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MEININGER v. STATE4/19/1996
were incorrect since the defendant did not exhibit physical signs of intoxication consistent with . . . having .10% blood alcohol concentration or higher.' " Curren, 620 So.2d at 743 (quoting 4 Richard E. Erwin et al., Defense of Drunk Driving Cases § 33A.01 (3d ed. 1991). Conversely, the state, in a prosecution under § 32-5A-191(a)(1), should be allowed to present evidence that the defendant did exhibit physical signs of intoxication, as circumstantial evidence useful in convincing jurors that the results of the blood alcohol test performed on the defendant were accurate.
Finally, I disagree with the majority's suggestion that evidence relating to the physical signs of a defendant's intoxication in a prosecution under § 32-5A-191(a)(1) is, in effect, evidence of a collateral offense. It is well settled that subsections (1) and (2) of § 32-5A-191(a) "are not separate offenses, but are two methods of proving the same offense — driving under the influence of alcohol." Ex parte Buckner, 549 So.2d 451, 452 (Ala. 1989). See Sisson v. State, 528 So.2d 1159 (Ala. 1988). By the majority's logic, evidence presented in a prosecution under § 32-5A-191(a)(2) that a defendant's blood alcohol level was .10% or more would likewise be evidence of a collateral offense. If such evidence is in fact evidence of a collateral offense and, therefore, prima facie inadmissible, why would there ever be a need for the trial court to instruct the jury on the rebuttable presumption in § 32-5A-194(b) in a prosecution under § 32-5A-191(a)(2), since, if the premise is accepted, the jury should not have been allowed to hear evidence regarding blood alcohol test results in prosecutions under that subsection? However, it is clear from Curren and other case law that the results of blood alcohol tests — even tests reflecting concentrations of .10% or more — are admissible in prosecutions under § 32-5A-191(a)(2). See, e.g., Frazier v. City of Montgomery, 565 So.2d 1255, 1257 (Ala.Cr. App. 1990) ("Although it is not required to do so, the prosecution may, in a prosecution under (a)(2), introduce the results of a chemical test for intoxication."). I believe that just as the results of blood alcohol tests are admissible in prosecutions under § 32-5A-191(a)(2), evidence relating to the physical signs of a defendant's intoxication should be admissible in prosecutions under § 32-5A-191(a)(1). I therefore dissent.
LONG, Judge (dissenting).
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