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Washburn v. Town of Blountsville5/28/1999
STATE OF ALABAMA --- JUDICIAL DEPARTMENT OCTOBER TERM, 1998-99
On September 28, 1998, Jimmie Ross Washburn was convicted in Blountsville municipal court of reckless driving and of driving under the influence , violation of Municipal Ordinance 15-1, which incorporates, §§32-5A-190 and 32-5A-191, Ala. Code 1975, respectively, after stipulating to certain facts. The trial court suspended his jail sentence of 30 days, placed Washburn on probation for 12 months, fined him $500, and ordered him to pay court costs. On appeal, Washburn argues that the town of Blountsville (1) failed to establish reasonable suspicion for the initial stop, (2) failed to establish probable cause for his arrest, and (3) failed to prove beyond a reasonable doubt that he was guilty of reckless driving and of driving under the influence. In a motion for a new trial, Washburn asserted that the verdict was contrary to the law and to the evidence, that the prosecutor failed to establish reasonable suspicion for the initial stop, and that the prosecutor failed to prove beyond a reasonable doubt that he was driving under the influence of alcohol. (C. 15.) A motion for a new trial is sufficient to preserve an issue of sufficiency of the evidence, even if no specific objection is made at trial. See Spangler v. State, 711 So.2d 1125 (Ala.Cr.App. 1997); see also Ex parte Pizzi, 505 So.2d 1250 (Ala. 1987). Therefore, these issues have been preserved for appellate review.
After Washburn entered a plea of not guilty, the prosecutor and Washburn stipulated to the following facts, which were read into evidence at trial:
" n or about the 14th day of August 1998, at approximately 4:56 p.m., the defendant, Jimm Ross Washburn, was in charge or control or operating a motor vehicle in the city limits of Blountsville, Alabama, on Main Street within the city limits of Blountsville when at said time and place he did operate his motor vehicle in a willful and reckless disregard of the rights and safety of others, that he was observed doing so by the officer, Mr. Vallice Robertson.
"Mr. Robertson made a traffic stop to Mr. Washburn. And he asked Mr. Washburn to alight from the vehicle, at which time Mr. Washburn did alight from the vehicle. At that time Mr. Robertson smelled a strong odor of alcohol on Mr. Washburn.
"He asked him to do some field tests. He refused to do field tests. He asked him to submit an Intoxilizer 5,000 [test]. He refused the ... test.
"He was arrested at the scene and charged with reckless driving and driving under the influence . That would be the City's evidence." (R. 6-7.)
After these stipulated facts were read into evidence by the prosecutor, Washburn objected to the reckless-driving language in the stipulation. Washburn's counsel stated, "Your Honor, ... , the only objection that the defense would offer would be that my client did not on said day at said time operate his motor vehicle in a willful and/or reckless manner. Besides that, Your Honor, the defense would concur in that stipulation." (R. 7.) The prosecutor did not respond to the objection and the Judge immediately found Washburn guilty of driving under the influence and of reckless driving. (R. 7-9.)
Apparently, neither the lower court nor the prosecutor realized that by objecting, Washburn indicated that he no longer joined in that portion of the stipulation relating to the facts concerning reckless driving. Because Washburn's objection was not challenged by the prosecutor, and not recognized by the lower court, the reckless driving portion of the stipulated facts cannot be included in the evidence before us for review.
Washburn argues that the Town of Blountsv
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