City of Huntsville v. Shanes

645 So. 2d 339, 1994 Ala. Crim. App. LEXIS 202, 1994 WL 228816

• Court: Court of Criminal Appeals of Alabama
• Decided: May 27, 1994
• Docket: CR 93-678
• Status: Published

Opinion

BOWEN, Presiding Judge.

This is an appeal by the City of Huntsville from the order of the circuit court suppressing the results of a breath test to determine blood-alcohol content in a prosecution for driving under the influence of alcohol.

The appellee’s motion to dismiss this appeal is due to be granted.

“In felony cases, the prosecution’s avenue for review of the dismissal of charges [or the pretrial suppression of evidence] by the circuit court is appeal pursuant to Rule 15.7(a), A.R.Crim.P. However, that avenue is not available in misdemeanor cases. ‘There is no provision for a pretrial appeal by the State in a misdemeanor case.’ City of Attalla v. Smith, 596 So.2d 651 (Ala.Cr. App.1992). Mandamus is the only remedy available to challenge the circuit court’s dismissal of misdemeanor charges pending against a criminal defendant [and the circuit court’s pretrial suppression of evidence in a misdemeanor case].”

Ex parte City of Tuscaloosa, 636 So.2d 692 (Ala.Cr.App.1993). The offense of driving under the influence of alcohol as defined in Ala.Code 1975, § 32-5A-191(a), presently constitutes, a misdemeanor because it is “[a]n offense for which a sentence to a term of imprisonment not in excess of one year may be imposed.” § 13A-l-2(3). See § 32-5A-191(c) and (d).

This appeal is dismissed.

APPEAL DISMISSED.

All Judges concur.