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MCDANIEL v. STATE9/26/1997
The appellant, Walter Todd McDaniel, was convicted in St. Clair District Court of several traffic offenses, including driving under the influence of alcohol, a violation of § 32-5A-191, Code of Alabama 1975. This case comes to us on a direct appeal from district court, pursuant to Rule 30.2, Ala.R.Crim.P., and § 12-12-72(1), Code of Alabama 1975. On appeal, the appellant challenges only his conviction for driving under the influence of alcohol. As required by Rule 30.2, Ala.R.Crim.P, the parties have stipulated to the facts, and the appellant has waived his right to a jury trial.
Following his arrest, the appellant submitted to chemical testing by the Intoxilyzer SW ("I-5000"). His first breath test resulted in a 0.10% blood-alcohol reading. The second test rendered an "invalid" result because the appellant was unable to provide a sufficient breath sample for analysis. Trooper Allen Vines, the arresting officer, deemed the appellant's unsuccessful attempt a "refusal." At trial, the state introduced the result of the first test over the appellant's objection.
The appellant contends that the trial court erred by admitting into evidence testimony concerning the results of the I-5000 blood-alcohol test administered to him by the arresting officer. Specifically, the appellant argues that because, he says, the state failed to establish the statutory predicate for admission of the test results, as required by § 32-5A-194(a)(1), Code of Alabama 1975, the test result was inadmissible.
Section 32-5A-194(a)(1) provides:
"(a) Upon the trial of any civil, criminal or quasi-criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual control of a vehicle while under the influence of alcohol or controlled substance, evidence of the amount of alcohol or controlled substance in a person's blood at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath or other bodily substance, shall be admissible. Where such a chemical test is made the following provisions shall apply:
"(1) Chemical analyses of the person's blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the Department of Forensic Sciences and by an individual possessing a valid permit issued by the Department of Forensic Sciences for this purpose. The court trying the case may take judicial notice of the methods approved by the Department of Forensic Sciences. The Department of Forensic Sciences is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Forensic Sciences. The Department of Forensic Sciences shall approve permits required in this section only for employees of state, county, municipal, and federal law enforcement
agencies and for laboratory personnel employed by the Department of Forensic Sciences."
(Emphasis added.) Those "methods approved by the Department of Forensic Sciences" referred to in § 32-5A-194(a)(1) are found in the Alabama Administrative Code at Rule 370-1-1-.01(4)(a) and (b) of the rules of the Alabama Department of Forensic Sciences, entitled "Report of Breath Test Result":
"(a) Two (2) samples of breath shall be tested. Wait at least two (2) minutes, but not more than fifteen (15) minutes after the first test to do the second test.
"Report the lower test result. Maintain the record of each test result.
"(b)
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