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[T] COFIELD v. STATE12/20/1996
ity's finding in the present case that there was probable cause to arrest the appellant for DUI under 32-5A-191(a)(2) — being "under the influence of alcohol" — at the scene of the traffic stop. However, in Hays, this court stated that probable cause to arrest for DUI by itself is insufficient to justify a custodial detention of a defendant for chemical testing. Hays, at 894. (This court has defined custody by stating, "Custody arises only if the restraint on freedom [reaches] the degree associated with formal arrest." Stone v. City of Huntsville, 656 So.2d 404 (Ala.Cr.App. 1994)). We said in Hays that a defendant can be tested only following an actual arrest for DUI that is "lawful" within the meaning of § 32-1-4. It was not established that this
was the sequence of events in the present case. The statute makes DUI a criminal offense and subjects a motorist actually arrested for DUI to custodial detention and chemical testing. The results of the chemical test may be used against a motorist in a DUI prosecution and also to determine when the motorist becomes eligible for release from jail. See. § 32-5A-191(g); § 32-5-192(a). Section 32-5-192(a) states:
"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."
(Emphasis added).
Stone also set out what should happen in the typical DUI case.
"Even taking into account § 32-1-4(b), a stop of a motorist whom an officer reasonably suspects of driving under the influence of alcohol or drugs is no different from a Terry stop. Once the stop is effected, the detaining officer may, as part of the 'moderate number of questions' asked of the motorist, request the motorist 'to perform a simple balancing test,'. . . to recite the alphabet . . . and/or to perform a balancing exercise while counting aloud. . . . If the officer's suspicions are dispelled during the brief detention and questioning, he must release the motorist. If the officer's suspicions are confirmed, he may charge the motorist with driving under the influence, for which § 32-1-4(b) mandates a custodial arrest. The latter situation is analogous to the situation where an officer makes a Terry stop based on the reasonable suspicion that a felony has been committed, has his suspicion ripen into probable cause during the Terry detention, and then effects a custodial arrest under § 15-10-3(a)(3).
Stone, supra (footnote and citations omitted).
Here, it is unclear whether the appellant was "actually charged" with DUI before he was taken to the jail and given the I-5000 test. It appears from the record that he was actually charged with DUI for the first time after he failed the I-5000 test. Therefore, I cannot conclude that the I-5000 test was properly admitted into evidence and I believe the appellant was improperly convicted under 32-5A-191(a)(1) — having 0.10 percent or more by weight of alcohol in his blood. In light of the above, I must respectfully dissent.
COBB, Judge, dissenting, from unpublished memorandum.
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