Ballard v. State12/21/2001
On March 6, 2001, Homer Ballard was convicted of one felony count of driving under the influence of alcohol ("DUI"), a violation of § 32-5A-191(a), and 191(h), Ala. Code 1975. On May 7, 2001, Ballard was sentenced to 10 years' imprisonment, and was ordered to pay a fine of $4,100, $50 to the Alabama Crime Victims Fund, and court costs. This appeal followed.
On October 3, 2000, Ballard was arrested and charged with driving under the influence of alcohol. In November 2000, the Baldwin County grand jury indicted Ballard for: (1) felony DUI, in violation of § 32-5A-191(a), and 191(h), Ala. Code 1975, in that he was driving under the influence and had three or more prior DUI convictions; (2) DUI, in violation of § 32-5A-191(a), Ala. Code 1975; (3) reckless driving, in violation of § 32-5A-190, Ala. Code 1975; and (4) driving while his license was revoked or suspended, in violation of § 32-6-19. During a pretrial proceeding, Ballard contested the existence his prior DUI convictions. The trial court found that three or more prior DUI convictions existed, and that the pending DUI charge was therefore a felony.
The jury found Ballard guilty of count I of the indictment, and the trial court adjudged Ballard guilty of felony DUI. At the sentencing hearing, Ballard objected to the introduction of three of the four prior DUI convictions the State presented. Ballard contended that the three were not properly certified, because they were certified by the Department of Public Safety, instead of by the court clerk. The trial court overruled Ballard's objection, and sentenced him, in accordance with § 32-5A-191(h), as having three or more prior DUI's, to serve 10 years' imprisonment and to pay the above-mentioned fines.
On appeal, Ballard argues that the trial court erred in admitting into evidence copies of prior DUI convictions that were certified by the Department of Public Safety, and not the clerk of the court of original jurisdiction. The State contends that proof of the priors was properly submitted. The admission of copies of computer printouts has been held admissible to prove charges of driving with a suspended license. e.g., Farmer v. Town of Daphne, 782 So. 2d 808 (Ala. Crim. App. 2000). See also Snavely v. City of Huntsville, 785 So. 2d 1162 (Ala. Crim. App. 2000). However, the issue whether copies of court records, certified by the director of the Department of Public Safety, are admissible to prove prior DUI convictions has yet to be addressed by any published Alabama cases.
Under the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975, " ecords showing prior convictions are properly admitted if they are certified by the clerk or deputy clerk of the court in which those convictions were obtained." Ex parte Hagood, 777 So. 2d 214, 216 (Ala. 1999). However, as specifically stated in § 32-5A-191(h), DUI convictions do not fall under the auspices of the HFOA. See Adamson v. State, 779 So. 2d 1286 (Ala. Crim. App. 2000).
The State, in its brief, citing Snavely, argues that, " certified copy of a public record is one that is signed and certified as a true copy by the officer having lawful custody of the original." (State's brief, p. 11). In Snavely, the document presented to the court was a certified copy of that defendant's driving history. This Court stated, "The most common method of proving a driving offense is through the admission of a certified copy of the defendant's driving history as maintained by the State Department of Public Safety." Snavely, 785 So. 2d at 1168.
In an unpublished memorandum, Hicks v. State, (No. CR-00-1144) ___ So. 2d ___ (Ala. Crim. App. 2001) (table), this Court addressed this issue:
"Section 32
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