Davis v. State

589 So. 2d 1305, 1991 Ala. Crim. App. LEXIS 1181, 1991 WL 164581
CourtCourt of Criminal Appeals of Alabama
DecidedJune 28, 1991
DocketCR-89-1158
StatusPublished
Cited by1 cases

This text of 589 So. 2d 1305 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 589 So. 2d 1305, 1991 Ala. Crim. App. LEXIS 1181, 1991 WL 164581 (Ala. Ct. App. 1991).

Opinion

TYSON, Judge.

John Leonard Davis was charged with and convicted of driving under the influence in violation § 32-5A-191(a)(2), Code of [1306]*1306Alabama 1975. The jury found him guilty of “driving under the influence of alcohol to a degree which rendered him incapable of safely operating the vehicle at the time complained of in this case” and he was fined $250 and costs. He appeals.

On the morning of October 28, 1988, State Trooper Albert Russell saw the appellant speeding and driving erratically on 1-65 near Birmingham, Alabama. After Russell stopped the appellant, he determined that the appellant was intoxicated and he arrested the appellant for driving under the influence. Russell then transported the appellant to the Jefferson County Sheriffs Department, where the appellant was given an alcohol breath test. The results of the test showed the appellant’s blood alcohol content to be .19 percent.

I

The appellant contends that the proper predicate for the admission of the Intoxilyzer 5000 test was not established because the state failed to prove that the “prosecuting authority” had designated that test for use by that authority. During the examination of Officer Virginia Pilato of the Jefferson County Sheriffs Department, who administered the test to the appellant, the following occurred:

“Q. This machine that you are talking about, I believe the Intoxilyzer 5000, has it been approved for use by the Department of Forensic Sciences?
“A. Yes, ma’am.
“Q. Is it also the machine that is commonly used by the Jefferson County Sheriff’s Department?
“A. Yes, ma’am.” (R. 85.)

In Estes v. State, 358 So.2d 1050, 1053 (Ala.Crim.App.1977), cert. denied, 358 So.2d 1057 (Ala.1978), this court held that “the proponent offering the results of the chemical test [must] establish that the particular test method used has been officially approved and adopted by officials of the law enforcement agency which administered the test in question.” (Emphasis in original.) See also Mayes v. City of Irondale, 577 So.2d 556 (Ala.Crim.App.1990). Thus, it was necessary to prove that the Jefferson County Sheriff’s Department, and not the Department of Public Safety, had approved the use of the Intoxilyzer 5000 test. Clearly, it can be inferred from Officer Pilato’s testimony that the Jefferson County Sheriff’s Department had approved the use of this particular test. There is no merit to this issue.

II

The appellant contends that reversible error occurred because Officer Pilato testified only that the results of the Intoxi-lyzer 5000 test were “.19 percent” instead of “.19 percent by weight of alcohol.” This same issue was addressed by this court in Mayes. In Mayes we stated that:

“[although there was no direct testimony that the Intoxilyzer 5000 measures blood-alcohol content, this is a legitimate inference that the jury was entitled to draw from all of the testimony presented at trial. ‘[W]here there is a reasonable inference deducible from the evidence of the existence of the corpus delicti, the court should submit the question of sufficiency and weight of the evidence tending to support that inference for the jury’s consideration.’ Taylor v. State, 249 Ala. 130, 133, 30 So.2d 256, 258 (1947). Here, the jury was not ‘left in a state of confusion by the witness’s failure to specifically’ state that the per centage was ‘by weight of alcohol.’ Ex parte Veasey, 531 So.2d 323 (Ala.1988).”

The appellant further contends that reversible error occurred because the trial court in its oral charge to the jury stated that the appellant’s blood-alcohol content was “.10 or more” and did not state that his blood-alcohol content was “.10 percent or more.” Under the reasoning set out above, the trial judge’s failure to include the word “percent” does not constitute reversible error. Certainly the jury could infer that “.10” referred to “.10 percent.”

III

The following occurred during the prosecutor’s closing argument:

[1307]*1307“MS. PETRO [prosecutor]: That she administered the test to this man and that this man, after blowing into the machine, the results read that the percent of alcohol in his system—
“MR. PARKER [defense counsel]: We object. She didn’t testify to that, Your Honor.
“THE COURT: What did you say she testified to?
“MS. PETRO: She testified to the percent of alcohol in his system.
“MR. PARKER: She never said that.
“THE COURT: I told you just a moment ago that you heard the evidence. You will have 24 ears in there and together you decide what you heard. These lawyers have got a right to argue. Move on.
“MR. PARKER: I object to her arguing that when it’s not in evidence.
“THE COURT: Move on.
“MR. PARKER: Do you overrule me, Judge?
“THE COURT: Sure.
“MS. PETRO: Ladies and gentlemen, you have this card right back there with you and you will see where this man blew a .19.
“MR. PARKER: Objection.
“THE COURT: What these lawyers say is not the evidence. You heard the evidence from the witnesses who were sworn to tell the truth.” (R. 136-38.)

The appellant argues that the prosecutor was arguing matters not in evidence when she stated that “the results read that the percent of alcohol in his system-” be-

cause Officer Pilato never directly referred to alcohol in the appellant’s blood system. Officer Pilato testified that the Intoxilyzer 5000 measures alcohol content and, therefore, the prosecutor was arguing inferences from the evidence presented at trial. This argument lacks merit.

IV

The appellant contends that under the evidence of this case the trial judge should have instructed the jury on the offense of reckless driving as a lesser included offense of DUI. This issue has been decided adversely to the appellant. In Wright v. State, 574 So.2d 1031 (Ala.Crim.App.1990), this court stated:

“DUI and reckless driving are separate offenses and a defendant may be convicted of both offenses. Sporl v. City of Hoover, 467 So.2d 273, 274 (Ala.Cr.App.1985). However, subsection (c) of § 32-5A-190 provides: ‘Neither reckless driving nor any other moving violation under this chapter is a lesser included offense under a charge of driving under the influence of alcohol or drugs.’ Furthermore, ‘[i]t has been generally held that reckless driving is not a lesser included offense of driving while intoxicated or of variations of the latter charge.’ Annot., 10 A.L.R.4th 1252, 1253 (1981).”

Thus, there is no merit to the appellant’s contention that § 32-5A-190(c), Code of Alabama 1975, is unconstitutional since reckless driving is not a lesser included offense of DUI.

V

The appellant also argues that the trial court committed reversible error in its oral charge to the jury. The following portion of the court’s charge is relevant to this issue:

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Bluebook (online)
589 So. 2d 1305, 1991 Ala. Crim. App. LEXIS 1181, 1991 WL 164581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-alacrimapp-1991.