Vickers v. StateVickers v. State
Thе appellant was convicted of escape in the third degree, in violаtion of § 13A-10-33, Code of Alabama (1975). He was sentenced to one year and one day in the State penitentiary, fined $1,000, and ordered to pay $25 to the victim’s compensation fund and to pay court costs. The appellant’s prison term was suspended and probаtion was ordered.
William E. Harris II, an Alabama State Trooper, “clocked” thе appellant’s vehicle traveling at 77 miles per hour on the night in question. He stopped the appellant, took his license and asked him to sit down in his police ear. He testified that he showed the appellant the speed on the rаdar and told him that he was going to write a ticket for speeding. He further testified that thе appellant became upset and began using profanity. Officer Harris testified that he had noticed the appellant staggering when he walked back to the police car, smelled alcohol on his breath, and noted that his speеch was slurred. Officer Harris continued filling out the speeding ticket and prepared to administer an alco-senser test. However, the appellant agreed to take a “spot” test but stated that he would not “go anywhere” with Officer Harris. Officer Harris testified that in response he stated “that he would have to, that he was under аrrest for speeding, and that I was going to carry him to town for — if he failed the test wherе he could take a test which is accepted by the courts to prove, yоu know, for his benefit more than mine, because I was convinced that he was intoxicated.” The appellant took the spot test and failed it. Officer Harris testifiеd that after the appellant was told that he had failed the test, he opеned the car door, jumped out of the car, and ran. A struggle ensued and the aрpellant was eventually handcuffed. Officer Harris called for help from othеr officers.
The following transpired during the cross-examination of Officer Harris:
“Q: You hаve told the jury that at the time he exited the car Mr. Jimmy Vickers was under arrest for speeding; is that correct?
“A: Yes, sir.
“Q: And at no time until your police officers arrived there hаd you arrested Mr. Jimmy Vickers for any other offense other than speeding; is that correct?
“A: The original charge?
“Q: Yes, sir.
“A: Yes, sir. The original charge was speeding.
“Q: And even after all this fussing takes place out on the highway there was no statement or inference at that time made about, ‘I’m arresting you for D.U.I.’?
“A: No, sir.
“Q: In the entire discourse with Mr. Vickers you addressed your attention with taking him downtown to take a test; is that сorrect?
“A: I don’t exactly understand what you mean.
*1191 “Q: All right. In reference to a possible D.U.I. charge you never made аny statements about arresting Jimmy Vickers for D.U.I. until after this entire transaction was over?
“A: I had told him after, you know, he took the spot test if it showed that he failed it, then we would gо to town and take the other test, and if he failed it then he would be charged with D.U.I.
[[Image here]]
“Q: Well, let me ask you this, sir: At what point did you arrest Mr. Jimmy Vickers for D.U.I.?
“A: Down at the scene — at the hosрital after it was all over I went ahead and placed him under arrest.
[[Image here]]
“Q: So, only át thаt time — only at the hospital did you arrest him for D.U.I.?
“A: Yes, sir.”
The appellant argues that he was improperly detained for the act of speeding with a “suspicion of D.U.I.” and was therefore improperly convicted of escape in the third degree. Escape in the third degree is committed where a person “escapes or attempts to escape from custody.” § 13A-10-33(a), Code of Alabama (1975). “[T]he police have no authority to take a motorist into custody and then require him to go to the locаl station house when that motorist had committed a misdemeanor traffic violation but is willing to sign the summons to court.” Morton v. State,
REVERSED AND JUDGMENT RENDERED.