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672 So. 2d 816

Hodges v. State

Court of Criminal Appeals of Alabama · decided 1995-07-28

Cited by 1 later decisions — most recently September 1995

1 state decisions

Key passage — most relied on by later courts

““Initially, we note that the intent of the legislature with respect to amending Alabama’s DUI statute is stated in the synopsis of the Act. The synopsis states, in relevant part, the following purposes: ‘“To establish the “Alabama Boating Safety Reform Act of 1994”; to amend Section 32-5A-191, Code of Alabama 1975, to prohibit the operation of a vessel and certain other marine devices while under the influence of alcohol or controlled substances, and to provide for certain fines and penalties, parallel to the fines, penalties, and punishment for operating a motor vehicle on the public highways under the influence; to provide for powers of arrest without warrant of certain persons at the scene of boating accidents; to amend Section 32-5A-192, Code of Alabama 1975, to provide for the crime of homicide by ves-sel_’ “The Act amends — it does not repeal— § 32-5A-191. ‘ “Repeal ” of a law means its complete abrogation by the enactment of a subsequent statute, whereas the “amendment” of a statute means an alteration in the law already existing, leaving some part of the original still standing.’ Black’s Law Dictionary 1299 (6th ed. 1990). An ‘implied repeal’ can occur only when the subsequent statute ‘contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force.’ Black’s Law Dictionary 1299 (6th ed. 1990). “The Act repeatedly refers to vehicles and traffic laws. If the legislature had intended to repeal § 32-5”

quoted by 1 later decision, including Floyd v. State

Relies on 672 So. 2d 813 - Daugherty v. Town of Silverhill · State ex rel. Howard v. Cole

Good law ✅— No negative treatment on recordhow we know

Decided 1995-07-28

View the full empirical analysis of this case →

COBB, Judge.

¶1On June 8, 1995, the appellant, Eddie Ray Hodges, was charged with driving on a public *817highway while his license was revoked and with driving under the influence (“DUI”). He was sentenced to 12 months’ hard labor plus an additional 6 months’ hard labor, both sentences to run concurrently, and he was ordered to pay $1500 in fines and court costs. The appellant asserts that by enacting Act No. 94-652, the “Alabama Boating Safety Reform Act of 1994”, Ala.Acts 1994 (“the Act”), the legislature has repealed the existing statute, § 32-5A-191, which deals exclusively with DUI as that offense relates to automobiles or other vehicles. The appellant’s argument is without merit.

¶2The only offered basis for appellant’s contention that § 32-5A-191 has effectively been repealed is that “it is not arguable ... that the legislature of this state has always treated the endangerment to citizens by those operating motor contrivances on the land and on the waterways of this state while under the influence of alcohol or other drugs with equal and the very same severity and rigorousness.” (Appellant’s brief, p. 4.) The appellant cites §§ 33-5-24, 35-5-70 (although he intended to cite 33-5-70), and 33-5-75, Code of Alabama 1975, (which he contends, but we do not concede, was amended by Section 24 of the Acts) for support.

¶3Contrary to the appellant’s assertion, the penalty provisions for vehicular DUI and for boating DUI have not traditionally been parallel. As a matter of fact, one stated purpose of the Act was to create for boating DUI offenses “... certain fines and penalties, parallel to the fines, penalties, and punishment for operating a motor vehicle on the public highways under the influence.” (emphasis added.) The legislature clearly stated that the penalty provisions of the boating and of the vehicular DUI statutes were not parallel ■until the passage of the Act. Further, the appellant mistakenly cites the former boating DUI penalty provision, § 33-5-24, as one of the provisions amended by the Act; this provision was repealed by the Act.

¶4Section 33-5-24 serves an important purpose, but not in support of appellant’s arguments. That former penalty provision demonstrates that the penalties for vehicular DUI and boating DUI have not traditionally been parallel. For example, § 33-5-24(e) and (d) allowed first time penalties for boating DUI of up to only $500 and/or 6 months’ imprisonment, with suspension and then revocation of the owner’s certificate or registration for subsequent offenses. The penalties provided for first-time vehicular DUI offenders that were in effect at the same time as § 33-5-24(c) and (d) were far more severe, allowing fines up to $1000, imprisonment up to one year, and suspension of the offender’s driver’s license for 90 days, and requiring the convicted person to complete a DUI course. See, § 32-5A-191 Ala.Code 1975 (before the 1994 amendment). Subsequent offenses offered far harsher punishment, including possible sentences to hard labor. These two former penalty provisions can hardly be called “equal and the very same.” (Appellant’s brief, p. 4.)

¶5This court could better address the concerns of the appellant had the appellant devised an argument with a clearer basis in the law. The appellant seems to say that the penalty provisions of the statutes in question somehow create a conflict like the one discussed in State ex rel. Howard v. Cole, 269 Ala. 39, 110 So.2d 273 (1959). The Alabama Supreme Court in Howard held that “... an independent legislative act, complete within itself, inconsistent with other statutory provisions on the same subject, is not an amendment, but a repeal.” Howard, 110 So.2d at 276. Clearly no such inconsistency exists in this case. It appears that the appellant’s only argument for repeal is that the two provisions in question were once similar and are now divergent. However, even if the penalty provisions of § 32-5A-191 and § 33-5-24 were once similar (which we do not concede) and were later amended to differ, that amendment would not repeal either statute, and would certainly not act as a repeal solely for the reason the appellant offers. For a discussion of legislative intent regarding the Act, see this court’s opinion in Daugherty v. Town of Silverhill, 672 So.2d 813 (Ala.Crim.App.1995), released today.

¶6The appellant fails to cite any legal authority for his position, but relies strictly upon *818his interpretation of these statutes. His interpretation is clearly incorrect. One of the statutes he cites in support of his interpretation was repealed by the Act. Further, his reading of the penalty provisions of the two statutes in question as they existed before the effective date of the Act is flawed, because he incorrectly states that these provisions have traditionally paralleled each other. Because this contention is his only contention, and it is incorrect, the judgment of the trial court is affirmed.

¶7AFFIRMED.

All the Judges concur.
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