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Washburn v. Town of Blountsville5/28/1999
al physical control of any vehicle while:
"(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
"(2) Under the influence of alcohol ...." § 32-5A-191, Ala. Code (West Supp. 1998).
Washburn refused to take an intoxilizer test. (R. 6.) Consequently, his blood alcohol content at the time of his arrest is unknown and, we must review whether there was sufficient evidence to establish that Washburn was driving "under the influence of alcohol" as that term is used in § 32-5A-191(a)(2).
One manner of presenting evidence to support a § 32-5A-191(a)(2) violation is by "prov beyond a reasonable doubt that the appellant drove, or was in actual physical control of, a motor vehicle while he was under the influence of alcohol to such an extent that it affected his ability to operate his vehicle in a safe manner." Goodwin v. State, [Ms. CR-96-0574, August 14, 1998] ___ So.2d ___ (Ala.Cr.App. 1998), citing Ex parte Buckner, 549 So.2d 451 (Ala. 1989); see also Frazier v. City of Montgomery, 565 So.2d 1255 (Ala.Cr.App. 1990).
The evidence established that Washburn was driving an automobile and that he smelled of alcohol. (R. 6.) After Washburn objected to the stipulation insofar as it related to reckless driving, there was no other evidence presented by the prosecutor tending to prove that Washburn was under the influence of alcohol, such as reckless driving. Therefore, we hold that the trial court also erred in finding Washburn guilty of driving under the influence .
For the above-stated reasons, the judgment of the lower court is due to be, and it is hereby, reversed and a judgment rendered in favor of Washburn.
REVERSED AND JUDGMENT RENDERED.
McMillan and Fry, JJ., concur; Long, P.J., and Baschab, J., concur in part and Dissent in part, with opinion by Long, P.J.
LONG, PRESIDING JUDGE, Concurring in part; Dissenting in part.
I respectfully Dissent from that portion of the majority's opinion rendering a judgment in favor of Washburn on his conviction for reckless driving. I would find that Washburn's assertions in his motion for a new trial that the verdict was contrary to the law and to the evidence were insufficient to preserve the issue of the sufficiency of the evidence to sustain his conviction for reckless driving. These grounds are nearly identical to those raised in Reed v. State, 717 So.2d 862, 864 (Ala.Cr.App. 1997), in which this court held that the defendant's motion for a new trial was insufficient to preserve for appellate review the issue of the sufficiency of the evidence to sustain his convictions for assault in the first and second degrees. Moreover, I would also find that Washburn failed to preserve his claim that the town of Blountsville failed to establish a reasonable suspicion for the initial stop. Washburn first raised this issue in his motion for a new trial. This was too late. See Draper v. State, 641 So.2d 1283 (Ala.Cr.App. 1993).
I do, however, find that Washburn's motion for a new trial contained assertions sufficient to preserve his claim that the evidence was insufficient to sustain his conviction for driving under the influence of alcohol. Moreover, I agree with the majority's Conclusion that the town's evidence was insufficient to sustain this conviction.
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