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MEININGER v. STATE4/19/1996
The appellant, Stephen Philip Meininger, was convicted of driving while under the influence of alcohol (DUI), a violation of § 32-5A-191(a)(1), Code of Alabama 1975, because he was driving when his blood alcohol level was 0.10% or greater. He was sentenced to 15 days in the Calhoun County jail. His sentence was suspended, and he was put on unsupervised probation for two years.
The state's evidence tended to show that on the evening of April 8, 1995, the appellant was stopped by Alabama State Trooper David Dodgen for driving with an inoperable headlight. Trooper Dodgen testified that when he approached the appellant's vehicle to ask to see the appellant's driver's license, he smelled alcohol and saw an unopened container of beer on the front seat. He testified that after the appellant sat in his police vehicle for several minutes, he had the appellant perform some field sobriety tests. Trooper Dodgen testified that the appellant was unable to satisfactorily perform the tests.
Dodgen testified that he then placed the appellant under arrest for DUI and transported him to the county jail. Once at the jail, Dodgen testified that he waited 20 minutes and then performed two breathalizer tests on the appellant. He testified that the results of the first test showed a 0.155% blood alcohol level and the result of the
second test showed a 0.165% blood alcohol level.
The appellant raises two issues on appeal.
I
The appellant first contends that the trial court erred by receiving into evidence Trooper Dodgen's testimony regarding the appellant's physical condition at the time he was stopped, the results of field sobriety tests, and his opinion of the appellant's sobriety. The appellant contends that because he was indicted under § 32-5A-191(a)(1), this testimony should not have been received into evidence. Section 32-5A-191(a) read as follows at the time of the appellant's indictment:
"(a) A person shall not drive or be in actual physical control of any vehicle while:
"(1) There is 0.10 percent or more by weight of alcohol in his blood;
"(2) Under the influence of alcohol. . . ."
In addition, § 32-5A-194(b)(4), Code of Alabama 1975, provides:
"(b) 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 physical control of a vehicle while under the influence of alcohol, the amount of alcohol in the person's blood, urine, breath or other bodily substance shall give rise to the following presumptions:
". . . .
"(4) The foregoing provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcohol."
The appellant cites Curren v. State, 620 So.2d 739 (Ala. 1993) (Almon, J., dissenting), in support of his contention. In Curren, the Alabama Supreme Court, reversing a judgment of this court, noted that § 32-5A-191(a)(1) is an "illegal per se" law, and that the rebuttable presumption of § 32-5A-194(b) — that the defendant was intoxicated if his blood alcohol content was shown to be 0.10% — did not apply to a prosecution under § 32-5A-191(a)(1). In that case, this court had held that § 32-5A-194(b) created a rebuttable presumption of intoxication in cases prosecuted under § 32-5A-191(a)(1) and that failure to charge the jury that this presumption was rebuttable "invaded the province of the jury and amounted to a directed verdict of guilt based upon the results of the blood alcohol test alone." Curren v. State, 62
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