Pace v. City of Montgomery
| Decision Date | 08 May 1984 |
| Docket Number | 3 Div. 888 |
| Citation | 455 So.2d 180 |
| Parties | Bobby T. PACE v. CITY OF MONTGOMERY. |
| Court | Alabama Court of Criminal Appeals |
Wesley Romine and Roger S. Morrow of Whitesell, Morrow & Romine, Montgomery, for appellant.
J. Bernard Brannan, Jr., Montgomery, for appellee.
Bobby T. Pace was convicted in Montgomery Municipal Court on the charge of driving under the influence and appealed this conviction to the Montgomery Circuit Court. The trial jury found the appellant guilty and the Circuit Court sentenced him to a 60 day jail sentence, suspended for one year, and fined him $300.00.
At approximately 10:30 p.m. on November 13, 1982, George Robinson was driving north on Eastern Boulevard, Montgomery, Alabama, when his vehicle was struck from the rear by a vehicle driven by this appellant. Officer Michael Patterson, an accident investigator for the Montgomery Police Department, was immediately at the scene. Upon his arrival at the scene, he saw the appellant back his vehicle into a ditch. The appellant then got out of his vehicle and fell upon the ground. Once he got up, Patterson assisted him out of the ditch.
As Patterson began to ask the appellant questions, he noticed the odor of alcohol on his breath. The appellant's speech was slurred and he had trouble standing unassisted. The appellant was cursing and his attitude was combative.
Patterson noticed the windshield of the appellant's vehicle was cracked so he asked the appellant if he was injured. The appellant replied that his lip was cut and Patterson noticed a bump on his head.
It was Patterson's opinion that the appellant was intoxicated, so he placed the appellant under arrest for driving under the influence, handcuffed him and put him in the patrol car. After Patterson finished investigating the accident, Patterson took him to the police department. At the station, the appellant failed the usual field tests, i.e., walk a line, touch his nose, etc., and was also offered the opportunity to take the GCI test, which he refused.
The evidence for the defense showed that the appellant went to T.P. Crockmier's Restaurant around 8:00 p.m. that night. He drank two beers on ice, and then left around 10:30 p.m. The bartender who served the appellant stated the appellant did not appear to be intoxicated when he left. The appellant stated he had not had anything else to drink other than those two beers since 2:00 that same afternoon.
The appellant stated that upon leaving Crockmier's, he turned north onto the Eastern Boulevard. As he was driving, he dropped a lighted cigarette on the floorboard. As he was reaching down to pick it up, his vehicle ran into Robinson's vehicle. The appellant testified he doesn't remember a lot of what happened after this point. The appellant stated he remembered sitting in his vehicle with his mouth bleeding, and someone asking him if he was injured. He remembers sitting in the patrol car and being in the jail. However, he doesn't remember refusing the GCI test.
John Thomas, a friend of the appellant's, picked him up at the jail around 1:00 a.m. on November 14, 1982. Thomas stated the appellant was incoherent so he took the appellant to the Baptist Hospital Emergency Room where he was examined. The doctor at Baptist told the appellant he had a bruised elbow and a cut lip and gave him some pills and told him to go home to bed.
The following morning, Thomas and two other friends of the appellant, Ray Andrews and Wheeler Foshee, came to check on the appellant. He complained of a headache and was acting strangely, so Foshee called his physician, Dr. Odom, to examine the appellant. Dr. Odom was not on call so Dr. Crockett, one of the doctors who practices with Dr. Odom, met appellant at the University Medical Center in Montgomery. Dr. Crockett examined the appellant and determined he had a concussion. The appellant remained in the hospital overnight for observation.
Dr. Walker Sorrell, a pathologist, testified that a person would not be under the influence of alcohol after consuming only two beers. He stated that the symptoms of a concussion (dizziness, slurred speech, loss of memory, headaches, unbalanced gait, combative attitude) are similar to the effects of alcohol on an intoxicated person. Dr. Sorrell testified that the diagnosis of a concussion is a clinical observation and a matter of exclusion. "If you don't find anything, and you find the symptoms of a concussion, you assume it is a mild concussion." (R. 96).
The appellant contends his arrest was unlawful and, therefore, the trial court should have quashed the arrest warrant and suppressed the evidence upon which this arrest was based.
The appellant was charged with the violation of § 32-5A-191, Code of Alabama 1975, which replaced § 32-5-170, Code of Alabama 1975. At the time of the appellant's arrest, § 32-5-171, Code of Alabama 1975 provided that:
The appellant argues that because § 32-5-170 was repealed by the Alabama legislature and § 32-5-171 specifically referred to § 32-5-170, the legislature implicitly intended to repeal § 32-5-171, and therefore, this appellant's arrest was unlawful. However, we do not reach the same conclusion as the appellant.
Section 32-5A-13, Code of Alabama 1975 states (Emphasis supplied).
The language contained in the above quoted statute is plain and unambiguous and its meaning is obvious. We must give effect to the legislature's manifestation of its intent as there is no room for construction. State v. Dawson, 264 Ala. 647, 89 So.2d 103 (Ala.1956). It is clear to this court that the legislature did not intend to repeal § 32-5-171.
Moreover, on March 1, 1983, the legislature substituted " § 32-5A-191" for " § 32-5-170" in § 32-5-171. This act further clarifies the legislature's intention that § 32-5-171 was not repealed by § 32-5-170.
The facts of this case indicate Officer Patterson had reasonable grounds to believe the appellant had violated § 32-5A-191 even if he had not personally observed the violation of the statute.
However, Officer Patterson did see the violation of § 32-5A-191 by the appellant. Section 15-10-3(1), Code of Alabama provides that:
Officer Patterson testified he saw the appellant back his own vehicle into the ditch. He was present during the actual operation of the vehicle by this appellant, and therefore, this offense was at least partly committed in his presence.
We hold the appellant's arrest was proper under § 32-5-171 and § 15-10-3(1) and, therefore, the trial judge correctly refused to quash this arrest warrant. The evidence gathered at the scene of the accident was properly allowed into evidence as part of the res gestae.
The appellant asserts that Officer Patterson lacked probable cause to effectuate his arrest because the State failed to show that Officer Patterson saw the appellant in actual, physical control of his own vehicle, and that he was intoxicated while in control of this vehicle. This contention is without merit.
First, Officer Patterson testified he saw the appellant back his own vehicle into a ditch. Certainly, this was sufficient to prove that the appellant was in actual, physical control of his vehicle.
Secondly, Officer Patterson's belief that the appellant was intoxicated arose from the actions of the appellant immediately following his backing the vehicle into the ditch. Patterson stated the appellant fell out of his vehicle, was unable to walk or stand without assistance, spoke with slurred speech, smelled of alcohol, had a combative attitude, and failed several field tests.
These facts certainly gave Officer Patterson reasonable cause to believe this appellant was driving while intoxicated. The appellant's warrantless arrest was justified because Officer Patterson was present during the actual operation of the vehicle even though he did not ascertain that this appellant was intoxicated until he had gotten out of his vehicle.
The appellant challenges the constitutionality of § 32-5A-191(a)(2), Code of Alabama 1975 because the words "under the influence" are too vague to establish a standard of guilt. The appellant alleges in his brief that it is only "illegal to drink to a point that it affects one's ability to drive safely." We agree with this general statement, and believe it precisely describes the conduct which this statute prohibits.
When a person is under the influence of alcohol, his ability to drive is impaired and he is incapable of driving safely. The person's degree...
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