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BEXLEY v. STATE4/18/1997
Following a trial de novo in circuit court, the appellant, Elbert W. Bexley, was convicted of driving under the influence of alcohol (DUI). He was sentenced to five days in jail. The sentence was suspended, and he was fined $500.
The portions of the record pertinent to the appellant's claims on appeal (which are discussed below) reflect that the Uniform Traffic Ticket and Complaint (UTTC) charged him with violating "State Code 32 5A 191(a)(2)." (C. 4.) Section 32-5A-191(a)(2), Ala. Code. 1975, defines DUI as driving or being in actual physical control of a vehicle while " nder the influence of alcohol." However, in the portion of the UTTC issued to the appellant entitled "Description of the Offense," the block next to the line reading "There Was .10% or More by Weight of Alcohol in His/Her Blood" was circled. (C. 4.) At the time the appellant was charged, § 32-5A-191(a)(1), Ala. Code. 1975, defined DUI as driving or being in actual physical control of a vehicle while " here is 0.10 [now .08] percent or more by weight of alcohol in [one's] blood." The appellant was convicted in the district court and appealed for a trial de novo in the circuit court. The prosecutor filed a solicitor's complaint in circuit court indicating that the appellant was charged with violating § 32-5A-191(a)(2), for driving while under the influence of alcohol. The appellant filed a motion to dismiss in circuit court, containing 48 grounds for dismissal; ground 46 alleged that the solicitor's complaint had improperly amended the original charge in the UTTC. The motion to dismiss was denied, and the appellant was convicted of DUI in circuit court.
I.
The appellant contends that his motion to dismiss should have been granted because, he says, the UTTC — which he says charged him with driving with ".10% or more" blood alcohol concentration because it alleged this fact in the "Description of the Offense" portion — was amended to charge the different offense, without his consent and over his objection, by the solicitor's complaint, of driving "under the influence of
alcohol." (Issues II and III in brief of appellant.) The appellant cites Sisson v. State, 528 So.2d 1159, 1162 (Ala. 1988), as support for this claim. In Sisson, the Alabama Supreme Court held that a district attorney's complaint charging the defendant with driving "under the influence of alcohol" (i.e., a violation of § 32-3-191(a)(2)) could not be amended, without the defendant's consent, to charge a violation for driving with ".10% or more" blood alcohol concentration (i.e., a violation of § 32-5A-191(a)(1)) where the UTTC alleged facts charging the defendant with driving "under the influence of alcohol" and merely cited to § 32-5A-191(a)(1).
However, when Sisson was decided, Rule 13.5(a), Ala.R.Crim.P., had not yet been adopted. Rule 13.5(a) provides:
"A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant's consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced."
(Emphasis added.)
Sisson was decided under the provisions of Rule 15.5(a), Ala.Temp.R.Crim.P., which was superseded by the adoption of Rule 13.5(a). Under Rule 15.5(a), Ala.Temp.R.Crim.P., a charge could not be amended without a defendant's consent. Under Rule 13.5(a), however, a charge may be amended without a defendant's consent "if no additional or different offense is charged and if the substantial lights of
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