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Ewing v. State9/28/2001
The appellant, Jerrold Vernon Ewing, appeals from the trial court's order revoking his probation.
On August 10, 1998, Ewing pleaded guilty to first-degree criminal mischief, a violation of § 13A-7-21(a), Ala. Code 1975. He was sentenced, as a habitual felony offender, to 15 years' imprisonment. The sentence was suspended, and Ewing was placed on supervised probation for 5 years. On July 5, 2000, probation officer Bobby Newsome filed a delinquent probationer's report against Ewing, alleging that Ewing had violated the terms and conditions of his probation by committing a new offense, namely, driving under the influence . On December 13, 2000, a probation-revocation hearing was held. After the hearing, the trial court revoked Ewing's probation.
At the revocation hearing, Lisa Hamilton, an investigator with the Huntsville Police Department, testified that on June 28, 2000, she observed a blue Ford Taurus automobile, driven by Ewing, weaving between lanes and speeding. She followed the vehicle for approximately half a mile and then radioed the department and requested that a patrol officer stop the vehicle. Investigator Hamilton testified that Officer Winston, also with the Huntsville Police Department, responded to her request and stopped the vehicle. Over defense counsel's objection, Investigator Hamilton testified that Ewing was given an Intoxilyzer 5000 test after he was taken to the jail, and that the results showed that Ewing had a blood-alcohol level of .20 percent. Investigator Hamilton stated that she was not present when the Intoxilyzer 5000 was administered to Ewing and that she had no personal knowledge as to whether the test was administered properly. Investigator Hamilton also stated that a "report" - she did not identify what the report was or who prepared it -- indicated that only one test was administered because Ewing refused to take a second confirmation test.
I.
Ewing contends that the trial court erred in allowing Investigator Hamilton to testify regarding the results of the Intoxilyzer 5000 test. (Issue II in Ewing's brief.)
First, Ewing contends that the results were inadmissible because there was only one valid test (he refused to take the second confirmation test), and, he says, § 32-5A-194, Ala. Code 1975, requires that two tests be administered. Section 32-5A-194 provides, in pertinent part:
"(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 permits which shall be subject to termination or revocation at the discretion of the Department of Forensic Sciences. Th
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