Collier v. StateCollier v. State
- Reporters:
- ,
- Before:
- Taylor, Patterson, McMillan, Tyson
The U.T.T.C. charged Collier with being in violation of ”
The trial judge instructed the jury that under ”
Defense counsel made a timely objection to the oral charge of the trial court. Placing the judge‘s response to the objection within the context in which it appears in the record, it is absolutely clear to this Court that the judge‘s comment, “Your exception will be so noted for the record,” was an adverse ruling denying the objection to the oral charge. Galloway v. State, 416 So.2d 1103, 1108-09 (Ala.Cr.App. 1982).
“(a) A person shall not drive or be in actual physical control of any vehicle while:
“(1) There is 0.10 percent or more by weight of alcohol in his blood;
“(2) Under the influence of alcohol;
“(3) Under the influence of a controlled substance to a degree which renders him incapable of safely driving;
“(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him incapable of safely driving; or
“(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him incapable of safely driving.”
There is no subsection “(A)(1)(2)” to
Here, the complaint properly charged only a violation of subsection (a)(2) of
In Sisson v. State 528 So.2d 1151 (Ala.Cr.App. 1987), this Court “conclude[d] that subsections (a)(1) and (a)(2) of the D.U.I. Statute are separate and distinct offenses.” In reaching that conclusion, the majority relied on the cases of Boyd v. City of Montgomery, 472 So.2d 694 (Ala.Cr.App. 1985); Smith v. State, 470 So.2d 1365 (Ala.Cr.App. 1985); State v. Henson, 443 So.2d 507 (Fla.Dist.Ct.App. 1984); Peters v. State, 175 Ga. App. 463, 333 S.E.2d 436 (1985); and Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985).
Smith and Boyd only inferentially support the conclusion reached in Sisson. Smith, 470 So.2d at 1368, held that evidence that the accused was driving with a blood-alcohol level of 0.10 percent supported his conviction for driving under the influence of alcohol. Boyd, 472 So.2d at 699, held that the trial judge properly refused to instruct the jury on
Henson, Peters, and Atkins are more directly in point. Henson, 443 So.2d at 507-08, apparently applying the principle that distinct offenses cannot be charged in the same count, held that the State must charge driving under the influence of alcohol and driving with a blood-alcohol level of .10% or above in separate counts of an information rather than combining the allegations as alternative theories of prosecution in a single count. Peters and Atkins did hold that driving under the influence of alcohol and driving with a blood-alcohol
“The State contends that the disjunctive subsections (a)(1) and (a)(4) of this single Code section establish two different offenses, and that, for this reason, appellant will not be reprosecuted for the same crime. There is authority for this construction of
OCGA § 40-6-391 . In Peters v. State, 175 Ga. App. 463, 333 S.E.2d 436 (1985) and Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985), this court held that subsections (a)(1) and (a)(4) of the statute establish different crimes. However, our Supreme Court has clearly held otherwise. ‘Subsection (a)(4) simply sets out an alternative method of proving the crime established by the DUI statute.’ (Emphasis supplied.) Lester v. State, 253 Ga. 235, 238, 320 S.E.2d 142 (1984). See also Melton v. State, 175 Ga. App. 472, 473, 333 S.E.2d 682 (1985). Accordingly, to the extent that they are inconsistent with the Supreme Court‘s holding thatOCGA § 40-6-391 establishes the one crime and that subsections (a)(1) and (a)(4) merely set out two different methods of proving the same crime, Peters and Atkins and any similar cases are hereby overruled.”
Unlike Georgia, the courts of this state have not “judicially imported” under subsection (a)(2) (driving under the influence) the requirement of proof that the driver be under the influence of alcohol to a degree which renders him incapable of safely driving. See Peters v. State, 175 Ga. App. 463, 333 S.E.2d 436, 437 (1985). For this reason, much of the language in the quoted material from Peters, supra, and Atkins v. State, 175 Ga. App. 470, 333 S.E.2d 441 (1985), found in Sisson, supra, is not applicable to charges under § 31-5A-191.
The difference between being under the influence of alcohol and being intoxicated is the difference between ” ‘Tweedle dee and Tweedle dum.’ ” Holley v. State, 25 Ala. App. 260, 261, 144 So. 535 (1932). “If a man is under the influence of intoxicating liquors, he is intoxicated, and, if he is intoxicated within the meaning of this statute, he is under the influence of intoxicating liquor.” Id. “It is not for the State to prove that the intoxication had reached a stage where it would or did interfere with the proper operation of the motor vehicle. The law assumes, without further proof, that when a person is under the influence of intoxicating liquors that it is dangerous to the public, as well as to the driver, to operate a motor vehicle upon the highways of this State.” McMurry v. State, 28 Ala. App. 253, 254, 184 So. 42, cert. denied, 236 Ala. 589, 184 So. 43 (1938). See also Pace v. City of Montgomery, 455 So.2d 180, 185 (Ala.Cr.App. 1984); Evans v. State, 389 So.2d 567, 570 (Ala.Cr.App. 1980).
Despite the differing elements of proof between the Alabama and Georgia DUI statutes and despite the fact that the Georgia cases of Peters, supra, and Atkins, supra, cited as authority by this Court in Sisson have been overruled, we affirm our holding in Sisson that subsections (a)(1) and (a)(2) of
“The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.” (Emphasis added in Hightower.) Hightower, 443 So.2d at 1274.
Washington and Hightower lead this Court to the conclusion that, even though a statute provides alternative or different methods of committing the same crime, each alternative will be treated as a separate offense for purposes of pleading and proof. Therefore, we conclude that the offense of driving under the influence of alcohol under
As we have previously determined, the complaint properly charged only a violation of subsection (a)(2), driving under the influence of alcohol. Consequently, the trial judge erred in charging the jury on subsection (a)(1). However, that error does not warrant a reversal of the defendant‘s conviction because the defendant was not prejudiced. Rule 45, Alabama Rules of Appellate Procedure.
At trial, Collier presented no defense. The State‘s evidence was undisputed and showed that Collier was driving under the influence of alcohol with a blood-alcohol level of .20 percent. The only witness at trial was Alabama State Trooper Robert Gorman. In addition to the results of the Intoxilizer 5000 test he gave Collier, he testified that he observed Collier‘s automobile “weaving slightly” and “cross the center line.” Trooper Gorman stated that Collier was “pretty well disheveled. . . . his complexion was flushed and his eyes were blood shot. He slurred when he talked, . . . He showed most all the characteristics of an intoxicated driver. * * * He was very unsteady on his feet. * * * He had a strong odor of alcoholic beverage. * * * He had wet his pants.” Trooper Gorman “recall[ed] at least one beer that was open” in Collier‘s automobile.
In this case, even though the trial judge instructed the jury that they could find Collier guilty of a crime not charged in the complaint, there is no possibility that the jury could have found that Collier was guilty of driving with a blood-alcohol level of 0.10 percent or more without also finding that he was guilty of driving under the influence of alcohol. The judgment of the circuit court is affirmed.
AFFIRMED.
TAYLOR, PATTERSON and McMILLAN, JJ., concur.
TYSON, J., conc