Vizzina v. City of Birmingham

• Decision Date: 24 November 1987
• Docket Number: 6 Div. 312
• Citation: Vizzina v. City of Birmingham, 533 So.2d 652 (Ala. Crim. App. 1987)
• Parties: Steven Michael VIZZINA v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Criminal Appeals

Page 652

533 So.2d 652

Steven Michael VIZZINA v. CITY OF BIRMINGHAM.

6 Div. 312.

Court of Criminal Appeals of Alabama.

Nov. 24, 1987.

Rehearing Denied Jan. 26, 1988.

Arthur Parker, Birmingham, for appellant.

W.O. MacMahon III, Asst. City Atty., Birmingham, for appellee.

BOWEN, Presiding Judge.

Following convictions in Birmingham municipal court for driving while under the influence of alcohol and reckless driving, Steven Michael Vizzina appealed for trial de novo in circuit court and was found guilty of both offenses. He was fined $500 and $50, respectively, for the two offenses and sentenced to twenty days of community service for the DUI conviction. He raises three issues on appeal to this court.

I

First he claims that there was no valid judgment entered against him in municipal court which would support an appeal to circuit court. While it is true that the copies of the U.T.T.C. filed by the City with the circuit court pursuant to § 12-14-70(d), Code of Alabama 1975, did not contain "judgments," as that term is defined in Rule 1(a), A.R.Crim.P.Temp., or reflect the "pronouncement of judgment," requirement by Rule 8(a), A.R.Crim.P.Temp., the circuit court had jurisdiction to entertain his appeal.

The reverse side of the "Abstract of Court Record/DPS Data Input Copy" of the U.T.T.C. filed by the City contained no notation, for the DUI conviction, under the spaces labelled "Plea of Defendant," "Finding of the Court," or "Orders of the Court." In addition, the copies for both convictions were signed by the city magistrate rather than the municipal judge. Rule 1(a), A.R.Crim.P.Temp., defines "judgment" as "the adjudication of the court based upon a plea of guilty by the defendant, upon the verdict of the jury, or upon its own finding following a non-jury trial, of the defendant's guilt or innocence." Rule 8(a) requires the following:

"Judgment shall be pronounced in open court, shall be reduced to writing signed by the judge, filed, and recorded. A judgment of conviction shall set forth the plea, the verdict, and findings, if any, and the adjudication...."

Although the requirements of Rule 8(a) were not met by the copies of the U.T.T.C. filed by the City here, it is clear that "the recitals of the appeal bond suffice to show the trial and conviction of the defendant in the [municipal] court, and his appeal from a conviction to the circuit court, thereby giving to the latter court jurisdiction of the cause." Ex parte Hood, 404 So.2d 717, 719 (Ala.1981) (quoting Ex parte McLosky, 210 Ala. 458, 459, 98 So. 708, 709 (1923)). See also Chaney v. City of Birmingham, 246 Ala. 147, 151, 21 So.2d 263 (1944), opinion conformed to Chaney v. City of Birmingham, 32 Ala.App. 4, 21 So.2d 268 (1944), cert. denied by Chaney v. City of Birmingham, 246 Ala. 501, 21 So.2d 273 (1945); Howard v. City of Bessemer, 40 Ala.App. 317, 320, 114 So.2d 158, cert. dismissed, 269 Ala. 474, 114 So.2d 164 (1959). In Bouyer v. City of Bessemer, 17 Ala.App. 665, 88 So. 192 (1921), the appellant argued that because the judgment of the city court did not show for what offense he had been convicted, the circuit court had no jurisdiction over his appeal. The appeals court, however, observed that "while the judgment of [the city] court so set out in the record does not show for what offense he was convicted, the appeal bond executed by the defendant shows that it was for [the proper] offense." 17 Ala.App. at 666, 88 So. at 193. Here the defendant's appeal bonds recited his convictions and sentences in the municipal court and were sufficient to confer jurisdiction over his appeals on the circuit court. "No defect in the proceedings, other than want of jurisdiction apparent on the face of them, will subject the cause to dismissal on appeal." Chaney v. City of Birmingham, 246 Ala. at 151, 21 So.2d at 268.

II

The defendant next maintains that the proper predicate for the introduction of the blood-alcohol test results was not established. In Ex parte Bush, 474 So.2d 168 (Ala.1985), the Alabama Supreme Court reiterated that the following predicate must be laid for the admissibility of evidence of blood alcohol content, pursuant to § 32-5A-194(a)(1), Code of Alabama 1975:

"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. Second, there must be a showing that the test was performed according to methods approved by the State Board of Health. 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. 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." 474 So.2d at 170 (citations omitted).

Here, the first and third prongs of the predicate were met by the prosecution. The defendant raises no question concerning their proof. He does claim that the second prong of the predicate was not established because the City did not introduce a duly authenticated copy of the rules and regulations adopted by the Board of Health. Officer J.E. Summers of the Birmingham Police Department testified that he followed a checklist contained on a document entitled "Rules and Regulations of the State Board of Health Relating to the Alabama Chemical Test for Intoxication Act." That document was admitted in evidence as City's exhibit 3. The document also contained the following "certification:"

"I certify that the foregoing rules, regulations and procedures, techniques or methods of operation were duly adopted and promulgated by the State Board of Health on July 21, 1976; amended January 18, 1978; amended November 21, 1979; amended January 21, 1981; amended November 16, 1983; and further amended July 18, 1984.

"Ira L. Myers

Ira L. Myers, M.D.

State Health Officer and Records Custodian"

Citing Bentley v. State, 450 So.2d 197 (Ala.Cr.App.1984), the defendant argues that the document was not properly authenticated because it contained the pre-printed facsimile signature of Dr. Ira L. Myers, State Health Officer. In Bentley, this court held that "[c]ertified copies of public records, signed and certified by the officer who has lawful custody, are properly authenticated and admissible into evidence." 450 So.2d at 199 (emphasis added). "A 'certified copy' of a public record is one that is signed and certified as a true copy by the officer who has lawful custody of the original." C. Gamble, McElroy's Alabama Evidence § 218.01 (3d ed. 1977) (emphasis added). "To certify means to attest authoritatively." Bates v. Bates, 247 Ala. 337, 340, 24 So.2d 440, 442 (1946). "Attest" and "certify" are often used interchangeably, as indicated by the following definition of "attest" found in Black's Law Dictionary 163 (rev. 4th ed. 1968):

"ATTEST. To bear witness to; to bear witness to a fact; to affirm to be true or genuine; ... to certify; to certify to the verity of a copy of a public document; formally by signature; to make solemn declaration in words or writing to support a fact.

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"Also the technical word by which, in the practice in many of the states, a certifying officer gives assurance of the genuineness and correctness of a copy."

Section 12-21-72, Code of Alabama 1975, provides that "[t]he certificate of the head of any bureau or department of the general government is sufficient authentication of any paper or document appertaining to his office." "A 'certificate' by a public officer is a statement written and signed, but not necessarily or customarily sworn to, which is by law made evidence of the truth of the facts stated for all or for certain purposes." Black's Law Dictionary 287 (rev. 4th ed. 1968) (emphasis added). Construing the predecessor to § 12-21-72, the Supreme Court of Alabama has held that a document is properly authenticated if "certified under the seal of the department by the acting commissioner." Woodstock Iron Co. v. Roberts, 87 Ala. 436, 6 So. 349, 349 (1889) (emphasis added).

Based on the foregoing authorities, it is evident that the printed matter at the bottom of the document admitted as City's Exhibit 3 could not be considered a proper "certificate" pursuant to § 12-21-72. In order to constitute a certificate, the writing must have been signed by Dr. Myers and certified, under seal of the Department of Health, as a true copy of the original Rules and Regulations of the Board. ¹

Prior opinions construing the requirement in DUI cases that the blood alcohol tests be performed according to methods approved by the Board of Health have mandated that it be shown that the regulations were "duly adopted" or "certified" by the Board of Health. See Patton v. City of Decatur, 337 So.2d 321, 324, 325 (Ala.1976) ("It would be a simple matter to proffer a duly certified and authenticated copy of methods or regulations duly adopted or approved by the State Board of Health."); Weaver v. City of Birmingham, 340 So.2d 99, 101 (Ala.Cr.App.1976), overruled on other grounds by Estes v. State, 358 So.2d 1050 (Ala.Cr.App.1977), cert. denied, 358 So.2d 1057 (Ala.1978) ("[N]owhere in the record is there [a] duly certified and authenticated copy of the methods or regulations duly adopted by the Alabama State Board of Health for the operation ... of the photoelectric intoximeter. Patton v. City of Decatur, 1976, Ala., 337 So.2d 321, makes this an absolute requirement as part of the predicate to be laid...."); Elmore v. State, 348 So.2d 265 (Ala.Cr.App.1976), affirmed as to instant issue, 348 So.2d 269 (Ala.1977). Compare Estes v. State, 358 So.2d 1050, at 1056 (Ala.Cr.App.), cert. denied, 358 So.2d 1057 (Ala.1978) ("The state ... introduced a duly certified and authenticated copy of the methods and regulations adopted and approved by the...