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HARRELL v. STATE4/3/1998
The appellant, Terence Moore Harrell, was charged with operating or being in physical control of a vehicle while under the influence of alcohol, a violation of § 32-5A-191(a)(2),
Code of Alabama 1975. On September 8, 1997, he was found guilty and on October 23, 1997, he was sentenced to one year in the Baldwin County jail, that sentence was split and he was ordered to serve 48 hours; ordered to pay a $500 fine; and to pay $100 to the Head Injury Foundation, $25 to the crime victims compensation fund, and court costs.
I.
The appellant first argues that the trial court committed reversible error by denying his motion for a judgment of acquittal because, he argues, there was a fatal variance between the evidence at trial and the facts specified in the charging instrument. According to the appellant, there was evidence at trial that he was under the influence of a controlled substance or was under the influence of both a controlled substance and alcohol while driving a vehicle, which might have resulted in a violation of § 32-5A-191(a)(3) or (4), but not § 32-5A-191(a)(2), which was the only violation charged in the complaint. However, it is clear that the evidence presented during the State's case-in-chief was sufficient to support a conviction for a violation of § 32-5A-191(a)(2) and that it did not fatally vary from the complaint.
The evidence at trial tended to show that on June 14, 1996, at about 1:40 A.M., Patrol Officer Jeff Dunn with the Baldwin County Sheriff's Department, driving behind the appellant, saw the appellant's vehicle swerve into the passing lane as many as four times. After getting the appellant to pull over to the side of the road, Officer Dunn approached the vehicle, noticing that the appellant was slumped over the steering wheel. When the appellant rolled his window down, Officer Dunn immediately noticed the strong smell of an alcoholic beverage. Officer Dunn asked the appellant if he had been drinking and the appellant replied that he had had a few beers. The appellant had to lean against the car to exit, and when he closed the door, he staggered towards the back of the car. He was disheveled, sweaty, dirty, his eyes were glazed over and red, and he appeared confused when he tried to answer simple questions. Officer Dunn explained to the appellant that he was going to have him perform field sobriety tests and that the results could be used against him in a court of law. The appellant apparently became irritated with the idea of taking the tests, and he had difficulty performing the walk-and-turn test, and he was unable to keep his hands to his side, to count out loud, and walk heel-to-toe as instructed. Officer Dunn placed him under arrest, read him his Miranda warnings and transported him to the Daphne Police Department to take the Intoxilyzer 5000 test, which Officer Dunn was certified in administering. However, the appellant would not blow enough air into the machine for the operation of the test, claiming that he had emphysema. The appellant became irate, telling Officer Dunn that it was his fault that the appellant would lose his truck driver's license. Officer Dunn testified that based upon his training and prior DUI arrests, it was his opinion that the appellant was under the influence of alcohol.
On behalf of the defense, George Lowe, a friend of the appellant, testified that the appellant had been at his house all day from morning until after dark the day before his arrest. According to Lowe, the appellant spent the day cleaning his truck and did not consume any alcohol while at his house. Dr. Thomas F. Sapp also testified on behalf of the defense, stating that on June 10, 1997, he prescribed Darvacet-N 100 for treatment of a
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