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12/29/95 SEAN BOWMAN FARLEY v. CITY MONTGOMERY

December 29, 1995

SEAN BOWMAN FARLEY
v.
CITY OF MONTGOMERY



Appeal from Montgomery Circuit Court. (CC-94-5256). Sally Greenhaw and John Karrh, TRIAL JUDGES.

Rehearing Denied February 9, 1996. S.C. Denied Cert. May 24, 1996. Released for Publication August 22, 1996.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Sean Bowman Farley, was convicted of driving under the influence of alcohol, a violation of § 32-5A-191(a)(2), Code of Alabama 1975. He was sentenced to one year in jail. His sentence was split and he was ordered to serve 60 days in jail and the remainder on probation.

The state's evidence tended to show that on September 3, 1994, the appellant was driving his automobile while under the influence of alcohol. Officer Joseph Hardy, Jr., and Officer Dewayne Williams of the Montgomery Police Department received a call from headquarters and proceeded to the intersection of Lawrence and Washington Street. Hardy testified that he observed a red Jeep Cherokee vehicle parked in a lot near the intersection. The vehicle's engine was running and the appellant was sitting behind the wheel. The appellant appeared to be unconscious and it took a few moments to awaken him. Hardy detected a strong smell of alcohol on the appellant and in the vehicle.

The officers asked the appellant to step outside of the vehicle. Hardy testified that the appellant stumbled and had to use the vehicle for support. He further testified that the appellant's speech was slurred and that he was unable to perform the field sobriety tests. The appellant was then placed under arrest for driving under the influence of alcohol.

Officer Williams testified that he found three bottles of whiskey in the appellant's vehicle. The appellant was given the Intoxilyzer 5000 breath test to determine his blood alcohol level. The test indicated that the appellant's blood alcohol level was .271%.

The appellant testified in his own behalf at trial. He stated that he drank an alcoholic beverage while driving that evening. He further testified he had seven or eight shots of schnapps and one shot of tequila while he was at a local club that evening. He stated that he left the club and drove about three blocks before he stopped. The appellant said that he then telephoned his parents and asked them to come and get him because he was unable to drive.

I

The appellant first contends that the evidence presented against him was insufficient to find him guilty of driving under the influence of alcohol. The sole question presented by this case is whether the appellant was in "actual physical control" of his automobile when he was arrested.

"In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution."

Faircloth v. State, 471 So. 2d 485, 489 (Ala. Cr. ...


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