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Brown v. State6/25/2004
On June 18, 2003, Alvin Bernard Brown was charged with two counts of driving under the influence of alcohol ("DUI"), violations of §§ 32-5A-191(a)(2) and 32-5A-191(a)(1), Ala.Code 1975. On October 21, 2003, Brown moved to suppress the results of his blood alcohol test on the ground that there was no evidence indicating that Brown, after having consumed alcohol, had been on a public roadway; after hearing testimony and argument, the trial court denied the motion. (R. 19.)
Also on October 21, 2003, Brown pleaded guilty to felony DUI with three prior DUI offenses, a violation of § 32-5A-191(a)(1) and (h), Ala.Code 1975. On December 22, 2003, the trial court sentenced him to three years in prison, but suspended the sentence and ordered him to serve six months followed by one year of work release, with the remainder of the sentence suspended; the trial court also fined Brown $4,100 and ordered that his driver's license be revoked for 5 years. This appeal followed.
On appeal, Brown argues, as he did at trial before pleading guilty, that the results of the blood alcohol test were inadmissible against him under the implied consent statute because he was on private property and allegedly there was no evidence indicating that he had driven, intoxicated, on public roadways. Because the circumstances of his arrest do not fall under the implied consent statute, § 32-5-192(a), Ala.Code 1975, he argues, and because he did not expressly consent to his blood being tested, the blood test was involuntary and, therefore, inadmissible.
The statute in question provides:
"Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 90 days; provided if such person objects to a blood test, the law enforcement agency shall designate that one of the other aforesaid tests be administered."
§ 32-5-192(a), Ala.Code 1975.
We have addressed the issue raised by Brown before in Lunceford v. City of Northport, 555 So.2d 246 (Ala.Crim.App.1988), and in Barnett v. State, 671 So.2d 135 (Ala.Crim.App.1995). In Lunceford, the appellant was found in a parked car in a private parking lot. The Court held that the evidence showed only that the appellant had been driving on private property; it remanded the cause for the trial court to determine the voluntariness of the appellant's blood test, in light of the fact that the evidence did not implicate the implied consent statute. The Court reasoned:
*2 " '[D]riving upon the public highways is a necessary predicate for application of the implied consent statute....' People v. Kissel, 150 Ill.App.3d 283, 103 Ill.Dec. 646, 647, 501 N.E.2d 963, 964 (1986). '[T]he implied consent statute requires a nexus between driving upon a public highway at the time of or shortly before his arrest and being subjected to the requirements of the stat
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