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MEININGER v. STATE4/19/1996
ss the appellant's second issue: whether the trial court erred by denying his motion for a judgment of acquittal. He specifically alleges that the state failed to meet its burden in that it failed to prove that his blood alcohol level was 0.10% at the time he was operating the vehicle. Trooper Dodgen testified that he stopped the appellant at 10:24 p.m. He testified that the first breathalizer test he administered at 11:37 p.m. registered 0.155%, and the second test at 11:42 p.m. registered 0.165%.
The intervening 1 hour and 13 minutes between the time of the stop and the time of the first test does not affect the admissibility of the results but rather goes to the weight to be accorded that evidence. Faust v. City of Gadsden, 639 So.2d 536 (Ala.Cr.App. 1993). It was for the jury to determine if the state proved that the appellant's blood alcohol level was 0.10% or greater when he was operating his vehicle. There was sufficient evidence from which the jury could have been convinced of the appellant's guilt beyond a reasonable doubt. The trial court correctly denied the appellant's motion for a judgment of acquittal.
For the reasons discussed in Part I of this opinion, we conclude that the trial court erred in receiving into evidence certain testimony from the state trooper. The judgment in this case is therefore reversed and the cause remanded to the Circuit Court for Calhoun County for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
PATTERSON and McMILLAN, JJ., concur.
LONG, J., dissents with opinion in which COBB, J., joins.
I respectfully dissent for the following reasons.
First, I believe that the language in § 32-5A-194(b)(4), Ala. Code 1975, means that evidence concerning the defendant's physical signs of intoxication may be introduced in prosecutions under § 32-5A-191(a)(1), Ala. Code 1975, as well as in prosecutions under § 32-5A-191(a)(2), Ala. Code 1975. It appears to me that "driving under the influence" as that term is used in § 32-5A-194(b)(4) refers to the general offense proscribed
by § 32-5A-191, which offense may be proven either by the method set forth in § 32-5A-191(a)(1) or by the method set forth in § 32-5A-191(a)(2). See Ex parte Buckner, 549 So.2d 451, 452 (Ala. 1989); Sisson v. State, 528 So.2d 1159 (Ala. 1988).
Second, I do not read the Alabama Supreme Court's holding in Curren v. State, 620 So.2d 739 (Ala. 1993), as standing for the proposition that either the state or the defendant is forbidden from introducing evidence concerning the defendant's physical signs of intoxication, or lack thereof, in prosecutions under § 32-5A-191(a)(1). Rather, I believe that Curren stands for the proposition that because the state, in order to sustain a conviction under § 32-5A-191(a)(1), is not required to prove that the defendant was intoxicated, a trial court would not be warranted in charging the jury that the presumption of intoxication created by a blood alcohol level of 10% or more is rebuttable by other evidence: if one is in fact driving while one's blood alcohol level is .10% or more, one is violating § 32-5A-191(a)(1). This does not mean, however, that a defendant prosecuted under § 32-5A-191(a)(1) should be precluded from presenting evidence of his lack of physical signs of intoxication in an effort to cast doubt upon the accuracy of the test results that reflect a blood alcohol level of .10% or more. In fact, as the attorney general points out in his brief to this court, the Supreme Court in Curren listed as a possible defense in a prosecution under § 32-5A-191(a)(1) that " ' he blood, breath, or urine tests [reflecting a blood alcohol level of .10% or more]
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