Ewing v. State
Ewing v. State
Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 201
The appellant, Jerrold Vernon Ewing, appeals from the trial court's order revoking his probation.
On August 10, 1998, Ewing pleaded guilty to first-degree criminal mischief, a violation of §
At the revocation hearing, Lisa Hamilton, an investigator with the Huntsville Police Department, testified that on June 28, 2000, she observed a blue Ford Taurus automobile, driven by Ewing, weaving between lanes and speeding. She followed the vehicle for approximately half a mile and then radioed the department and requested that a patrol officer stop the vehicle. Investigator Hamilton testified that Officer Winston, also with the Huntsville Police Department, responded to her request and stopped the vehicle. Over defense counsel's objection, Investigator Hamilton testified that Ewing was given an Intoxilyzer 5000 test after he was taken to the jail, and that the results showed that Ewing had a blood-alcohol level of .20 percent. Investigator Hamilton stated that she was not present when the Intoxilyzer 5000 was administered to Ewing and that she had no personal knowledge as to whether the test was administered properly. Investigator Hamilton also stated that a "report" — she did not identify what the report was or who prepared it — indicated that only one test was administered because Ewing refused to take a second confirmation test.
First, Ewing contends that the results were inadmissible because there was only one valid test (he refused to take the second confirmation test), and, he says, §
*Page 202"(a) Upon the trial of any civil, criminal or quasi-criminal action or proceeding arising out of acts alleged to have
been committed by any person while driving or in actual control of a vehicle while under the influence of alcohol or controlled substance, evidence of the amount of alcohol or controlled substance in a person's blood at the alleged time, as determined by a chemical analysis of the person's blood, urine, breath or other bodily substance, shall be admissible. Where such a chemical test is made the following provisions shall apply:"(1) Chemical analyses of the person's blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the Department of Forensic Sciences and by an individual possessing a valid permit issued by the Department of Forensic Sciences for this purpose. The court trying the case may take judicial notice of the methods approved by the Department of Forensic Sciences. The Department of Forensic Sciences is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Forensic Sciences. The Department of Forensic Sciences shall approve permits required in this section only for employees of state, county, municipal, and federal law enforcement agencies and for laboratory personnel employed by the Department of Forensic Sciences."
The methods approved by the Department of Forensic Sciences are found in the Alabama Administrative Code, Alabama Department of Forensic Sciences, Rule
"(5) Report of Breath Alcohol Test Result.
"(a) Intoxilyzer 5000. Two (2) samples of breath shall be tested. A second breath sample shall be tested at no less than two (2) minutes and not more than fifteen (15) minutes after the first sampling as reflected by the time stamped on the printer ticket. Report the lower test result if they are different. Maintain the record of both test results.
". . . .
"(c) A person directed to submit to a breath alcohol test procedure requiring two (2) breath samples, who fails to provide two (2) complete and acceptable samples sufficient for analysis by an approved evidential breath alcohol testing instrument shall be deemed to have refused the entire test. Such person shall be reported as having refused to submit to the chemical test."
We agree that in a criminal trial, absent two valid tests, the results of an Intoxilyzer 5000 test would be inadmissible under §
Moreover, contrary to Ewing's claim, the failure to lay a predicate pursuant to §
"The standard of proof in probation revocation hearings is not the same as that in a criminal trial. It is to the `reasonable satisfaction' rather than beyond a reasonable doubt or by a preponderance of the evidence." Hall v. State,
"`"There is no definite criterion or measure of proof necessary to justify the revocation of one's probation." Wright v. State,
349 So.2d 124 (Ala.Crim.App. 1977). The evidence need not "be strong enough to convince the court beyond a reasonable doubt that the probationer has violated a term of his probation," Carter v. State,389 So.2d 601 (Ala.Crim.App. 1980); it needs only to reasonably satisfy the court of the truth of the charge. Goodrum v. State,418 So.2d 942 (Ala.Crim.App. 1982). Absent a gross abuse of discretion, the trial court's ruling in a probation revocation will not be disturbed by this Court. Wright, supra.'"
516 So.2d at 833-34, quoting Rice v. State,
Ewing's argument regarding the sufficiency of the evidence is based on the assumption that this Court will hold the *Page 204 Intoxilyzer 5000 results inadmissible. However, we have already determined that the Intoxilyzer 5000 results were properly admitted over Ewing's specific objection. Those results show that Ewing's blood-alcohol level was .20 percent. In addition, Investigator Hamilton testified that she observed Ewing speeding and weaving. The Intoxilyzer 5000 results, coupled with Investigator Hamilton's observations, provided sufficient evidence to reasonably satisfy the trial court that Ewing had violated the terms and conditions of his probation by committing the new offense of driving under the influence.
It is well settled that "an order revoking probation must be written and must set forth the evidence relied upon, as well as the reason for the revocation in order for due process requirements to be met." T.H.B.v. State,
"The Court receives evidence of the following alleged probation violations from the sources listed:
"Probation officer and DA: (1) New DUI [driving under the influence] offense.
". . . .
"Based upon the evidence received by the Court, the Court:
"Is `reasonably satisfied' that the probationer did violate the terms of his probation in the following manner:
"New DUI."
(C. 11.)
Although the trial court's order properly stated the reason for revoking Ewing's probation — that Ewing had committed the new offense of driving under the influence — it failed to adequately state the evidence the court relied on in revoking Ewing's probation. It is well settled that "general recitations by the trial court to its consideration of the `testimony,' `sworn testimony,' or `relevant and competent evidence' presented at the revocation hearing [is] insufficient for purposes *Page 205
of satisfying" due process requirements. James v. State,
Therefore, based on Armstrong v. State,
REMANDED WITH DIRECTIONS.
McMillan, P.J., and Cobb, Baschab, and Wise, JJ., concur.
Reference
- Full Case Name
- Jerrold Vernon Ewing v. State of Alabama.
- Cited By
- 3 cases
- Status
- Published