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Mester v. State10/29/1999
nd overwhelming).
An arresting officer may give his opinion concerning a defendant's intoxication. Grimes v. State, 488 So.2d 8, 9 (Ala.Cr.App. 1986). Here, Dunston's testimony that Mester's car was weaving, that Mester smelled of alcohol, that his speech was slurred, that his eyes were bloodshot, that his balance was "off", that he failed the field tests, and that it was Dunston's opinion that Mester was intoxicated, established that Mester was unable to safely drive an automobile because he was intoxicated. We have held that "'the testimony of the arresting officer ... is of itself sufficient to present a factual issue as to the intoxication of defendant and justifies the denial of defendant's motion to exclude the evidence made at the Conclusion of the State's evidence.'" Charles v. State, 424 So.2d 715, 717 (Ala.Cr.App.1982). To the extent that conflicting evidence existed, it was not so strong or persuasive as to overcome credible evidence to the contrary.
"'In an ore tenus proceeding, it is the duty of the trial court to resolve conflict in testimony and render judgment accordingly. Where the trial court resolves a factual issue on conflicting evidence, the reviewing court may not reverse it if there is any credible evidence to support the judgment.'" Richarson v. State, 668 So.2d 130, 137 (Ala.Cr.App. 1995)(quoting Big Ticket Broadcasting Co. v. Santos, 594 So.2d 1241, 1243-44 (Ala.Civ.App. 1991)(citations omitted). Considering the evidence in a light favorable to the prosecution, we find that the evidence was sufficient to sustain a conviction for driving under the influence as defined under § 32-5A-191(a)(2) Ala.Code 1975.
V.
Mester contends that the trial court erred in admitting into evidence the test printouts generated by the I-5000 test. For the reasons stated in part III, the test results were not admissible.
Based on the foregoing, Mester's conviction is affirmed.
APPLICATION OVERRULED; MEMORANDUM WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Long, P.J., and McMillan, Baschab, and Fry, JJ., concur.
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