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[T] COFIELD v. STATE12/20/1996
AFFIRMED BY MEMORANDUM. NO OPINION.
TAYLOR, P.J., and PATTERSON and McMILLAN, JJ., concur;
COBB, J., dissents with opinion.
The admissibility of the I-5000 test depends on whether the appellant was actually charged by Uniform Traffic Ticket and Complaint ("UTTC") with driving under the influence of alcohol under § 32-5A-191(a)(2) at the scene of the traffic stop. It is not clear from the arresting officer's testimony whether the UTTC charging the appellant with DUI under § 32-5A-191(a)(2) was issued at the scene of the stop or after the appellant was taken to the jail and the I-5000 test was administered. Therefore, I must respectfully dissent from the majority's holding. I find the following testimony important to this issue.
"Q. [Officer Kathy Norwood], you had not, indeed advised Mr. Cofield that he was under arrest at the time you had the Intoxilyzer 5000 test administered, isn't that a fact?
"A. That is correct.
"Q. And, in fact, if he had passed that Intoxilyzer 5000 test, you would have released him, wouldn't you?
"A. Yes, sir.
". . . .
"Q. First of all, you had not informed him that he was under arrest for DUI or anything else?
"A. That's correct, sir.
"Q. In fact, in the final analysis you didn't arrest him for anything but DUI, did you?
"A. That's correct.
"Q. I mean, no reckless driving or weaving and bobbing or speeding or anything else?
"A. No, sir.
"Q. Secondly, you would have released him had he passed the Intoxilyzer 5000 test; he would have been free to walk out at that moment; is that a fact?
"A. Yes, sir."
R. 27-29.
In addition, there exists confusion over when the UTTC was issued and what offense it charged. The record reflects that three UTTC's were in fact issued because of clear errors and that modifications may have been made to the last UTTC issued. It is not clear exactly what transpired regarding the UTTC. Defense counsel submitted to the court that the original UTTC issued to the appellant did not specify whether he had violated § 32-5A-191(a)(1) or (a)(2). R. 36.
The majority cites Hays v. Jacksonville, 518 So.2d 892, 894 (Ala.Cr.App. 1987), as support for affirming the appellant's conviction. In Hays, the defendant's car was stopped because the vehicle was "weaving." When the officer requested to see the defendant's driver's license he smelled alcohol inside the car. The defendant then failed two field sobriety tests and was arrested for improper lane usage. He was transported to the police station and given an I-5000 test. The defendant's blood alcohol content was .16 percent. The defendant was then arrested and charged with DUI. This court determined that " ecause none of the § 32-1-4(b) exceptions to the misdemeanor traffic offense arrest provisions of § 32-1-4(a) applied to the defendant here, Officer Starr was not authorized to detain [the defendant] following her arrest for improper lane usage. [The defendant's] arrest was, therefore, not 'lawful' within the meaning of § 32-5-192(a), and the results of her blood alcohol test were inadmissible in evidence." Hays, at 894. I recognize that the facts in Hays are distinguishable from those on the present case. The crux of the Hays decision was that the appellant was charged with improper lane usage at the scene of the traffic stop instead of with DUI. In the present case, it appears that the only charge ever contemplated by the officer was DUI. However, I believe that the principles set for in Hays are applicable to the present case.
I agree with the major
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