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Lum v. City of Brewton12/2/2003
Christopher Wayne Lum was convicted in the Brewton municipal court of driving under the influence of alcohol ("DUI"), a violation of § 32-5A-191(a), Ala. Code 1975. He appealed to the circuit court for a trial de novo and was again convicted of DUI. The trial court sentenced Lum to 10 days in the county jail, but suspended the sentence and placed him on probation for 2 years.
The evidence adduced at trial indicated the following. On April 17, 2002, at approximately 2:00 a.m., Carney Lee Fillmore, a patrol officer with the Brewton Police Department, was traveling on U.S. Highway 31 when he noticed a vehicle at a gasoline station. According to Officer Fillmore, the vehicle went over the curb near the gasoline pumps and then proceeded onto the highway without stopping. Officer Fillmore followed the vehicle and noted that it was traveling approximately 55 miles per hour in a 40-mile-per-hour zone. Officer Fillmore then stopped the vehicle for a traffic violation.
When Officer Fillmore approached the vehicle, he saw that there were three occupants; Lum was the driver. Officer Fillmore also noticed an odor of alcohol emanating from the vehicle. Officer Fillmore testified that he asked Lum to get out of the vehicle and that Lum did so, but with difficulty. According to Officer Fillmore, Lum had to lean against the vehicle to keep his balance as he got out. In addition, Officer Fillmore said that Lum's speech was slurred, his face was flushed, his eyes were glassy and red, and he was unable to focus. When asked how much he had had to drink, Lum told Officer Fillmore that he had had one beer. Officer Fillmore testified that he then administered two field-sobriety tests, both of which Lum failed. Officer Fillmore then arrested Lum for DUI and transported him to the police station. At the police station, Officer Fillmore administered the Draeger Alcotest 7110 MK III-C ("Draeger") breath test; the results indicated that Lum's blood-alcohol level was 0.08 percent.
I.
Lum contends that the trial court erred in allowing the City to introduce into evidence the Draeger test result because, he says, the City failed to lay a proper predicate for its admission. Specifically, he argues that the City failed to establish that the test was performed according to methods approved by the Department of Forensic Sciences ("the Department"), as required by § 32-5A-194(a)(1), Ala. Code 1975; section 32-5A-194(a)(1) provides:
"(a) 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 control of a vehicle while under the influence of alcohol or controlled substance, evidence of the amount of alcohol or controlled substance in a person's blood at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath or other bodily substance, shall be admissible. Where such a chemical test is made the following provisions shall apply:
"(1) Chemical analyses of the person's blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the Department of Forensic Sciences and by an individual possessing a valid permit issued by the Department of Forensic Sciences for this purpose. The court trying the case may take judicial notice of the methods approved by the Department of Forensic Sciences. The Department of Forensic Sciences is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permit
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