Stephen Philip Meininger was convicted of violating Ala. Code 1975, § 32-5A-191(a)(1), because he was driving when his blood alcohol level was 0.10% or more.1 He was sentenced to 15 days in the county jail; his sentence was suspended, and he was placed on unsupervised probation for 24 months. The Court of Criminal Appeals, relying on Curren v. State, 620 So.2d 739 (Ala. 1993), reversed Meininger's conviction, writing and holding as follows:
"The state's evidence tended to show that on the evening of April 8, 1995, [Meininger] was stopped by Alabama State Trooper David Dodgen for driving with an inoperable headlight. Trooper Dodgen testified that when he approached [Meininger's] vehicle to ask to see [Meininger's] driver's license, be smelled alcohol and saw an unopened container of beer on the front seat. He testified that after [Meininger] sat in his police vehicle for several minutes, he had [Meininger] perform some field sobriety tests. Trooper Dodgen testified that [Meininger] was unable to satisfactorily perform the tests.
"Dodgen testified that he then placed [Meininger] under arrest for DUI and transported him to the county jail. . . .
Dodgen testified that [at the jail] he waited 20 minutes and then performed two breathalizer tests on [Meininger]. He testified that the results of the first test showed a 0.155% blood alcohol level and [that] the result of the second test showed a 0.165% blood alcohol level.
". . . .
". . . [Meininger] first contends that the trial court erred by receiving into evidence Trooper Dodgen's testimony regarding [Meininger's] physical condition at the time he was stopped, the results of field sobriety tests, and his opinion of [Meininger's] sobriety. [Meininger] contends that because he was indicted under § 32-5A-191(a)(1), this testimony should not have been received into evidence. . . .
". . . In [Curren v. State, 620 So.2d 739 (Ala. 1993)], the Alabama Supreme Court . . . noted that § 32-5A-191(a)(1) is an 'illegal per se' law, and that the rebuttable presumption of § 32-5A-194(b) — that the defendant was intoxicated if his blood alcohol content was shown to be 0.10% — did not apply to a prosecution under § 32-5A-191(a)(1). In that case, this court had held that § 32-5A-194(b) created a rebuttable presumption of intoxication in cases prosecuted under § 32-5A-191(a)(1) and that failure to charge the jury that this presumption was rebuttable 'invaded the province of the jury and amounted to a directed verdict of guilt based upon the results of the blood alcohol test alone.' Curren v. State, 620 So.2d 737, 738
(Ala.Crim.App. 1992), rev'd, 620 So.2d 739 (Ala. 1993).
"The Alabama Supreme Court in Curren stated that § 32-5A-191(a)(1) makes driving a vehicle with a blood alcohol content of 0.10% a crime without reference to the effect that alcohol has on the driver and that, therefore, intoxication is not an element of the offense. In addition, the Alabama Supreme Court held that while a defendant 'can offer evidence to rebut the State's evidence that his blood alcohol content was 0.10% when he was found driving, or in actual physical control of, a vehicle,' he cannot introduce evidence to rebut the fact that he was intoxicated, because, as the Alabama Supreme Court stated, whether the defendant was intoxicated 'is not relevant to the charge of driving or being in actual physical control of a vehicle with a blood alcohol content of 0.10% or greater.' Curren, 620 So.2d at 743.
"During [Meininger's] trial, Trooper Dodgen testified concerning his observations of [Meininger's] physical condition at the time he stopped [Meininger], the results of the field sobriety tests he administered, and his opinion of [Meininger's] sobriety. [Meininger] contends that, because a defendant charged under § 32-5A-191(a)(1) is not allowed to rebut the presumption of intoxication by presenting evidence of his physical condition at the time of the offense, the state should also be prohibited from presenting this type of evidence.
"Because the section [Meininger] was prosecuted under, § 32-5A-191(a)(1), is an 'illegal per se' law, the state is required to prove only that a defendant's blood alcohol level is 0.10% or higher. Testimony by the state trooper regarding [Meininger's] physical condition, his performance in field sobriety tests, and the trooper's opinion of [Meininger's] sobriety all go toward showing that [Meininger] was intoxicated and guilty of driving under the influence, a violation of § 32-5A-191(a)(2). 'Evidence of any offense other than that specifically charged is prima facie inadmissible.' Nicks v. State, 521 So.2d 1018
(Ala.Crim.App. 1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988).
"The Alabama Supreme Court ruled in Curren that because intoxication is not an element of § 32-5A-191(a)(1), a defendant may not introduce evidence to rebut the presumption of intoxication if the defendant's blood alcohol level was 0.10% or greater. In accordance with the Supreme Court's ruling in Curren, we now hold that in prosecutions brought under § 32-5A-191(a)(1), the state may not introduce evidence of the nature of that introduced in the present case concerning the defendant's intoxication. The trial court erred by receiving into evidence Trooper Dodgen's
testimony concerning [Meininger's] intoxication."
Meininger v. State,
704 So.2d 1030,
1030-32 (Ala.Crim.App. 1996).
We granted the State's petition for certiorari review. The State argues that the decision of the Court of Criminal Appeals (concerning the admissibility of Trooper Dodgen's testimony about Meininger's physical condition at the scene) was based on an erroneous reading of Curren. We agree; therefore, we reverse.
Alabama's implied consent statute, Ala. Code 1975, §32-5-192, provides, in pertinent part, as follows:
"Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor.
The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 90 days; provided if such person objects to a blood test, the law enforcement agency shall designate that one of the other aforesaid tests be administered."
(Emphasis added.) In Morgan v. City of Vestavia Hills,628 So.2d 1047, 1049 (Ala.Crim.App. 1993), the Court of Criminal Appeals wrote:
"Where a chemical test to determine blood alcohol level is performed pursuant to the implied consent statute, Ala. Code 1975, § 32-5-192, the test results may be admitted either by 'show[ing] that the test was administered in conformity with [§ 32-5A-194]' or by laying 'the traditional evidentiary foundation used to admit results from scientific tests.' Moore v. State, 442 So.2d 164, 166 (Ala.Cr.App. 1983). Because the statutory predicate is easier to establish than the traditional scientific test predicate, most prosecutors, including the prosecutor in this case, choose to use the statutory predicate. To establish the statutory predicate, the prosecutor must show all of the following:
" '(1) that the motorist was lawfully arrested before being directed to submit to a test, (2) that the law enforcement oficer had reasonable grounds to believe that the motorist was driving under the influence, (3) that the test administered was designated by the proper law enforcement agency, Alabama Code § 32-5-192(a), (4) that the test was performed "according to methods approved by the [department of forensic sciences]," and (5) [that the test was performed] "by an individual possessing a valid permit issued by the [department of forensic sciences] for this purpose." Alabama Code 1975, § 32-5A-194(a)(1).'
"Boyd v. City of Montgomery, 472 So.2d 694, 699
(Ala.Cr.App. 1985). See also Ex parte Bush, 474 So.2d 168, 170 (Ala. 1985)."
See, also, Hays v. City of Jacksonville, 518 So.2d 892
(Ala.Crim.App. 1987), wherein the Court of Criminal Appeals correctly observed:
"Under Alabama's Chemical Test for Intoxication. Act (Implied Consent Law), Ala. Code 1975, § 32-5-191, et seq., a motorist must have been 'lawfully arrested' before any chemical test to determine intoxication is conducted in order to authorize the admission into evidence of the test results."
The record in the present case indicates that the prosecutor elected to establish the statutory predicate, see §32-5A-194(a), for the admission of the breathalizer tests performed on Meininger.2 Trooper Dodgen testified, in pertinent part, as follows:
"Q. Did you have occasion on that particular day to come into contact with Stephen Meininger?
"A. Yes, I did.
"Q. What were the circumstances surrounding that contact?
"A. A traffic stop.
"Q. What drew your attention to Mr. Meininger and his vehicle?
"A. I was traveling south on County Road 109. I met Mr. Meininger's vehicle. He had a headlight out. I turned around then.
"Q. Do you recall what kind of vehicle he had?
"A. 1979 Chrysler.
"Q. Were there any passengers in the vehicle?
"A. No.
"Q. Mr. Meininger was the only person in the vehicle?
"A. Yes, he was.
"Q. Was he seated behind the wheel?
"A. Yes.
"Q. Was he driving the car?
"Q. Driving without a headlight, is that a traffic offense?
"A. Yes, it is.
"Q. Did you effect the stop based on that?
"Q. Tell us step by step what you did once you effected the stop.
"Q. Once you approached Mr. Meininger, what, if anything, did you notice about him or his person?
"A. When I made the initial approach and asked him for his license, I smelled the odor of alcohol in the vehicle and also observed an unopened container of beer in the front seat of the vehicle.
"Q. At what point did you ask Mr. Meininger to exit his vehicle?
"A. Shortly right after that.
"Q. Did he do so?
"A. Yes, he did.
"Q. Once he exited the vehicle, did you have occasion to have a conversation with him or talk with him?
"A. Yes. After I had him exit the vehicle, I had him return to my vehicle and sit in my vehicle for a few minutes. After
that I had him exit my vehicle and perform some field sobriety tests.
"Q. Based on your knowledge, skill and training and his performance in these tests, do you have any opinion as to his performance?
"A. From my initial observation with the subject, smelling the odor, the way he exited his vehicle, and then after performing the field sobriety test, I felt like he was under the influence of alcohol.
"Q. Did you notice anything about his physical appearance other than the odor of alcohol?
"A. His eyes were bloodshot. He was unsteady on his feet. When he exited the vehicle, he leaned on his car door.
"Q. Did you notice anything about his clothing?
"A. Disheveled; not a real neat appearance.
"Q. What time of the evening was this?
"A. The initial stop was made at 10:24 p.m.
"Q. Were there many cars on the road?
"A. There were some other vehicles on the road, yes.
"Q. Did you at any time have the defendant outside of your viewing or outside of your observation?
"Q. Once you made your observation as to his being under the influence, what did you do?
"A. I placed him under . . . arrest for driving under the influence.
"Q. Did you transport him to the county jail?
"Q. Why did you transport him to the county jail?
"A. For incarceration and administration of the breathalizer test.
"Q. The breathalizer test, is that the Intoxilizer 5000?
"A. That's correct.
"Q. What is the purpose of the Intoxilizer 5000?
"A. To obtain a blood alcohol reading.
"Q. Does your employer, the Alabama State Troopers . . ., do y'all recognize the I-5000 as the appropriate means for testing blood alcohol?
"Q. Are you trained in the use of the I-5000?
"A. Yes, I am.
"Q. Mr. Mastin [the defendant's attorney] has stipulated to your credentials. You are certified; is that correct?
"A. That is correct.
"Q. And you can operate the I-5000?
"Q. The training you received, is that recognized by the Department of Forensic Sciences?
"Q. Exactly what steps does one go through in administering the I-5000?
"Q. When you and Mr. Meininger arrived at the sheriff's department, did you observe Mr. Meininger for a period of time?
"Q. How long did you observe him?
"A. A little over twenty minutes.
"Q. Are you required to observe the person for a period of time?
"A. Right. . . . [W]e have to observe them for twenty minutes before we give them the test.
"Q. Did you ever lose sight of Mr. Meininger?
"Q. Did you perform the test according to your certification?
"Q. Is there a checklist that you must go through?
"A. Yes.
"Q. Did you follow that checklist?
"A. Yes, I did."
Trooper Dodgen's testimony clearly established the requirements of the statutory predicate. Of particular importance here is the fact that Trooper Dodgen's testimony established that Meininger had been lawfully arrested for driving under the influence of alcohol before being directed to submit to the Intoxilizer 5000 test and that there was probable cause to believe that Meininger had been driving while under the influence of alcohol. It was incumbent upon the prosecutor to lay the necessary predicate for the admission of the results of the breathalizer test. We hold, therefore, that the trial court did not err in denying Meininger's motion to exclude Trooper Dodgen's testimony concerning his observations of Meininger's physical condition at the time of the arrest. In so holding, we note that Meininger's reliance on, and the Court of Criminal Appeals' interpretation of, Curren was misplaced.Curren does not stand for the proposition that evidence of an arresting officer's observations of a defendant's physical condition at the scene is inadmissible in a prosecution under §32-5A-191(a)(1). In Curren, we characterized the issue as follows:
"The issue in this case is whether the presumption that a person with '0.10 percent or more by weight of alcohol' is 'under the influence' applies in a case in which the defendant is charged under § 32-5A-191(a)(1) with driving or being in actual physical control of a vehicle with 0.10% or more by weight of alcohol in his blood."
620 So.2d at 740. As previously stated in note 2, we held inCurren that the presumptions discussed in § 32-5A-194(b) do not apply in a prosecution under § 32-5A-191(a)(1), because intoxication is not an element of the offense of driving with a blood alcohol content of 0.10% or greater (i.e., whether the defendant had consumed "such an amount of alcohol as to affect his ability to operate a vehicle in a safe manner" is not a consideration in a prosecution under § 32-5A-191(a)(1), see Exparte Buckner, 549 So.2d 451 (Ala. 1989) (defining "under the influence of alcohol" as used in § 32-5A-191(a)(2))). Meininger was prosecuted for violating § 32-5A-191(a)(1) and the trial court instructed the jury on the elements of that offense. Trooper Dodgen's testimony concerning Meininger's physical condition at the time of the arrest was relevant to establish probable cause to arrest. Evidence of probable cause to arrest was essential to establishing one of the material elements of the State's case-in-chief — that the results of the breathalizer tests showed Meininger's blood alcohol content to be 0.10% or greater.3
For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and the case is remanded for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, COOK, and SEE, JJ., concur.
ALMON, J., dissents.