TAYLOR, Presiding Judge.
The appellant, Charles Jeffery Whatley, was convicted of driving under the influence of alcohol (DUI), a violation of § 32-5A-191, Code of Alabama 1975. He was sentenced to 60 day's imprisonment, which sentence was suspended and he was placed on 12 months' probation.
The appellant's only contention on appeal is that the trial court erred by denying his motion to dismiss and his motion for a
judgment of acquittal because, he asserts, Alabama's DUI law pertaining to "vehicles" was effectively repealed by the "Alabama Boating Safety Reform Act of 1994," Ala.Acts 1994, Act No. 94-652 ("the Act"). Section 2 of that act, which deals with operation of a vessel while under the influence of alcohol or under the influence of a controlled substance is codified at § 32-5A-191.3, Code of Alabama 1975. He contends that the law in Alabama relating to driving under the influence pertains only to "vessels" and not to "vehicles," and thus, he argues, he was convicted of a crime that no longer exists.
Section 32-1-1.1(81), Code of Alabama 1975, defines "vehicle" as follows:
"(81) VEHICLE. Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks; provided, that for the purposes of this title, a bicycle or a ridden animal shall be deemed a vehicle, except those provisions of this title, which by their very nature can have no application."
Section 33-5-3(1), Code of Alabama 1975, defines "vessel" as follows:
"(1) VESSEL. Every description of watercraft, other than a seaplane, capable of being used as a means of transportation on the water, but such term shall not include vessels 12 feet in length or less when used solely on farm ponds less than 50 acres in size."
In support of his contention, the appellant cites sections 2 and 36 of the Act:
Section 2 states:
"Section 2. Section 32-5A-191, Code of Alabama 1975, as last amended, is amended to read as follows:
" '32-5A-191.
" '(a) A person shall not drive or be in actual physical control of any vehicle or vessel, or manipulate any water skis, aquaplane, or any other marine transportation device on the waters of this state, as the waters are defined in Section 33-5-3, Code of Alabama 1975, while:
" '(1) There is 0.10 percent or more by weight of alcohol in the blood.
" '(2) Under the influence of alcohol.
" '(3) Under the influence of a controlled substance to a degree which renders the person incapable of safely driving.
" '(4) Under the combined influence of alcohol and a controlled substance to a degree which renders the person incapable of safely driving.
" '(5) Under the influence of any substance which impairs the mental or physical faculties of the person to a degree which renders the person incapable of safely driving.
" '(b) In the case of a vessel or other marine device described in subsection (a) of this section, only where the law enforcement officer of the Department of Conservation and Natural Resources has prior to stopping a vessel probable cause to believe that the operator of the vessel is driving under the influence of alcohol or under the influence of a controlled substance in violation of this section, the law enforcement officer is authorized to administer and may test the operator, at the scene, by using a field breathalyzer or other approved device, as a screening device, to determine if the operator may be operating a vessel or device in violation of subsection (a) of this section. Refusal to submit to a field breathalyzer test or other approved testing device shall result in the same punishment as provided in Section 32-5A-192(c) for operators of motor vehicles on the state highways. No field breathalyzer test shall be administered where the operator is stopped for violations other than for Section 32-5A-191.
" '(c) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a controlled substance shall not constitute a defense against any charge of violating this section.
" '(d) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than two hundred fifty dollars ($250) nor more than one thousand dollars
($1,000), or by both fine and imprisonment. In addition, on a first conviction, the director of public safety, in the case of a motor vehicle or the Commissioner of Conservation and Natural Resources in the case of a vessel or other device described herein, shall suspend the vessel operating privilege or driver's license or boater safety certification of the person so convicted for a period of 90 days. First time offenders convicted of driving or operating a vessel while under the influence of alcohol shall also be required to complete a DUI court referral program approved by the state administrative office of courts. Neither reckless driving, reckless or careless operation of a vessel, nor any other traffic or boating or water safety infraction is a lesser included offense under a charge of driving a motor vehicle or operating a vessel while under the influence of alcohol or controlled substances.
" '(e) On a second conviction within a five-year period, the person convicted of violating this section shall be punished by a fine of not less than five hundred dollars ($500) nor more than two thousand five hundred dollars ($2,500) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence which is not subject to suspension or probation of imprisonment in the county or municipal jail for not less than 48 consecutive hours or community service for not less than 20 days. In addition the director of public safety, in the case of a motor vehicle or the Commission of Conservation and Natural Resources in the case of a vessel or other marine device described, shall revoke the driving or vessel operating privileges or driver's license or boater safety certification of the person so convicted for a period of one year.
" '(f) On a third or subsequent conviction within a five-year period, the person convicted of violating this section shall be punished by a fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and which cannot be probated or suspended. In addition, the director of public safety, in the case of motor vehicle or the Commissioner of Conservation and Natural Resources in the case of a vessel or other marine device described, shall revoke the driving or vessel operating privilege or driver's license or boater safety certification of the person so convicted for a period of three years.
" '(g) Except as otherwise provided in this act, all fines collected for violation of this section resulting from arrests by state officers shall be paid into the state general fund; and except as otherwise provided, all fines so collected for violations resulting from arrests by county or municipal officers shall be disbursed as otherwise provided for by law. All fines collected for violation of this section as to vessels or other marine devices on the waters of this state shall be paid into the State Water Safety Fund.
" '(h) A person who has been arrested for violating this section shall not be released from jail under bond or otherwise, until there is less than the same percent by weight of alcohol in the person's blood as specified in subsection (a)(1).
" '(i) "Vessel," for the purposes of this section, shall mean any vessel as defined in Section 33-5-3, Code of Alabama 1975, operated on the waters of this state, as defined in Section 33-5-3, Code of Alabama 1975.
" '(j) Notwithstanding anything to the contrary, all penalties and convictions provided by this section, including, but not limited to, all suspensions and revocations, shall separately, rather than cumulatively or jointly, apply to violations of this section relating to (a) the operation of motor vehicles, and (b) the operation of vessels and other marine devices. No provision of this subsection (j) shall be construed to assess points for DUI convictions under motor vehicle convictions for driving under the influence.' "
(Emphasis added.)
Section 36 of the Act states:
"Section 36. All other laws in conflict with this act are hereby repealed to the extent of their conflict with this act and Section 33-5-24, Code of Alabama 1975, are specifically repealed."
(Emphasis added.)
The appellate courts of this state have repeatedly stated the basic rule of statutory construction.
