Saturday, August 25, 2007

Lack Of Probable Cause Requires Suppression Motion Not Motion to Dismiss

959 So.2d 698

959 So.2d 698

(Cite as: 959 So.2d 698)

Court of Criminal Appeals of Alabama.

Bradford Savage Dominic MULDOON




Sept. 29, 2006.

Rehearing Denied Dec. 1, 2006.

Background: Following a guilty plea after denial of motion to dismiss, defendant was convicted in the Houston Circuit Court, No. CC-04-4, S. Edward Jackson, J., of driving under the combined influence of alcohol and controlled substances. Defendant appealed.

Holding: The Court of Criminal Appeals, Cobb, J., held that defendant was not entitled to dismissal of Uniform Traffic Ticket and Complaint (UTTC), even if arresting officer lacked probable cause to effect arrest and even if arrest warrant separate from UTTC should have been obtained.


West Headnotes

[1] Automobiles 351.1


[1] Criminal Law 394.4(9)


Defendant was not entitled to dismissal of Uniform Traffic Ticket and Complaint (UTTC), which charged defendant with driving under the combined influence of alcohol and controlled substances, even if arresting officer lacked probable cause to effect arrest and even if arrest warrant separate from UTTC should have been obtained; remedy would have been suppression of evidence, not dismissal of charge. U.S.C.A. Const.Amend. 4; Code 1975, § 32-5A-191(a)(4).

[2] Automobiles 351.1


[2] Criminal Law 1139


In misdemeanor traffic cases, the Uniform Traffic Ticket and Complaint (UTTC) is the formal charging instrument, analogous to an indictment and conferring original subject-matter jurisdiction on the District or Municipal Court, and on the Circuit Court in the case of a de novo appeal. Rules Crim.Proc., Rule 2.2(d).

[3] Automobiles 351.1


[3] Criminal Law 99


Illegal arrest does not void a subsequent conviction, does not bar prosecution on a Uniform Traffic Ticket and Complaint (UTTC) returned after the arrest, and does not entitle the accused to a dismissal of the charges against him. U.S.C.A. Const.Amend. 4.

[4] Criminal Law 394.4(9)


Remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention, not the dismissal of the charge against the accused. U.S.C.A. Const.Amend. 4.

*699 Thomas Scott Smith, Jr., Dothan, for appellant.

Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.

COBB, Judge.

Bradford Savage Dominic Muldoon appeals from his misdemeanor conviction, pursuant to a guilty plea, for driving under the combined influence of alcohol and controlled substances, a violation of § 32-5A-191(a)(4), Ala.Code 1975. Muldoon was sentenced to 12 months in the county jail; that sentence was suspended on the condition that he complete two years' probation. He was also ordered to pay a fine of $600 and court costs, to complete a substance-abuse program, and to surrender his driver's license.

Before entering a guilty plea, Muldoon reserved for appellate review "the issue as to whether or not the arrest was a lawful arrest."

At the hearing on Muldoon's motion to dismiss the charge, the following facts were stipulated: On March 30, 2003, Muldoon was involved in a single-vehicle accident. He was transported unconscious from the scene of the accident to Flowers Hospital, where he remained in a coma for three days. State Trooper Mark Nielson arrived at the accident scene to investigate the accident after Muldoon had been transported to the hospital. There is no information in the record concerning Trooper Nielson's investigation at the accident scene. Trooper Nielson first saw Muldoon at Flowers Hospital, where Muldoon was in a coma. Trooper Nielson did not speak to Muldoon until some time after Muldoon awoke from the three-day coma. There is nothing in the record concerning what information Trooper Nielson obtained after arriving at the hospital. On March 30, 2003, Trooper Nielson issued a Uniform Traffic Ticket and Complaint ("UTTC") to Muldoon charging Muldoon with misdemeanor driving under the influence ("DUI"). That UTTC was later dismissed, and on August 21, 2003, a new UTTC was issued to Muldoon charging him with driving under the combined influence of alcohol and controlled substances.

Based on the above stipulated facts, Muldoon argued that the charges should be dismissed because, he says, his arrest was illegal. According to Muldoon, Trooper Nielson did not see him at the accident scene, therefore, Nielson had no personal knowledge of facts or circumstances--i.e., probable cause--to justify a warrantless arrest. According to Muldoon, the mere issuance of a summons pursuant to a UTTC was insufficient to effect an arrest. Muldoon argued that under the facts of his case the proper procedure to perfect his arrest would have been to obtain an arrest warrant as required by § 32-5- 310, Ala.Code 1975.

Section 32-5-310, Ala.Code 1975, [FN1] permits a police officer to arrest a person for *700 a misdemeanor without a warrant if the offense is committed in the officer's presence. Conversely, § 32-5-310, Ala.Code 1975, requires an arrest for a misdemeanor be made pursuant to a warrant if the officer does not observe the commission of the offense. Moreover, Muldoon argued that § 32-5-171, Ala.Code 1975, [FN2] specifically addresses DUI charges by allowing an officer who did not witness the accident, but who is on the scene with the driver and determines that the driver is under the influence, to arrest the driver at the scene of the accident. See Ingram v. State, 720 So.2d 1036 (Ala.Crim.App.1998)(arrest at the hospital upheld where investigating troopers testified that based on the strong odor of alcohol on driver at the accident scene, and what appeared to be the path of vehicles before the crash, they formed the opinion at the accident scene that driver was intoxicated).

FN1. Section 32-5-310 provides:

"Any peace officer, including state troopers, sheriffs and their deputies, constables and their deputies, police officers and marshals of cities or incorporated towns, county police or patrols, state or county license inspectors and their deputies, and special officers appointed by any agency of the State of Alabama for the enforcement of its laws relating to motor vehicles, now existing or hereafter enacted, shall be authorized, and it is hereby made the duty of each of them to enforce the provisions of this chapter and to make arrests for any violation or violations thereof, without warrant if the offense be committed in his presence, and with warrant if he does not observe the commission of the offense. If the arrest be made without warrant, the accused may elect to be immediately taken before the nearest court having jurisdiction, whereupon it shall be the duty of the officer to so take him. If the accused elects not to be so taken, then it shall be the duty of the officer to require of the accused a bail bond in a sum not to exceed $300.00, conditioned that the accused binds himself to appear in the nearest court having jurisdiction at the time fixed in the bond. In case the arrested person fails to appear on the day fixed, the bond shall be forfeited in the manner as is provided for the forfeiture of bonds in other cases. No officer shall be permitted to take a cash bond. The officer making the arrest and taking the bond shall report the same to the court having jurisdiction within 18 hours after taking such bond."

FN2. Section 32-5-171 provides:

"A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32- 5A-191 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation."

Therefore, Muldoon argued that because Trooper Nielson was not a witness to the accident and was not on the scene at the same time as Muldoon, his warrantless arrest was "an illegal arrest in violation of the Alabama law and his right to procedural due process." Thus, Muldoon argued that the case against him was due to be dismissed.

The State responded in part by arguing that Muldoon agreed to turn himself in after his recovery and release from the hospital. At that point, the State argued, the investigation had been completed, and, thus, an arrest warrant was unnecessary. [FN3]

FN3. The stipulation of facts is devoid as to facts related to probable cause to arrest. The record contains references to medical records; however, the content of these records were not discussed on the record and the medical records were not entered into evidence.

On April 26, 2005, the trial court denied the motion to dismiss by notation on the case-action summary sheet. On May 2, 2005, before trial, the parties were heard on miscellaneous motions. After hearing arguments on the various motions, the trial court orally denied all pending motions. With the complete acquiescence of the trial court, Muldoon reserved for appellate review issues, see infra, before entering a guilty plea.

On appeal, Muldoon contends that the trial court erred in denying his motion to dismiss because his arrest was illegal in that "the officer did not see the defendant drive a vehicle, inside a vehicle, or even at the scene of a vehicle accident" and thus there was no probable cause [FN4] to support a *701 warrantless arrest. (Muldoon's brief at 12.) Also, Muldoon contends that Trooper Nielson did not issue the new UTTC until almost five months after the accident. Thus, according to Muldoon, there was no valid reason the officer could not have obtained a lawful warrant to execute a valid arrest during that period of time.

FN4. In some instances Muldoon's brief refers to a lack of reasonable suspicion; it is clear the argument concerns probable cause.

It is unclear whether Muldoon's appellate claim regarding the five-month delay in issuing the second UTTC is a separate claim that he did not reserve before entering his guilty plea or an argument in support of the claim reserved at trial. Nevertheless, as the State correctly asserted, the statute of limitations for a misdemeanor offense is one year. § 15-3-2, Ala.Code 1975 ("Unless otherwise provided, the prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense."). Thus, the UTTC was timely issued within one year.

[1][2] As to Muldoon's claim that his arrest was illegal because, he says, there was no probable cause and no arrest warrant was issued, we note:

"In misdemeanor traffic cases, the UTTC is the formal charging instrument, analogous to an indictment and conferring original subject matter jurisdiction on the district or municipal court, and on the circuit court in the case of a de novo appeal. Young[ v. City of Hokes Bluff], 611 So.2d [401] at 411-13 [ (Ala.Crim.App.),] (Bowen, J., concurring in result)[, aff'd, 611 So.2d 414 (Ala.1992) ]; Sanders v. City of Birmingham, 669 So.2d 236, 238 (Ala.Cr.App.1995). See also Rule 2.2(d), Ala.R.Crim.P., as amended effective August 1, 1997."

Stoll v. State, 724 So.2d 90, 91-92 (Ala.Crim.App.1998).

[3] " ' "As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent [UTTC], by which the court acquires jurisdiction over the person of the defendant." ' " Taylor v. State, 589 So.2d 804, 805 (Ala.Crim.App.1991)(quoting Coral v. State, 551 So.2d 1181, 1182 (Ala.Crim.App.1989), quoting in turn 41 Am.Jur.2d Indictments and Informations § 18 (1968) ). " 'An illegal arrest "does not void a subsequent conviction," ... does not bar prosecution on [a UTTC] returned after the arrest, ... and does not entitle the accused to a dismissal of the charges against him....' " Holland v. State, 615 So.2d 1313, 1317 (Ala.Crim.App.1993) (quoting Atwell v. State, 594 So.2d 202, 208 (Ala.Crim.App.1991)).

[4] Therefore, even if, as Muldoon alleges, the arresting officer lacked probable cause to effect the arrest, and if an arrest warrant separate from the UTTC should have been obtained, Muldoon was not entitled to have the UTTC (indictment) dismissed. " '[T]he remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention--not the dismissal of the charge against the accused.' " Taylor v. State, 589 So.2d at 806 (quoting Speers v. State, 545 So.2d 247, 250 (Ala.Crim.App.1989)). A motion to dismiss was not the appropriate remedy for the allegedly illegal arrest.

Based on the foregoing, we affirm the trial court's denial of Muldoon's motion to dismiss.


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

959 So.2d 698


Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.

In People v. Bonutti, ___ Ill.App.3d ___, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant̢۪s claim the breath test was invalid.

In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).

The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.

Dr. Ronald Henson, Ph.D., C.P.C.T.