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Hopper v. City of Prattville2/4/2000
So. 2d 285, 288 (Ala.Cr.App. 1993), quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).
Accordingly, the trial court did not err in denying Hopper's motion to suppress to the marijuana pipe found in his pants pocket or the bag of marijuana found in his vehicle.
II.
Hopper also contends that the trial court erred in denying his motion for a judgment of acquittal on the charge of improper lane usage, see § 32-5A-88(1), Ala. Code 1975. (Issue III in Hopper's brief to this court.) Specifically, Hopper contends that the uniform traffic ticket and complaint ("UTTC") and the solicitor's complaint both charge him with improper lane usage on Cooter's Pond Road, which, Hopper says, is not a road with lane markings as required by § 32-5A-88, Ala. Code 1975. Section 32-5A-88, Ala. Code 1975, which sets out the rules regarding lane usage, states that " henever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply...."
The record reflects that the UTTC charging Hopper with improper lane usage stated the location of the offense as "at or near Cooter's Pond Road and Scenic Drive." (C. 79.) The solicitor's complaint similarly states the location of the offense as being "upon a public highway or street, namely, Cooter's Pond Road at Scenic Drive." (C. 83.) The testimony at trial indicated that Corp. Fells and Sgt. Ricks first encountered Hopper at the intersection of Highway 31 and Scenic Drive. According to Corp. Fells's testimony, Hopper cut off both patrol cars when he crossed over two lanes of traffic on Highway 31 without signaling. Hopper then ran a stop sign as he turned off Highway 31 onto Scenic Drive. Corp. Fells and Sgt. Ricks followed Hopper and eventually stopped him on Cooter's Pond Road. Corp. Fells testified that Highway 31 is divided into two or more clearly marked lanes.
The State's evidence was sufficient to establish improper lane usage. The testimony of Corp. Fells clearly established that Hopper violated § 32-5A-88, Ala. Code 1975, while he was driving on Highway 31. Although the UTTC and the solicitor's complaint listed the location of the offense as Cooter's Pond Road (where Hopper was actually stopped), rather than Highway 31 (where Hopper committed the traffic infraction), it is well settled that an allegation of the location of the offense in the charging instrument is immaterial to the charge; thus, any variance between the location in the charging instrument and the location adduced by the evidence introduced at trial is also immaterial. See Perry v. State, 549 So. 2d 119 (Ala.Cr.App. 1988).
Accordingly, the trial court did not err in denying Hopper's motion for a judgment of acquittal on the charge of improper lane usage.
III.
In several related issues, Hopper contends that the trial court erred in denying his motion to dismiss the charge of driving while under the influence of a controlled substance and his motion for a new trial on the charge of driving while under the influence of a controlled substance because, he says (1) the UTTC charging him with DUI failed to apprise him of the offense with which he was charged because the UTTC miscited the Code section (Issue I in Hopper's brief to this court); (2) the UTTC -- which Hopper says charged him with driving while under the influence of alcohol -- was, without Hopper's consent and over his objection, improperly amended by the solicitor's complaint to charge a different offense, specifically, driving while under the influence of a controlled substance (Issue II in Hopper's brief to this court); and (3) the t
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