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MEININGER v. STATE4/19/1996
0 So.2d 737, 738 (Ala.Cr.App. 1992), rev'd, 620 So.2d 739 (Ala. 1993).
The Alabama Supreme Court in Curren stated that § 32-5A-191(a)(1) makes driving a vehicle with a blood alcohol content of 0.10% a crime without reference to the effect that alcohol has on the driver and that, therefore, intoxication is not an element of the offense. In addition, the Alabama Supreme Court held that while a defendant "can offer evidence to rebut the State's evidence that his blood alcohol content was 0.10% when he was found driving, or in actual physical control of, a vehicle," he cannot introduce evidence to rebut the fact that he was intoxicated, because, as the Alabama Supreme Court stated, whether the defendant was intoxicated "is not relevant to the charge of driving or being in actual physical control of a vehicle with a blood alcohol content of 0.10% or greater." Curren, 620 So.2d at 743.
During the appellant's trial, Trooper Dodgen testified concerning his observations of the appellant's physical condition at the time he stopped the appellant, the results of the field sobriety tests he administered, and his opinion of the appellant's sobriety. The appellant contends that, because a defendant charged under § 32-5A-191(a)(1) is not allowed to rebut the presumption of intoxication by presenting evidence of his physical condition at the time of the offense, the state should also be prohibited from presenting this type of evidence.
While the language in § 32-5A-194(b)(4), Code of Alabama 1975, at first appears to indicate that the state may introduce evidence of a defendant's intoxication, upon closer inspection it appears that this section applies to prosecutions for "driving under the influence," violations of § 32-5A-191(a)(2), not to violations of § 32-5A-191(a)(1), driving
with a blood alcohol content of 0.10% or greater.
"(b) Upon the trial of any civil, criminal or quasi-criminal action or proceeding arising out of the 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. . . ."
(Emphasis added.)
Because the section the appellant was prosecuted under, § 32-5A-191(a)(1), is an "illegal per se" law, the state is required to prove only that a defendant's blood alcohol level is 0.10% or higher. Testimony by the state trooper regarding the appellant's physical condition, his performance in field sobriety tests, and the trooper's opinion of his sobriety all go toward showing that the appellant was intoxicated and guilty of driving under the influence , a violation of § 32-5A-191(a)(2). "Evidence of any offense other than that specifically charged is prima facie inadmissible." Nicks v. State, 521 So.2d 1018 (Ala.Cr.App. 1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988).
The Alabama Supreme Court ruled in Curren that because intoxication is not an element of § 32-5A-191(a)(1), a defendant may not introduce evidence to rebut the presumption of intoxication if the defendant's blood alcohol level was 0.10% or greater. In accordance with the Supreme Court's ruling in Curren, we now hold that in prosecutions brought under § 32-5A-191(a)(1), the state may not introduce evidence of the nature of that introduced in the present case concerning a defendant's intoxication. The trial court erred by receiving into evidence Trooper Dodgen's testimony concerning the appellant's intoxication.
II
In the interest of judicial economy, we also addre
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