ARREST AND RELEASE

ARR= EST AND RELEASE

Sel= ected Rules of Criminal Procedure

Alabama<= /st1:State> Rules of Criminal Procedure =

Rule 1.1. Scope.

“These rules shall govern the practice and proce= dure in all criminal proceedings in all courts of the State of Alabama, and political subdivisions thereof, except as otherwise provided by court rule.”

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Rule 1.2. Purpose, objectives, and construction.

“These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed = to secure simplicity in procedure, fairness in administration, and the elimina= tion of unnecessary delay and expense, and to protect the rights of the individu= al while preserving the public welfare.”

Rule 1.5. Applicability of rules.

“These rules shall govern all criminal proceedings, wit= hout regard to when the proceeding was commenced.”

Rule 1.4. Definitions.

Unless otherwise defined in a particular rule, whenever they appear in these rules, the terms below shall have the following meanings:

(a) "Appearance Bond." See Rule 7.1(b).

(b) "Charge" means a complaint, indictment, or information.

(d) "Complaint." See Rule 2.3.

(e) "Constructive Contempt." See Rule 33.1(b).

(f) "Criminal Contempt." See Rule 33.1(c).

(g) "Criminal Court" means any court of the State of Alabama or any political subdivision t= hereof with trial jurisdiction over an offense, as defined in Rule 1.4(s).

(h) "Criminal Proceeding" means the prosecut= ion of any offense as defined in Rule 1.4(s), and may be commenced only by complaint or indictment.

(i) "Determination of Guilt." See Rule 26.1(a)(3).

(j) "Direct Contempt.&qu= ot; See Rule 33.1(a).

(k) "District Attorney&q= uot; means, unless otherwise defined in a particular rule, the duly qualified and acting district attorney, subordinates acting under the district attorney's specific authority, or such other person appointed or charged by law with responsibility for prosecuting an offense. The term includes the Attorney General, Deputy Attorney General, assistant attorneys general, and others acting under the Attorney General's specific authority or pursuant to his supervision and direction.

(l) "Indictment." See = Rule 13.1(a).

(m) "Indigent." See= Rule 6.3(a).

(n) "Information." = See Rule 13.1(b).

(o) "Judgment." See= Rule 26.1(a)(1).

(p) "Law Enforcement Off= icer" means an officer, employee or agent of the State of = Alabama or any political subdivision t= hereof who is required by law to:

(i) Maintain public order;

(ii) Make arrests for offenses, whether that duty exte= nds to all offenses or is limited to specific offenses; and

(iii) Investigate the commission or suspected commissi= on of offenses.

(q) "Magistrate" me= ans only district and municipal magistrates under = Rule 18, A.R.J.A. and = Ala. Code 1975, § 12-17-250 et seq.

(r) "Minor Misdemeanor&q= uot; means a misdemeanor or municipal ordinance violation for which the defendant will not be punished by a sentence of imprisonment.

(s) "Offense" means= conduct for which a sentence to a term of imprisonment, or the death penalty, or for which a fine is provided by any law of this state or by any law, local law,= or ordinance of a political subdivision of this state.

(t) "Person" means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

(u) "Personal Recognizance." See Rule 7.1(a).

(v) "Presentment." = See Rule 13.1(a).

(w) "Presiding Judge&quo= t; means (i) for circuit courts, the presiding judge selected according to = Ala. Code 1975, § 12-17-23, and = Rule 6(A), A.R.J.A., (ii) for district courts, the judge selected according to = Rule 6(B), A.R.J.A., and (iii) for municipal courts not electing to c= ome within the district courts, the judge selected according to law or local practice.

(x) "Professional Bondsman." See Rule 7.1(f).

(y) "Prosecutor" me= ans any municipal attorney, district attorney, attorney general, and others act= ing under his or her specific direction and authority, appointed or charged by = law with the responsibility for prosecuting an offense.

(z) "Secured Appearance Bond." See Rule 7.1(c).

(aa) "Security." Se= e Rule 7.1(d).

(bb) "Sentence." Se= e Rule 26.1(a)(2).

(cc) "Surety." See = Rule 7.1(e).

(dd) "Venire" means= all jurors drawn for jury service as provided in Rule 12.1(a) and = Ala. Code 1975, § 12-16-70.

(ee) "Warrant of Arrest.= " See Rule 3.2. The terms "warrant" and "writ," as used throughout these rules to refer to a written order of arrest, shall be synonymous and interchangeable.

(Amended 7-23-91; Amended 9-19-91, eff. 10-1-91; Amended eff. 12-1-97.)

Rule 2.1. Commencement of criminal proceedings.

“All criminal proceedings shall be commenced either by indictment or by complaint.”

The procedure for commencing a criminal action in municipal court is by a complaint. Examples of complaints are as follows: the Uniform Traffic Ticket and Com= plaint (UTTC); the Uniform NonTraffic Citation and Complaint; and Form CR-6, a gen= eric complaint form used for non-traffic misdemeanors adopted as municipal ordin= ance violations and any other ordinance violation adopted by your city council w= hich requires an arrest warrant and mandatory court appearance.

Rule 2.2. Prosecution of criminal proceedings.

“(a) FELONIES. All felony cha= rges and misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony ch= arge shall be prosecuted in circuit court, except that the district court shall = have concurrent jurisdiction to receive guilty pleas and to impose sentences in felony cases not punishable by sentence of death, including related and les= ser included misdemeanor charges, and may hold preliminary hearings with respec= t to felony charges.<= br>

“(b) MISDEMEANORS AND ORDINANCE VIOLATIONS. All misdemeanor offenses (including = an indictment charging a traffic infraction) shall be prosecuted originally in district court or, where adopted as municipal ordinance violations, municip= al court, except:

“(1) Misdemeanors for which an indictment has be= en returned by a grand jury.

(2) Misdemeanors which are lesser included offenses wi= thin a felony charge as to which concurrent jurisdiction as described in Rule 2.= 2(a) has not been exercised.

“(c) TRANSFER OF CASES. Cases filed in a court that does not have original trial jurisdiction of the offense charged shall be transferred to the appropriate court as provided in Ala. Code 1975, § 12-= 11-9.

“(d)= TRIAL DE NOVO. Criminal proceedings prosecuted in the district or the municipal court, from conviction of which the defendant has appealed for trial de nov= o in the circuit court, shall be prosecuted in the circuit court on the original charging instrument, which shall include the Uniform Traffic Ticket and Complaint (UTTC) in traffic cases.”

COMMITTEE COMMENTS

Se= ction (a) is derived from = Ala. Code 1975, § 12-11-30, vesting exclusive original jurisdict= ion of prosecution for felony offenses and lesser included or incidental misdemeanor offenses and ordinance violations in the circuit court. The applicable statute upon which Rule 2.2(b) is based is = Ala. Code 1975, § 12-12-32, which provides:

&q= uot;(a) MISDEMEANORS -- The district court shall have exclusive original trial jurisdiction over prosecutions of all offenses defined by law or ordinance = as misdemeanors, except:

&q= uot;(1) Prosecutions by municipalities having municipal courts;

&q= uot;(2) Any such prosecution which also involves a felony offense which is within t= he exclusive jurisdiction of the circuit court, except as the district court is empowered to hold preliminary hearings with respect to felonies and to rece= ive guilty pleas as provided in subsection (b) of this section, and<= /span>

&q= uot;(3) Any misdemeanor for which an indictment has been returned by a grand jury [ (except indictments charging traffic infractions) Wright v. State, 494 = So.2d 177 (Ala.Crim.App. 1986) ].

Rule 2.3. Contents of a complaint.

A complaint is a written statement made upon oath before a judge, magistrate,= or official authorized by law to issue warrants of arrest, setting forth essen= tial facts constituting an offense and alleging that the defendant committed the offense.

COMMITTEE COMMENTS (as amended in this document)

Ala. Code 1975, § 15-= 7-1, defines a "complaint" as "an allegation made before a proper judge or magistrate that a person has been guilty of a designated public offense." It serves the dual purpose of being the accusatory instrumen= t in most misdemeanor cases and commencing preliminary proceedings in felony cas= es. This rule makes no change in = Alabama law or practice, but it pulls together the parts of the instrument variously termed complaint, affidavit or warrant. See Ala. Code 1975, § 15-= 7-2. A traffic ticket issued pursuant to Rule 19, A.R.J.A., will be sufficient to constitute a complaint.

Sufficiency of complaint or affidavit:

State's failure to file uniform traffic ticket and complaint (UTTC) charging defend= ant with boating under the influence could not be cured by filing solicitor's complaint for trial de novo. Stoll v. State, 724 So.2d = 90 (Ala.Crim.App.1998).

A bare-bones affidavit can be validated if it is supplemented with additional facts which the magistrate considered before determining that probable cause was present. Taylor v. State, 589 So.2d= 804 (Ala.Crim.App.1991).

Where the complaints in support of arrests were merely conclusory and neither complaint contained facts that connected the defendant with the charged offense, the complaints were insufficient. Taylor v. State, 589 So.2d= 804 (Ala.Crim.App.1991).

Rule 2.4. Duty of judge or magistrate upon making of a complaint.=

“The judge or magistrate before whom a complaint is made may subpoena for examination any necessary witnesses. In the event a duly summoned witness fails to appear, the judge or magistrate is authorized to issue a writ of attachment for the defaulting witness, commanding that said witness be brought before the issuing judge or magistrate at once for the purpose of examination. If the judge or magistrate is reasonably satisfied = from the complaint and the evidence, if any, submitted that the offense complain= ed of has been committed and that there is probable cause to believe that the defendant committed it, the judge or magistrate shall proceed under Rule 3.1.”

COMMITTEE COMMENTS

Under Rule 2.4, the judge or magistrate is required to determine from the complai= nt, from any affidavits filed with the complaint, and from any testimony taken = that the offense complained of has been committed and that there is probable cau= se for believing that the defendant committed it.

The purpose served by the ru= le is consistent with Alabama law and the mandates of the Fourth Amendment to the United States Constitut= ion. In Giordenello v. United Stat= es, 357 U.S. 480, 486 (1958), the United States Supreme Court stated tha= t:

&q= uot;The purpose of the complaint, then, is to enable the appropriate magistrate to determine whether the 'probable cause' required to support a warrant exists. The [magistrate] must judge for himself the persuasiveness of the facts rel= ied on by a complaining officer [or complaining private citizen] to show probab= le cause. He should not accept without question the complainant's mere conclus= ion that the person whose arrest is sought has committed a crime."<= /p>

The rule allows the judge or magistrate to examine any witnesses, under oath, that he deems necessary. The rule also makes it clear that the judge or magistrate must subpoena only those witnesses who are deemed neces= sary by him and that the prosecutor of a complaint cannot require issuance of a subpoena to compel attendance of non-essential witnesses. The requirement of calling "necessary" witnesses does not preclude the use of hearsay testimony even on essential elements of proof, assuming the requirements of= the "totality of the circumstances test" are met. See Illinois v. Gates, 462 U.S= . 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

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Rule 3.1. Issuance of arrest warrant or summons.

“(a) ISSUANCE. Upon return of an indictment, or upon a finding of probable cause made pursuant to Rule 2.4, the judge or magistrate shall immediately cause to be issued an arrest warrant or a summons, as provided in Rule 3.2.

“(b) SUMMONS. If the defendant is not in custody, if the offense charged is bailable as a matter of right, and if there is no reason= to believe that the defendant will not respond to the summons, a summons may be issued, at the sole discretion of the issuing judge or magistrate.

“(c) SUBSEQUENT ISSUANCE OF WRIT OF ARREST. If a defend= ant who has been duly summoned fails to appear, or if after issuance of a summo= ns there is reasonable cause to believe that the defendant will fail to appear= , or if for any reason the summons cannot be served or delivered, a writ of arre= st shall issue. More than one writ of arrest or summons may issue on the same complaint or indictment.

“(d) DOCKETING CASE. A case shall be docketed upon serv= ice of a summons or upon the defendant's arrest.”

COMMITTEE COMMENTS (as amended in this document)

Rule 3.1 (a) is a restatement of Alabama law in that a warrant for= the arrest of a defendant will issue only if it reasonably appears from a compl= aint or from affidavits filed with the complaint or testimony of witnesses that = an offense has been committed and there is probable cause to believe that the = defendant committed it. Art. I, § 5, Alabama Constitution of 1901, provides that "no warrants shall issu= e to seize any person or thing without probable cause, supported by oath or affirmation."

Rule 3.1(b) is new to Alabama as a matter of official rule (if not occasional informal practice). The jud= ge or magistrate is permitted to issue a summons when an arrest under a warran= t is not necessary to secure the presence of the defendant and there is little apprehension that the defendant will flee.
There are many reasons to use a summons in lieu of an arrest warra= nt in certain cases. The use of a summons reduces the burden that the criminal justice system places on those accused of crime. While in custody, a defend= ant represents a heavy financial burden on the state [and municipality]. All indications from other jurisdictions and the federal system are that the us= e of the summons in lieu of an arrest warrant has been operationally successful,= and its use is recommended where indicated.

While there is no specific sanction imposed against one who fails = to respond to a summons, Rule 3.1(c) makes it clear that should the defendant = fail to respond, or if there later arises a reasonable likelihood that the defen= dant will not respond as ordered, or if the summons cannot be served, an arrest warrant must be issued. Also, it is within the inherent power of the court = to issue more than one arrest warrant or summons in a particular case, as needed, ba= sed upon a single complaint.

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Rule 3.2. Contents of arrest warrant or summons.

“(a) ARREST WARRANT. An arrest warrant issued upon a complaint shall be signed by the issuing judge or magistrate. An arrest war= rant issued upon an indictment shall be signed by the circuit judge presiding, by the circuit clerk, or by a judge or other magistrate designated to do so by= the presiding judge of the circuit court by order entered on the minutes of the court. The arrest warrant shall contain the name of the defendant, or if the name is unknown, a name or description by which the defendant can be identi= fied with reasonable certainty; it shall state the offense with which the defend= ant is charged; and it shall command that the defendant be arrested and brought before the issuing judge or magistrate, or, if the issuing judge or magistr= ate is unavailable, before the nearest or most accessible district or circuit j= udge or magistrate in the same county. If the defendant is bailable as a matter = of right, the arrest warrant may state the conditions of the defendant's relea= se on his or her own recognizance under Rule 7.2 or an amount of an appearance bond or a secured appearance bond predetermined by the court.

“(b) SUMMONS. The summons shall be in the same form as = the arrest warrant, except that it shall summon the defendant to appear at a st= ated time and place within a reasonable time from the date of issuance. At the discretion of the issuing judge or magistrate, the summons may command the defendant to report to a designated place to be photographed and fingerprin= ted prior to appearance in response to the summons. Failure to so report for photographing or fingerprinting shall result in issuance of a warrant for t= he defendant's arrest unless good cause for such failure is shown. If, upon the defendant's appearance, the defendant has not been photographed and fingerprinted, the issuing judge or magistrate shall direct that the defend= ant be taken promptly for such photographing and fingerprinting.”<= span style=3D'font-size:9.5pt;font-family:Verdana'>

COMMITTEE COMMENTS (as amended in this document)

Ru= le 3.2(a) conforms to prior Alab= ama law and practice. Under the rule, an arrest warrant based on a complaint mu= st be signed by the issuing judge or magistrate, upon his or her finding of probable cause; must contain the name of the defendant or some description = by which the defendant can be identified with reasonable certainty; and must s= tate the offense with which the defendant is charged. The name or description are matters of form and may be amended as provided in Rule 3.5.

&q= uot;Magistrates" are judicial officers created by Amendment 328, § 6.01(b), Ala. Const. 1901, and are vested with the authority to issue warrants and to perform ot= her judicial duties incident thereto. An administrative magistrate's agency is established by, and the judicial authority with which magistrates are empow= ered is outlined in, §§ 12-17-250 and 12-17-251 and Rule 18 of the Rul= es of Judicial Administration (Ala.R.Jud.Adm.). Pursuant to those statutes and that rule, magistrates are authorized to perform limited judicial functions such as issuing arrest warrants, approving bond, receiving cash bail, setti= ng bail, and receiving guilty pleas for certain minor misdemeanor offenses and municipal ordinance violations. Magistrates are also empowered by Rule 4.3 = of these Rules to hold probable cause and initial appearance hearings.

Th= e rule also gives the issuing officer the flexibility of allowing a personal recognizance release on certain conditions as contemplated in Rules 7.2 and 7.3, where there are circumstances that dictate issuance of a warrant rather than a summons, but yet there is reason for use of a recognizance release. = The release of an arrested defendant upon execution of the recognizance would n= ot preclude the defendant's having to appear at the initial hearing, but might preclude the defendant's spending the night in jail unnecessarily.

Ru= le 3.2(b) is new to Alabama practice. The rule specifies that the defendant shall be required to report= at a specified time and place within a reasonable time from the date of issuan= ce of the summons. The issuing judge or magistrate may order that the defendan= t be fingerprinted and photographed prior to appearance. Nothing in this rule mandates that the judge or magistrate issue such an order. If the summons d= oes direct the defendant to so appear, the rule makes it clear that a failure to comply with the provisions of the summons directing the defendant to appear= for photographing will result in the arrest of the defendant, unless "good cause" is shown for failure to comply. A summons and complaint in lieu= of an arrest warrant is authorized for certain municipal ordinance violations (e.g., violations of leash laws, rabies control ordinances, and littering ordinances) pursuant to the provisions of = Ala. Code 1975, § 11-45-9.1. A defendant summoned under this sta= tute is expressly exempt from Rule 3.2 and shall not be fingerprinted and photographed.

Rule 3.3. Execution and return of arrest warrant.

“(a) BY WHOM. The arrest warrant shall be directed to a= nd may be executed by any law enforcement officer within the State of Alabama.<= span style=3D'font-size:9.5pt;font-family:Verdana'>

“(b) MANNER OF EXECUTION. An arrest warrant shall be executed by arrest of the defendant.

“(c) RETURN. The law enforcement officer executing an arrest warrant shall endorse thereon the manner and date of execution, shall subscribe his name, and shall return the arrest warrant to the clerk of the court specified in the arrest warrant.”

COMMITTEE COMMENTS (as amended in this document)

Rule 3.3(a) requires that an arrest warrant be directed to and executed by "= ;any law enforcement officer within the State of Alabama." The applicable statute enumerating those officers who may arrest with or without a warrant is Alabama Code 1975, § = 15-10-1, which provides:

&q= uot;An arrest may be made, under a warrant or without a warrant, by any sheriff or other officer acting as sheriff or his deputy, or by any constable acting within their respective counties, or by any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county."

Rule 3.3(c) requires that the warrant be returned to the clerk of = the court specified in the warrant.

A warrant may be issued by a municipal judge for a felony and is returnable to the circuit or district court.

RULE 3.4. Service of= S ummons.

The summons may be served by any law enforcement officer in the same manner as a summons in a civil action, except that service may not be by publication. At the law enforcement officer's discretion and expense, a summons may be serv= ed by certified mail, requiring a signed receipt or some equivalent thereof. In the event the summons is served by certified mail, return of the receipt si= gned by the defendant shall be prima facie evidence of service. The law enforcem= ent officer serving the summons shall make return of the summons in the same ma= nner as provided in Rule 3.3(c) for making return of an arrest warrant.

Committee Comments

Rule 3.4 is designed to make service of the summons as easy and expeditious as possible. The function of the summons is solely to apprise the defendant of= the charges filed against him and to notify the defendant to appear. Since the = use of the summons will allow for more efficient use of the time of law enforce= ment officers, the rule provides that service may be made in any manner which accomplishes that purpose. Because, unlike the case of civil summons, no sanctions attach, nor are rights lost, if the defendant does not appear as ordered (other than that a warrant for the defendant's arrest will be issue= d), neither the state nor the defendant will be in a worse position than had a warrant been issued initially.
The person serving the summons should be guided by considerations of convenience and economy as well as the certainty of probability that the defendant will personally receive the notification. The rule is similar to the comparable provision in Rule 4(d)(3), Fed.R.Crim.P= .
As to a corporate defendant, summons is necessary, and before proceeding ex pa= rte there must be a procedure established, as in civil actions, to show due notification.

Rule 3.5. Defective arrest warrant.

An arrest warrant shall not be invalidated nor shall any person in custody the= reon be discharged because of a defect in form. The arrest warrant may be amende= d to remedy such defect.

COMMITTEE COMMENTS

Rule 3.5 restates the Alabama law in that a mere defect in form, as opposed to a defect in substance, will not serve to invalidate an arrest warrant. See Wilson v. State, 99 Ala.19= 4, 13 So. 427 (1892). The problem remains for determination of what constitutes a defect in form rather than a defect in substance. Normally, aliases, fictitious names, and descriptions are considered matters of form = and may be amended if shown to be incorrect.

Rule 3.6. Definition of search warran= t.

A search warrant is a written order, in the name of the state or municipality, signed by a judge or magistrate authorized by law to issue search warrants, directed to any law enforcement officer as defined by Rule 1.4(p), commandi= ng him to search for personal property and, if found, to bring it before the issuing judge or magistrate.

COMMITTEE COMMENTS

Sections 3.6 through 3.14 of this rule are procedures to guide the issuance and retu= rn of search warrants. Requirements of such United States Supreme Court cases = as Illinois v. Gates, 462 U.S= . 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), are also included in the = rules.

City police officers can also execute search warrants. See Palmer v. State, 426 So.2d= 950 (Ala.Crim.App. 1983); Williams v. State, 505 So.= 2d 1252 (Ala.Crim.App. 1986); Hicks v. State, 437 So.2d = 1344 (Ala.Crim.App.), aff'd, 437 So.2d 1346 (Ala.1983)<= /span>.

Rule 3.6 is taken from Ala. Code 1975, § 15-= 5-1. A magistrate must have a license to practice law in order to issue a search warrant. Ala. Code 1975, § 12-= 17-251(c)(1) (This Code section provides that either magistrates who have licenses to practice= law or who were “serving as a full-time magistrate or warrant clerk on September 1, 1976, and who continued in such capacity as a merit system employee” are authorized to issue search warrants). Ala. Code 1975, § 12-= 14-32, provides that municipal judges are authorized to issue search warrants for municipal ordinance violations returnable to municipal court and for violat= ions of state law returnable to any state court. However, Alabama case law recognizes that a municipal law enforcement officer may properly execute a search warrant issued by a municipal court under Ala. Code 1975, § 12-= 14-32. Palmer v. State, 426 So.2d= 950 (Ala.Crim.App. 1983); Hicks v. State, 437 So.2d = 1344 (Ala.Crim.App.), aff'd, 437 So.2d 1346 (Ala.1983)<= /span>; Williams v. State, 505 So.= 2d 1252 (Ala.Crim.App. 1986). Alabama Code 1975, § = 15-5-1, restricts execution of general search warrants to sheriffs and constables o= f the county.

Rule 3.7. Authority to issue search warrants.

Upon request of a law enforcement officer or district attorney, a search warrant authorized by this rule may be issued by:

(i= ) A magistrate who is authorized to practice law in the State of Alabama, or wh= o is authorized by law to issue search warrants, within the magistrate's territo= rial jurisdiction; or

(ii) A municipal judge, if the search is to be conduct= ed within the police jurisdiction of the municipality; or

(iii) A district judge within the county; or

(iv) A circuit judge within the judge's circuit.<= /o:p>

(Amended eff. 12-1-97.)
COMMITTEE COMMENTS AS AMENDED EFFECTIVE DECEMBER 1, 1997

A magistrate must have a license to practice law in or= der to issue a search warrant. Ala. Code 1975, § 12-17-251(c)(1) (This Code section provides that either magistrates who have licenses to practice law or who were “serving as= a full-time magistrate or warrant clerk on September 1, 1976, and who continu= ed in such capacity as a merit system employee” are authorized to issue search warrants). Rule 3.7 is patterned on this federal= rule, and the amendment effective December 1, 1997, specifically eliminated the following words in subsection (iii): "where the property to be searche= d is located." The intention of the amendment was to permit anticipatory se= arch warrants. See Ex parte = Oswalt, 686 So.2d 368 (Ala.1996).

In= clusion of the provision that the magistrate be within the magistrate's territorial jurisdiction is supported by the case of Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967), which states that the decisi= ve requirement [in determining the limits of the territory within which an off= icer issuing a search warrant may authorize a search] is ... that the magistrate must have jurisdiction of the place at which the search is directed to be made." = 281 Ala. at 503, 205 So.2d at 583.

Rule 3.8. Grounds for issuance of search warrant.<= /span>

(a) ISSUANCE. A search warrant authorized by this rule may be issued if there is probable cause to believe that the property sought:

(1= ) Was, or is expected to be, unlawfully obtained;

(2= ) Was or is expected to be used as the means of committing or attempting to commit a= ny offense under the laws of the State of Alabama or any political subdivision thereof;

(3= ) Is, or is expected to be, in the possession of any person with intent to use it as= a means of committing a criminal offense, or is, or is expected to be, in the possession of another to whom that person may have delivered it for the pur= pose of concealing it or preventing its discovery; or

(4) Constitutes, or is expected to constitute, evidence of a criminal offense u= nder the laws of the State of Alab= ama or any political subdivision thereof.

(b) WARRANT UPON ORAL TESTIM= ONY.

(1= ) General Rule. If circumstances make it reasonable to dispense, in whole or in p= art, with a written affidavit, a judge or magistrate who is authorized to issue search warrants may issue a warrant based upon sworn testimony communicated= by telephone or other appropriate means, including facsimile transmission.

(2= ) Application. The person who is requesting the warrant shall prepare a document to be kno= wn as a duplicate original warrant and shall read such duplicate original warr= ant verbatim to the issuing judge or magistrate. The judge or magistrate shall enter what is so read on a document to be known as the original warrant. The issuing judge or magistrate may direct that the warrant be modified.

(3= ) Issuance. If the judge or magistrate is satisfied that the circumstances are such as = to make it reasonable to dispense with a written affidavit and the grounds for the application exist or that there is probable cause to believe that they exis= t, the judge or magistrate shall order the issuance of a warrant by directing = the person requesting the warrant to sign the judge's or magistrate's name on t= he duplicate original warrant. The judge or magistrate shall immediately sign = the original warrant and enter on the face of the original warrant the exact ti= me the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

(4= ) Recording and Certification of Testimony. When a telephone caller informs the jud= ge or magistrate that the purpose of the telephone call is to request a warran= t, the judge or magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for the warrant. If a voice recording device is available, the judge or magistrate shall record by means of such device all of the call after the caller infor= ms the judge or magistrate that the purpose of the call is to request a warran= t. Otherwise, a stenographic or longhand verbatim record shall be made. If a v= oice recording device is used or a stenographic record made, the judge or magist= rate shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the ju= dge or magistrate shall file a signed copy with the court.

(5= ) Contents. The contents of a warrant upon oral testimony shall be the same as the cont= ents of a warrant upon affidavit.

(6= ) Additional Rule for Execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.=

(7) Motion to Suppress Precluded. Absent a find= ing of bad faith, evidence obtained pursuant to a warrant issued under this par= agraph is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with a written affidavit= .

(Amended eff. 12-1-97; Amended eff. 11-1-98.)

COMMITTEE COMMENTS

Th= is rule is essentially the same as = Alabama Code 1975, § 15-5-2, and shall govern unless otherwise prov= ided by law.

COMMITTEE COMMENTS TO AMENDMENT EFFECTIVE DECEMBER 1, 1997

The committee proposed this amendment to comply with the recommendation by the Alabama Supreme Court that Rule 3.8 be redrafted to permit the broader issu= ance of anticipatory search warrants. Ex parte = Oswalt, 686 So.2d 368 (Ala.1996). In Oswalt, the Alabama Supreme Court held that anticipatory search warrants are not per se unconstitutiona= l, but that those that fail to comply with = Rule 3.8, Alabama Rules of Criminal Procedure, are impermissible.

The Alabama Supreme Court noted in Oswalt that the use of present- and past-tense language in = Rule 3.8 (as it read before this amendment) restricted the issuance of anticipatory = search warrants. The amendment permits anticipatory search warrants by adding future-tense language. Now a warrant to search for property that is not wit= hin the jurisdiction when the warrant is issued, but that is expected to be wit= hin the jurisdiction when the search is conducted, is val= id if it otherwise complies with the rule.

A = common factual basis for anticipatory search warrants occurs when the officer pres= ents evidence that contraband is on a 'sure course' to a certain premises. It is clear that the affidavit supporting the anticipatory search warrant must sh= ow elements beyond the mere fact that the officer believes that a delivery of contraband is going to occur. The affidavit must also reveal how the officer obtained this belief, how reliable the sources are, and what part, if any, = the state or a governmental agency will play in the delivery. The judicial offi= cer will then decide whether there is probable cause to believe that the delive= ry will occur, and whether there is probable cause to believe that the contrab= and will be located on the premises when the search takes place. See, e.g., United States v. Garcia, 882 F.2d 699, 703-04 (2d Cir.1989).

COMMITTEE COMMENTS TO AMENDMENT EFFECTIVE NOVEMBER 1, 1998

The amendment to = Rule 3.8 adds subsection (b) which authorizes the issuance of search warrants on oral testimony, as is authorized in the federal courts. This amendment basically tracks the provisions of = Rule 41(c)(2), Federal Rules of Criminal Procedure, but has been modified to recognize that not all magistrates are authorized under Alabama law to issue search warrants.<= /span>

Rule 3.12. Authority to break and enter.

To execute the warrant, the law enforcement officer may break open any door or window of a house, dwelling, vehicle, or structure, or any part thereof, or anything therein, if, after notice of his authority and purpose, he is not granted admittance.

COMMITTEE COMMENTS

This rule is taken from Ala. Code 1975, § 15-= 5-9. It should be clear that it is not necessary to have an affirmative refusal.= If no one is present or no answer is made within a reasonable period, the offi= cer may gain entrance to the premises by breaking in if necessary.

Rule 3.13. Unlawfully seized property.

(a) MOTION FOR RETURN OF PROPERTY. A person aggrieved by an unlawful search and seizure may move the court for the return of the property seized on the gro= und that he or she is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the prop= erty shall be restored. If a motion of return of property is made or comes on for hearing after an indictment or information is filed, it shall be treated al= so as a motion to suppress evidence.

(b) MOTION TO SUPPRESS. A motion to suppress may be made at any time after indictment.

COMMITTEE COMMENTS

This rule is similar to Rule 41(e) and (f), Fed. R. Crim. P., and modifies Ala. Code 1975, § 15-= 5-16. Of course, if the property seized is contraband, it can be lawfully held ev= en if the property is subject to the exclusionary rules and does not have to be returned. This rule is not intended to modify the substantive exclusionary rules of evidence or to affect the scope of such rules as they may develop.=

RULE 4. Arrest and Initial Appeara= nce.

Rule 4.1. Arrest without a warrant.

“(a) ARREST BY A LAW ENFORCEMENT OFFICER.

(1) A law enforcement officer may arrest a person with= out a warrant if:

(i) The law enforcement officer has probable cause to believe that a felony has been committed, or is being committed, and that t= he person to be arrested committed it, or

(ii) Any offense has been committed in the law enforce= ment officer's presence or view, or

(iii) The arrest is otherwise authorized by statute, s= uch as = Ala. Code 1975, §§ 32-5-171, = 32-5A-191, = 15-10-3.

(2) The law enforcement officer shall inform the person arrested of the officer's authority and the cause of the arrest, except when the person is arrested in the actual commission of the offense or during pursuit immediately thereafter.

“(b) ARREST BY A PRIVA= TE PERSON.

(1= ) A private person may arrest another without a warrant if:

(i) A felony has in fact been committed, and the arres= ting person has probable cause to believe that the person to be arrested committ= ed it, or

(ii) The person to be arrested committed an offense, o= ther than a felony, in the presence of the arresting person.

(2= ) A private person making an arrest shall inform the person arrested of the cau= se of the arrest, except when such person is arrested in the actual commission= of the offense or during pursuit immediately thereafter. A private person maki= ng an arrest shall deliver the person arrested without unnecessary delay to a judge, magistrate, or law enforcement officer. If the person arrested is ta= ken to a law enforcement officer, the officer shall proceed as provided in Rule 4.3(a).

(c) ARREST ON ORDER OF JUDGE OR MAGISTRATE. When a public offense is committed = in the presence of a judge or magistrate, he may, by oral or written order, command any person to arrest the offender and, when the offender has been arrested, may thereupon proceed as if such offender had been brought before= him on an arrest warrant.”

COMMITTEE COMMENTS (as amended in this document)

Except as otherwise provided by law, this rule shall govern arrests in Alabama for criminal offenses, whether classified as violations, misdemeanors, or felonies. Among the exceptions to the rule are minor traffic offenses, which shall continue to be governed by = § 32-1-4, Ala. Code 1975, and the violation of certain municipal ordinances pursuant to § 11-45-9.1 for which release on personal recognizance is provided. Custodial arrest is authorized only for traffic offenses (1) involving DUI; (2) causing or contributing to an accident that results in injury or death; (3) in which the arresting officer has "go= od cause to believe" the offender committed a felony; or (4) where the pe= rson charged refuses to sign the Uniform Traffic Ticket and Complaint promising = to appear in court or refuses to comply with the ticket provisions and instructions.

Rule 4.2. Telephone call after arrest.

“Any person under arrest shall be afforded an opportuni= ty to make a telephone call to any person that he or she may choose, without u= ndue delay.”

Rule 4.3. Procedure upon arrest.

“(a) ON ARREST WITHOUT A WARRANT.

(1= ) A person arrested without a warrant:

(i= ) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified= of and may be released; or

(i= i) May be released by a law enforcement officer upon execution of an appearance bo= nd or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified= of; or

(i= ii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4. A judge or magistrate in the county of arrest shall determine whether probable cause exists to believe that the defendant commi= tted the charged offense, by examining any necessary witnesses in accordance wit= h the procedures for making a probable cause determination provided in Rule 2.4. = If the judge or magistrate finds there is probable cause for the arrest of the person, a complaint shall promptly be prepared, filed, and served on the defendant, and the judge or magistrate shall proceed as provided in Rule 4.4 for initial appearance. If a probable cause determination is not made by a judge or magistrate without undue delay, and in no event later that forty-e= ight (48) hours after arrest, then, unless the offense for which the person was arrested is not a bailable offense, the person shall be released upon execu= tion of an appearance bond in the amount of the minimum bond set in Rule 7.2, and shall be directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or

(iv) In the event the defendant is released on the min= imum bond amount provided in the bail schedule, the prosecutor may file a motion with the court to reconsider the bond amount and the conditions of release,= and the procedures thereafter shall be in accordance with Rule 7.5.<= /span>

&#= 8220;(2) If a person arrested without a warrant has been released and cited or direc= ted to appear without having been taken before a judge or magistrate for a prob= able cause determination, the officer or private person who made the arrest shall without undue delay make a complaint before a judge or magistrate as provid= ed in Rules 2.3 and 2.4. If the judge or magistrate finds probable cause, the complaint shall be served on the defendant in the manner provided in Rule 3= .4 for service of summons, or shall be delivered to the defendant at the time = of the defendant's appearance. If the judge or magistrate does not find probab= le cause, the person arrested shall promptly be notified and advised that an appearance will not be required. Notification shall be made by the magistra= te or clerk of the court by mail directed to the defendant at the defendant's = last known address.

“(b) ON ARREST WITH A WARRANT.

(1= ) If provision therefor has been made by the judge or magistrate issuing the arr= est warrant, a person arrested with a warrant shall be released on an appearance bond in the amount set in accordance with the schedule contained in Rule 7.2 and directed to appear either at a specified time and place or at such time= and place as he or she shall be subsequently notified of.

(2= ) If the person arrested cannot meet the conditions of release provided on the warra= nt, or if no such conditions are prescribed or provided for,<= /p>

(i) If such person was arrested pursuant to a warrant issued upon a complaint, he or she shall be taken without undue delay, exce= pt in no event later than seventy-two (72) hours after arrest, before a judge = or magistrate, who shall proceed as provided in Rule 4.4, or=

(ii) If such person was arrested pursuant to a warrant issued upon an indictment, he or she shall be taken without undue delay, ex= cept in no event later than seventy-two (72) hours after arrest, before a circuit judge, who shall proceed as provided in Rule 4.4.

(3) If the person arrested cannot meet the conditions = of release and has not been taken before a judge or magistrate in the case of a warrant issued on a complaint, or has not been taken before the circuit cou= rt in the case of a warrant issued on an indictment, without undue delay, exce= pt in either case in no event later than seventy-two (72) hours after arrest, unless the charge upon which the person was arrested is not a bailable offe= nse, such person shall be released upon execution of an appearance bond in the minimum amount required by the schedule set forth in Rule 7 and directed to appear for arraignment either at a specified time and place or at such time= and place as he or she shall be subsequently notified of.

(4) Upon request, the defendant shall be given a copy = of the charges against him or her.

“(c) ASSURANCE OF AVAILABILITY OF JUDGE OR MAGISTRATE. The judge or presiding judge and the clerk of the appropriate c= ourt shall take such steps as are necessary to assure that a judge or magistrate= with appropriate authority is available in the county to hold initial appearance= s as required by Rules 4.3(a)(1)(iii) and 4.3(b)(2)(i).”

COMMITTEE COMMENTS (as amended in this document)

Ru= le 4.3(a) lists the options available to law enforcement officers in the case = of warrantless arrests. An officer may (1) issue a citation to the person to appear at a specified time and place or at such time and place as the offen= der will be subsequently notified of, and release the offender (release on pers= onal recognizance); (2) release the offender upon execution of an appearance bond (secured or unsecured) in an amount set according to the bail schedule prov= ided in Rule 7.2 and direct the offender to appear at a specified or subsequently scheduled time and place; or (3) take the offender into custody and provide= the offender an opportunity to make bail. Although release by law enforcement officers upon execution of an appearance bond is specifically authorized by= the rule, law enforcement officers continue to be prohibited from accepting cash bond, pursuant to = § 32-5-310, Ala. Code 1975.

Ru= le 4.3(a)(1)(iii) is based on the United States Supreme Court's holding in Gerstein v. Pugh, 420 U.S. 103 (1975), requiring a probable cause hearing by a neu= tral magistrate or judge where the defendant is detained on a warrantless arrest. After the Supreme Court's holding in Riverside v. McLaughlin, 500 U.S. 44 (1991), this subsection was amended to require that a probable cause hearing be held within 48 hours in a warrantless arrest situation where a defendant remains in custody and to omit the provision th= at required that the defendant be brought before a judge or magistrate for the hearing, because the defendant's presence was neither constitutionally nor statutorily required.

If= a probable cause hearing is not held within 48 hours of arrest, the person detained must be released upon execution of an appearance bond in the minim= um amount set pursuant to the Rule 7.2 bail schedule, and directed to appear a= t a specified time and place or at such time and place as he or she shall be subsequently notified of.

Pu= rsuant to Rule 4.3(a)(2), probable cause hearings must also be conducted "wit= hout undue delay" where the defendant is released. If probable cause is fou= nd, the complaint may be given to the defendant at the defendant's first appear= ance or may be delivered by personal service or by certified mail, return receipt requested. Under this procedure, many, if not most, defendants will make th= eir first court appearance at arraignment, or perhaps even at trial if arraignm= ent is waived. Those defendants who cannot obtain release will be entitled to an initial appearance before a disinterested judge or magistrate within 72 hours.

In the event no probable caus= e for the arrest is found and no complaint is issued, the court clerk or magistra= te must promptly notify the offender by mail that he or she will not be requir= ed to appear in court.

Rule 4.4. Initial appearance.

“(a) IN GENERAL. At defendant's initial appearance the judge or magistrate shall:

(1) Ascertain the defendant's true name and address and, if necessary, amend the formal charges to reflect defendant's true name, instructing the defendant = to notify the court promptly of any change of address;

(2= ) Inform the defendant of the charges against him;

(3) Inform the defendant of the right to be represente= d by counsel, advise the defendant that he will be afforded time and opportunity= to retain counsel, advise the defendant that if he is indigent and unable to obtain counsel, counsel will be appointed to represent him, and, inform the defendant of the right to remain silent; and

(4) Determine conditions of release in accordance with Rule 7.3.

&#= 8230;

“(c) WHEN INITIAL APPEARANCE NOT REQUIRED. It sha= ll not be necessary to hold an initial appearance in any case in which the defendant has been released from custody.”

COMMITTEE COMMENTS (as amended in this document)

The purpose of Rule 4.4(a) is to insert the judicial process betwe= en the police and the defendant at the earliest practicable time in order to minimize the effects of carelessness, abuse of power, or unavoidable error = in the police function. These rules dispense with the formality where the defendant has already been released. If he has not been released, however, = Rule 4.4(a) insures procedural compliance with Miranda v. Arizona, 384 U.= S. 436 (1966), and Escobedo v. Illinois, 378 = U.S. 478 (1964), as well as provides for the prompt determination of the conditions for release.

RUL= E 5. Preliminary Hearing.

Rule 5.1. Right to preliminary hearing; waiver; postponement.

(a) RIGHT TO PRELIMINARY HEARING. A defendant charged by complaint with the commission of a felony may, within thirty (30) days of arrest, demand a preliminary hearing. If demanded, the preliminary hearing shall commence in district court within twenty-one (21) days following the demand for prelimi= nary hearing unless:

(1= ) The complaint has been dismissed;

(2= ) The hearing is subsequently waived;

(3= ) The hearing is postponed as provided in section (d); or

(4= ) An indictment charging the same offense has been returned by the grand jury be= fore the commencement of the hearing.

(b) WAIVER. A preliminary hearing, once demanded, may be subsequently waived in open court or by written waiver, signed by the defendant and defendant's counsel, if any.=

(c) DELAY. If a preliminary hearing has not been commenced within twenty-one (2= 1) days as required in section (a), unless postponed as provided in section (d= ), the defendant shall be released from custody automatically, unless the defe= ndant is charged with a non-bailable offense, in which case the judge presiding s= hall immediately notify the presiding judge of that circuit of the delay and the reasons therefor. The circuit court may thereupon order that the hearing be= set for a time specified by the court.

(d) POSTPONEMENT. Upon motion of any party, or upon the district judge's own initiative, the preliminary hearing may be postponed beyond the time limits specified in section (a), upon a finding that circumstances exist that just= ify delay, and in that event the court shall enter a written order detailing the reaso= ns for the finding and shall give the parties prompt notice thereof.

COMMITTEE COMMENTS

Rule 5(a) [5.1(a) ] does not change the 30-day rule found in Ala. Code 1975, § 15-= 11-1.

The use of preliminary hearings developed historically from the time when grand juries met only infrequently and a defendant was liable to languish in jail= for several weeks or months upon an unjustifiable complaint (i.e., one for which there was no probable cause) before the grand jury could meet to consider t= he charge and return a No-Bill.

A preliminary hearing thus served the needs of a defendant being held prior to indictment. If the district attorney chooses to put on more than a bare min= imum hearsay presentation of proof, it also may serve the resulting function of providing discovery for the defendant.

Once the grand jury has returned an indictment, the court does not have power to dismiss the indictment on a finding of no probable cause; thus a preliminary hearing held after return of an indictment would be a useless gesture, other than as a discovery deposition presided over by a judge. The dismissal of an indictment, once returned, can only come about by a circuit court's granting defendant's motion to dismiss, or by the court's granting the district atto= rney's motion for nolle prosequi. Ala. Code 1975, § 15-= 8-130.

Rule 5.1(a) and Ala. Code 1975, § 15-= 11-1, grant an accused charged with a felony the right to a preliminary hearing, where it is demanded within 30 days following the arrest; however, Rule 5.1(a)(4) provides that, where an indictment is returned prior to the heari= ng, the accused is no longer entitled to the preliminary hearing. Herriman v. State, 504 So.= 2d 353 (Ala.Crim.App. 1987). The resulting denial to defendants of an absolute right to the discovery mechanism of a preliminary hearing is adequately offset both by other rules which provide defendants with formal methods of discovery designed to eliminate trial "by ambush" and = by expanded pre-trial motion practice.

Under Ala. Code 1975, § 15-= 11-3, there is an implied presumption that a hearing not held at the proper time = was postponed. See State v. Richburg, 42 Ala.= App. 495, 168 So.2d 628 (1964); Anderson v. State, 240 Ala= . 169, 198 So. 169 (1940).

<= /o:p>

Rule 5.2. Summoning witnesses.

“Process shall issue to secure the attendance of witnes= ses requested by the defendant, the district attorney, or the court.”

Rule 5.3. Proceedings at preliminary hearing.

(a) PROCEDURE. The preliminary hearing shall be held in the district court. Only evidence that is relevant to the question of whether probable cause exists shall be admitted. All parties shall have the right to cross-examine person= ally the witnesses testifying. The defendant may introduce evidence in his own behalf relevant to the issue of probable cause.

(b) INAPPLICABILITY OF SUPPRESSION MOTIONS. Motions or objections made to exclu= de evidence on the ground that it was obtained unlawfully shall be inapplicabl= e in preliminary hearings.

(c) FINDINGS MAY BE BASED UPON HEARSAY EVIDENCE. The findings by the court shal= l be based on substantial evidence, which may be hearsay, in whole or in part, in the following forms:

(1) Written reports of expert witnesses;

(2) Documentary evidence without a proper predicate, provided there is a substantial basis for believing such predicate will be available at trial and that the document is otherwise competent; or

(3) Testimony of a witness concerning the declarations= of another where such evidence is cumulative, or there is a substantial basis = for believing that the source of the hearsay is credible and that a factual bas= is for the information furnished exists and there is no reason for believing t= he declarant will not be personally available for trial.

(d) AMENDMENT OF COMPLAINT. The complaint may be amended at any time to conform= to the evidence, unless substantial rights of the defendant would be prejudice= d.

COMMITTEE COMMENTS

Ala. Code 1975, § 12-12-32(b)(2), vests exclusive jurisdiction to hold preliminary hearings in the district court.

A defendant is permitted to call witnesses to present testimony and evidence = as a matter of right, on a proper showing of relevance. Art. I, § 6, Alabama Constitution of 1901, requires "[t]hat in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either"; arguably the court could not constitutionally preclude the defendant from testifying at a preliminary hearing.

Rule 5.3(b) limits issues on suppression motions or objections only to the "competency" of the evidence, and not its admissibility at trial.= The admissibility of trial evidence is left to the trial court. Rule 3.13(b) provides that a motion to suppress may be made at any time after indictment= .

There is no constitutional requirement that hearsay evidence be excluded from a probable cause hearing. See Rule 5.1(a), Fed.R.Crim.P<= /span>.; Coleman v. Burnett, 477 F.2d 1187, n.= 89 (D.C.Cir.1973); Costello v. United States,= 350 U.S. 359 (1956) (upholding a grand jury indictment based solely = on hearsay testimony). See also Hurtado v. California, 110= U.S. 516 (1884). Allowing hearsay at preliminary hearings is in keepi= ng with the diminished role assigned such hearings.

The Advisory Committee notes that the Aguilar standard has been abandoned by the United States Supreme Court in favor of the "totality of the circumstances" approach. See Illinois v. Gates, 462 U.S= . 213 (1983); Massachusetts v. Upton, 46= 6 U.S. 727 (1984) (reversing the Massachusetts Supreme Court for employ= ing the Aguilar-Spinelli two-prong approach).

Rule 5.4. Action taken upon finding of probable cause or of no probab= le cause.

(a) HOLDING A DEFENDANT TO ANSWER. If it appears from the evidence that an offe= nse has been committed and that there is probable cause to believe that the defendant committed it, the judge shall enter a written order finding proba= ble cause and shall order the defendant held in custody or released upon the sa= me conditions and undertakings previously imposed, unless the court, either up= on its own motion or upon request of either party, modifies the conditions of release upon good cause shown as provided in Rule 7.

(b) PRESENTING CASE TO THE GRAND JURY. (1) If the Court finds probable cause at= a preliminary hearing, or (2) if a preliminary hearing is waived or not deman= ded and the complaint is not dismissed in open court, the district attorney sha= ll present the complaint to the grand jury.

(c) DISCHARGE OF THE DEFENDANT. If it does not appear from the evidence that an offense has been committed or that there is probable cause to believe the defendant committed it, the court shall dismiss the complaint and discharge= the defendant.

(d) EFFECT OF DISMISSAL OF A COMPLAINT. The dismissal of a complaint shall not preclude a subsequent prosecution of the defendant for the same offense.

(e) TRANSMITTAL OF RECORD. Within fourteen (14) days after waiver or conclusion= of the preliminary hearing, all original papers and records shall be transmitt= ed to the circuit court. (Amended eff. 1-1-96.)

COMMITTEE COMMENTS, AMENDED EFFECTIVE JANUARY 1, 1996

Rule 5.4(a) is a modification of Ala. Code 1975, § 15-= 11-10(a), and requires that, upon a finding of probable cause, the judge shall contin= ue confinement or release of the defendant on the same conditions as allowed initially, unless the court, on its own motion or on request of either part= y, modifies the conditions of confinement or release, and clarifies that a defendant out on bond would not necessarily have to post a new bond.=

Section (b) is added and relates to Rule 5.4(e) regarding transmission of papers to= the circuit court. Prior statutes require that the magistrate send the papers to the grand jury or district attorney. Ala. Code 1975, § 15-= 11- 15.

Subsequent dismissal may occur only with the concurrence of the presiding judge of the circuit court or by a No-Bill being returned by the grand jury. =

&q= uot;Papers and records" under section (e) would include evidence, exhibits, and stipulations that may be withdrawn upon motion of the party offering them. = If there is a transcript of the proceeding, it should also be transmitted to t= he circuit court as provided in this section as a part of the "papers and records."

RULE 7. Release.

Rule 7.2. Right to release on one's personal recognizance or on bond.=

“(a) BEFORE CONVICTION. Any defendant charged with an offense bailable as a matter of right may be released pending or during tri= al on his or her personal recognizance or on an appearance bond unless the cou= rt or magistrate determines that such a release will not reasonably assure the defendant's appearance as required, or that the defendant's being at large = will pose a real and present danger to others or to the public at large. If such= a determination is made, the court may impose the least onerous condition or conditions contained in Rule 7.3(b) that will reasonably assure the defenda= nt's appearance or that will eliminate or minimize the risk of harm to others or= to the public at large. In making such a determination, the court may take into account the following:

1. The age, background and family ties, relationships = and circumstances of the defendant.

2. The defendant's reputation, character, and health.<= o:p>

3. The defendant's prior criminal record, including pr= ior releases on recognizance or on secured appearance bonds, and other pending cases.

4. The identity of responsible members of the community who will vouch for the defendant's reliability.

5. Violence or lack of violence in the alleged commiss= ion of the offense.

6. The nature of the offense charged, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance.

7. The type of weapon used, e.g., knife, pistol, shotg= un, sawed-off shotgun.

8. Threats made against victims and/or witnesses.=

9. The value of property taken during the alleged commission of the offense.

10. Whether the property allegedly taken was recovered= or not; damage or lack of damage to property allegedly taken.

11. Residence of the defendant, including consideratio= n of real property ownership, and length of residence in his or her place of domicile.

12. In cases where the defendant is charged with a drug offense, evidence of selling or pusher activity should indicate a substanti= al increase in the amount of bond.

13. Consideration of the defendant's employment status= and history, the location of defendant's employment, e.g., whether employed in = the county where the alleged offense occurred, and the defendant's financial condition.

14. Any enhancement statutes related to the charged offense.

“(b) BAIL SCHEDULE. The following schedule is establish= ed as a general guide for circuit, district and municipal courts in setting ba= il for persons charged with bailable offenses. Except where release is require= d in the minimum scheduled amount pursuant to the Rules of Criminal Procedure, courts should exercise discretion in setting bail above or below the schedu= led amounts.

BAIL SCHEDULE

Recommended Range<= /p>

FELONIES:
  Capital felony     &nbs= p;            &= nbsp;         $10,000 to&= nbsp;No Bail Allowed
  Murder        = ;            &n= bsp;            = ;   $5,000 to $50,000
  Class A felony     = ;            &n= bsp;          $3,000 = ;to $30,000
  Class B felony     = ;            &n= bsp;          $2,000 = ;to $20,000
  Class C felony     = ;            &n= bsp;          $1,000 = ;to $10,000
  Drug Trafficking     &n= bsp;            = ;        $3,000 to $1,000= ,000

Misdemeanors (not included elsewhere in = the schedule):
  Class A misdemeanor    =             &nb= sp;      $300 to $3,000
  Class B misdemeanor    =             &nb= sp;      $100 to $1,000
  Class C misdemeanor    =             &nb= sp;      $50 to $500
  Violation       &n= bsp;            = ;            &n= bsp;$50 to $500

Municipal Ordinance Violations    &= nbsp;         $100 to&nbs= p;$1,000

Traffic Related Offenses
  DUI        &n= bsp;            = ;            &n= bsp;     $300 to $5,000
  Reckless driving     &n= bsp;            = ;        $100 to $300
  Speeding       &nb= sp;            =             &nb= sp; $50 to $100
  Other traffic violations   &= nbsp;           &nbs= p;  $50 to $100

&#= 8220;(d) DENIAL OF RELEASE. Release shall be denied after conviction and sentence if= the trial court has reason to believe that an appearance bond or conditions of release will not reasonably assure that the defendant will not flee, or that the defendant's being at large poses a real and present danger of harm to a= ny other person or to the public at large, or if at the time the sentence was rendered, the defendant filed a notice of appeal and elected to waive relea= se and to begin serving the sentence.”

<= /o:p>

Rule 7.3. Conditions of release.

“(a) MANDATORY CONDITIONS. Every order of release under this rule shall contain the conditions that the defendant:

(1= ) Appear to answer and to submit to the orders and process of the court having jurisdiction of the case;

(2) Refrain from committing any criminal offense;

(3= ) Not depart from the state without leave of court; and

(4) Promptly notify the court of any change of address.

“(b) ADDITIONAL CONDITIONS. An order of release may inc= lude any one or more of the following conditions reasonably necessary to secure a defendant's appearance:

(1) Execution of an appearance bond in an amount specified by the court, either with or without requiring that the defendant deposit with the clerk securit= y in an amount as required by the court;

(2) Execution of a secured appearance bond;

(3) Placing the defendant in the custody of a designated person or organization agreeing to supervise the defendant;

(4) Restrictions on the defendant's travel, associations, or place of abode dur= ing the period of release;

(5) Return to custody after specified hours; or

(6) Any other conditions which the court deems reasona= bly necessary.”

COMMITTEE COMMENTS

Rule 7.3(a) provides mandatory conditions of release which apply in every release order. Rule 7.3(b) allows the court the flexibility to fashion other condit= ions of release.

Rule 7.4. Procedure for determination of release conditions.

“(a) INITIAL DECISION. If a defendant has not been rele= ased from custody and is brought before a court for initial appearance, a determination of the conditions of release shall be made. The judge or magistrate shall issue an order containing the conditions of release and sh= all inform the defendant of the conditions, the possible consequences of their violation, and that a warrant for arrest of the defendant will be issued immediately upon report of a violation.

“(b) AMENDMENT OF CONDITIONS. If the defendant is in custody, the judge or magistrate may, for good cause shown, either on its o= wn initiative or on application of either party, modify the conditions of rele= ase, after first giving the parties an adequate opportunity to respond to the proposed modification.

…

“(d) REVIEW BY MUNICIPAL COURT. By the second da= y of each month, the officials having custody of defendants being held in a municipal jail pending trial or on extraordinary writs shall provide the presiding municipal judge, the city attorney, and the municipal court clerk, with the names of all defendants in their custody, the charge or charges up= on which they are being held, and the date they were most recently taken into = custody. The municipal court shall review the conditions of release for every defend= ant who has been in the municipal jail for more than ninety (90) days.”

COMMITTEE COMMENTS

Rule 7.4 provides the mechanism for setting and periodically reviewing release c= onditions. The conditions of release will usually be set on the arrest warrant at the = time of its issuance. If not, or if the defendant cannot meet the conditions, he gets a release hearing at initial appearance within seventy-two (72) hours = of arrest. Thereafter, the conditions can be modified if need be, to be made either more or less stringent depending on the circumstances.

Sections (c) and (d) provide a means by which the responsible officials will be appr= ised of the status of long-term holdovers.

Rule 7.5. Review of conditions; revocation of release.

“(a) ISSUANCE OF WARRANT. Upon motion of the prosecutor stating with particularity the facts or circumstances constituting a materi= al breach of the conditions of release or stating with particularity that mate= rial misrepresentations or omissions of fact were made in securing the defendant= 's release, the court having jurisdiction ever the defendant released shall is= sue an arrest warrant under Rule 3.1 to secure the defendant's presence in cour= t. A copy of the motion shall be served with the warrant, and a hearing shall be held on the motion without undue delay, except in no event later than seventy-two (72) hours after the arrest of the defendant released, as provi= ded in Rule 4.3(a).<= br>
“(b) HEARING; REVIEW OF CONDITIONS; REVOCATION OF RELEA= SE. If, after a hearing on the matters set forth in the motion, the court finds that the defendant released has not complied with or has violated the conditions of release, or that material misrepresentations or omissions of = fact were made in securing the defendant's release, the court may modify the conditions or revoke the release. If a ground alleged for revocation of the release is that the defendant released has violated the condition under Rule 7.3(a)(2) by committing a criminal offense, or that there was a misrepresentation or omission concerning other charges pending against the defendant released, the court may modify the conditions of release or revoke the release, if the court finds that there is probable cause (or if there h= as already been a finding of probable cause) to believe that the defendant released committed the other offense or offenses charged.”

COMMITTEE COMMENTS

The 72-hour provision for hearing on a motion to revoke release is in harmony w= ith the policy behind Rule 4.3(a)(1)(iii) that there must be some type of heari= ng within seventy-two (72) hours of arrest in order to hold someone.

The rule is not intended to operate as an absolute denial of release where ther= e is probable cause to believe the defendant committed an offense while on relea= se. However, since it is an automatic, mandatory condition of release that the defendant not commit an offense, then the same problems of finding probable cause and what to do about it still exist.

Rule 7.6. Transfer and disposition of= bond.

(a) TRANSFER UPON SUPERVENING INDICTMENT. An appearance bond or release order issued to assure the defendant's presence for proceedings following the fil= ing of a complaint shall automatically be transferred to the same charge prosec= uted by indictment, even though the complaint is superseded by return of the indictment, unless, upon issuance of the arrest warrant following indictmen= t, the judge presiding, for good cause, shall order revocation or modification= of the conditions of release, as provided in Rule 7.5(a) and (b).

(b) FILING AND CUSTODY OF APPEARANCE BONDS AND SECURITY. Appearance bonds and security shall be filed with the clerk of the court in which the case is pending. Whenever the case is transferred to another court, any appearance = bond and security shall be transferred also.

(c) SURRENDER OF DEFENDANT BY SURETY. At any time, a surety may surrender to the sheriff a defendant released, and the sheriff shall certify such surrender = to the court. The defendant may then obtain other sureties under the same conditions of release. In municipal ordinance cases, surrender may be to the chief of police of the municipality, who shall certify to the court the defendant's surrender.

(d) FORFEITURE. If at any time it appears to the court that a defendant fails to appear, the court shall so notify the principal and any surety and shall require the principal and any surety to show cause by filing a written resp= onse with the clerk of the court within twenty-eight (28) days of the date of service of the notice why the bond should not be forfeited. The notice requ= ired by this subsection may be served in the same manner as provided in Rule 3.4= for the service of a summons and must be returned by the person serving it, with his proper return endorsed thereon, within twenty- eight (28) days of the d= ate of issuance or within five (5) days of service, whichever period of time is shorter. If the notice is not served on any of the parties to the undertaki= ng, such other notices as are necessary may from time to time be issued, but two returns of "not found" by the proper officer are equivalent to personal service. If a written response is filed within the time allowed, t= he court shall set a hearing to determine whether the bond should be forfeited= . If at the hearing the violation is not excused for good cause, or if, after twenty-eight (28) days from the date of service of the notice, no written response has been filed, the court may enter an appropriate order or final judgment forfeiting all or part of the amount of the bond or cash deposit, which shall be enforceable as any civil judgment.

(e) EXONERATION. At any time that the court finds there is no further need for = an appearance bond, the court shall exonerate the appearance bond and order the return of any security deposited.

(Amended eff. 3-3-92.)

COMMITTEE COMMENTS

Under prior practice, bonds did not necessarily carry over from one court to anot= her. Under Rule 7.6(a), the same bond would carry = over from the initial appearance through indictment and trial, unless the presid= ing judge for good cause orders revocation of the release upon issuance of the indictment. The good cause may be information not available to the district attorney earlier, or which he did not want to reveal until after an indictm= ent was returned. The process of revocation is the same as in any other situati= on. In any event, revoking release at this stage should not be done capriciousl= y, because in most instances no good reason exists to rearrest the defendant a= nd have him execute a new recognizance bond or make a new secured bond. This would,= of course, apply as well to substitute indictments.

See Ala. Code 1975, §&sec= t; 15-13-80, 15-13-81, and 15-13-82, which= relate to forfeitures.<= br>

ALABAMA STATUTES

§ 15-= 10-3= . Arrest without warrant -- Generally; definitions; written report.

“(a) An officer may arrest a person without a warrant, = on any day and at any time in any of the following instances:

(1= ) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.

(2= ) When a felony has been committed, though not in the presence of the officer, by the person arrested.

(3= ) When a felony has been committed and the officer has reasonable cause to believe t= hat the person arrested committed the felony.

(4= ) When the officer has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not= in fact been committed.

(5) When a charge has been made, upon reasonable cause, that the person arrested has committed a felony.

(6) When the officer has actual knowledge that a warra= nt for the person's arrest for the commission of a felony or misdemeanor has b= een issued, provided the warrant was issued in accordance with this chapter. However, upon request the officer shall show the warrant to the arrested pe= rson as soon as possible. If the officer does not have the warrant in his or her possession at the time of arrest the officer shall inform the defendant of = the offense charged and of the fact that a warrant has been issued.<= /span>

(7) When the officer has reasonable cause to believe t= hat a felony or misdemeanor has been committed by the person arrested in violat= ion of a protection order issued by a court of competent jurisdiction.

(8) When an offense involves domestic violence as defi= ned by this section, and the arrest is based on probable cause, regardless of whether the offense is a felony or misdemeanor.

“(b) For the purpose of this section, the following ter= ms have the following meanings:

(1= ) ABUSE. Any offense under = Sections 13A-6-60 to = 13A-6-70, inclusive, or under = Sections 26-15-1 to = 26-15-4, inclusive.

(2) ASSAULT. Any offense under = Sections 13A-6-20 to = 13A-6-25, inclusive.

(3) FAMILY, HOUSEHOLD, OR DATING OR ENGAGEMENT RELATIONSHIP MEMBERS. Includes a spouse, former spouse, parent, child, or any other person related by marria= ge or common law marriage, a person with whom the victim has a child in common= , a present or former household member, or a person who has or had a dating or engagement relationship.

(4) DOMESTIC VIOLENCE. Any incident resulting in the abuse, assault, harassment= , or the attempt or threats thereof, between family, household, or dating or engagement relationship members.

(5) HARASSMENT. Any offense under = Section 13A-11-8.

“(c) When a law enforcement officer investigates= an allegation of domestic violence, whether or not an arrest is made, the offi= cer shall make a written report of the alleged incident, including a statement = of the complaint, and the disposition of the case.”

ARRESTS UPON TRAFFIC OFFENSES=

§ 32-= 1-4. Appearance upon arrest for misdemeanor.

(a) Whenever any person is arrested for a violation of any provision of this ti= tle punishable as a misdemeanor, the arresting officer shall, unless otherwise provided in this section, take the name and address of such person and the license number of his or her motor vehicle, and shall issue a summons or otherwise notify him or her in writing or by an electronic traffic ticket or e-ticket to appear at a time and place to be specified in such summons, not= ice, or e-ticket.

An electronic traffic ticket or e-ticket, for purposes of this chapter, is def= ined as a ticket that is generated and printed at the site of a traffic violation after a violation has been electronically transmitted to the court. An arresting officer transfers arrest and licensing information of a violator electronically to the court. The court electronically records the arrest and issues a complaint and summons or notice to appear, which is printed at the site of the offense, and given to the violator.

The person arrested, if he or she so desires, shall have a right to an immediate hearing or a hearing within 24 hours at a convenient hour before a magistra= te within the county or city where such offense was committed, or if an e-tick= et is written, the person shall have a right, if he or she desires, to an immediate hearing or a hearing within 24 hours at a convenient hour before = any magistrate within this state. Except when an arresting officer cites a pers= on with an e-ticket, the officer shall, upon the giving by such person of a sufficient written bond, approved by the arresting officer, to appear at su= ch time and place, forthwith release the person from custody.

Except when an arresting officer cites a person with an e-ticket, a person refusin= g to give bond to appear shall be taken immediately by the arresting officer bef= ore the nearest or most accessible magistrate. When an e-ticket is used by an arresting officer, a person shall be deemed to have given his or her written bond to appear in court on the date as specified on the e-ticket.

Any person who willfully violates his or her written bond by failing to timely appear shall be guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested.

(b) The provisions of this section shall not apply to any person arrested and charged with an offense causing or contributing to an accident resulting in injury or death to any person nor to any person charged with driving while under the influence of intoxicating liquor or of narcotic or other drugs nor to any person whom the arresting officer shall have good cause to believe has committed any felony, and the arresting officer shall take such person forthwith before the neare= st or most accessible magistrate (emphasis supplied).

(c) Any officer violating any of the provisions of this section shall be guilty= of misconduct in office and shall be subject to removal from office.

(Acts 1927, No. 347, p. 348; Code 1940, T. 36, § 52; Acts 1949, No. 517, p. = 754, § 16; Act 2006-579, § 1.)

HISTORY

Amendment notes:

The 2006 amendment, effective July 1, 2006, inserted "or her" in three places; inserted the first undesignated subsection; in subsection (a) substituted "provision" for "provisions", substituted "vehicle, and shall" for "vehicle and", inserted "or bay an electronic traffic ticket or e-ticket", substituted "summons, notice, or e-ticket" for "summons or notice, and", and transferred the remaining text to become the second undesignated subsection; in the second undesignated subsection, substituted "The person arrested, if he or she so desires, shall" for "s= uch person shall, if he so desire,", deleted "and such hearing to be" preceding "before", substituted "or if an e-ticket = is written, the person shall have a right, if he or she desires, to an immedia= te hearing or a hearing within 24 hours at a convenient hour before any magist= rate within this state. Except when an arresting officer cites a person with an e-ticket, the officer shall," for ". Such officer shall thereupon and", and substituted "the person" for "him"; in t= he third undesignated subsection substituted "Except when an arresting officer cites a person with an e-ticket, a" for "Any", delet= ed "such" preceding "bond", and added the final sentence; = and in the fourth undesignated subsection substituted "by failing to timely appear" for "to appeal, given in accordance with this section,&qu= ot;, and inserted "or she".

Speeding 3

1. Construc= tion

The clear import of this section is that the police have no authority to take a motorist into custody and then require him to go to the local stationhouse = when that motorist has committed a misdemeanor traffic violation but is willing = to sign the summons to court. Morton v. State, 452 So.2d= 1361 (Ala.Crim.App.1984); Hays v. City of Jacksonvil= le, 518 So.2d 892 (Ala.Crim.App.1987).

This section does not prohibit the arrest of the traffic offender; it merely provides that, with certain exceptions, that offender shall be subjected on= ly to limited detention or custody. Pittman v. State, 541 So.2= d 583 (Ala.Crim.App.1989).

This statute requires strict compliance by the arresting officer as is evidenced= by the penalty provisions of subsection (c). Morton v. State, 452 So.2d= 1361 (Ala.Crim.App.1984).

Arresting officer's conduct held within exception of subsection (b). See Gaskin v. State, 338 So.2d= 1041 (Ala.Crim.App.1976).

2. Minor tr= affic violations

Detention for minor traffic violation. Except for the exceptions provided by subsecti= on (b) of this section, a person arrested for a misdemeanor traffic violation = is not subject to further detention for that offense once the arresting officer has obtained the necessary information and given the motorist the "sum= mons or notice" to appear. Daniels v. State, 416 So.2= d 760 (Ala.Crim.App.1982); Morton v. State, 452 So.2d= 1361 (Ala.Crim.App.1984).

To determine whether reasonable suspicion existed for detention following traf= fic stop, the totality of the circumstances, as known to the officer at the inception of the stop or at the time of the continued detention must be considered. State v. McPherson, 892 So= .2d 448 (Ala.Crim.App.2004). Automobiles 349(17)

Detention for minor traffic violation. -- Although this section generally forbids pol= ice officers from taking persons charged with the violation of minor traffic offenses into the type of custody traditionally associated with a felony arrest, it does not prohibit the temporary detention or "traffic arrest" of individuals for minor traffic offenses. Pittman v. State, 541 So.2= d 583 (Ala.Crim.App.1989)= . Automobiles 349(17)

Although this section generally forbids police officers from taking persons into cus= tody for violation of minor traffic laws, as a matter of constitutional law, however, any person lawfully arrested for the pettiest misdemeanor may be temporarily placed in custody. Daniels v. State, 416 So.2= d 760 (Ala.Crim.App.1982).

3. Speeding=

Detention for speeding not authorized. Because defendant was charged with speeding on= ly, his detention following the arrest for speeding was not authorized for the purpose of transporting defendant to headquarters in order to take a breath test and the arrest was illegal under the meaning of § 32- 5-192(a)= , and the results of the blood alcohol test were also inadmissible. McCall v. State, 534 So.2d= 668 (Ala.Crim.App.1988).

Arrest held illegal. From the record, it appears that defendant was arrested only = for speeding. The circumstances of the arrest did not meet any of the statutory requirements necessary to justify a custodial arrest. Therefore, the arrest= was illegal, and the results of the breath tests were the direct result of the illegal arrest. Therefore, the test results were tainted and should not have been admitted into evidence. McDaniel v. State, 526 So.= 2d 642 (Ala.Crim.App.1988).

4. Improper= lane usage

Law enforcement officer had reasonable suspicion to believe that criminal activ= ity was afoot when he called for canine unit to walk around defendant's vehicle; defendant was extremely nervous during the initial traffic stop, defendant = did not become less nervous after officer told him he was going to give him a warning for unlawful lane change, and defendant told officer he had a gun in his vehicle. State v. McPherson, 892 So= .2d 448 (Ala.Crim.App.2004). Automobiles 349(17)

Subject to exceptions of subsection (b), custodian arrest not authorized for improp= er lane usage. Hays v. City of Jacksonvil= le, 518 So.2d 892 (Ala.Crim.App.1987).

Because none of subsection (b) exceptions to the misdemeanor traffic offense arrest provisions of subsection (a) applied to the defendant here, police officer = was not authorized to detain her following her arrest for improper lane usage. = Her arrest was, therefore, not lawful within the meaning of subsection (a), and= the results of her blood alcohol test were inadmissible in evidence. Hays v. City of Jacksonvil= le, 518 So.2d 892 (Ala.Crim.App.1987).

5. Driving = under the influence

Clear language of subsection (b) requires that in order to fall within custodial arrest exception of subsection (a), motorist must be charged with DUI. This= is true unless one of the other exceptions would be applicable, such as an accident resulting in personal injury or where the officer had probable cau= se to believe the motorist had committed a felony. Thus, there must be an actu= al arrest for DUI based on probable cause to arrest and such must be lawful within the meaning of this section. Sheffield v. State, 522 So= .2d 4 (Ala.Crim.App.1987).

The defendant's cause must be reversed and remanded as he was arrested for spee= ding and required to submit to a breath test without being formally charged with= DUI until the results of the intoxilizer were available. Sheffield v. State, 522 So= .2d 4 (Ala.Crim.App.1987).

5.5. Search=

While an officer may conduct a limited protective search for weapons of a motoris= t's person following a traffic stop, he must have an actual suspicion that weap= ons are present in order to do so. State v. McPherson, 892 So= .2d 448 (Ala.Crim.App.2004). Automobiles 349.5(10)=

5.7. Reason= able suspicion

Reasonable suspicion, for purposes of a detention following a traffic stop, is a less demanding standard than probable cause; however, "reasonable suspicion" exists only if the officer has specific, particularized, and articulable reasons indicating that the person stopped may be involved in criminal activity. State v. McPherson, 892 So= .2d 448 (Ala.Crim.App.2004). Automobiles 349(17)

6. Requirem= ent that motorist sit in patrol car

Law enforcement officer did not detain drug defendant for an unreasonable amoun= t of time during traffic stop; officer testified that the entire stop lasted only twenty-eight or twenty-nine minutes and that length of time was normal for = the type of stop involved, and videotape of the traffic stop showed that ninete= en minutes elapsed between the time officer told defendant he was going to wri= te him a warning and the time the canine unit completed their walk around the defendant's vehicle. State v. McPherson, 892 So= .2d 448 (Ala.Crim.App.2004). Automobiles 349(17)

Requirement that motorist sit in patrol car. An officer may require a motorist to sit i= n a patrol car while the officer completes the uniform traffic ticket and citat= ion. State v. Washington, 623 S= o.2d 392 (Ala.Crim.App.1993), certiorari denied. Automobiles 349(17)

Limited detention does not give rise to search of person or car. The limited detent= ion of requiring motorist to sit in a patrol car while officer completes the uniform traffic ticket and citation does not give rise to a search incident= to arrest of either the motorist's person, or the motorist's vehicle. State v. Washington, 623 So.2d 3= 92 (Ala.Crim.App.1993), certiorari denied.

PROCEDURES UPON ARREST FOR DOMESTIC VIOLENCE OFFENDERS

§ 15-= 13-190. Procedures upon arrest; conditions of release or bail.

= 220;(a) A person arrested for an offense involving domestic violence as defined in = subdivisions (1) through (= 4) of subsection (b) of Section 15-10-3, strikes, shoves, kicks, or otherwise touches a person or subject him or her to physical contact, or charged with a violation of a protection order, may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of t= he arrest, and if the person is not taken before a judge or magistrate within = 12 hours, he or she shall be released on bail. Prior to the release of the per= son, the judge or magistrate shall review the facts of the arrest to determine whether the person is a threat to the alleged victim, is a threat to public safety, and is reasonably likely to appear in court.

“(b) The judge or magistrate shall make findings on the record concerning those determinations and may impose conditions of release= or bail on the person to protect the alleged victim of domestic violence or the person protected by a protection order, and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include, but ne= ed not be limited to, enjoining the person from threatening to commit or committing acts of domestic violence against the alleged victim; prohibiting the person from telephoning, contacting, or otherwise communicating with the alleged victim with the intent to harass, either directly or indirectly; ordering the person to stay away from the home of the alleged victim, when = the person and alleged victim are not residents of the same home, and ordering = the person to stay away from any other location where the alleged victim is lik= ely to be; prohibiting the person from possessing a firearm or other weapon specified by the court, except when such weapon is necessary for employment= as a peace officer or military personnel; and issuing any other order or modification of orders above required to protect the safety of the alleged victim or to ensure the appearance of the person in court.

“(c) If conditions of release are imposed, the judge or magistrate shall issue a written order for conditional release, immediately distribute a copy of the order to the law enforcement agency having custody= of the arrested or charged person, place information pertaining to the order in the domestic violence protection order registry, and provide the law enforcement agency with any available information concerning the location of the alleged victim in a manner that protects the safety of the victim.̶= 1;

=

= =
= = = = = = =

Office of the Attorney Genera= l
State of Alabama

Opinion No. 2003-166

*1 June 18, 2003<= /p>

Uniform Traffic Ticket and Complaint - Law Enforcement= - Arrests - Municipalities - Baldwin County

A violation of section 32-10-1 of the Cod= e of Alabama, where no physical injury occurs, must be charged on a U= niform Traffic Ticket and Compliant (“UTTC”) because it is a misdemean= or traffic violation that does not require custodial arrest, and the complaina= nt must be a private citizen who witnessed the violation where law enforcement= did not observe the commission of the offense.

Honorable Thomas P. Doyle<= br> Daphne Municipal Judge<= br> Daphne Municipal Court<= br> 1502 Highway 98
Daphne, = Alabama 36526

Dear Judge Doyle:

This opinion of the Attorney General is issued in resp= onse to your request.

QUESTIONS

Is a violation of section 32-10-1 (entitled “Accidents involving death or personal injuries”) a traffic offense that must only be brought on a Uniform Traffic Ticket and Complaint (“UTTC”), or may this charge be brought by a private citizen via municipal complaint? May a private citizen bring a complaint via execution of a UTTC? Additionally, where a police officer fails to observe a misdemeanor in his or her presence, may he or she execute a UTTC for violat= ion of section 32-10-1= after determining probable <= b>cause exists that a violation of section 32-10-1= did, in fact, occur?

FACTS AND ANALYSIS=

The questions above arise from the following fact scenario: A driver of a vehicle strikes the vehicle of another, leaving the scene of the accident. No physical injury occurs to the driver of the stric= ken vehicle, who notifies the police of the incident via cell phone. The police interview the driver of the stricken vehicle, and the next day that driver signs a complaint against the driver who left the scene of the accident.

= Section 32-10-1 of the Code of Alabama provides as follows:

(a) The driver of any motor vehicle involved in an accident resulting in an injury to or the death of any person, or in damage= to a motor vehicle or other vehicle which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident or as clo= se thereto as possible and shall then forthwith return to and in every event s= hall remain at the scene of the accident until he has fulfilled the requirements= of Section 32-10-3. Every such stop shall be made without obstructing traffic = more than is necessary.

(b) The director shall revoke the driver's license of a person convicted under this section.

= ALA. CODE § 32-10-1 (1999).

= Section 32-1-1.1(74) of the Code of Alabama defines “traffic”= ; as “[p]edestrians, ridden or herded animals, vehicles, streetcars and ot= her conveyances either singly or together while using any highway for purposes = of travel.” = ALA. CODE § 32-1-1.1(74) (1999). In Ex parte J.Z.S., 808 So. 2d 1220 (Ala. Crim. App. 2000), the Court of Criminal Appeals ruled that secti= on 32-10-2 (commonly referred to as “leaving the scene of an accident wi= th injury”) is a traffic offense, reasoning as follows:

*2 This statute [section 32-10-2] is part of Chapter 10--“Motor Vehicle Accidents”--of T= itle 32--“Motor Vehicles and Traffic”--of the Alabama Code of 1975. = This statute was part of the recodification of the Alabama Code in 1975; thus the placement of the statute itself is some indication that the Legislature intended that this statute be a traffic offense.

Ex parte J.Z.S. at 1224.

This Office has also advised in Opinion 95-00139 that violations of = sections 32-10-1 through = 32-10-5 are traffic offenses. Opinion to Samuel L. Russell, District Attorney, dated March 7, 1995, A.G. No. 95-00139. Therefore, a violation of = section 32-10-1 is clearly a traffic offense. Note that = Rule 19(A)(1) of the Alabama Rules of Judicial Administration (“ARJA”) provides that “[t]he complaint and summons used = in all nonfelony traffic cases shall be the ‘Uniform Traffic Ticket and Complaint’ [UTTC].” Ala. R. Jud. Admin. 19(A)(11). Because the fact scenario presented above involve= d a traffic misdemeanor adopted as a municipal ordinance violation where no injuries occurred, the UTTC should be used as the charging instrument. Moreover, this Office has previously addressed the questions presented here under similar circumstances involving violations of the Mandatory Automobile Liability Insurance Act.

In Opinion 2001-279, citing = section 15-10-3 of the Code of Alabama, this Office advised that “[s]tate law provides that, before a police officer can arrest a pers= on for the commission of a misdemeanor without a warrant, he must witness the offense.” Opinion to James H. Lackey, Presiding Judge, Mobile Municip= al Court, dated September 27, 2001, A.G. No. 2001-279. Therefore, where a poli= ce officer fails to observe a misdemeanor traffic offense, he or she lacks the authority to execute a UTTC for violation of = section 32-10-1 or any other misdemeanor traffic offense. Opinion 2001-2= 79 also advised as follows:

State law allows any witness to the commission of a cr= ime to swear out a warrant against the perpetrator of that crime. = Ala. R. Crim. P. 2.3. Once a mag= istrate makes a finding that there i= s probable cause to believe that an offense has been committed, he or = she may issue an arrest warrant. = Ala. R. Crim. P. 2.4 and 3. A witness, whether or not he is involved in = the accident, may swear out a warrant against a driver who is in violation of <= st1:State w:st=3D"on">Alabama law, inc= luding the mandatory insurance law.

* * *

When a warrant for a traffic charge is issued pursuant to a citizen's arrest, the Uniform Traffic Ticket and Complaint (UTTC) should be used as the charging instrument. Rule 19(A)(1)of the Alabam= a Rules of Judicial Administration provides that the “complaint and summons used in all nonfelony traffic cases shall be the ‘Uniform Tra= ffic Ticket and Complaint.”’ No distinction is made between citations written by law enforcement officials and those obtained by private citizens. Note that § 12-12-50 of the Cod= e of Alabama broadly defines a “traffic infraction” to be “any violation of a statute, ordinance or regulation to the operation= or use of motor or other vehicles or the use of streets or highways by pedestrians....” Section 12-12-53 provides that “[t]he uniform traffic ticket and complaint shall be used in traffic cases where a complai= nt is made by a law enforcement officer or by any other person&#= 8221; (emphasis in original)....
*3 Because = the UTTC should be used as the charging instrument when a private citizen makes= an arrest for a traffic violation, the procedure provided by Rule 19(A)(= 1) of the Alabama Rules of Judicial Administration for ensuring the accountability and legal verification of the UTTC when issued = by law enforcement should also apply when issued by a private citizen. That ru= le provides that:

Each law enforcement officer issuing a traffic ticket shall complete and sign the ticket, serve a copy of the completed ticket upon the defendant and, without unnecessary delay, normally within 48 hours, acknowledge under oath the facts alleged therein before the court or magistrate and file [wit= h] the court copies of the uniform traffic ticket and complaint with the court.

Regardless, therefore, of whether law enforcement or a private citizen cites a defendant for a driving violation, the complainant must “acknowledge under oath the facts all= eged therein before the court or magistrate and file copies of the uniform traff= ic ticket and complaint with the court.” Id.
Persons violating this traff= ic law [the Mandatory Liability Insurance Act] would not usually be subjected = to a custodial arrest, and the complainant (usually a law enforcement officer, b= ut equally applicable when the complainant is a private citizen) is only requi= red to appear before a judge or magistrate to ve= rify, under oath, the facts alleged on the ticket after the ticket has been given= to the defendant. In this instance, no warrant of arrest is ever issued. It sh= ould be noted that section 32-1-4(a) of the Code of Alabama provides for a law enforcement officer to issu= e a ticket to a defendant and release him once he signs the ticket promising to appear in court. Persons who refuse to sign the ticket, however, are subject to custodial arrest, as are persons charged with offenses causing or contributing to accidents involving injury or death, persons charged with DUI, or persons whom the officer has good cause to believe has committ= ed a felony. See ALA. CODE § 32-1-4(b) (1999)= .
A.G. No. 2001-279 at 3-5 (emphasis added).

Because the accident did not = result in injury or death to the victim, no custodial arrest is authorized. Theref= ore, the safest practice under the scenario described above is for the private citizen to be the complainant, who must then appear before a judge or magistrate to verify, under oath, the facts alleged on the ticket.

Any citizen initiating a traffic arrest must comply wi= th the provisions of = section 15-10-7(c) and (e) of the Code and Rule 4.1(b) of the Alabama Ru= les of Criminal Procedure. Section 15-10-7(e) provides that it is the duty of a= ny private person who has arrested another for the commission of a public offe= nse to take him or her before a judge or magistrate without undue delay or to deliver him or her to one of the officers specified in section 15-10-1. Therefore, it is recommended that, where a citizen delivers a person to a l= aw enforcement officer, the citizen should accompany the officer, along with t= he alleged offender, to a judge or mag= istrate fo= r a probable cause determination. If a judge or magistrate find= s probable cause, = the UTTC must be prepared by the court, signed by the private citizen as the complainant, and the ticket must be served on the defendant. Additionally, = two methods exist whereby a magistrate may secure UTTCs to accept a citizen's complaint: The magis= trate may have an offi= cer provide a UTTC whenever a citizen wishes to file a complaint or may request= a book of tickets for such purpose from the police department. The law enforcement agency accounts for these tickets by having the magistrate sign= for the tickets indicating that the book of tickets are for use by the court.

CONCLUSION

*4<= /span> A violation of section 32-= 10-1 of the Code of Alabama<= /span>, where no physical injury occurs, must be charged on a UTTC because it is a misdemeanor traffic violation that does not require custodial arrest, and t= he complainant must be a private citizen who witnessed the violation where law enforcement did not observe the commission of the offense.

I hope this opinion answers y= our questions. If this Office can be of further assistance, please contact Thom= as Parker, Legal Division, Administrative Office of Courts.

Sincerely,

Bill Pryor
Att= orney General

Ala. Op. Atty. Gen. No. 2005-113, 2005 WL 1121890 (Ala.A.G.)

Office of the Attorney Genera= l
State of Alabama

Opinion No. 2005-113

*1 April 18, 2005=

Driving Under Influence - Jurisdiction - Arrest - Bond= s

Provided a complaint is filed with the court commencing criminal proceedings against a defendant, a court= 's subject-matter jurisdiction is determined by statute. All misdemeanor DUI c= ases are tried in either district courts or municipal courts. The court may issu= e a warrant of arrest for the defendant's failure to appear at arraignment or o= ther date, even though the Uniform Traffic Ticket and Complaint (“UTTCR= 21;) charging driving under the influence (“DUI”) has not been verif= ied by a magistrate. The court obtains jurisdicti= on over the defendant's person if the defendant appears and fails to object to this defect before trial.
A police officer lacks the authority to allow a defendant charged with DUI to deposit his or her driver's license with the officer in lieu of the defenda= nt's signature bond pursuant to section 32-1-5 of the Code= of Alabama. Persons lawfully arrested and taken into custody shall = be allowed the opportunity to make bail and be released to await trial as soon as possible under section 32-1-4(b) of the C= ode. Once the defendant is released from the hospital, he or she should be forma= lly arrested and brought before a magistrate as soon as possible and then given= the opportunity to bond out of jail. Whether the officer's actions constitute a custodial arrest (by placing the motorist in the patrol car, handcuffing motorist, etc.), is an issue best resolved by a court of competent jurisdiction. Because factual nuances often differ drastically from one cas= e to another, and no clear standard has been established by the courts in determining which specific set of facts constitute a custodial arrest, this issue should be determined only on a case-by-case basis. Whether the office= r's failure to bring the defendant before a magistrate is violative of the Four= th and Fourteenth Amendments is an issue involving complex issues also best determined by a court of competent jurisdiction. Whether the officer should= be removed from office pursuant to section 32-1-4(c) is also a matter for a court of competent jurisdiction to consider.

Honorable Kristi A. Valls<= br> Limestone County District Attorney
Post Office Box 415
Athens, Ala= bama 35812

Dear Ms. Valls:

This opinion of the Attorney General is issued in resp= onse to your request.

QUESTIONS

(1) Does any court have personal and subject-matter jurisdiction over a case un= der the scenario described?
(2) If a motorist appears for his or her arraignment date or any subsequent dat= e, has the motorist submitted to the court's jurisdiction, or is he or she sim= ply a member of the public whose only interest in court is that of a spectator?= If the motorist does not appear in court for his or her arraignment date or any subsequent date, may the court take any action to ensure the motorist's appearance? Is so, what action may the court take?

FACTS, LAW, AND ANALYSIS

*2 Your request states t= he following:

A motorist wrecks his car and injures himself. An offi= cer who does not observe the motorist's driving arrives at the scene of the wre= ck and observes the motorist and the motorist's injuries. If the motorist can respond, the officer questions the motorist. After observation and question= ing, the officer finds probable cau= se for DUI under one of the subsections to = section 32-5A-191 of the Code of Alabama. The officer further determines that the motorist requires immediate emergency medical attention. Therefore, the officer calls an ambulance to transport the injured motorist to the hospital or the officer himself transports the injured motorist to the hosp= ital in the officer's patrol car.

At the scene of the accident or at the hospital, the officer completes a UTTC and includes a district court arraignment date at = the bottom of the ticket. In accord with = section 32-1-4(b) of the Code, the officer does not allow the motorist to provide a signature bond; instead, the officer writes “HOSPITALIZED” in the signature box of the UTTC. The officer th= en leaves the hospital, but leaves the defendant his copy of the UTTC. The off= icer never takes the motorist to jail and never takes the motorist to the neares= t or most accessible magistrate. Further, the officer acquires no warrant for the motorist's arrest. Thus, no bond secures the motorist's appearance in court= .

Pursuant to = Rule 2.1 of the Alabama Rules of Criminal Procedure (“A. R. Crim. P.”), “[a]ll criminal proceedings shall be commenced either by indictment or by complaint.” = ALA. R. CRIM. P. 2.1. Provided that a complaint is filed with the court = to commence criminal proceedings against the defendant, a court's subject-matt= er jurisdiction is determined by statute. A district court failed to obtain subject-matter jurisdiction for Boating Under the Influence (“BUIR= 21;) where no UTTC was filed in the district court charging the defendant with t= his offense. Stoll v. State, 724 So. 2d 90 (Ala. Crim. App. 1998). = Section 12-11-30 of the Code, establishing the general subject-matter jurisdiction of circuit courts, provides, in pertinent part, that “[t= ]he circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incid= ent as a felony charge....” = ALA. CODE § 12-11-30 (1995).

= Section 12-12-32 of the Code, which establishes the criminal subject-mat= ter jurisdiction of district courts, provides that “[t]he district court shall have exclusive original trial jurisdiction over prosecutions of all offenses defined by law or ordinance as misdemeanors, except... [for] [p]rosecutions by municipalities having municipal courts.” = ALA. CODE § 12-12-32 (1995).

Therefore, a defendant charged with misdemeanor DUI sh= all be tried in the district court, except if the incident leading to the DUI charge occurred in the police jurisdiction of a municipality that operates a municipal court, in which case the municipal court acquires subject-matter jurisdiction of the case. All felony traffic cases and any other misdemeanor that is a lesser-included offense or arises from the same incident of the felony charge are tried in circuit court. See = ALA. R. CRIM. P. 2.2 (a).

Regarding personal jurisdiction, the Alabama appellate courts have ruled that courts acquire in personam jurisdic= tion by a defendant's appearance at proceedings where he or she submits to the jurisdiction of the court without objection. State v. Bennett, 727 So. 2d 863 (Ala. Crim. App. 1997). Thus, where a defendant appears for his or her arraignment, or at some later date without objection= , a defendant subjects himself or herself to the personal jurisdiction of the court. A defendant has a right to object to defects in the commencement of = the criminal proceeding pursuant to = Rule 15.2 of the A. R. Crim. P. = Rule 15.2 of the A. R. Crim. P. provides that “[o]bjections bas= ed on defects in the commencement of the proceeding or in the charge, other th= an lack of subject-matter jurisdiction or failure to charge an offense, may be raised only by pre-trial motion as provided in Rule 15.3.” = ALA. R. CRIM. P. 15.2. Rule 15.3 provides that such pretrial motion must= be made at or before arraignment in circuit court, or at such later date as determined by the circuit court, and at any time before entering a plea in district or municipal court.

More importantly, the lack of verificati= on of the traffic ticket affects the trial court's ability to obtain jurisdict= ion over the person but not its ability to obtain jurisdiction of the subject matter. City of Dothan v. Holloway, 501 So. 2d 1136 (Ala. 1986), overruling Ex parte Dison, 469 So. 2d 662 (Ala.= 1984). Because the court has subject-matter jurisdiction, the Rules of Criminal Procedure apply. = ALA. R. CRIM. P. 1.1, = 1.2, = 1.4. Under Rules 9.1(c) and 14.2(e), the court may issue a warrant of arrest for= the defendant's failure to appear at arraignment or other date. = ALA. R. CRIM. P. 9.1(c), = 14.2(e). As noted previously, however, when a defendant appears in court and his or = her UTTC has not been verified, but the defendant does not object to this defect before trial, then the objection to the court's personal jurisdiction of the defendant has been waived.

CONCLUSION

Provided a complaint is filed with the court commencing criminal proceedings against a defendant, a court's subject-matter jurisdic= tion is determined by statute. All misdemeanor DUI cases are tried in either district courts or municipal courts. The court may issue a warrant of arrest for the defendant's failure to appear at arraignment or other date, even th= ough the UTTC charging DUI has not been verified by a magistrate. The court obta= ins jurisdiction over the defendant's person if the defendant appears and fails= to object to this defect before trial.

QUESTIONS

(3) Must an officer in such a case or in any DUI case accept a motorist's drive= r's license in lieu of bond under section 32-1-5 = with or without the motorist's consent?
(4) If an ambulance transports the injured motorist to the hospital and the off= icer never physically detains the injured motorist, has the officer conformed to= the demands of section 32-1-4?=
*4 = (5) How long is too long to take the motorist “forthwith” to the nearest or most accessible magistrate? Could the day of the motorist's discharge from the hospital, if not the same day of the wreck, qualify as “forthwith”?
(6) If any officer's actions constitute a custodial arrest (by placing the moto= rist in the patrol car, handcuffing motorist, etc.), is the arrest nevertheless improper for the failure to take such person before the nearest or most accessible magistrate? If the arrest is improper, is it also violative of t= he Fourth and Fourteenth Amendments? If the arrest is improper but not violati= ve of the Fourth and Fourteenth Amendments, is any evidence gathered from this event admissible evidence?
(7) If any officer who fails to make a custodial arrest of such a motorist or w= ho fails to take such a motorist forthwith before the nearest or most accessib= le magistrate guilty of misconduct in office according to section 32-1-4(c)?

FACTS, LAW, AND ANALYSIS

= Section 32-1-4 of the Code, entitled “Appearance upon arrest for misdemeanor,” provides as follows:

(a) Whenever any person is arrested for a violation of= any provisions of this title punishable as a misdemeanor, the arresting officer shall, unless otherwise provided in this section, take the name and address= of such person and the license number of his motor vehicle and issue a summons= or otherwise notify him in writing to appear at a time and place to be specifi= ed in such summons or notice, and such person shall, if he so desires, have a = right to an immediate hearing or a hearing within 24 hours at a convenient hour a= nd such hearing to be before a magistrate within the county or city where such offense was committed. Such officer shall thereupon and upon the giving by = such person of a sufficient written bond, approved by the arresting officer, to appear at such time and place, forthwith release him from custody.

Any person refusing to give such bond to appear shall = be taken immediately by the arresting officer before the nearest or most acces= sible magistrate.

Any person who willfully violates his written bond to appear, given in accordance with this section, shall be guilty of a misdeme= anor regardless of the disposition of the charge upon which he was originally arrested.

(b) The provisions of this section sha= ll not apply to any person arrested and charged with an offense causing or contributing to = an accident resulting in injury or death to any person nor to = any person charged with driving while under the influence of intoxicating liquo= r or of narcotic or other d= rugs nor to any person whom the arresting officer shall have good cause to believe has committed any felony, and= the arresting officer shall take such person forthwith before the nearest or mo= st accessible magistrate .

(c) Any officer violating any provisions of this secti= on shall be guilty of misconduct in office and shall be subject to removal from office.

*5<= /span> ALA. CODE § 32-1-4 (1999) (emphasis supplied).

Because the defendant in the = fact scenario described above was charged with DUI, subsection (b) of section 32-= 1-4 of the Code<= span style=3D'mso-bookmark:sp_999_5'> applies, and the defendant must be arrested, jailed, and given the opportun= ity to bond out after his or her blood alcohol content falls to the legal limit= as provided in the DUI statute. See ALA. CODE § 32-5A-191(l) (2004). Moreover, the opportunity to make bail is the sole purpose of the requireme= nt that the arresting officer “take such person forthwith before the nea= rest and most accessible magistrate.” See Attorney General's opinio= n to Honorable Allen Tapley, Administrative Director of Courts, dated October 29, 1986, A.G. No. 87-00029.

Because a charge of DUI requi= res a custodial arrest, a police officer has no authority to allow a defendant's release by giving his or her written bond (or “signature bond”)= to appear in court. Therefore, a police officer also lacks the authority to al= low a defendant charged with DUI to deposit his or her driver's license with the officer in lieu of the defendant's signature bond pursuant to section 32-= 1-5 of the Code<= span style=3D'mso-bookmark:sp_999_5'> because such alternative procedure applies only to those offenses that authorize release of the defendant by his or her own written bond to appear= , of which DUI is expressly excluded by section 32-1-4(b).

No authority could be located= that definitively answers your question regarding “[h]ow long is too long = to take the motorist ‘forthwith’ to the nearest or most accessible magistrate?” Persons lawfully arrested and taken into custody shall be allowed the opportunity to make bail and be released to await trial = as soon as possible under section 32-1-4(b). Speer= s v. State, 545 So. 2d 247 (Ala. Crim. App. 1989). Once the defendant is relea= sed from the hospital, he or she should be formally arrested and brought before= a mag= istrate as soon as possible and then given the opportu= nity to bond out of jail. Additionally, assuming the defendant has been arrested= for DUI without a warrant, = Rule 4.3 of= the A. R. Crim. P. provides that a ma= gistrate shall make a probable cause determination within 48 hours of the defendant's arrest for those defendants who have not already made bail.

Whether the officer's actions constitute a custodial arrest (by placing the motorist in the patrol car, handcuffing motorist, et= c.) is an issue best resolved by a court of competent jurisdiction. The Alabama Court of Criminal Appeals, for example, has ruled that, although the defend= ant had been issued a UTTC for DUI, he was not in custody during his hospit= al stay because no hold was placed on him, and the only restraint on his freed= om of movement was his medical condition and treatment. State v. Thomas, 843 So. 2d 834 (Ala. Crim. App. 2002). Because factual nuances, however, often differ drastically from one case to another and no clear standard has been established by the courts in determining which specific s= et of facts constitute a custodial arrest, this issue should be determined onl= y on a case-by-case basis.

*6<= /span> Nevertheless, even= if the facts provided for this opinion constituted a custodial arrest, such “arrest” is nevertheless improper, or at least incomplete, due = to the police officer's failure to take such person before the nearest or most accessible mag= istrate, in clear violation of the plain language of section 32-= 1-4 of the Code<= span style=3D'mso-bookmark:sp_999_6'>. Whether the officer's failure to bring the defendant before a mag= istrate is violative of the Fourth and Fourteenth Amendments, and whether the police officer should be removed from office, are matters involving complex issues also best determined by a court of competent jurisdiction.

CONCLUSION

A police officer lacks the authority to allow a defendant charged with DUI to deposit his or her drive= r's license with the officer in lieu of the defendant's signature bond pursuant= to section 32-= 1-5 of the Code<= span style=3D'mso-bookmark:sp_999_6'>. Persons lawfully arrested and taken into custody shall be allowed the opportunity to make bail and be released to await trial as soon as possible under section 32-1-4(b). Once the defendant is released from the hospital, he or she should be forma= lly arrested and brought before a magistrate as soon as possible and then given= the opportunity to bond out of jail. Whether the officer's actions constitute a custodial arrest (by placing the motorist in the patrol car, handcuffing motorist, etc.), is an issue best resolved by a court of competent jurisdiction.

Because factual nuances often differ drastically from one case to another, and no clear standard has been established by the courts in determining which specific set of facts consti= tute a custodial arrest, this issue should be determined only on a case-by-case basis. Whether the officer's failure to bring the defendant before a magist= rate is violative of the Fourth and Fourteenth Amendments is an issue involving complex issues also best determined by a court of competent jurisdiction. Whether the officer should be removed from office pursuant to section 32-1-4(c) is also a matter for a court of competent jurisdiction to consider.<= /span>

I hope this opinion answers your questions.
Troy King
Attorney General

By: Brenda F. Smith<= br style=3D'mso-special-character:line-break'>