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Mester v. State10/29/1999
ON APPLICATION FOR REHEARING
The memorandum issued on July 9, 1999, is withdrawn and the following opinion is substituted therefor.
Nicholas Mester was convicted in the District Court of Blount County of driving under the influence , in violation of § 32-5A-191(a)(2), Ala.Code 1975. This case comes to us on a direct appeal from the district court, pursuant to Rule 30.2, Ala.R.Cr.P., and § 12-12-72(1), Code of Alabama 1975. He has presented five issues on appeal.
The State offered the testimony of Officer Robert Dunston of the Blount County Sheriff's Department. He testified that between 2:00 a.m. and 2:40 a.m. he was at the Rainbow BP gasoline station at the intersection of Highways 231 and 278 in Blount County. Initially, he was inside the station. As he was getting into his car he noticed an automobile pushing a Mazda RX7 automobile onto Highway 231. He stated that he watched the cars proceed on Highway 231 to the "yield" sign and then turn onto Highway 278. Both vehicles were "swerving all over the road; especially the ." R. 20. He determined that the vehicles were unsafe, and he activated his blue light and pulled the cars over. Mester was behind the wheel of the RX7. After a brief conversation, Dunston determined that the RX7 would not start. Dunston noticed that Mester smelled strongly of alcohol, that his speech was slurred, that his eyes were bloodshot, and that his balance was off. Dunston administered a field sobriety test to Mester. Mester was instructed to walk nine steps heel to toe, with his hands by his side, counting out loud, and then turn and return in the same manner. Dunston stated that Mester's balance was off, that he missed heel to toe several times, and that he had to raise his hands for balance. Mester was also instructed to stand on one leg, raise the other leg in front, count out loud, and keep his hands to side. Dunston stated that Mester could not do this "without nearly falling down." R. 29. Dunston determined that it was unsafe for Mester to operate a motor vehicle, and he arrested him for driving under the influence . Mester was taken to the Blount County jail, where his blood alcohol content was determined to be .15.
The defense testimony was essentially as follows. Nichole Mester, the appellant's daughter, testified that about 1:00 a.m. on May 4, 1998, her Mazda RX7 automobile broke down and she coasted into a BP gasoline station at the intersection of Highway 231 and Highway 278 in Blount County. She telephoned her aunt, Lola Sanders, the appellant's sister, to come get her. She and her aunt went to Mester's house and woke him up to come help with the RX7. Mester was accompanied by his girlfriend's brother, William Haney, Jr. After arriving at the BP station, Mester went inside the station to purchase cigarettes. He saw Deputy Sheriff Dunston at that time. While Mester was inside the station a man, Mr. Hargrove, began to push the RX7 in an attempt to get it started. Nichole was behind the wheel of the RX7 at that time. The RX7 came to a stop on the side of the road on Highway 278. Mester says he then joined the group and told Nichole and Lola to find a chain and they would tow the car home. As the women left, Officer Dunston walked up. He determined that the car would not start, and he arrested Mester for driving under the influence . Mester stated that he was not driving the RX7 when Dunston allegedly saw it swerving. Mester admitted that he had had a few beers that evening but he, Nichole, and Lola denied that Mester was drunk.
I.
Mester contends that the prosecution failed to establish that Dunston had reasonable suspicion or probable cause to stop or arrest him for driving under the influence. Mester d
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