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03/24/95 CHARLES GREGORY SMITH v. CITY TUSCALOOSA

March 24, 1995

CHARLES GREGORY SMITH
v.
CITY OF TUSCALOOSA



Appeal from Tuscaloosa Circuit Court. (CC-94-276; CC-94-277; and CC-94-278). John England, TRIAL JUDGE.

Rule 39(k) Motion Denied May 5, 1995. Rehearing Denied May 5, 1995. Released For Publication January 9, 1996.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Charles Gregory Smith, was convicted of driving while under the influence of alcohol, a violation of § 32-5A-191, Code of Alabama 1975, driving while his license was revoked, a violation of § 32-6-19, Code of Alabama 1975, and driving with improper lights, a violation of § 32-5-240, Code of Alabama 1975. He was sentenced to 60 days' imprisonment in the City of Tuscaloosa Jail and was fined $1,000 for the driving under the influence conviction. He was fined $100 and $20, respectively, for the offenses of driving while his license was revoked and driving with improper lights.

The city's evidence tended to show that on Sunday, December 19, 1993, at approximately 2:30 a.m., the appellant, while under the influence of alcohol, was driving an automobile on a city street in Tuscaloosa, Alabama.

In the early morning hours of December 19, off-duty Tuscaloosa Police Officer Clint Davis was working as a security guard at the Bama Beach Club, a bar, located on a section of University Boulevard in Tuscaloosa adjacent to the University of Alabama that is commonly referred to as "the Strip." Davis saw the appellant park his black pickup truck in a parking lot across the street from the Bama Beach Club. Davis noticed that the appellant ran over the curb when he parked. Davis then saw the appellant go to several bars on "the Strip"; however, all the bars had closed because it was after 2:00 a.m. on Sunday morning.

The appellant attempted to open the locked doors of the Bama Beach Club, and Davis told him that all the bars were closed. Davis noticed that the appellant's eyes were swollen and that he was staggering when he walked. Davis thought that the appellant appeared to be too intoxicated to drive. Davis attempted to stop the appellant before he returned to his truck, but Davis was unable to do so. Davis testified that the appellant "left out burning rubber, squealing tires, smoking tires." Davis testified that the headlights of the appellant's truck were not on when the appellant left the parking lot and turned onto University Boulevard.

Davis radioed police headquarters and reported the appellant. Although no Tuscaloosa police officers were in the immediate area, University Police Officer David Michael Whitney was nearby and responded to the call.

Whitney saw the appellant's black pickup truck, without its headlights on, traveling on University Boulevard. Whitney turned on his blue lights, and, after traveling another 200-300 yards, the appellant pulled his truck to the side of the road. Whitney approached the appellant's truck and asked the appellant for his driver's license. At that time, Whitney smelled the odor of alcohol. Tuscaloosa Police Officer Drake Jones then arrived at the scene, and Whitney turned the investigation over to him.

Jones also detected a strong odor of alcohol on the appellant's breath. Jones believed that the appellant was intoxicated and had the appellant perform three field sobriety tests: the "one-leg stand test," the "walk-and-turn test," and the "finger-count test." The appellant was unable to successfully perform any of these tests. Jones also testified that the appellant's speech was slow and slurred and that the appellant's eyes were red. Jones concluded that the appellant was under the influence of alcohol and arrested him for driving under the influence of alcohol. The appellant, however, refused to submit to the Intoxilyzer 5000 breath test.

The city also presented evidence that at some time before December 19, 1993, the appellant's driver's license had been revoked and that it was still revoked on December 19.

I

The appellant contends that the court erred in refusing to grant his motion for a judgment of acquittal. Specifically, he contends that the city did not present sufficient evidence of his intoxication. He argues that the only evidence of his intoxication was the testimony of Officer Jones and Officer Whitney that they ...


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