled" at Nagem to "run," and testified that Nagem's "eyes looked glassy and I thought he might be in a daze or something but when he couldn't run across the road I definitely knew something was wrong with him." Drummond stated that Nagem "couldn't run," and that "[i]t was just like he didn't have the energy to run" * * * [H]e was almost staggering." Drummond testified that Nagem "stayed gone" about ten minutes after leaving the scene.

The ambulance arrived about ten minutes after Nagem left. Drummond did not see Nagem drinking and did not notice any "unusual odors around or about" him.

Phenix City Police Officer Thomas Wilgis received a dispatch at 6:10 that morning and arrived at the scene of the accident "just a few minutes later." When he arrived, Nagem was "stepping out" of the driver's side of his car. Officer Wilgis did not know where Nagem had been between the time of the accident and the time he arrived. He observed "another subject that was passed out in the backseat" of Nagem's car and smelled "an odor of some type of alcoholic beverage inside the car," but did not know if the odor was there before or after the wreck. He stated that the Holiday Inn lounge usually closes at 5:00 A.M., approximately one hour before the accident.

Phenix City Police Officer Dennis Harrell arrived at the scene at "about maybe 6:05--a little after 6 o'clock." Officer Wilgis was already there. He talked to Drummond just a minute because "they were getting ready to transport him to the hospital." Then he walked over to Nagem. Officer Harrell testified:

"I detected an odor of alcoholic beverage about his person when I was talking to him. He was a little bit staggering on his feet--unsteady. He appeared to be up all night and I asked him for a driver's license and he stated he did not have one."

....

"I asked him where he had been prior to the accident and he stated he had come out of the Holiday Inn and he was waiting in his car trying to sober up before he left, so he would not be stopped. I asked him how long he had been there and he said maybe an hour or an hour and 30 minutes."

....

"He stated that after sitting there a while he decided to leave and then he pulled out on the highway and didn't see anything coming and pulled out and that's when the accident occurred."

The officer felt that Nagem "was extremely under the influence." Nagem told the officer that he made the telephone call reporting the accident.

Officer Jackie Thorn gave Nagem a breathalyzer test at 7:05 that morning. Nagem's blood-alcohol content was .15 percent.

I

When Officer Harrell was asked about the defendant's demeanor that he observed, defense counsel stated: "Judge, I would renew my objection on the same grounds, ... and also no predicate specifically relating to the time and also the City has not shown the lack of access to alcohol between the time of the alleged driving and the time he talked to him." This motion was overruled.

After the State rested its case, the defendant made a motion for a judgment of acquittal and again raised this issue:

"The condition of a defendant sometime following an accident is not admissible unless the City first shows no access to alcohol between the time of the accident and the time of the officer or the witness first observed this gentleman. We feel the City has not done so. They have at most proven that the bar or the lounge of the Holiday Inn was closed. They have not proven that there was no access to alcohol in the Holiday Inn from other sources nor have they proven that there was access to alcohol from other establishments. Further, the City's own testimony shows that there was a strong odor of alcohol in the car. There has been no proof that there was access to alcohol in the car itself following the accident and based on this we feel the City has failed to make out a prima facie case and a judgment of acquittal or motion to exclude should be granted."

In his argument, defense counsel cited specific cases supporting his position. The court overruled this motion and stated, "I believe that they are using in those things substantial time or something of that nature and in my opinion over a period of 10 or 15 or 20 minutes at that particular time and place and under the circumstances that existed there, that the City has met its burden."

The defendant rested without presenting any evidence.

Intoxication may be evidenced by a person's "prior or subsequent condition of intoxication within such a time that the condition may be supposed to be continuous." J. Wigmore, 2 Evidence In Trials At Common Law § 234, at 33 (Chadbourn Rev.1979) (emphasis in original). "Even though there is no other evidence of a person's intoxication at the time in issue, evidence is admissible that he was drinking or intoxicated shortly after the time in issue." C. Gamble, McElroy's Alabama Evidence § 60.03(5) (3rd ed. 1977). See also Landham v. Lloyd, 223 Ala. 487, 490, 136 So. 815 (1931).

"The question of materiality usually arises however, in connection with evidence of his condition some time after the principal event. If a considerable period of time has elapsed, defendant's condition at a later time may be held too remote unless it is first shown that he had no access to liquor in the meantime. Id. citing Gamble v. State, 36 Ala.App. 581, 60 So.2d 696 (1952); Phillips v. State, 25 Ala.App. 286, 145 So. 169 (1932)." E. Fisher and R. Reeder, Vehicle Traffic Law, p. 179 (1974).

An accurate statement of this same principle as applied by the Alabama Appellate Courts is:

"While it is the doctrine of our cases that it is error to permit testimony to the effect that an accused was under the influence of intoxicating liquors subsequent to commission of an offense, without first showing the inaccessibility of liquor during the interim, yet a reading of the decisions pronouncing this doctrine will show that in all such a substantial period of time had elapsed between the occurrence and the time at which the accused was observed, i.e. from 20 to 30 minutes, to several hours." Moates v. State, 40 Ala.App. 234, 237, 115 So.2d 277, cert. denied, 269 Ala. 698, 115 So.2d 283 (1959) (emphasis added).

In the following cases, evidence of the accused's intoxicated condition was inadmissible because a "substantial" period of time had passed after the offense and it was not shown that the accused had no access to intoxicating liquors in the meantime: Montgomery v. State, 44 Ala.App. 129, 131, 203 So.2d 695 (1967) (under particular circumstances, 15-20 minutes "border line"); Blevins v. State, 38 Ala.App. 584, 585, 90 So.2d 98 (1956) (twenty to thirty minutes); Gamble v. State, 36 Ala.App. 581, 582, 60 So.2d 696 (1952) (25 or 30 minutes); Rainey v. State, 31 Ala.App. 66, 67, 12 So.2d 106 (1943) (1 1/2 hours); Phillips v. State, 25 Ala.App. 286, 287, 145 So. 169 (1932) ("some time"). See also Briley v. State, 21 Ala.App. 473, 109 So. 845 (1926) (the fact that the accused was drunk or drinking 24 hours after the homicide, "without evidence showing continuation back to time of the act, is not a part of the res gestae, and is inadmissible in evidence"); Goodman v. State, 20 Ala.App. 392, 394, 102 So. 486 (1924) (fact that accused was intoxicated and had whiskey in car when arrested more than one hour after accident "were too remote and unconnected with the accident to be a part of the res gestae").

However, where a "substantial" period of time has not elapsed between the event and the observation of the accused, testimony of the accused's intoxicated condition is admissible. Elmore v. State, 348 So.2d 269, 271 (Ala.1977) ("[W]e 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" the deputies arrived.); Ayers v. State, 48 Ala.App. 743, 746, 267 So.2d 533 (1972) (fifteen minutes where driver "effectively trapped" in car containing no alcohol); Gladden v. State, 36 Ala.App. 197, 199, 54 So.2d 607, cert. denied, 256 Ala. 368, 54 So.2d 610 (1951) (five or ten minutes was "not sufficient intervention of time from the main event to affect its admissibility"); Gills v. State, 35 Ala.App. 119, 124, 45 So.2d 44, cert. denied, 253 Ala. 283, 45 So.2d 51 (1950) (where officers arrived "soon after" collision, "clearly there was not sufficient intervention of time from the main event to affect its admissibility"). Where a witness arrived at the scene within one or two minutes of the collision in which the accused was injured, the Court of Appeals held: "To infer that this appellant could have had access to liquor during this negligible period of time, and under the conditions...