Patton v. City of Decatur
| Decision Date | 18 June 1976 |
| Citation | 337 So.2d 321 |
| Parties | In re Howard D. PATTON v. CITY OF DECATUR. Ex parte Howard D. Patton. SC 1558. |
| Court | Alabama Supreme Court |
Harvey Elrod, Decatur, for petitioner.
Coleman, Cauthen & Bibb, Decatur, for the City of Decatur.
Petitioner, Howard D. Patton, was convicted in the Recorder's Court of the City of Decatur of driving while intoxicated in violation of a city ordinance. He appealed De novo to the circuit court and from an unfavorable jury verdict there, sought review in the Court of Criminal Appeals. The Court of Criminal Appeals affirmed his conviction.
We review only the question of whether the admission into evidence of the result of a test, conducted on a photoelectric intoximeter showing .18% By weight of alcohol in petitioner's blood, was contrary to the Alabama Chemical Test for Intoxication Act. Tit. 36, §§ 154--158, Code of Alabama 1940, Recompiled 1958.
Petitioner asserts that the instant decision of the Court of Criminal Appeals conflicts with that court's prior decision in Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247 (1974), cert. denied 293 Ala. 768, 304 So.2d 248 (1974).
We agree and reverse.
Tit. 36, § 155(a) provides inter alia that 'tests Authorized by this chapter . . . shall be admissible as evidence . . ..' (Emphasis supplied). Tit. 36, § 155(b), states:
(Emphasis supplied).
Thus, the legislature clearly provided that for such test (here, the photoelectric intoximeter or P.E.I.) to be admissible in evidence, it must 'have been performed according to methods approved by the state board of health.' Such is a condition precedent to its admissibility. A proper predicate is therefore necessary.
Section 155(b) is almost identical to Sec. 11--902(c) of the uniform Vehicle Code. Donigan in his text, Chemical Tests and the Law (2nd ed. 1966), p. 64, states:
'Thus in order for chemical test evidence to be admissible under such a statute, the proponent must establish first that the particular test method employed in the instant case had been officially approved by the state agency, such as the breathalyzer in a breath test case . . ..'
See State v. Powell, 264 N.C. 73, 140 S.E.2d 705 (1965).
In Myrick, supra, the court held the validity of such tests are conditioned on the performance being under methods approved by the State Board of Health. The court also observed, 'Since this section making the analysis admissible is contrary to Common Law it must, particularly in a criminal case, be strictly construed.' Ibid. at 6, 304 So.2d at 248.
In the instant case the Court of Criminal Appeals reasoned as follows:
'Appellant contends that the City failed to prove or that witness Sharp, the operator of the Toximeter, used a device designated by the law enforcement agency, namely the police department of the City. Section (a) Act 699, Vol. II, Special and Regular Sessions, 1969 and 1970, page 1255, provides inter alia, 'The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.' (Blood, breath, or urine).
'The witness testified on direct that the Decatur Police Department by which he was employed directed him to use the Photo Electric Intoximeter that he used when testing defendant.
'In support of his objection to the question, supra, defendant further asserts that there is no proof that the methods employed by the witness, a veteran police officer of the City had been approved by the State Board of Health.
'The witness testified that he had a license, issued by the State Board of Health, to operate the Photo Electric Intoximeter.
'It appears, supra, that the witness was competent to administer the breath tests on Mr. Patton.
For a better understanding we have gone to the record:
Later, the testimony continued as set out below:
'
'
'
Nowhere is it shown that duly adopted methods or regulations of the State Board of Health were followed in administering the test. The trial court therefore had before it no certified methods promulgated by the Board of Health for the administration of the test and consequently was unable to ascertain standards against which the evidence could be measured.
While it is unnecessary for the prosecution to resort to the P.E.I. test in order to make a prima facie case (Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936); McMurry v. State, 28 Ala.App. 253, 184 So. 42 (1938)), the results of the test, which we hold were inadmissible, were highly prejudicial.
Our decision in the instant case does not stand for a...
To continue reading
Request your trial
-
Hill v. State
...of the Results of chemical analysis as evidence, not to the admission of the Refusal to submit to those tests. See Patton v. City of Decatur, Ala.Cr.App., 337 So.2d 321 (1976). Hence, the statutory requirement that the State must lay a proper predicate for introduction of evidence of chemic......
-
Commander v. State
...an individual possessing a valid permit issued by the state board of health for this purpose." (Emphasis added) In Patton v. City of Decatur, Alabama, 337 So.2d 321 (1976), the Alabama Supreme Court "Nowhere is it shown that duly adopted methods or regulations of the State Board of Health w......
-
Amerada Hess Corp. v. Conrad, 11351
...rise to a mandatory duty to promulgate administrative standards in order for that power to be validly exercised. See Patton v. City of Decatur, 337 So.2d 321, 324 (Ala.1976). It is settled that, as a general rule, an administrative agency is not required to promulgate detailed rules interpr......
-
Nagem v. City of Phenix City
...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......