Ex parte State of Alabama.
(Re STATE
v.
Steven Keith THRASHER).

1990568.

Supreme Court of Alabama.

August 11, 2000.

104*104 Bill Pryor, atty. gen., and G. Ward Beeson, asst. atty. gen., for petitioner.

Brent M. Craig of Craig & Craig, P.C., Decatur, for respondent.

MADDOX, Justice.  dui lawyer https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui  dui lawyer rancho cucamonga 

The sole question presented by this case is whether a prior uncounseled conviction for driving under the influence of alcohol ("DUI") can be used to enhance a defendant's sentence, where the prior uncounseled DUI conviction was a misdemeanor for which the defendant received no jail 105*105 time. The Court of Criminal Appeals held that the trial court "correctly determined that two of Thrasher's convictions could not be used for enhancement purposes." State v. Thrasher, 783 So.2d 100, 103 (Ala. Crim.App.1999). We disagree.  dui lawyer 

Many of the facts relating to the issue presented in this case are contained in the opinion of the Court of Criminal Appeals, and we set out here a few of those facts for a better understanding of the reason we reverse that Court's judgment.  dui lawyer 
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
On February 21, 1998, Steven Keith Thrasher was issued a traffic ticket charging him with driving under the influence of alcohol, a violation of § 32-5A-191(a)(2), Ala.Code 1975. On March 4, 1998, the Decatur Municipal Court transferred the case to the Morgan Circuit Court for prosecution as a "felony DUI," under § 32-5A-191(h), Ala.Code 1975, because Thrasher had had at least three prior DUI convictions.

On August 21, 1998, the Morgan County Grand Jury returned an indictment charging Thrasher with felony DUI and alleging 4 prior DUI convictions: 1) an uncounseled guilty-plea conviction on March 16, 1981, for which he was fined $114, but not given a jail sentence, suspended or otherwise; 2) an uncounseled guilty-plea conviction on February 20, 1984, for which he was fined $500 and sentenced to 48 hours in jail; 3) a counseled guilty-plea conviction on May 15, 1992, for which he was fined $500 and was sentenced to 30 days in jail, with 28 days suspended and 48 hours served; and 4) a counseled guilty-plea conviction on October 28, 1993, for which he was fined $750 and was sentenced to 60 days in jail, with 50 days suspended and 10 days served, followed by 18 months' probation.  dui lawyer 

When the parties appeared for trial on March 9, 1999, the circuit court required the State to prove Thrasher's prior DUI convictions it intended to use to enhance Thrasher's sentence. The circuit court found that two of Thrasher's four prior DUI convictions, the March 16, 1981, conviction and the February 20, 1984, conviction, were "uncounseled," meaning that the record did not show that Thrasher had been represented by counsel or that he had voluntarily waived his right to counsel; the court held that the State could not use those two prior convictions to enhance the possible sentence in Thrasher's case. Consequently, the circuit court transferred the case back to the municipal court.  dui lawyer 

The State appealed this pretrial ruling to the Court of Criminal Appeals. The State argued that an uncounseled prior conviction can be used for enhancement if the conviction is a misdemeanor for which the defendant received no jail time. The Court of Criminal Appeals rejected this argument. The Court of Criminal Appeals recognized that this Court has stated that "[i]n misdemeanor cases ... the right [to counsel] applies only when the defendant is actually sentenced to jail," Ex parte Reese, 620 So.2d 579, 580 (Ala.1993), but it rejected the State's argument that Reese stands for the proposition that a prior uncounseled conviction for which the defendant received no jail time could be used for sentence enhancement.  dui lawyer 

In this present case, the Court of Criminal Appeals based its decision, in part, on the fact that the record was silent as to the sentences imposed on Thrasher for the two prior uncounseled-DUI-misdemeanor convictions in question. However, in its application for rehearing in the Court of Criminal Appeals, the State argued that a supplemental record filed in the case showed that Thrasher received no jail time for his March 1981 and February 1984 convictions, and the defendant, in his brief filed in this Court, does not refute 106*106 this argument. However, that supplemental record shows that Thrasher was sentenced to 48 hours in jail for his February 1984 conviction. The Court of Criminal Appeals also based its decision in this case on its own prior decision in Bilbrey v. State,531 So.2d 27 (Ala.Crim.App.1987), which held that when a prior misdemeanor conviction is to be used for enhancement purposes under a recidivist statute, the State must establish that the defendant was represented by counsel or validly waived counsel at the prior proceeding, only if the prior misdemeanor was punishable by more than six months' imprisonment. See 531 So.2d at 32. It is apparent from a reading of the Bilbreycase that it was predicated on the United States Supreme Court's opinion in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), which held that under the applicable Illinois sentencing-enhancement statute, a prior uncounseled misdemeanor conviction could not be used to elevate a second misdemeanor conviction to a felony conviction. Baldasar, however, was subsequently overruled by Nichols v. United States,511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Nichols held that an uncounseled misdemeanor conviction, where the defendant did not receive a prison term, could be used to enhance a defendant's punishment upon a subsequent conviction. See 511 U.S. at 748, 114 S.Ct. 1921.

Despite the overruling of Baldasar, the Court of Criminal Appeals held, in this case, that if the State intends to use any prior DUI conviction for enhancement purposes, the State must establish that at the prior DUI proceeding the accused was represented by counsel or waived the right to counsel. The Court of Criminal Appeals stated that as long as it did not impose greater restrictions upon a defendant's due-process rights than the United States Supreme Court determines the United States Constitution allows, the Court of Criminal Appeals may interpret the Alabama Constitution to afford an individual due-process rights that are broader and greater than the minimal due-process rights provided by the federal standards.  dui lawyer 

Although we agree with the Court of Criminal Appeals' general statement that the Alabama Constitution may afford a defendant greater due-process protections than the Constitution of the United States provides, we disagree with that court's holding that before the State may use a prior misdemeanor-DUI conviction to enhance a defendant's sentence, the record must show that at the prior proceeding the defendant was represented by counsel or knowingly and voluntarily waived counsel.  dui lawyer 

The State, in order to use a prior DUI misdemeanor conviction to enhance a defendant'sDUI sentence, need not prove that in the earlier proceeding the defendant was represented by counsel or knowingly and voluntarily waived counsel, if in the prior proceeding the defendant did not receive a jail term. This position is based on the reasoning of the United States Supreme Court in Nichols, and we adopt that reasoning; we conclude that under the circumstances presented by this particular case the Alabama Constitution does not afford a defendant greater due-process protections than the Federal Constitution.  dui lawyer 

Based on the foregoing, we conclude that the Court of Criminal Appeals erred in holding that the State could not use Thrasher's March 1981 uncounseled DUI conviction because, upon that conviction, Thrasher was not sentenced to a jail term. Therefore, the Court of Criminal Appeals' judgment is due to be reversed insofar as it held the State could not use the March 1981 conviction, and the cause is to be remanded for the Court of Criminal 107*107 Appeals to order proceedings consistent with this opinion.  dui lawyer 

We conclude that the circuit court's order transferring the case back to the municipal court was properly reversed, based on this Court's holding in Ex parte Formby, 750 So.2d 587 (Ala.1999), because it appears that Thrasher has three prior DUI offenses that can be used to enhance his sentence under § 32-5A-191, Ala.Code 1975; because of the three prior DUI convictions, the circuit court had jurisdiction over Thrasher's case. We affirm that portion of the Court of Criminal Appeals' judgment reversing the circuit court's order transferring the case to the municipal court, although we do not necessarily agree with the reasoning of the Court of Criminal Appeals on this issue.  dui lawyer 

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.  dui lawyer 

HOOPER, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.  dui lawyer 

COOK, J., dissents.

COOK, Justice (dissenting).  dui lawyer 

I dissent from the conclusion in the main opinion that an uncounseled prior misdemeanor conviction in which a sentence of imprisonment was not imposed can be subsequently used for the purpose of enhancement. On this issue, I agree with the opinion of Judge Fry. State v. Thrasher, 783 So.2d 100 (Ala.Crim.App.1999). The Court of Criminal Appeals in Farley v. City of Montgomery, 677 So.2d 1251 (Ala. Crim.App.1995), andBilbrey v. State, 531 So.2d 27 (Ala.Crim.App.1987), adopted the rule that when a prior conviction is used for the purpose of enhancement the state must prove either that the accused was represented by counsel at the prior proceeding or that counsel was waived; that rule is fundamentally sound. That rule provides a bright-line test that avoids the conflict in logic of a rule that forbids a sentence of imprisonment based on an uncounseled misdemeanor conviction but allows, through the sentence-enhancement mechanism, the imposition of a longer sentence of imprisonment based on that same uncounseled misdemeanor conviction.

Ex parte James Gregory PARKER.  dui lawyer 
(Re State v. James Gregory Parker).  dui lawyer 

1970001.

Supreme Court of Alabama.

February 26, 1999.

433*433 Thomas D. Motley of Motley & Motley, Dothan, for petitioner.  dui lawyer 

Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for respondent.  dui lawyer 

COOK, Justice.
  dui lawyer 
James Gregory Parker was indicted for driving under the influence; the indictment purported to charge a violation of § 32-5A-191(f). Parker was indicted before the May 28, 1996, amendment of § 32-5A-191. See Act No. 96-705 Ala. Acts 1996. That amendment moved the provisions of § 321-5A-191(f), under which Parker was indicted, to § 32-5A-191(h), where they currently appear. The first trial resulted in a mistrial. Subsequently, Parker filed a motion in limine to prevent the State from offering, in a second trial, any evidence of his prior DUI convictions; those prior convictions had been alleged in the indictment. As grounds for his motion, Parker argued that the fact of the prior convictions was not an element of the crime for which he was charged and that evidence of those prior convictions would constitute improper evidence of bad character. The trial court granted his motion. The State appealed from the order granting the motion in limine. The Court of Criminal Appeals reversed that order. State v. Parker, 740 So.2d 421 (Ala.Crim. App.1996). We granted Parker's petition for certiorari review.  dui lawyer 

We address the issue whether § 32-5A-191(h) states a substantive offense, of which the three prior convictions referred to in that subsection are elements, or whether the prior offenses referred to in that subsection are properly to be considered only for the purposes of determining whether upon conviction a defendant shall receive an enhanced sentence. We reverse and remand.  dui lawyer 

Parker had at least three prior convictions for driving under the influence within the preceding five-year period. Under the provisions of the statute, a person convicted of driving under the influence of alcohol or a controlled substance (the offense dealt with in § 32-5A-191) is guilty of a Class "C" felony if the DUI conviction is the "fourth or subsequent such conviction" within five years. (The "within five years" provision has now been removed from subsection (h).) See § 32-5A-191(h), Ala. Code 1975.  dui lawyer 

Parker contends that § 32-5A-191(f) (now § 39-5A-191(h)) is a sentence-enhancement provision and does not state a substantive offense. Parker further argues that to allow his prior DUI convictions into evidence during his trial would be to admit evidence of bad character, as opposed to evidence of a substantive offense. Thus, Parker argues that his prior DUI convictions should not be considered as an element of the substantive offense with which he is now charged, but rather should be considered for the purpose of enhancing his sentence if he is convicted of driving under the influence.  dui lawyer 

434*434 The Court of Criminal Appeals, reversing the order granting the motion in limine, cited several examples of statutes that include a prior conviction or convictions as an element of the substantive offense. See, C. Gamble, McElroy's Alabama Evidence § 69.01(1) (4th ed.1991) (if the defendant's commission of another crime or misdeed is an element of guilt, then proof of that other act is admissible). For example, §§ 13A-10-31(a)(2), 13A-11-72(a), and 13A-12-213(a)(2) each includes, as part of the substantive offense, the fact that the defendant has had one or more prior convictions; this fact of the prior convictions must be charged in the indictment and proved.  dui lawyer 

Section 13A-10-31(a)(2) states that a person commits the crime of "escape in the first degree" if, "[h]aving been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction."  dui lawyer 

Section 13A-11-72(a) defines the offense commonly referred to as unlawfully carrying a pistol, as follows:  dui lawyer 

"No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his or her possession or under his or her control."  dui lawyer 

Section 13A-12-213(a)(2) defines "unlawful possession of possession of marihuana in the first degree" to include the situation in which a person possesses "marihuana for his personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his personal use only."  dui lawyer 

However, each of these three examples, all cited in the opinion of the Court of Criminal Appeals, involves a statute that includes the fact of the prior conviction or convictions as part of the substantive offense, not as factors for enhancing a sentence.  dui lawyer 

In contrast, § 32-5A-191(h) (the current codification of the applicable statute) provides in pertinent part:  dui lawyer 

"On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [a fine and a sentence within certain ranges]."  dui lawyer 

(Emphasis added.)  dui lawyer 

Section 32-5A-191(a) provides in pertinent part:  dui lawyer 

"A person shall not drive or be in actual physical control of any vehicle while:  dui lawyer 
  dui lawyer 
"(1) There is 0.08 percent or more by weight of alcohol in his or her blood;  dui lawyer 

"(2) Under the influence of alcohol...."  dui lawyer 

Section 32-5A-191, plainly read, compels the conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions and to prescribe punishment, rather than to define the substantive elements of a separate offense. Furthermore, the substantive elements of the offense dealt with by § 32-5A-191 are set out in subsection (a). Judge Long pointed this out in his dissent from the Court of Criminal Appeals' September 26, 1997, opinion on application for rehearing; in that dissent, he noted that the State conceded that the provisions of current subsections (e), (f), and (g)—relating to defendants convicted of a first, a second, or a third DUI conviction—are sentencing provisions and do not state substantive elements of an offense.  dui lawyer 

Subsection (e) reads:  dui lawyer 
  dui lawyer 
"Upon first conviction, a person violating this section shall be punished by...."  dui lawyer 

Subsection (f) reads:  dui lawyer 

"On a second conviction within a five-year period, a person convicted of violating 435*435 this section shall be punished by...."

Subsection (g) reads:  dui lawyer 

"On a third conviction, a person convicted of violating this section shall bepunished by ...."  dui lawyer 

The fundamental difference between subsection (h) and subsections (e), (f), and (g) is that subsection (h) makes the fourth conviction punishable as a felony. The State argues that subsection (h) is significantly different from subsections (e), (f), and (g) because subsection (h) changes the offense from a misdemeanor to a felony. Judge Long correctly states in his dissent that this is "a distinction without a difference." 740 So.2d at 430. Subsection (h), while increasing the severity of the punishment, does not alter the substantive offense set out in subsection (a).  dui lawyer 

Moreover, we are not persuaded by the State's contention that the phrase "a person [convicted a fourth time] shall be guilty of a Class C felony and punished" (emphasis added) evidences a legislative intent to establish a substantive offense in subsection (h). Contrary to the State's argument, the legislative intent as we perceive that intent to be, supports our interpretation of subsection (h) as providing for sentence enhancement, rather than as stating the elements of an offense. The title to Act No. 94-590, Ala. Acts 1994, the act that added the former subsection (f) that is now (h), indicates clearly that the legislature intended, by adopting that subsection, to create an enhancement provision and not to create a separate substantive offense. The title reads as follows:  dui lawyer 

"AN ACT to amend Section 32-5A-191, Code of Alabama 1975, relating to the offense of driving under the influence of alcohol and drugs to increase the penalties and sanctions for a fourth and subsequent conviction."  dui lawyer 

(Emphasis added.) The title, which explains in general terms the purpose of the enactment, supports Parker's argument that the subsection is directed toward providing additional punishment rather than creating a separate substantive offense.  dui lawyer 
  dui lawyer 
For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded.  dui lawyer 

REVERSED AND REMANDED.  dui lawyer 

HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur.  dui lawyer 

BROWN, J., recuses herself.

Ex parte Arthur Felton HOLBERT.
(In re Arthur Felton Holbert State of Alabama).  dui lawyer 

1070456.
  dui lawyer 
Supreme Court of Alabama.  dui lawyer 

July 11, 2008.  dui lawyer 

Donald A. Chapman, Decatur, for petitioner.  dui lawyer 

Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent.  dui lawyer 

LYONS, Justice.  dui lawyer 

Arthur Felton Holbert petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals affirming his conviction for felony driving under the influence of alcohol ("DUI"), a violation of § 32-5-191(a)(2) and (h), Ala. Code 1975. We granted certiorari review to consider, as a material question of first impression, whether a prior in-state DUI conviction in a municipal court counts toward the total number of priorDUI convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h). For the reasons discussed below, we hold that they do not, and we reverse the judgment of the Court of Criminal Appeals.  dui lawyer 

I. Facts and Procedural History  dui lawyer 

On March 22, 2005, a police officer for the City of Decatur arrested Arthur Felton Holbert for DUI, for violating Decatur's open-container ordinance, and for carrying a pistol without a permit.[1] As to the DUI offense, the Morgan County 411*411 grand jury indicted Holbert for felony DUI, a violation of § 32-5A-191(a)(2) and (h), based on numerous priorDUI convictions. Section 32-5A-191 provides, in pertinent part:

"(a) A person shall not drive or be in actual physical control of any vehicle while:  dui lawyer 

"....

"(2) Under the influence of alcohol;  dui lawyer 

"....

"(e) Upon first conviction, a person violating this section shall be punished by [stating the penalty].  dui lawyer 

"(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by [stating the penalty].

"(g) On a third conviction, a person convicted of violating this section shall be punished by [stating the penalty].  dui lawyer 

"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]."  dui lawyer 

(Emphasis added.)  dui lawyer 

Before Holbert's trial, the State proffered court records showing that Holbert had had four prior DUI convictions. These records reflected a 1981 DUI conviction in the Cullman County District Court, a 1982 DUI conviction in the Hillsboro Municipal Court, a 1994DUI conviction in the Morgan County District Court, and a 1994 DUI conviction in the Decatur Municipal Court. Holbert orally moved to dismiss the indictment because, he said, his prior DUI convictions in municipal courts cannot be counted toward the total number of prior DUI convictions necessary to enhance his current DUI offense to a felony DUI offense as defined by § 32-5A-191(h). Holbert specifically argued that in Ex parte Bertram, 884 So.2d 889 (Ala.2003), this Court held that only convictions under § 32-5A-191 count toward the number of prior convictions necessary to elevate a DUIoffense to a felony offense under § 32-5A-191(h). Thus, Holbert argued that his prior municipal convictions do not count as prior DUI convictions for the purpose of enhancement under § 32-5A-191(h) because, he said, a municipal DUI conviction is a violation of a municipal ordinance and not a violation of § 32-5A-191. The trial court denied Holbert's motion to dismiss.  dui lawyer 

A jury returned a guilty verdict on the felony DUI charge, and the trial court sentenced Holbert to five years' imprisonment. The trial court then split the sentence and ordered Holbert to serve 18 months in prison followed by a 5-year probationary period. See § 15-18-8, Ala. Code 1975.

Holbert then appealed to the Court of Criminal Appeals, arguing that the trial court improperly denied his motion to dismiss the indictment and allowed the State to use his prior municipal DUI convictions to elevate his DUI charge to a felony offense under § 32-5A-191(h). Holbert contended in the Court of Criminal Appeals, as he did in the trial court, that pursuant to Ex parte Bertram, a municipal DUI conviction is not a conviction under § 32-5A-191 that can elevate a DUI offense to a felony offense as defined by § 32-5A-191(h).  dui lawyer 

The Court of Criminal Appeals affirmed the judgment of the trial court, without an opinion. Holbert v. State (No. CR-06-1574, Oct. 26, 2007), ___ So.3d ___ (Ala. Crim.App.2007) (table). In an unpublished memorandum, that court first noted that Ex parte Bertram addressed only out-of-state DUI convictions and not municipal DUIconvictions. The Court of Criminal Appeals then noted that, before this Court decided Ex parte Bertram, the Court of 412*412 Criminal Appeals had addressed the relationship between municipal DUI convictions and § 32-5A-191(h) in McDuffie v. State, 712 So.2d 1118, 1120 (Ala.Crim.App. 1997). The Court of Criminal Appeals quoted from McDuffieas follows in its memorandum:  dui lawyer 

"`The appellant further contends that the state should not have been allowed to introduce into evidence two of his prior D.U.I. convictions because, he says, they were convictions for violating a municipalordinance, rather than convictions for violating § 32-5A-191, Code of Alabama 1975. He argues (1) that the language of § 32-5A-191(h) "refers to three prior violations of that provision as being a pre-requisite to being guilty of felony-DUI" (appellant's brief, p. 8); and (2) that the provisions of a municipal ordinance might not be the same as those in the state statute and[,] thus, the use of any municipal convictions as any of the three prior convictions required by § 32-5A-191(h) would deprive him of proper notice of the charge he was being called upon to defend. We find no merit in these assertions.  dui lawyer 

"`Our examination of § 32-5A-191(h) reveals no language requiring that the prior convictions required for that section to be applicable be obtained under § 32-5A-191, as the appellant contends.'"  dui lawyer 

(Quoting 712 So.2d at 1120.) The Court of Criminal Appeals then concluded: "BecauseEx parte Bertram held only that out-of-state DUI convictions do not qualify as prior convictions under Alabama law, it is distinguishable from McDuffie. Therefore, [Holbert's] argument is without merit."  dui lawyer 

Holbert petitioned this Court for certiorari review of the Court of Criminal Appeals' decision. We granted certiorari review to consider, as a material question of first impression, whether a prior in-state DUI conviction in a municipal court can be counted toward the total number of prior DUI convictions necessary to constitute a felony DUIoffense as defined in § 32-5A-191(h).[2]
  dui lawyer 
II. Standard of Review  dui lawyer 

"`This Court reviews pure questions of law in criminal cases de novo.'" Ex parte Morrow,915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).  dui lawyer 

III. Analysis  dui lawyer 

Holbert contends that the Court of Criminal Appeals erred in concluding that the trial court had properly denied his motion to dismiss the indictment, holding that a DUIconviction in a municipal court counts toward the total number of prior DUI convictions necessary to constitute a felony DUI offense under § 32-5A-191(h). Holbert asserts that under the plain language of § 32-5A-191(h) only prior DUI convictions for violating § 32-5A-191 can be counted toward those necessary to elevate a DUI conviction to a felony. Holbert contends that his prior DUI convictions in various municipal courts are not violations of § 32-5A-191; rather, he argues, they are violations of municipal ordinances and therefore do not count toward the number 413*413 of prior convictions necessary to constitute a felony DUI offense under § 32-5A-191(h). Holbert acknowledges that inMcDuffie the Court of Criminal Appeals held that its "examination of § 32-5A-191(h) reveal[ed] no language requiring that the prior convictions required for that section to be applicable be obtained under § 32-5A-191." 712 So.2d at 1120. However, Holbert then notes that five years after the Court of Criminal Appeals decided McDuffie, this Court decided Ex parte Bertram, which, Holbert argues, held that the plain language of § 32-5A-191(h) requires that prior convictions that elevate a DUI offense to a felony offense must be convictions for violations of § 32-5A-191.  dui lawyer 

In Ex parte Bertram, this Court granted certiorari review to address the issue "whether Subsection (h) of Section 32-5A-191 means for prior out-of-state convictions for driving under the influence of alcohol to count toward the total of convictions necessary to constitute the felony defined by that subsection." 884 So.2d at 890. This Court first noted well-established rules of statutory construction such as "`"[s]tatutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used."'" Ex parte Bertram, 884 So.2d at 891 (quoting Ex parte Jackson, 614 So.2d 405, 406 (Ala. 1993), quoting in turn United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127 (1936)). This Court also noted that "`[o]ne who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute.'" Ex parte Bertram, 884 So.2d at 891 (quoting Clements v. State, 370 So.2d 723, 725 (Ala.1979), citing in turn Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202 (1952)).

This Court then held:  dui lawyer 

"We read Section 32-5A-191 according to these traditional, well-settled rules of statutory construction. At the very least in favor of the defendant before us, an eminently reasonable construction of this section is that the word conviction means conviction of violating this section everywhere the word conviction appears within the section, including where the wordconviction appears in Subsection (h) defining the felony. Such a construction would require that Subsection (h) be read to mean `On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].' The rules of statutory construction we have quoted require us to adopt this construction rather than the construction urged by the State to the effect that `On a fourth or subsequent conviction [of violating any driving-under-the-influence statute of any state], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].' The construction urged by the State contains an internal inconsistency, extends the purview of the statute beyond its express text, and construes any ambiguity against the defendant and in favor of the State, all contrary to the traditional, well-settled rules of statutory construction."v  dui lawyer 

Ex parte Bertram, 884 So.2d at 892.  dui lawyer 

Holbert contends that, consistent with the rationale of Ex parte Bertram, § 32-5A-191(h) cannot be interpreted to include DUI convictions from a municipal court because such convictions are not convictions for violations of § 32-5A-191.  dui lawyer 

414*414 The State contends that Holbert's arguments are without merit because, it argues, the Court of Criminal Appeals' decision in McDuffie has not been overruled or abrogated. The State also asserts that municipal DUI convictions count as prior DUI convictions under § 32-5A-191(h) because § 32-5A-191(h) does not expressly preclude consideration of prior municipal convictions. The State then notes that after this Court issued its decision in Ex parte Bertram, the Court of Criminal Appeals decided Hoover v. State (No. CR-04-0159, June 10, 2005), 926 So.2d 1082 (Ala. Crim.App.2005) (table), holding in an unpublished memorandum that municipal DUI convictions count toward the number of prior DUI convictions necessary to constitute the felony offense of DUI as defined in § 32-5A-191(h). This Court granted certiorari review of the Court of Criminal Appeals' decision in Hoover and then quashed the writ as improvidently granted. See Ex parte Hoover, 928 So.2d 278 (Ala.2005). Justice Stuart dissented from this Court's decision to quash the writ, and the State contends that we should now adopt the reasoning of her dissent.  dui lawyer 

In her dissent, Justice Stuart stated, in pertinent part:  dui lawyer 

"I agree with the Court of Criminal Appeals that the holding in Ex parte Bertram should not be read to preclude a violation of a municipal ordinance for driving under the influence of alcohol from counting toward the felony of driving under the influence defined in § 32-5A-191(h). I dissented in Ex parte Bertram because I believe that the majority's holding that the definition of the word `conviction' as used in § 32-5A-191(h), Ala.Code 1975, to mean only a conviction for violating § 32-5A-191 is too limiting. To me the word `conviction' as used in § 32-5A-191 means any conviction for driving under the influence of alcohol, regardless of whether the conviction is for a violation of § 32-5A-191(a) or for a violation of a municipal ordinance or another jurisdiction's statute prohibiting driving under the influence of alcohol or a controlled substance, provided that the underlying conduct would have constituted a conviction for driving under the influence of alcohol or a controlled substance under § 32-5A-191(a), Ala.Code 1975.  dui lawyer 

"Here, the decision of the Court of Criminal Appeals properly limited the application of this Court's holding in Ex parte Bertram. Because I maintain that this Court needs to revisit its holding in Ex parte Bertram and redefine the word `conviction' to include any conviction for driving under the influence of alcohol that satisfies § 32-5A-191(a), Ala.Code 1975, I would have affirmed the judgment of the Court of Criminal Appeals and overruled this Court's holding in Ex parte Bertram. Thus, I respectfully dissent from the majority's decision to quash the writ."

Ex parte Hoover, 928 So.2d at 280.  dui lawyer 

In sum, the State contends that the Court of Criminal Appeals properly upheld the trial court's use of Holbert's municipal convictions to elevate Holbert's DUI offense to a felony under § 32-5A-191(h) because, it says, McDuffie and Hoover hold that municipal DUIconvictions can be used to enhance a subsequent DUI offense.[3]  dui lawyer 

415*415 Under this Court's holding in Ex parte Bertram that § 32-5A-191(h) should be read as stating "`On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty],'" 884 So.2d at 892, we must conclude that, independent of § 32-5A-191(o), a DUI conviction in a municipal court does not count toward the total number of prior convictions necessary to constitute a felony DUI offense as defined in subsection (h) because a municipal DUI conviction is not a conviction for violating § 32-5A-191 but merely a conviction for violating a municipal ordinance. Thus, we decline the State's invitation to overrule Ex parte Bertram, and we expressly overrule McDuffie, a decision of the Court of Criminal Appeals, to the extent that it is inconsistent with this holding.[4]As this Court held in Ex parte Bertram, the well-established rule of statutory construction stating that "`[n]o person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused,'" 884 So.2d at 891 (quoting Clements, 370 So.2d at 725), requires that § 32-5A-191(h) be read to mean that only convictions under § 32-5A-191 can be counted toward the total number of convictions needed to constitute felony DUI under § 32-5A-191(h).[5]Clements, 370 So.2d at 725.  dui lawyer 

We recognize that many municipal DUI ordinances have adopted the language of § 32-5A-191. However, an individual convicted of violating a municipal ordinance has not been convicted of violating § 32-5A-191 merely because the ordinance adopted the language of § 32-5A-191. We note that the Court of Criminal Appeals recently and correctly held that, although a municipal DUI ordinance may have adopted the language of § 32-5A-191, the municipal ordinance and § 32-5A-191 set out separate offenses. SeeCity of Decatur v. Lindsey, 989 So.2d 1157, 1164 (Ala.Crim.App.2007), writ quashed Ex parte Lindsey, 989 So.2d 1164 (Ala.2008). In Lindsey, the Court of Criminal Appeals held:  dui lawyer 

"[W]e note that the penalty provisions set forth in §§ 32-5A-191 and 11-45-9(b),[6] Ala.Code 1975, address different 416*416 subjects. Section 32-5A-191(e), Ala. Code 1975, governs the fines and sentences that may be imposed for the State offense of DUI. Section 11-45-9(b), Ala. Code 1975, governs the fines and sentences that may be imposed for the municipal offense of DUI."  dui lawyer 

989 So.2d at 1161 (emphasis added).  dui lawyer 

Based on the foregoing analysis, we conclude that the trial court erred in counting Holbert's prior municipal convictions toward the total number of convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h), and the Court of Criminal Appeals erred in affirming Holbert's conviction for felony DUI.  dui lawyer 

IV. Conclusion  dui lawyer 
  dui lawyer 
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion.  dui lawyer 

REVERSED AND REMANDED.  dui lawyer 

COBB, C.J., and WOODALL, SMITH, BOLIN, and MURDOCK, JJ., concur.  dui lawyer 

SEE, STUART, and PARKER, JJ., dissent.  dui lawyer 

STUART, Justice (dissenting).  dui lawyer 

I respectfully dissent from the majority's refusal to overrule Ex parte Bertram, 884 So.2d 889 (Ala.2003), and its decision to reverse the judgment of the Court of Criminal Appeals. The majority holds:  dui lawyer 

"Under this Court's holding in Ex parte Bertram that 32-5A-191(h) should be read as stating `"On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty],"' 884 So.2d at 892, we must conclude that, independent of § 32-5A-191(o), a DUI conviction in a municipal court does not count toward the total number of prior convictions necessary to constitute a felony DUI offense as defined in subsection (h) because a municipal DUI conviction is not a conviction for violating § 32-5A-191 but merely a conviction for violating a municipal ordinance."  dui lawyer 

4 So.3d at 415.

As I stated in my dissents in Ex parte Bertram and Ex parte Hoover, 928 So.2d 278 (Ala.2005), this Court's definition of the term "conviction" as used in § 32-5A-191(h) to mean "conviction of violating this section" is too limiting. This narrow definition finds no basis in the statute, as a reading of the entire statute indicates that the legislature, when drafting this statute, considered several types of convictions for driving under the influence of alcohol or a controlled substance, in addition to convictions for violations of "this section." For example, the legislature in § 32-5A-191(k) provided for fines collected for "violations of this section charged pursuant to a municipal ordinance." Additionally, the legislature considered "generic" driving-under-the-influence-of-alcohol convictions in § 32-5A-191(p) when it provided that the motor-vehicle registration of a repeat driving-under-the-influence-of-alcohol offender, whose offenses result from various "generic" driving-under-the-influence-of-alcohol convictions, shall be suspended.  dui lawyer 

Furthermore, I note that when the legislature enacted the Alabama Driver License Compact Act, codified at § 32-6-30 et seq., Ala.Code 1975, it established a definition417*417 for "conviction" with regard to driving offenses, stating:  dui lawyer 

"(c) `Conviction' means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense and which conviction or forfeiture is required to be reported to the licensing authority." Article II, § 32-6-31, Ala.Code 1975. The legislature further established the effect of a conviction under that Act, stating:  dui lawyer 

"a) The licensing authority in the home state, for the purpose of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of conviction for:  dui lawyer 

"....

"(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle."  dui lawyer 

Article IV, § 32-6-31, Ala.Code 1975. Thus, the legislature has provided in terms of driving offenses a definition of "conviction" that is much broader than the definition given that term by this Court in Ex parte Bertram. Clearly, the legislature, by the language it used in § 32-5A-191(k), § 32-5A-191(p), and § 32-6-31, Ala.Code 1975, intended that the term "conviction" as used in § 32-5A-191(e)-(h)—the sentence-enhancement statutes addressing repeated convictions for driving under the influence of alcohol or a controlled substance—means a conviction for conduct constituting a violation of § 32-5A-191(a), Ala.Code 1975.  dui lawyer 

In light of the foregoing, I would overrule Ex parte Bertram, and I would affirm the judgment of the Court of Criminal Appeals, holding that a conviction under a municipal ordinance for conduct constituting a violation of § 32-5A-191(a), Ala.Code 1975, can be counted toward the total convictions necessary to constitute the felony defined by § 32-5A-191(h), Ala.Code 1975. Therefore, I dissent.  dui lawyer 

SEE and PARKER, JJ., concur.  dui lawyer 

[1] Holbert was convicted of the charges of violating Decatur's open-container ordinance and carrying a pistol without a permit and was sentenced accordingly. Those convictions and sentences are not before us.  dui lawyer 

[2] In 2006 the legislature added § 32-5A-191(o), which provides:  dui lawyer 

"A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section."  dui lawyer 

(Emphasis added.) However, § 32-5A-191(o) is not applicable here because it became effective after the commission of the offense that led to Holbert's indictment for felony DUI.  dui lawyer 

[3] The State erroneously refers to McDuffie and Hoover as decisions of this Court. We assume that error to have arisen from the State's failure to revise the brief filed before the Court of Criminal Appeals before submitting its brief to this Court as opposed to ignorance of the correct court from which these decisions emanated. We have treated the State's contentions before us in a manner consistent with this assumption.  dui lawyer 

[4] It is not necessary for us to overrule the Court of Criminal Appeals' decision in Hoover because that decision has no precedential value. See Rule 54(d), Ala. R.App. P.  dui lawyer 

[5] Justice Stuart's dissent relies upon the language of § 32-5A-191(k) and portions of the Alabama Driver License Compact Act, § 32-6-30 et seq., Ala.Code 1975, to conclude that restricting the definition of the term "conviction" as used in § 32-5A-191(h) to a "conviction for violating this section" is too narrow. The dissent states: "[A] reading of the entire statute indicates that the legislature, when drafting this statute, considered several types of convictions for driving under the influence of alcohol or a controlled substance, in addition to convictions for violations of `this section.'" 4 So.3d at 416. The plain language of § 32-5A-191(h) limits the definition of the term "conviction" to a "conviction for violating this section" and, if the legislature had intended the expansive reading urged by the dissent, embracing other sections of the Code, it could have very easily so stated. Further, the dissent would have us look to § 32-5A-191(k) and § 32-6-30 et seq. to construe § 32-5A-191(h) in favor of the State. As this Court noted in Ex parte Bertram: "`[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).' Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala. 2000)." 884 So.2d at 892.  dui lawyer 

[6] Section 11-45-9(b), Ala.Code 1975, sets out the penalties that may be imposed for violating municipal ordinances and resolutions:

"No fine shall exceed $500.00, and no sentence of imprisonment or hard labor shall exceed six months except, when in the enforcement of the penalties prescribed in section 32-5A-191, such fine shall not exceed $5,000.00 and such sentence of imprisonment or hard labor shall not exceed one year."  dui lawyer 


Ex parte Patricia Norman BERTRAM.  dui lawyer 
(In re Patricia Norman Bertram  dui lawyer 
v.
State of Alabama).  dui lawyer 

1010892.  dui lawyer 

Supreme Court of Alabama.March 7, 2003.  dui lawyer 
Rehearing Denied November 21, 2003.  dui lawyer 

890*890 Thomas M. Haas, Mobile, for petitioner.  dui lawyer 

William H. Pryor, Jr., atty. gen., and Andy S. Poole and Yvonne A.H. Saxon, asst. attys. gen., for respondent.  dui lawyer 

JOHNSTONE, Justice.  dui lawyer 

The defendant Patricia Norman Bertram was convicted of violating Subsections (a)(2) and (h) of Section 32-5A-191, Ala.Code 1975, "felony driving under the influence." The Court of Criminal Appeals affirmed in an opinion, Bertram v. State, 884 So.2d 886 (Ala.Crim.App.2001).

We granted Bertram's petition for a writ of certiorari to address a single question of first impression: whether Subsection (h) of Section 32-5A-191 means for prior out-of-state convictions for driving under the influence of alcohol to count toward the total of convictions necessary to constitute the felony defined by that subsection. We reverse and remand because traditional rules of statutory construction do not allow that interpretation.  dui lawyer 

After reserving her right to appeal the adverse rulings of the trial court on the issue now before us, the defendant pleaded guilty to Count I of the indictment, which charged, in pertinent part, that she "did, on or about September 22, 2000, drive or have actual physical control of a vehicle, while [she] was under the influence of alcohol, in violation of § 32-5A-191(a)(2) and (h) of the Code of Alabama...." She admitted that she was under the influence of alcohol while she was driving on September 22, 2000. The State then proffered three prior convictions for driving under the influence of alcohol. The defendant challenged only one of them. Her ground was that the challenged prior conviction was not an Alabama conviction for violating Section 32-5A-191 but was, rather, a Florida conviction for violating a Florida driving-under-the-influence-of-alcohol statute and therefore was not a conviction within the meaning of Subsection (h) of Section 32-5A-191, defining the felony charged against her. The trial court rejected the defendant's challenge, counted the Florida conviction, and convicted the defendant of the Subsection (h) felony.  dui lawyer 

891*891 Section 32-5A-191 reads, in pertinent part:  dui lawyer 

"(a) A person shall not drive or be in actual physical control of any vehicle while:  dui lawyer 

"....

"(2) Under the influence of alcohol;  dui lawyer 

"....

"....

"(e) Upon first conviction, a person violating this section shall be punished by [stating the penalty].  dui lawyer 

"(f) On a second conviction within a five-year period, a person convicted ofviolating this section shall be punished by [stating the penalty].

"(g) On a third conviction, a person convicted of violating this section shall be punished by [stating the penalty].  dui lawyer   dui lawyer 

"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]." (Emphasis added.)  dui lawyer 

The only kind of convictions mentioned by Section 32-5A-191 are convictions for "violating this section." Section 32-5A-191 nowhere mentions any kind of conviction except a conviction for "violating this section." The text of Section 32-5A-191 nowhere mentions generic convictions for "driving under the influence," much less out-of-state generic convictions under out-of-state statutes.  dui lawyer 

"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."  dui lawyer 

IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). "`[I]t is well established that criminal statutes should not be "extended by construction."'" Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983), quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)).  dui lawyer 

"A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).

"Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).  dui lawyer 

"One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State], 58 Ala. 358 (1877).  dui lawyer 

"No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra."  dui lawyer 

Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997)) (emphasis added).  dui lawyer 
  dui lawyer 
"`Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used ....' United States v. Resnick, 299 U.S. 892*892 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952)."  dui lawyer 

Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). "[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993)." Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000)(emphasis added). The "rule of lenity requires that `ambiguous criminal statute[s] ... be construed in favor of the accused.'" Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)).  dui lawyer 

We read Section 32-5A-191 according to these traditional, well-settled rules of statutory construction. At the very least in favor of the defendant before us, an eminently reasonable construction of this section is that the word conviction means conviction of violating this section everywhere the word conviction appears within the section, including where the word conviction appears in Subsection (h) defining the felony. Such a construction would require that Subsection (h) be read to mean "On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]." The rules of statutory construction we have quoted require us to adopt this construction rather than the construction urged by the State to the effect that "On a fourth or subsequent conviction [of violating any driving-under-the-influence statute of any state], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]." The construction urged by the State contains an internal inconsistency, extends the purview of the statute beyond its express text, and construes any ambiguity against the defendant and in favor of the State, all contrary to the traditional, well-settled rules of statutory construction.  dui lawyer 

In the case before us, the defendant's prior Florida conviction is not a conviction of violating Section 32-5A-191. Therefore the trial court erred in counting the Florida conviction toward the total of convictions necessary to constitute the Subsection (h) felony and erred in convicting the defendant on that basis, and the Court of Criminal Appeals erred in affirming the defendant's conviction. Accordingly, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for proceedings not inconsistent with this opinion.  dui lawyer 
  dui lawyer 
REVERSED AND REMANDED.  dui lawyer 

HOUSTON, LYONS, HARWOOD, and WOODALL, JJ., concur.  dui lawyer 

MOORE, C.J., and SEE, BROWN, and STUART, JJ., dissent.  dui lawyer 

STUART, Justice (dissenting).  dui lawyer 
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I dissent from the majority's holding that the judgment in this case must be reversed and the case remanded. I disagree with the majority's reasoning that the "traditional rules of statutory construction" interpreting § 32-5A-191, Ala.Code 1975, prevent the use of an out-of-state conviction for driving under the influence of alcohol or a controlled substance in determining the appropriate sentence for a conviction pursuant to § 32-5A-191(f), (g), or (h).  dui lawyer 
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As the Court of Criminal Appeals has stated:  dui lawyer   dui lawyer 
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"`Although criminal statutes must be strictly construed in favor of those sought to be subject to their operation, 893*893 the interests of justice demand that criminal statutes not be construed irresponsibly. In construing a statute this court has an obligation to ensure that such construction is in line with common sense and practicality of application.' Donley v. City of Mountain Brook, 429 So.2d 603, 607 (Ala.Cr.App.1982). See, also, Nobis v. State,401 So.2d 191 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (1981).  dui lawyer 
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"In a similar vein, this court noted in Mayberry v. State, 419 So.2d 262, 265 (Ala.Cr.App.1982) that `the construction [of a statute] should not defeat the obvious intent of the legislature, [citation omitted] or destroy the spirit and force of the law the legislature intended to enact.' See, also, § 13A-1-6, Code of Alabama 1975."  dui lawyer 
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Dhttp://www.ranchocucamongaduilawyers.com/about-patrick-silva.htmlarby v. State, 516 So.2d 775, 783 (Ala.Crim.App.1985)(bracketed language in original; emphasis added). See also Whatley v. Town of Priceville, 672 So.2d 1378, 1381 (Ala.Crim.App.1995).  dui lawyer 
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Section 32-5A-191, Ala.Code 1975, addresses the offense of driving under the influence of alcohol and the appropriate punishments for that offense. The section is entitled "Driving while under influence of alcohol, controlled substances, etc." It is contained in Article 9, which is entitled "Serious Traffic Offenses." The elements of the offense of driving under the influence of alcohol or a controlled substance are defined in § 32-5A-191(a). Subsections (e), (f), (g), and (h) provide the sentence-enhancement provisions.  dui lawyer 
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Act No. 95-784, Ala. Acts 1995, amended § 32-5A-191, Ala.Code 1975, to, among other things, lower the blood-alcohol level at which one is prevented from operating a vehicle from.10 percent to .08 percent. The preamble to Act No. 95-784 specifically states,
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"Relating to the offenses of driving a vehicle while under the influence of alcohol or a controlled substance; to amend Section 32-5A-191, Code of Alabama 1975, so as to increase the fines for such offenses and to lower the blood alcohol level at or above which a person is prohibited from operating a motor vehicle from 0.10 to 0.08 percent...."  dui lawyer 
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(Emphasis added.) Act No. 95-784 specifically provided:  dui lawyer 
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"Be It Enacted by the Legislature of Alabama:  dui lawyer 
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"Section 1. The Legislature finds, determines, and declares the following:  dui lawyer 
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"(1) Driving a vehicle while under the influence of alcohol or a controlled substance continues to be a major problem on the highways of our state and causes the death or injury of thousands of our citizens each year.  dui lawyer 
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"(2) The Legislature should use whatever authority is available to it to discourage driving a vehicle while under the influence of alcohol or a controlled substance, including the levying of fines therefor at a level which will discourage such activity.  dui lawyer 
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"....
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"(9) This act should be liberally construed to accomplish its purposes and to promote the policies contained therein which are declared to be the public policy of this state."  dui lawyer 
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(Emphasis added.) This policy — to deter individuals from repeatedly driving a vehicle while under the influence of alcohol or a controlled substance — is reiterated in the preamble to Act No. 2000-677, Ala. Acts 2000, another act amending § 32-5A-191. Act No. 200-677 specifically states that its purpose is as follows:  dui lawyer 
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"To amend Section 32-5A-191, relating to driving under the influence of alcohol or a controlled substance; to 894*894 increase the penalties for second and subsequent DUI convictions; to increase the minimum days of imprisonment or, in lieu thereof, community service days that may be imposed on second DUI offenders; to provide for mandatory minimum days of confinement for fourth DUI offenders; and to provide for the suspension of the motor vehicle registration of all vehicles owned by a repeat DUIoffender."  dui lawyer 
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(Emphasis added.)  dui lawyer 
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The Legislature's intent in creating the offense of driving under the influence of alcohol or a controlled substance is clear and unambiguous. This State has a valid interest in deterring conduct that risks the safety and lives of its citizens. Individuals who repeatedly drive on our roadways while under the influence of alcohol or a controlled substance endanger our citizens and shall be punished. The Legislature has determined that to deter the individual from repeatedly engaging in such dangerous conduct and to protect this State's citizens a defendant's punishment for driving under the influence of alcohol or a controlled substance must increase with each conviction.  dui lawyer 
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The majority's holding unnecessarily thwarts the objective of the Legislature. In my opinion the majority abandons a common-sense interpretation and practical application of the statute, inserts words into the statute that are not mandated, and construes the language of the statute directly opposite to the intent of the Legislature and to the common understanding of a reasonable person, even the accused.
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The majority concludes that "[t]he only kind of convictions mentioned by Section 32-5A-191 are convictions for `violating this section.'" To reach this conclusion, the majority necessarily inserts the bracketed language into the statute:  dui lawyer 
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"(e) Upon first conviction [of violating this section], a person violating this section shall be punished....  dui lawyer 
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"(f) On second conviction [of violating this section] within a five-year period, a person convicted of violating this section shall be punished....
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"(g) On a third conviction [of violating this section], a person convicted of violating this section shall be punished....  dui lawyer 
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"(h) On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by...."  dui lawyer 
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The majority reasons that the addition of the bracketed language into the introductory phrase is "eminently reasonable" in light of the phrase "violating this section" that appears in the independent clause. I disagree.  dui lawyer 
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The purpose of the language "violating this section" in the independent clauses in subsections (e), (f), (g), and (h) is to identify the present offense for which a defendant is being charged — a violation of § 32-5A-191(a), Ala.Code 1975. The introductory phrases in those subsections determine the type of offense — misdemeanor or felony — and the defendant's punishment. Indeed, the introductory phrases in those subsections provide the sentence-enhancement provisions for a conviction for driving under the influence of alcohol or a controlled substance. Ex parte Parker, 740 So.2d 432, 434 (Ala.1999). The Legislature in those introductory phrases did not limit to Alabama convictions the use for enhancement purposes of prior convictions for driving under the influence of alcohol or a controlled substance; neither did it prohibit the use of non-Alabama convictions. Cf. State v. Rea, 865 S.W.2d 923 (Tenn.Crim.App.1992)(holding that the Tennessee DUI statute did not limit the use of prior convictions for enhancement895*895 purposes to Tennessee DUI convictions only).  dui lawyer 
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Additionally, I note that the language in § 32-5A-191, Ala.Code 1975, does not contain "words of art" that may require the use of only Alabama convictions. As the Oregon Court of Appeals in State v. Thomas, 34 Or.App. 187, 578 P.2d 452 (1978), explained when determining that Oregon's driving-under-the-influence-of-alcohol statute could not be interpreted to include the use of out-of-state convictions:  dui lawyer 
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"The state also maintains that a construction of ORS [Oregon Revised Statute] 484.365 to include prior foreign convictions is supported by an examination of analogous provisions of the criminal code, i.e. the `ex-convict in possession' statute, ORS 166.270, and the `dangerous offender' statute, ORS 161.725. However, as the state acknowledges, both statutes now expressly provide that foreign convictions are included in the terms of the statute.  dui lawyer 
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"Prior to 1975, ORS 166.270 did not expressly include foreign convictions. In State v. Jones, 4 Or.App. 447, 452, 479 P.2d 1020 (1971), this court held that a prior conviction of a felony in another state was within the terms of the former statute. However, Jones is distinguishable from the situation here because the issue was the interpretation of what constitutes a prior `felony.' The term `felony' is one of general application which can be defined by resort to the statute of the other jurisdiction. This is in contrast to the terms `traffic infraction' and `traffic crime' used in ORS 484.365 which have neither general application nor are defined in other statutes."  dui lawyer 
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34 Or.App. at 193-195, 578 P.2d at 456 (footnotes omitted). Here, we are interpreting the word "conviction," which has general application.
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I agree with the majority that criminal statutes should not be extended by construction. However, the majority's interpretation of the statute rejects the basic meaning of the words of the statute to construe it in favor of the defendant. A person is convicted of an offense. See Watson v. State, 392 So.2d 1274, 1278 (Ala.Crim.App.1980). The Legislature specifically identified in § 32-5A-191(a), Ala.Code 1975, the elements of the offense of driving under the influence of alcohol or a controlled substance that must be proven to sustain a conviction. The Legislature also specifically set forth the punishment for individuals who repeatedly engage in driving under the influence of alcohol or a controlled substance. § 32-5A-191(f), (g), and (h), Ala.Code 1975. I think it is "eminently reasonable" to conclude that the Legislature did not intend to exclude out-of-state convictions for driving under the influence of alcohol in determining the appropriate punishment for one driving on the highways of this State in an intoxicated state. The purpose behind the enactment of Alabama's driving-under-the-influence-of-alcohol statute and the Legislature's instruction to liberally construe the statute supports this conclusion. To insert "under this section" in the introductory phrases in those subsections defeats the ability of this statute to deter repeat offenders. As we stated, inGarrison v. Sumners, 223 Ala. 17, 18, 134 So. 675, 676 (1931):  dui lawyer 
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"It is a fundamental rule of construction that penal statutes must be strictly construed, but should not be subjected to strained or unnatural construction in order to work exemption from their penalties. On the other hand, such statutes are not to be extended by construction. `While we disclaim the right to extend a criminal statute to cases out of its letter, yet we hold it to be our duty to apply it to every case clearly within the cause or mischief of making it, when its words 896*896 are broad enough to embrace such case.'"  dui lawyer 
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(Emphasis added; citations omitted.) See also Holmes v. Lambreth, 163 Ala. 460, 50 So. 140 (1909); and Grantland v. State, 8 Ala.App. 319, 62 So. 470 (1913).  dui lawyer 
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It appears ludicrous to me that a defendant would believe that the enhancements referred to in § 32-5A-191 are directed toward a conviction only under the Alabama statute and not toward any conviction for the act of driving a vehicle while under the influence of alcohol or a controlled substance. To so argue abandons common sense, ignores the plain meaning of the statute's words, and unjustly limits the ability of the statute to address an offense the people of the State of Alabama find reprehensible.  dui lawyer 
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The Legislature, in enacting § 32-5A-191, Ala.Code 1975, intended to prevent individuals from repeatedly driving their vehicles while under the influence of alcohol or a controlled substance. In this case, Bertram was convicted of driving under the influence of alcohol. The category of the offense and the level of punishment was determined by the number of prior convictions she had for driving under the influence of alcohol or a controlled substance. Whether the previous convictions for driving under the influence of alcohol were Alabama convictions or convictions from another state is a distinction without a difference. The language of our statute is broad enough to include the use of out-of-state convictions as sentence enhancements. Therefore, I respectfully dissent.  dui lawyer 
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MOORE, C.J., and SEE and BROWN, JJ., concur.

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John Anthony ALTHERR
v.
STATE of Alabama.  dui lawyer 
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CR-02-0437.  dui lawyer 
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Court of Criminal Appeals of Alabama.  dui lawyer 
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August 27, 2004.  dui lawyer 
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1106*1106 Gregory M. Varner, Ashland, for appellant.  dui lawyer 
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William H. Pryor, Jr., and Troy King, attys. gen., and J. Thomas Leverette and Michael B. Billingsley, asst. attys. gen., for appellee.
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On Application for Rehearing  dui lawyer 
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COBB, Judge.  dui lawyer 
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The opinion of January 30, 2004, is withdrawn and the following opinion is substituted therefor. We are taking the opportunity in this substituted opinion to address the State's assertion in its application 1107*1107 for rehearing that John Anthony Altherr's conviction for felony driving under the influence ("DUI") need not be reversed and that Altherr is entitled only to a new sentencing hearing.  dui lawyer 
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John Anthony Altherr was convicted of driving under the influence of alcohol after having been previously convicted of three or more DUI offenses, violations of § 32-5A-191(a), Ala.Code 1975, and § 32-5A-191(h), Ala.Code 1975. He was also convicted of unlawfully possessing prohibited liquor, a violation of § 28-4-20, Ala.Code 1975. Altherr was sentenced to 6 years' imprisonment for the DUI conviction and to 12 months in jail for the conviction for violating the prohibition dui lawyer rancho cucamonga  law. The trial court ordered that the sentences were to run concurrently. This appeal followed.  dui lawyer 
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Altherr contends that he received ineffective assistance of trial counsel because counsel failed to object to an officer's testimony concerning the horizontal gaze nystagmus ("HGN") field-sobriety test when the  dui lawyer rancho cucamonga State failed to lay the proper predicate for the admission of the officer's testimony. Altherr did not present his ineffective-assistance-of-counsel claim to the trial court. "Such claims cannot be presented on direct appeal where they were not first presented to the trial court." Willingham v. State, 796 So.2d 440, 445 (Ala.Crim.App.2001).  dui lawyer 
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"`"[A]n ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal."' [Montgomery v. State, 781 So.2d 1007,] at 1010 [(Ala.Crim.App.2000)](quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996))."  dui lawyer 
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Id.
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Because Altherr did not present his claim in a motion for a new trial, it was not preserved for appellate review.  dui lawyer 
  dui lawyer 
Even if Altherr had preserved his claim for review, however, he would not be entitled to any relief. To prevail on an ineffective-assistance-of-counsel claim, Altherr must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Altherr must show that counsel's performance was deficient dui lawyer rancho cucamonga  and that that deficient performance so prejudiced him that he was deprived of a fair trial. Id.  dui lawyer 
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Without finding that counsel's performance was deficient, we find that Altherr has not shown that he has suffered prejudice. Any evidence regarding the HGN test was harmless. In Cumbie v. City of Montgomery, 703 So.2d 423 (Ala. Crim.App.1997), this Court, in applying a harmless-error analysis, held that because the evidence of the  dui lawyer rancho cucamonga defendant's intoxication was overwhelming, even without the evidence provided by the HGN test, any error in the admission of the results of the HGN test was harmless. Here, even without the evidence provided by the HGN test, the evidence of intoxication was overwhelming. Altherr was driving in an erratic manner, running off the right side of the road and crossing over the center line until finally pulling back into his traffic lane. When Altherr got out of his vehicle, he was unsteady on his feet. Altherr smelled of alcohol. Altherr could barely stand when he was asked to perform a series of field-sobriety tests. When the officer asked him to perform the "walk-and-turn test," Altherr declined to do so. The officer testified that Altherr's eyes were red and that his pupils were constricted. After placing Altherr under arrest, the officer found in Altherr's vehicle four unopened 12-ounce cans of beer and one opened can about three-fourths full. Moreover, Altherr refused to take a 1108*1108 breathalyzer test. In addition, as was the case in Cumbie, the HGN evidence was not presented as scientific evidence, was not dui lawyer rancho cucamonga  accorded undue weight, was part of several field-sobriety tests performed by the officer, and was treated as one of many pieces of evidence. Thus, Altherr has not proven that the outcome of his trial would have been different but for his counsel's allegedly deficient performance. Accordingly, even if Altherr had preserved his claim for appellate review, we would find it to be without merit.  dui lawyer 
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However, based on the Alabama Supreme Court's recent decision in Ex parte Bertram,884 So.2d 889 (Ala.2003), we find that the trial court improperly found four prior DUIconvictions applicable for sentence  dui lawyer rancho cucamonga enhancement pursuant to § 32-5A-191(h), Ala.Code 1975.[1] In Ex parte Bertram, the Court held that a prior conviction in Florida for driving under the influence of alcohol was not a "conviction" within the meaning of the Alabama statute prohibiting driving while under the influence of alcohol; therefore, the out-of-state conviction could not be used as a prior conviction in a prosecution for felony driving under the influence of alcohol, a violation of § 32-5A-191(h), Ala.Code 1975.  dui lawyer 
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In the instant case, the State proved four prior convictions for driving under the influence of alcohol. Two of those convictions were in Georgia, and according to the Alabama Supreme Court in Ex parte Bertram, should not have been used toward the total number of convictions necessary to elevate Altherr's conviction for DUI under § 32-5A-191(a), Ala. Code 1975, to a felony offense pursuant to § 32-5A-191(h), Ala.Code 1975. The Alabama Supreme Court in Bertram, having found that the trial court erred in counting the number of convictions necessary to constitute the subsection (h) felony, also found that the trial court "erred in convicting the defendant on that basis." Bertram, 884 So.2d at 892 (emphasis added). The Alabama Supreme Court  dui lawyer rancho cucamonga reversed Bertram's conviction for felony driving under the influence and remanded the case "for proceedings not inconsistent with 1109*1109 [its] opinion." Bertram, 884 So.2d at 892. "[P]roceedings not inconsistent with [its] opinion" appeared to this Court, and to the four Justices dissenting in Bertram, to mean that the conviction for felony DUI was reversed and the case be remanded for the circuit court to enter judgment against Bertram for a lesser-included offense. We note that § 32-5A-191(g), Ala.Code 1975, provides for the sentence enhancement following a defendant's third DUI conviction in violation of § 32-5A-191(a), Ala.Code 1975, and that § 32-5A-191(f), Ala.Code 1975, provides for the sentence enhancement following a defendant's second DUI conviction in violation of § 32-5A-191(a), Ala.Code 1975. These offenses are defined as a misdemeanors.  dui lawyer 
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In our now withdrawn original opinion in this case, we attempted to follow Bertram by reversing Altherr's conviction for felony DUI and remanding the case for the circuit court to enter judgment against Altherr for the lesser punishment under § 32-5A-191(g), Ala.Code 1975, using the two remaining valid prior DUI convictions. However, the  dui lawyer rancho cucamonga State argued on rehearing that because § 32-5A-191(h), Ala.Code 1975, is a sentence enhancement, Altherr's conviction under § 32-5A-191(a), Ala.Code 1975, is notreversed, but rather this cause should be remanded to the trial court for a new sentencing hearing at which the State should be allowed the opportunity to prove additional Alabama DUI convictions on Altherr's record. In support of this contention, the State argues that the enhancement of the sentence following a DUI conviction is no different from that of an enhancement of a sentence after felony convictions under the Habitual Felony Offender Act ("HFOA").[2] The State contends that the instant situation is no different from that in Connolly v. State, 602 So.2d 452 (Ala.1992), in which the Alabama Supreme Court, discussing the HFOA, held:  dui lawyer 
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"[T]he State's failure to offer certain felonies as the basis for HFOA dui lawyer rancho cucamonga  sentence enhancement does not prevent the State's offer of those felonies at any subsequent sentencing hearing. Where the State, between sentencing hearings, learns of previous felony convictions, it is under a duty to attempt to prove them at the subsequent sentencing hearing."  dui lawyer 
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Connolly v. State, 602 So.2d at 455. (Emphasis added.)  dui lawyer 
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The Alabama Supreme Court's recent opinion, Pruitt v. State, 897 So.2d 406 (Ala. 2004),requires this Court to reconsider the assumption it made about Bertram and to find the State's argument on rehearing is well taken. However, in making this determination we must not only carefully consider Pruitt, but also the Alabama Supreme Court cases dui lawyer rancho cucamonga  of Ex parte Parker, 740 So.2d 432 (Ala.1999), Ex parte Formby 750 So.2d 587 (Ala.1999), andHale v. State, 848 So.2d 224 (Ala.2002).  dui lawyer 
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In Ex parte Parker, 740 So.2d 432 (Ala. 1999), released on February 26, 1999, Parker was charged by indictment with violating what is now § 32-5A-191(h), Ala.Code 1975.[3]Parker filed a motion in limine to prevent the state from offering evidence at trial of Parker's prior DUI convictions, contending that these convictions were dui lawyer rancho cucamonga  evidence 1110*1110 of bad character. The trial court granted the motion in limine, the State appealed the trial court's ruling, and this Court reversed the trial court's ruling. The Alabama Supreme Court granted Parker's petition for a writ of certiorari to address  dui lawyer 
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"thttp://www.ranchocucamongaduilawyers.com/about-patrick-silva.htmlhe issue whether § 32-5A-191(h) states a substantive offense, of which the three prior convictions referred to in that subsection are elements, or whether the prior offenses referred to in that subsection are properly to be considered only for the purposes of determining whether  dui lawyer rancho cucamonga upon conviction a defendant shall receive an enhanced sentence."  dui lawyer 
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Ex parte Parker, 740 So.2d at 433. The Alabama Supreme Court in Parker determined that the substantive elements of DUI are set forth in § 32-5A-191(a), Ala. Code 1975,[4]and that "the legislative intent" of § 32-5A-191(h), Ala.Code 1975, is that subsection (h) provides for sentence enhancement, rather than stating the elements of an offense. Ex parte Parker, 740 So.2d at 435.
  dui lawyer 
Following Parker, on August 27, 1999, in Ex parte Formby, 750 So.2d 587 (Ala. 1999),the Alabama Supreme Court accepted the State's invitation on application for rehearing to clarify whether the district court or the circuit court had original jurisdiction over a DUImade a felony pursuant to § 32-5A-191(h), Ala.Code 1975. The question  dui lawyer rancho cucamonga naturally arose because if the substantive charge is contained in § 32-5A-191(a), Ala.Code 1975, it is a traffic offense over which the district court has jurisdiction, but the district court does not have jurisdiction over a felony offense defined in § 32-5A-191(h), Ala.Code 1975. Jurisdiction over felony charges is in the circuit court.  dui lawyer 
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Formby was indicted for violating § 32-5A-191(a)(2), Ala.Code 1975, "`after having been convicted of three (3) prior Driving Under the Influence Violations.'" Ex parte Formby,750 So.2d at 588. As in Parker, the State was allowed to introduce before the jury evidence of Formby's three prior DUI's. Ultimately the Alabama Supreme Court reversed the judgment in Formby on the authority of Parker. On application for rehearing the Alabama Supreme Court answered the following question posed by the State in its brief on application for rehearing:  dui lawyer   dui lawyer 
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"`Does the Parker decision render Formby's conviction, and the convictions of all others similarly situated, void for lack of jurisdiction because they are based on indictments which originated in the Circuit dui lawyer rancho cucamonga  Court when the District Court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions?'"  dui lawyer 
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Ex parte Formby, 750 So.2d at 589 (quoting the State's brief at page 2.) In reaching the above question, the Alabama Supreme Court clarified in Formby that "Parker held that a fourth or subsequent DUI conviction is a felony conviction, rather than a misdemeanor conviction." Ex parte Formby, 750 So.2d at 589. The Formby 1111*1111 Court  dui lawyer rancho cucamonga again explained that the "import" of its holding in Parker was that prior DUI convictions should not be presented during the "guilt phase" of the trial. Ex parte Formby, 750 So.2d at 590. To allow otherwise would taint the jury's determination of "guilt in regard to the instant offense." Ex parte Formby, 750 So.2d at 590. However, the Court continued by stating:  dui lawyer 
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"Of course, due-process protections also require that the defendant be on notice of the charges against him, so the indictment should put him on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h)."  dui lawyer 
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Ex parte Formby, 750 So.2d at 590 (emphasis added.) Thus, Formby appeared to require that a charging instrument underlying a charge of felony DUI include the fact that the state was seeking a felony conviction. It appeared in Formby that the purpose behind this requirement was not only to provide notice to the defendant of the state's dui lawyer rancho cucamonga  intent to seek sentence enhancement, but also to resolve the question as to which court had jurisdiction.  dui lawyer 
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The Alabama Supreme Court noted that "[t]he indictment gave Formby appropriate notice of the charges against him." Ex parte Formby, 750 So.2d at 591. Because the indictment in Formby gave him appropriate notice by charging him with a felony, "it was appropriate for the prosecution to proceed in the circuit court." Ex parte Formby,  dui lawyer rancho cucamonga 750 So.2d at 591 (emphasis added).  dui lawyer 
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"[T]he Legislature's enactment of § 32-5A-191(h) made jurisdiction over a fourth or subsequent DUI charge appropriate in the circuit court, because the offense charged — a fourth or subsequent DUI offense — is a felony. This Court's decision in Parker had no impact on that jurisdictional issue. Prosecutions for felony DUI offenses should have been, and should continue to be, in the circuit court."  dui lawyer 

Ex parte Formby, 750 So.2d at 590-91 (footnote omitted).  dui lawyer 

Thus, if an indictment charged felony DUI, the circuit court dui lawyer rancho cucamonga  had jurisdiction, otherwise, the district court had jurisdiction and in the district court there could be no proof of a felony.  dui lawyer 

Thus, Parker and Formby established: that § 32-5A-191(a), dui lawyer rancho cucamonga  Ala.Code 1975, sets forth the substantive elements of the offense of DUI; that § 32-5A-191(h), Ala. Code 1975, is a sentence enhancement to § 32-5A-191(a), Ala.Code 1975; that an indictment should put a defendant on notice that he is being charged with felony DUI; and that the circuit court has jurisdiction over an indictment charging felony DUI.  dui lawyer 

On October 11, 2002, the Alabama Supreme Court released Hale v. State, 848 So.2d 224 (Ala.2002). Hale was convicted of unlawful distribution of marijuana, but the case is relevant to this discussion because it was relied upon by the Alabama Supreme Court in disposing of Pruitt, a 2004 opinion involving felony DUI.  dui lawyer 

Hale was sentenced "as an habitual felony offender with one prior felony conviction, to the maximum of life imprisonment (§ 13A-5-9(a)(2), Ala.Code 1975), plus an additional ten years' imprisonment pursuant to the schoolyard and public housing project enhancement statutes (§§ 13A-12-250 and 13A-12-270, Ala.Code 1975, respectively)."Hale, 848 So.2d at 226. Hale argued that the trial court was without jurisdiction to apply the schoolyard and public-housing-project sentence dui lawyer rancho cucamonga  enhancements because the indictment returned against him did not charge these facts and they were not proven beyond a reasonable doubt to the jury. Hale relied on Apprendi v. New Jersey, 530 U.S. 466, 1112*1112 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),[5] in support of this argument. Adopting this Court's rationale in Poole v. State, 846 So.2d 370, 373 (Ala.Crim.App.2001), the Alabama Supreme Court held dui lawyer rancho cucamonga  "that the absence of sentence enhancement allegations from the indictment does not deprive the trial court of jurisdiction to impose the enhancements." Hale, 848 So.2d at 233. The Hale Court also adopted the holding from Poole that "`[c]onstitutional defects must be objected to in the trial court before we may review them on appeal....'" Therefore, before this Court will review an alleged Apprendi violation, the defendant must object in the trial court....'"Hale, 848 So.2d at 233 (quoting Poole, 846 So.2d at 381) (emphasis omitted).  dui lawye

On May 7, 2004, the Alabama Supreme Court released Pruitt v. State, supra. Pruitt was indicted for two counts of DUI.  dui lawyer 

"Count one of the indictment charged Pruitt with the offense of `unlawfully operat[ing] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while under the  dui lawyer rancho cucamonga influence of alcohol and having been convicted of three prior offenses of driving under the influence, in violation of [§] 32-5A-191(a)(2) of the Code of Alabama.' The second count of the indictment charged Pruitt with the offense of having `unlawfully operate[d] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while there was 0.08% or more of alcohol by weight in his blood, in violation dui lawyer rancho cucamonga  of [§] 32-5A-191(a)(1) of the Code of Alabama.'"  dui lawyer 

Pruitt, 897 So.2d at 407. (Emphasis added.) It appeared from the face of the indictment that count I charged a felony and that count II charged a misdemeanor.

During Pruitt's jury trial, the State elected to proceed under count two of the indictment, and the jury found Pruitt guilty of count two. For the incarceration portion of his sentence, the trial court sentenced   dui lawyer Pruitt "as a felon to one year and a day based upon his three prior DUI convictions," which sentence "was subject dui lawyer rancho cucamonga  to suspension after Pruitt served 90 days in jail." Pruitt, 897 So.2d at 407. This Court "remanded the case for the trial court to vacate Pruitt's conviction for felony DUI and to adjudge him guilty of a misdemeanor DUIin accordance with count two of the indictment" Pruitt, 897 So.2d at 407-08, because "count two of the indictment contained no reference to § 32-5A-191(h), Ala.Code 1975, which makes a fourth or subsequent dui lawyer rancho cucamonga  conviction for DUI a felony and because Pruitt was not on notice [as required by Formby] that he was being charged with a felony [in count II], the trial court could not have convicted him of felony DUI." Pruitt, 897 So.2d at 407. The state filed an application for rehearing which this Court denied and the Alabama Supreme Court granted certiorari review.  dui lawyer 

The State, citing Hale, argued that because § 32-5A-191(h), Ala.Code 1975,  dui lawyer 

"acts as a sentence enhancement rather than to define substantive elements of a separate offense, the failure to reference § 32-5A-191(h) in the indictment does not deprive the trial court of dui lawyer rancho cucamonga  jurisdiction to impose the enhancement portion of the sentence."  dui lawyer 

Pruitt, 897 So.2d at 408 (emphasis added).  dui lawyer 

The Alabama Supreme Court, quoting Hale, answered as follows:  dui lawye

1113*1113 "Because subsection (h) merely prescribes punishment for someone convicted under subsection (a), `the absence of [a reference to § 32-5A-191(h)] from the indictment does not deprive dui lawyer rancho cucamonga  the trial court of jurisdiction to impose the [felony sentence].' Hale v. State, supra; see also Ex parte Porter, 850 So.2d 315, 316 (Ala.2002)."

Pruitt, 897 So.2d at 408 (Ala.2004)(bracketed material   dui lawyer added in Pruitt) (emphasis added). Furthermore, the Alabama Supreme Court continued:

"[T]he absence of a reference to § 32-5A-191(h) in the indictment does not conflict with this Court's holding in Ex parte Formby ... in which we held that the indictment should put the defendant on notice   dui lawyer of the charges against him. The indictment gave Pruitt appropriate notice that he was being charged with a violation of § 32-5A-191(a)(1)."

Pruitt, 897 So.2d at 408 (emphasis added). dui lawyer rancho cucamonga 

Moreover, the Pruitt Court continued citing Hale for the proposition that Pruitt had not preserved for appellate review his claim that he was denied due process on the grounds that he had no notice that count II charged felony DUI, because Pruitt failed to object when the State offered into evidence the three prior DUI convictions.

Thus, as we read Pruitt, if a cause is properly before the circuit court,[6] a finding a guilt pursuant to § 32-5A-191(a), Ala.Code 1975, may be followed by sentence enhancements under §§ 32-5A-191(f), (g), or (h), Ala.Code 1975.[7] The Alabama Supreme Court's instructions in Formby that "the indictment should put [a defendant]   dui lawyer   dui lawyer on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h)" were either clarified or implicitly overruled in Pruitt, which clearly stated that the only notice a defendant was entitled to in an indictment charging DUI was notice that he was being charged with a violation of § 32-5A-191(a), Ala.Code 1975. Ex parte Formby, 750 So.2d at 590 (emphasis added). Pruitt underscored that the absence of a reference to § 32-5A-191(h) in an indictment otherwise charging an offense defined in § 32-5A-191(a), Ala.Code 1975, is not a jurisdictional defect, it is a notice defect. Pruitt,897 So.2d at 408. Lack of notice from the State regarding its intentions to seek   dui lawyer application of sentence enhancements is not a jurisdictional defect prohibiting action on the indictment, but rather a constitutional concern the denial of which may not be challenged in the absence of an objection made at trial.

Hopefully, having correctly interpreted the Alabama Supreme Court's intent in Parker, Formby, and Pruitt, we now turn to the question raised on rehearing 1114*1114 by the State in the instant   dui lawyer case: May the State prove prior DUI convictions at a subsequent sentencing hearing as allowed under the HFOA. We answer affirmatively.

Based on the cases discussed above, we see no   dui lawyer reason to distinguish sentence enhancement under the HFOA from sentence enhancement under the DUI law. Both are used strictly for sentence enhancement and have no effect on the underlying substantive offense: both carry notice requirements that may be waived; and neither requires inclusion in the indictment.

Therefore, because § 32-5A-191(h) is a sentence enhancement similar in purpose and character to sentence enhancements under the HFOA, we see no reason to treat them differently from the  dui lawyer  sentence enhancements applied under the HFOA.

Thus, for the reasons stated above, Altherr's conviction for felony DUI is reversed and this cause is remanded to the circuit court with instructions to conduct a second sentencing hearing,  dui lawyer  where the state can "attempt to prove all previous [Alabama DUI] convictions [of which] the State is aware." Connolly v. State, 602 So.2d at 455. However, as with the HFOA, "[t]o enhance a defendant's sentence ... the State must give proper notice of its intent to do so." Connolly v. State, 602 So.2d at 455.

In addition, the trial court's sentence of 12 months for Altherr's conviction of unlawfully selling, possessing, or exchanging prohibited beverages, a violation of § 28-4-20, Ala.Code 1975,  dui lawyer  is improper. Section 28-4-21, Ala.Code 1975, states that a violation of § 28-4-20, Ala.Code 1975, is a misdemeanor "punishable by a fine of not less than $ 50.00 nor more than $ 500.00, to which ... may be added imprisonment in the county jail or at hard labor for the county for not more than six months for the first conviction." The record does not indicate that Altherr has previously been convicted for violating § 28-4-20, Ala.Code 1975. Thus, Altherr should not have been sentenced to more than six months in jail for violating § 28-4-20, Ala. Code 1975. The trial court is directed to amend Altherr's sentence for possessing prohibited liquor and to resentence Altherr in compliance with § 28-4-21, Ala.  dui lawyer  Code 1975.

Due return shall be made to this Court at the earliest   dui lawyer possible time and within 77 days after the release of this opinion.

APPLICATION GRANTED; OPINION OF JANUARY 30, 2004, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.[*]

McMILLAN, P.J., and BASCHAB, SHAW, and WISE,  dui lawyer  JJ., concur.

[1] "On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than   dui lawyer 10 years. Any term of imprisonment may include hard labor for the county or state, and where imprisonment does not exceed three years confinement may be in the county jail. Where imprisonment does not exceed one year and one day, confinement shall be in the county jail. The   dui lawyer minimum sentence shall include a term of imprisonment for at least one year and one day, provided, however, that there shall be a minimum mandatory sentence of 10 days which shall be served in the county jail. The remainder of the sentence may be suspended or probated, but only  dui lawyer  if as a condition of probation the defendant enrolls and successfully completes a state certified chemical dependency program recommended by the court referral officer and approved by the sentencing court. Where probation is granted, the sentencing court may, in its discretion, and where monitoring equipment is available, place the defendant on house arrest under electronic surveillance during the probationary term. In addition to the other penalties authorized, the Director of Public Safety shall revoke the driving privilege or driver's license of the person   dui lawyer convicted for a period of five years.

"Any law to the contrary notwithstanding, the Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction of a felony pursuant  dui lawyer  to this subsection shall not be a felony conviction for purposes of the enhancement of punishment pursuant to Alabama's habitual felony  dui lawyer  offender law."

§ 32-5A-191(h), Ala.Code 1975.  dui lawyer 

[2] We note that "[a]ny law to the contrary notwithstanding, the Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction of a felony pursuant to this subsection shall not be a felony conviction for purposes of the enhancement of punishment pursuant to Alabama's   dui lawyer habitual felony offender law." § 32A-5A-191(h), Ala.Code 1975.

[3] Before May 28, 1996, the provisions of § 32-5A-191(h), Ala.Code 1975, appeared in § 32-5A-191(f), Ala.Code 1975.  dui lawyer 

[4] "(a) A person shall not drive or be in actual physical control of any vehicle while:  dui lawyer 

"(1) There is 0.08 percent or more by weight of alcohol in his or her blood;  dui lawyer 
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
"(2) Under the influence of alcohol;  dui lawyer 
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
"(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
"(4) Under the combined influence of alcohol and a controlled  dui lawyer  substance  dui lawyer  to a degree which renders him or her incapable of safely driving; or
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
"(5) Under the influence of any substance which impairs the mental   dui lawyer or physical faculties of such person to a degree which renders him or her incapable of safely driving."
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
§ 32-5A-191(a), Ala.Code 1975.
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
[5] Apprendi holds that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a   dui lawyer reasonable doubt."Poole v. State, 846 So.2d 370, 375 (Ala.Crim.App.2001)(emphasis omitted).
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
[6] "Section 12-11-30(2) provides in pertinent part: `The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within afelony charge or which arise from the same incident as a felony charge.....' (Emphasis added in Russell.) See also Ala. R.Crim.  dui lawyer  P. 2.2(a)." Ex parte Russell, 643 So.2d 963, 965 (Ala.1994). "[T]he dismissal of a felony-DUIcharge against a defendant did not strip the circuit court of jurisdiction over the remaining misdemeanor charges." Davis v. State, 806 So.2d 404, 406 (Ala.Crim.App.2001),   dui lawyer citing Casey v. State, 740 So.2d 1136 (Ala.Crim. App.1998).
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
[7] An indictment that charged only a violation of § 32-5A-191(a), Ala.Code 1975, could be heard only in the district court because that offense, absent an additional charge in the indictment invoking the circuit court's jurisdiction, charges a misdemeanor. In the district court, enhancements are limited to those found in § 32-5A-191(f) and (g), Ala.Code 1975.  dui lawyer 
https://answers.yahoo.com/question/index;_ylt=AwrC1jF4cWFXTjgAnitPmolQ;_ylu=X3oDMTByMjB0aG5zBGNvbG8DYmYxBHBvcwMxBHZ0aWQDBHNlYwNzYw--?qid=20060730201229AAcTXBJ&p=dui
[*] Note from the reporter of decisions: On January 7, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

Patrick J Silva

Silva & Silva

Attorneys at Law

*   17 Years of Top Level DUI Experience in Rancho Cucamonga​​

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