| Ala. Crim. App. | Sep 29, 1989
Willie Gene PITTS
v.
CITY OF AUBURN.
Court of Criminal Appeals of Alabama.
*185 J. Michael Williams, Sr., Auburn, for appellant.
Jacob A. Walker III, Opelika, for appellee.
BOWEN, Judge.
Willie Gene Pitts was convicted of DUI in violation of Ala.Code 1975, § 32-5A-191(a)(2). He was sentenced to 90 days in the city jail, fined $1000, and his driver's license was ordered revoked for a period of three years.
I
The trial judge erroneously instructed the jury that "[i]t is not for the prosecution to prove that the intoxication or under the influence reached a state where it would or did interfere with the operation of a 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 the state."
In Ex parte Buckner, 549 So. 2d 451" court="Ala." date_filed="1989-06-16" href="https://app.midpage.ai/document/ex-parte-buckner-1799859?utm_source=webapp" opinion_id="1799859">549 So. 2d 451 (Ala. 1989), the Alabama Supreme Court held that in a prosecution for DUI under Ala. Code 1975, § 32-5A-191(a)(2), "the prosecution's burden is to prove that the defendant was under the influence of alcohol to the extent that it affected his ability to operate his vehicle in a safe manner. * * * We further hold that, for purposes of § 32-5A-191(a)(2), the phrase `under the influence of alcohol' is to be defined as `having consumed such an amount of alcohol as to affect his ability to operate a vehicle in a safe manner.'"
II
Although we reverse this case on the ground stated in Part I of this opinion, the following rule should be observed in the event of a retrial: "The results of the Alco-Sensor test should not have been admitted to show that the defendant was intoxicated." Boyd v. City of Montgomery, 472 So. 2d 694" court="Ala. Crim. App." date_filed="1985-05-14" href="https://app.midpage.ai/document/boyd-v-city-of-montgomery-1946147?utm_source=webapp" opinion_id="1946147">472 So. 2d 694, 697 (Ala.Cr.App.1985). See also Trousdale v. State, 500 So. 2d 1329" court="Ala. Crim. App." date_filed="1986-11-25" href="https://app.midpage.ai/document/trousdale-v-state-7554878?utm_source=webapp" opinion_id="7554878">500 So. 2d 1329, 1330 (Ala.Cr.App.1986).
The judgment of the circuit court is reversed and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
All Judges concur.