author: MURDOCK, Judge.

text:
    Samantha BARRETT v. LEE BRASS COMPANY.
    2020081.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      Terrell Wynn and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellant.
    Brandy Murphy Lee of Campbell, Waller & Poer, LLC, Birmingham, for appel-lee.
   MURDOCK, Judge.

This is an appeal from a summary judgment entered in a workers’ compensation case holding that the plaintiff was not entitled to death benefits in connection With her husband’s death. The plaintiff argues that the trial court erred in holding that the employee’s death did not occur in the course of his employment. We disagree, and we therefore affirm the summary judgment.

“We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.” ’ Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).”

Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002)

The facts before the trial court, viewed in the light most favorable to the plaintiff, are as follows. Douglas Harold Barrett was killed in an automobile accident on April 14, 2000. Barrett was returning home to Cedartown, Georgia, from Anni-ston, where he had worked for Lee Brass Company (“LBC”) for 11 years. Barrett had traveled to Anniston to pick up his paycheck from LBC.

Barrett’s employment with LBC had been terminated effective March 10, 2000. LBC had informed Barrett of the termination in a letter that explained that Barrett’s job was being eliminated as part of a force reduction. This letter further explained that LBC would continue to pay Barrett his usual wages and provide him health insurance and other benefits for several months as part of a severance package. The letter also advised Barrett that the wages paid as part of the severance package “will be paid bi-monthly through the normal payroll process and mailed to you at your most current address of record.”

Although Barrett was accustomed to having LBC directly deposit the checks into his Anniston bank account, after March 10 LBC was no longer willing to deposit the paychecks for Barrett. Reiber Heath, LBC’s representative in the litigation, stated that it was LBC’s practice “to mail the checks in case of severance.” Samantha Barrett testified by deposition, however, that after March 10 her husband had traveled to LBC’s place of business to pick up each of his paychecks in order to be able to deposit them himself. She also testified by affidavit that, at the time of the accident, her husband had been returning from Anniston along the same route he had customarily followed to and from LBC each workday.

The plaintiff relies heavily upon the decisions of this court in Oliver v. Faulkner Wood Co., 531 So.2d 675 (Ala.Civ.App.1988), and Process Equipment, Inc. v. Quinn, 701 So.2d 29 (Ala.Civ.App.1997), in arguing that her husband’s death occurred in the course of his employment. For the reasons explained below, we find Oliver and Quinn to be distinguishable from the present case.

To be compensable under our Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, an employee’s injury or death must result from an accident “arising out of and in the course of his employment.” Ala.Code 1975, § 25-5-31. No all-embracing definition of this standard has yet been found. “Every case involving these words should be decided upon its own particular facts and circumstances, and not by reference to some formula.” Moesch v. Baldwin County Elec. Membership Corp., 479 So.2d 1271, 1272 (Ala.Civ.App.1985).

The phrase “arising out of’ employment denotes employment as the source and cause of the accident. In order to satisfy this requirement, “the rational mind must be able to trace the resulting injury to a proximate cause set in motion by the employment and not by some other agency.” Id. As was true in Oliver, we are not presented in the present case with the question whether the employee’s injury was one “arising out of’ his employment; the issue presented is whether the employee’s injury occurred “in the course of’ his employment.

As opposed to the causal element addressed by the “arising out of’ requirement, the phrase “in the course of ... employment” refers to the time, place, and circumstances under which an injury occurs.

“ ‘An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.’ ”

Moesch v. Baldwin County Elec. Membership Corp., 479 So.2d at 1272 (quoting Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1956)) (emphasis added).

The present case does not involve an accident that occurred within the period of Barrett’s employment. Nor did the injury occur at or near Barrett’s place of employment or while he was fulfilling duties associated with his employment. Instead, Barrett’s accident occurred on a public highway while he was coming home from picking up his paycheck.

What is often referred to as the “going and coming rule” has long been recognized in our caselaw. In the early case of Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932), the Alabama Supreme Court explained:

“It is, of course, the general rule that, if an employee is injured while going to or from his work to his home, or to or from some point not visited for the discharge of a duty arising out of the employment, or while in the use of a public highway used by the public generally, he does not come within the protection of the Workmen’s Compensation Act.”

Barnett, 225 Ala. at 463, 143 So. at 813.

The Supreme Court also recognized an exception to the general rule, however, explaining that “the employment is not limited by the actual time when the workman reaches the scene of his labor and begins it nor when he ceases, but includes a reasonable time, space, and opportunity before and after while he is at or near his place of employment.” 225 Ala. at 463, 143 So. at 813. The Supreme Court further explained:

“One of the tests is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazard as to be, in effect, at the place and under the protection of the act. Honnold on Workmen’s Compensation, §§ 107 and 109. Indeed, our own court is in line with the foregoing, and, after stating that the employee need not necessarily be in the actual discharge of a duty connected with the employment, says: ‘Within the purview of such naturally related and incidental acts in the course of the employment is the movement of the employee in entering, at the appropriate time, the employer’s premises to discharge his function; his preparation to begin and to terminate his actual service; and to leave the premises at an appropriate time after the completion of his actual service.’ Jett v. Turner, 215 Ala. 352, 110 So. 702, 704 [(1926)]; Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 109 So. 878 [(1926)], and cases cited.”

Barnett, 225 Ala. at 463, 143 So. at 813.

In Barnett, the employee slipped on a sidewalk immediately in front of her employer’s place of business while on her way to report for duty and just before entering the entrance used by all employees for the purposes of discharging their employment duties. The sidewalk in front of the defendant’s place of business, while a public one, was also used by the defendant as a necessary entrance to the defendant’s place of business by its customers and its employees. Applying the above-stated principles to these facts, our Supreme Court concluded in Barnett that “the sidewalk was, to a limited degree, and purpose, a part of the defendant’s premises,” and the employee’s injury thereon occurred in the course of her employment. Barnett, 225 Ala. at 464, 143 So. at 813-14.

More recently, in Ex parte Shelby County Health Care Authority, 850 So.2d 332 (Ala.2002), our Supreme Court again recognized the “going and coming rule”:

“Generally, Alabama law has held that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the [Workers’ Compensation] Act because those injuries do not meet the ‘arising out of and in the course of employment’ requirement.”

850 So.2d at 336. The Court also recognized several exceptions to this general rule, including an exception “when an employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business.” Id. The employee in Ex parte Shelby County Health Care Authority, however, did not fall within this or any other exception to the “going and coming rule.” Her accident occurred while she was traveling home after finishing her second 16-hour work shift in two days. As the Supreme Court explained, “[the employee’s] injuries that resulted from her car accident did not occur at her place of employment, nor was she engaged in any duties of her employment when the accident occurred. Therefore, [the employee’s] injuries did not meet the ‘in the course of [her] employment’ requirement of the [Workers’ Compensation] Act.” 850 So.2d at 386.

Despite the apparent applicability of the “going and coming rule,” Barrett argues that this court held in Oliver and Quinn that, as a matter of law, a trip to pick up one’s paycheck is “in the course of employment.” We do not agree with this interpretation of those cases.

In Oliver, the employee had been assigned by his employer to work, and had worked, during the course of his normal workday at a worksite located some distance from his employer’s primary place of business. The employee had been instructed by the employer to travel, after completing his work for the day at that remote location, to another location at which the employee would be paid by the employer. While en route to the second location, the employee was injured. The Court of Civil Appeals reasoned that these facts did not fall within the general “going and coming rule,” noting, among other things, that “when the accident occurred, [the employee] was not returning directly home.” 531 So.2d at 678. Instead, the employee in Oliver was traveling from one location at which he had been instructed to work to another location to which his employer had instructed him to travel in order to receive his paycheck. Further, the employee’s travel occurred at the conclusion of his workday.

In Quinn, the employee was a member of a “field crew” that was routinely assigned to travel to perform work at remote jobsites. The employee was injured while returning to Alabama after traveling to Virginia to work at a remote jobsite. He received travel expenses of $15.00 per hour one way to the jobsite in Virginia, as well as a per diem of $2.36 per hour because the jobsite was more than three hours from the employer’s primary place of business. The Supreme Court concluded that the employee was covered by the Workmen’s Compensation Act, noting, among other things, that

“after [field-crew employees] completed a job, they returned to Birmingham, unless they were sent to another job, and that they would sometimes return to the employer’s plant to receive instructions and to collect their paychecks. [One employee] also testified that ‘field crew’ employees were asked to place magnetic signs, showing the employer’s name and logo, on their private vehicles and that [another field-crew employee] had such a magnetic sign on his truck at the time of the accident.”

Quinn, 701 So.2d at 31.

Relying upon Oliver and Quinn, and quoting the following passage from a treatise on workers’ compensation law that, in turn, cites Oliver as authority, the plaintiff argues that “[t]he contract of employment is not fully terminated until the employee is paid, and accordingly an employee is in the course of employment while collecting her or his pay.” 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 26.03[1] (footnote omitted), citing Oliver, 531 So.2d 675.

The facts of the present case, however, are distinguishable from those in Oliver and Quinn. Barrett was not traveling from one worksite to another at his employer’s direction. Nor was Barrett’s travel part of Barrett’s workday or period of employment, as was the employee’s travel in Oliver and Quinn. Nor can it be argued that Barrett was performing any duties of his employment while traveling. Barrett, in fact, was no longer employed by LBC; he was merely returning home after traveling to LBC to pick up his paycheck.

We do not read Larson’s treatise on workers’ compensation law as asserting anything other than that an employee may, while collecting his paycheck from his employer, fall within the exception to the general “going and coming rule” that has been recognized by our courts as applicable to a “reasonable time, space, and opportunity before and after while [the employee] is at or near his place of employment.” Barnett, 225 Ala. at 463, 143 So. at 813. In other words, it is possible for an employee to be within his employment’s “zone, environments, and hazard” in connection with collecting a paycheck just as it is possible for the employee to be so while actually doing work for the employer. Id. Logically, however, there is no reason to afford an employee greater protection while collecting his pay than while he is actually performing the services for which he has been hired. In fact, Larson recognizes that an employee’s travel to and from his home and his place of employment in order to collect a paycheck no more places an employee “in the course of employment” than does the employee’s traveling to and from home to do actual work for the employer:

“Once the collection of pay has been identified as a work-connected activity, it follows that the normal course of employment limitations applicable to any work activity should apply. Thus, an injury occurring off the premises while the claimant is on the way to the plant to collect a paycheck, or is on the way home, is outside the course of employment; for there is no reason to place the discharged worker about to collect pay in a stronger position than that afforded to the worker on the way to the actual performance of his or her employment duties.”

Larson’s Workers’ Compensation Law, § 26.03[3] (footnote omitted).

The accident that resulted in Barrett’s death was no more “in the course of’ his employment than it would have been if it had occurred while he was still employed by LBC and had simply been traveling home from a normal workday. It would be ironic indeed if this court were to hold that this accident, which occurred when Barrett was returning home after merely picking up his paycheck, and after his position at the company had been eliminated, was compensable under the Workers’ Compensation Act, when an accident that occurs while an employee is returning home after actually performing his or her job duties is not.

Accordingly, this case falls within the general rule “that accidents which occur while the employee is traveling to and from work are not considered ‘arising out of and in the course of his employment.” Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716, 717 (Ala.Civ.App.1987).

The judgment of the trial court is affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jeffrie C. TURNER v. Charles Gregory TURNER.
    2020167.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.
    Don P. Bennett, Dothan, for appellant.
    Benjamin E. Meredith, Dothan, for ap-pellee.
   MURDOCK, Judge.

Jeffrie C. Turner (“the mother”) appeals from an order directing her and Charles Gregory Turner (“the father”) to calculate the past and future child-support obligations of the father.

Although neither party has raised the issue of this court’s jurisdiction over this appeal, we note that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). Because we find that there was no final judgment that would support an appeal, we dismiss the appeal.

The parties were divorced by a judgment of the Henry Circuit Court on June 27, 2001. That judgment provided that the father would pay $1,000 per month in child support for the parties’ two children. On February 19, 2002, the father petitioned for a modification of his child-support obligation, based on the parties’ older child having reached the age of majority. At an evidentiary hearing at which both parties presented evidence and testimony, the father also argued that he had had a reduction in his income.

Following the evidentiary hearing, the trial court entered an order on July 19, 2002. That order directed the parties to calculate the amount of past-due child support that was owed by the father at the time he filed his petition to modify and to recalculate the father’s child-support obligation for the parties’ remaining minor child in compliance with the child-support guidelines (see Rule 32, Ala. R. Jud. Admin.) based on the parties’ respective monthly incomes as found by the trial court. The trial court made no finding as to the actual amount of the child-support arrearage owed by the father or the proper amount of child support to be paid by the father in the future. Instead, the court stated, “If the parties further need the Court’s guidance, a hearing can be set to clarify any of the above.”

“It is well established that a final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts.”

Dees v. State, 563 So.2d 1059, 1061 (Ala.App.1990). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977) (“Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.”).

This court recently applied the foregoing principles in Williams Power, Inc. v. Johnson, 880 So.2d 459 (Ala.Civ.App.2003). In Williams Power, Inc., we dismissed an appeal from a judgment in a workers’ compensation case because the trial court ordered “ ‘that the defendant, Williams Power Corporation, shall reimburse the plaintiff for any and all medical expenses already paid by him,’ ” but it did not specify an actual amount of money damages that the defendant was obligated to pay. 880 So.2d at 460.

The trial court’s order in the present case is not a final judgment that will support an appeal. The order contains no conclusive assessment of any amounts owed by the father and therefore does not represent a complete determination of the matters in controversy between the parties.

The appellant’s and the appellee’s requests for the award of an attorney fee on appeal are denied.

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ„ concur.


text:
    Kim YOUNG v. Phillip WEAVER.
    2020346.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      Patrick O. Sims of Hood, Sims & Neff, L.L.C., Tuscaloosa, for appellant.
    Robert M. Spence and Wesley H. Garrett of Crownover, Standridge & Spence, Tuscaloosa, for appellee.
   MURDOCK, Judge.

Kim Young appeals from a judgment of the Tuscaloosa Circuit Court awarding damages to Phillip Weaver for alleged breaches by Young of an apartment lease between Young, as tenant, and Weaver, as landlord. We reverse.

In the fall of 2001, Young, who at the time was 18 years old and had been living with her parents all of her life, decided that she “wanted to move out and get away from [her] parents and be on [her] own.” Young and a friend, Ashley Springer, also a minor at the time, signed a contract for the lease of an apartment with Weaver on September 20, 2001. No adult signed the lease as a guarantor. Young was employed on a full-time basis at a Lowe’s hardware store located in Tuscaloosa at the time she entered into the lease agreement. Young paid a security deposit in the amount of $300; the rent for the apartment was $550 per month, and the lease was set to expire on July 31, 2002.

Young and Springer moved into the apartment in late September and, together, paid rent at the agreed-upon rate for the portion of that month in which they lived in the apartment. Young and Springer continued to live in the apartment during October and most of November 2001; Young moved out near the end of November and returned to live with her parents. Young paid the full amount of her portion of the rent for October and November, but she stopped making any-rent payments after she moved out of the apartment.

Young had a dog which stayed in the apartment with the roommates; it is undisputed that the dog damaged part of the floor and the bathroom door in the apartment, causing $270 in damage. Young did not pay for this damage before vacating the apartment. Weaver managed to rent the apartment to someone else in June 2002.

On February 19, 2002, Weaver filed a claim against Young in the Small Claims Court of Tuscaloosa County, seeking damages for the unpaid rent and the damage done by Young’s dog to the apartment. The court ruled in favor of Weaver and awarded $1,370 in damages. Young appealed the decision to the Tuscaloosa Circuit Court. The case was tried de novo on December 5, 2002, in a hearing in which the trial court took evidence ore tenus. The circuit court also entered a judgment in favor Weaver and awarded him $1,095, the amount of Young’s share of the unpaid rent for December 2001 and January and February 2002, as well as the $270 in damage caused by Young’s dog. Young appeals.

Because the trial court took evidence ore tenus, its judgment is given a presumption of correctness and may not be reversed unless it is shown to be unsupported by substantial evidence and plainly and palpably wrong. See, e.g., Callaway v. E.H. Smith Elec. Contractors, Inc., 814 So.2d 893 (Ala.Civ.App.2001).

Among other things, Young argues on appeal that the apartment was not a “necessity” and that, therefore, as a minor, she was not legally bound by the lease and owes Weaver nothing. We find this argument to be dispositive.

“Under Alabama law, one who is unmarried and has not reached the age of 19 years is deemed to be a minor, i.e., subject to the disabilities of nonage (although such disabilities may, in certain circumstances, be removed by a judgment of a juvenile court). See § 26-1-1, § 26-13-1 et seq., § 30-4-15, and § 30-4-16, Aa.Code 1975. Among the disabilities of nonage is the incapacity to make a binding contract: ‘It is a well-established general rule at common-law, and recognized in this state, that a minor is not liable on any contract he makes and that he may disaffirm the same.’ Children’s Hosp. of Birmingham, Inc. v. Kelley, 537 So.2d 917, 917 (Ala.Civ.App.1987), aff'd in pertinent part, rev’d on other grounds, Ex parte Odem, 537 So.2d 919 (Ala.1988).”

Williams v. Baptist Health Sys., Inc., 857 So.2d 149, 151 (Ala.Civ.App.2003). However,

“Alabama law, like the law of most other states, provides that persons providing ‘necessaries’ of life to minors may recover the reasonable value of such necessaries irrespective of the existence, or nonexistence, of a (voidable) contract respecting those necessaries. As stated by the Alabama Supreme Court in Ragan v. Williams, 220 Ala. 590, 127 So. 190 (1930), ‘[w]hen necessaries are furnished to one who by reason of infancy cannot bind himself by his contract, the law implies an obligation on the part of such person to pay for such “necessaries” out of his own property.’ 220 Ala. at 590, 127 So. at 191.”

Williams, 857 So.2d at 151 (emphasis added).

Young does not seek reversal of the trial court’s judgment on the ground that the use of the apartment after November 2001 was not “furnished” to her. Instead, her principal argument on appeal is that the apartment was not a necessity. We agree that this case must be disposed of in Young’s favor on this basis.

A necessity has been defined as something “ ‘necessary to the position and condition of the [minor].’ ” Ex parte Odem, 537 So.2d 919, 920 (Ala.1988) (quoting Wiggins Estate Co. v. Jeffery, 246 Ala. 183, 189, 19 So.2d 769, 774 (1944)). In Ragan v. Williams, 220 Ala. 590, 591, 127 So. 190, 191 (1930), our Supreme Court stated that “[w]hat are ‘necessities’ within this rule [have been] held to be a relative term ... and somewhat flexible” and that “every case stands upon its peculiar facts and reasonable necessities, according to the circumstances of each case; and there is no positive or iron-bound rule by means of which it may be determined what are or what are not necessaries.” Further, our courts have commented that “the term [‘necessity’] is to be made applicable to such things as are obviously requisite for the maintenance of existence of the infant.” Harris v. Raugkton, 37 Ala.App. 648, 650, 73 So.2d 921, 923 (1954).

Determining whether the subject of a contract is a necessity to a minor entails a two-step analysis:

“ ‘It is for the court to determine, as a matter of law, in the first place, whether the things supplied may fall within the general classes of necessaries, and if so, whether there is sufficient evidence to warrant the jury in finding that they are necessary. If either of these preliminary inquiries be decided in the negative, it is the duty of the court to nonsuit the plaintiff who seeks to recover from the [minor]. If they be decided in the affirmative, it is then for the jury to determine whether, under all the circumstances, the things furnished were actually necessary to the position and condition of the [minor], as well as their reasonable value, and whether the [minor] was already sufficiently supplied

Odem, 537 So.2d at 920 (quoting Wiggins Estate Co. v. Jeffery, 246 Ala. at 189, 19 So.2d at 774). Thus, first a court must determine whether the subject of the contract is generally considered a necessity. If the subject is so considered, then it is for the fact-finder to determine, on the particular facts and circumstances of the case, whether the subject of the contract is, in fact, a necessity to that minor. The first inquiry is a question of law; the second inquiry entails a factual determination.

There is little question that, in general, lodging is considered a necessity. As the Ragan Court observed, typical necessities include “things for bodily need — food, support and maintenance, clothing, medicine and medical attention, and lodging.” Ragan, 220 Ala. at 591, 127 So. at 191. Thus, the question in this case is whether the trial court erred in concluding as a factual matter that the apartment leased by Young was a necessity for her.

The trial court noted that “Alabama courts have held that lodging is a necessity” and that “[Young] was employed full-time at the time she entered into the contract.” Immediately after making those observations, the trial court concluded: “The court finds under the facts of this case the contract was for a necessity.” Id.

Young contends that the apartment was not a necessity to her because, she argues, her parents did not “kick” her out of their house and they kept her room waiting so that she could return to their home at any time. Young’s father testified that every time he talked to his daughter on the telephone while she lived in the apartment he asked her to move back in with them; he also testified that he was willing to take Young back at any time. In essence, because Young’s parents were able and willing to house Young at the same time she contracted to lease the apartment, Young argues that in this case the particular lodging at issue was not a necessity.

In support of this contention, Young cites Harris v. Raughton, 37 Ala.App. 648, 73 So.2d 921. In Harris:

“Bremman R. Raughton, a minor, bought an automobile from the appellants. He paid $90 cash as the down payment. According to [Raughton’s] testimony, the car would not operate satisfactorily, so in about two days after the sale he returned it to the appellants and demanded a refund of the initial payment. This was refused, and the automobile was left at appellants’ place of business.”

37 Ala.App. at 649, 73 So.2d at 922. Raughton sued Harris and the other appellants to recover his down payment. The evidence showed that Raughton was married and had bought the automobile to use as transportation to and from his place of employment. However, the evidence also showed that Raughton already owned a truck that he had been using for the same purpose and that he had not disposed of at the time he purchased the new automobile. The court determined that, because Raughton had another vehicle available to him, the automobile in question was not a necessity, and, thus, Raugh-ton was at liberty to void the contract for the purchase of the automobile.

By analogy, Young argues that because she had a place to live provided by her parents still available to her at the time she signed the lease agreement and during the time she lived in the apartment, the apartment was not a necessity. In other words, she argues that the apartment was not “ ‘necessary to [Young’s] position and condition as a [minor]’ ” at the time she signed the lease. Odem, 537 So.2d at 920.

Several authorities from other states support this position. Webster Street Partnership, Ltd. v. Sheridan, 220 Neb. 9, 368 N.W.2d 439 (1985), involved facts similar to those in this case. In Sheridan, two minor boys signed a lease with a real estate company for an apartment in mid-September 1982 and moved into the apartment soon thereafter. The lease was to last through mid-August 1983. The boys paid the required rent for September and October, but in mid-November they found themselves financially unable to make that month’s rental payment. Because they were unable to pay, the boys vacated the premises. In January 1983, the real estate company sued the boys to obtain damages for unpaid rent and expenses for November and December of the previous year. The boys denied any liability based on their status as minors.

The Nebraska Supreme Court noted that Nebraska, like most states, follows the common-law rule that infants do not have the capacity to bind themselves absolutely to a contract unless it is one for necessities. It also noted that “|j]ust what are necessaries, however, has no exact definition. The term is flexible and varies according to the facts 'of each individual case.” 220 Neb. at 13, 368 N.W.2d at 442. The court then observed that the evidence showed that the two boys “were living away from home, apparently with the understanding that they could return home at any time,” and that “[i]t would therefore appear that ... neither [minor] was in need of shelter but, rather, had chosen to voluntarily leave home, with the understanding that they could return whenever they desired.” 220 Neb. at 14, 368 N.W.2d at 443. Based on this evidence, the Nebraska Supreme Court ruled that the apartment was not a necessity.

Likewise, in Ballinger v. Craig, 95 Ohio App. 545, 121 N.E.2d 66 (1953), the defendants were husband and wife and were minors at the time they purchased a house trailer. Both were employed. However, before they purchased the trailer, the defendants were living with the parents of the husband. The Ohio Court of Appeals ruled that under the facts presented the house trailer was not a necessity, reasoning that:

“ ‘To enable an infant to contract for articles as necessaries, he must have been in actual need of them, and obliged to procure them for himself. They are not necessaries as to him, however necessary they may be in their nature, if he was already supplied with sufficient articles of the kind, or if he had a parent or guardian who was able and willing to supply them.’ ”

95 Ohio App. at 547, 121 N.E.2d at 67 (quoting Johnson v. Newberry, 267 S.W. 476, 479 (Tex. Comm’n App.1924)). See, e.g., Bensinger’s Coex’rs v. West, 255 S.W.2d 27, 29 (Ky.1953) (“To be bound upon a contract for necessaries, an infant must be in actual need of them and obliged to procure them for himself. They are not necessaries to the infant if he has a parent or guardian who is willing and able to supply them.”); 42 Am.Jur.2d Infants § 71 (2000) (“To be held liable for necessaries, an infant must not have at the time of delivery an adequate supply from other sources such as a parent or guardian who is able and willing to supply them.”) (footnotes omitted); and 42 Am.Jur.2d Infants § 75 (2000) (“[H]ousing is not per se a necessary so minors are hable for signing contracts for housing, at least when his or her parents remain willing and able to furnish housing but the children move out voluntarily.”) (footnote omitted). The undisputed evidence in this ease indicates that, just as in those cases discussed above, Young’s parents were willing and able to provide lodging for their daughter at the time she rented the apartment from Weaver.

In Ragan, 220 Ala. 590, 127 So. 190, the Alabama Supreme Court addressed a case in which a lessor sued a minor lessee for rental payments on a house and the minor pleaded incapacity. The trial court had ruled that the minor had to pay rent for the house. The Supreme Court affirmed, reasoning that

“[t]he testimony, when considered as a whole, shows that the house occupied as the home for the minor and his family, under the circumstances showing his complete emancipation and necessities of earning a livelihood for himself and his immediate family (wife and child), was a necessity for him as a farmer, who was farming for himself and living with his family, apart from his or her family and adjacent to the lands he cultivated.”

220 Ala. at 591-92, 127 So. at 192.

Ragan is factually distinguishable from the instant case because the situation and condition of Ragan differed markedly from Young’s situation and condition. Ragan was emancipated, married, and had children; none of those circumstances are true of Young. Ragan’s house was next to the farmland from which he made his living; while Young testified that she worked full-time at Lowe’s during the period when she lived in the apartment, she also testified that she continued to work there after she moved back into her parents’ residence. Thus, unlike in Ragan, Young did not need the apartment to maintain her employment. Finally, Ragan and his family did not live with his parents immediately prior to living in the house in question, and there is no indication that Ragan and his family could have moved in with his parents if they did not live in the house. In contrast, Young had lived with her parents before renting the apartment, and both she and her father testified that she could have moved back into her parents’ house at any time during the period that she rented the apartment. In fact, when she left the apartment, Young did move back in to her parents’ house and resided there during the very period for which Weaver now seeks to collect rent. In sum, consideration of the factors the Ragan Court emphasized in determining that the lodging in question was a necessity in that case supports the conclusion that the lodging in question is not a necessity in the present case.

In contrast to Ragan, in Ex parte McFerren, 184 Ala. 223, 63 So. 159, the Alabama Supreme Court concluded that the leasehold in question was not a necessity. It reached that conclusion on the ground that the minor in that case never actually used the leasehold, a fact which itself demonstrated that the leasehold was not a necessity: “The lease representing nothing that was necessary for the infant, and he, in fact, derived no benefit whatever from it.” 184 Ala. at 234, 63 So. at 162. Likewise, in the present case, the fact that the apartment in question was not a necessity for Young, particularly during the post-November 2001 period for which Weaver seeks to recover rent, is demonstrated by the fact that Young did not reside in the apartment after that date, but returned to live with her parents.

Given the authorities cited above and the particular facts of this case, we conclude that the trial court erred in its determination that the apartment in question was a necessity for Young. Therefore, as a minor, Young is not legally bound under the lease agreement. This result may seem unjust in some ways, but as the Supreme Court observed in Ex parte McFerren:

“The above rule [that a minor may disaffirm a contract] may, at times, work a hardship. The law must, however, have a definite policy, and its rules must be fixed. The law has fixed its policy with reference to the protection of infants with regard to their contracts, and those who deal with them, except when actually supplying them with necessaries, deal with them at their peril.”

184 Ala. at 235, 63 So. at 162.

Accordingly, the judgment of the trial court is reversed, and the cause is remanded for the trial court to enter a judgment in favor of Young.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . Young and Springer agreed to share the rent equally. Weaver seeks in this action only to recover that portion of the monthly rent for which Young was responsible, i.e., $275.

      . Our reversal of the trial court's judgment insofar as it awards to Weaver $270 for damage to the apartment caused by Young's dog is also supported by the fact that the record contains undisputed evidence, as noted by Young in her brief to this court, that Weaver was in receipt of a $300 deposit that would be applied to those damages. Weaver does not address this issue in his brief to this court.

      3.The terms "necessities” and "necessaries” are often used interchangeably in cases in this area of law. For consistency, except when quoting from an authority, this opinion uses the term "necessity” for the concept at issue.

      . "An infant’s liability for necessaries is based not upon his or her actual contract to pay for them, but upon a contract implied by law, or in other words, a quasi-contract,” 42 Am. Jur.2d Infants § 64 (2000) (footnote omitted). Accordingly, it is generally recognized that "[w]hen an infant’s contract for necessaries remains executory and the things contracted for have not been furnished him, the infant is not bound by the contract and may repudiate it,” id. See 43 C.J.S. Infants § 180 (1978) ("To render an infant liable for necessaries they must have been actually furnished; hence [a minor] cannot make a binding exec-utory agreement to purchase necessaries or to pay for necessaries to be supplied him, and he may disaffirm such contract or agreement before it has been performed and recover the unearned portion of the money paid in advance.”) (footnotes omitted); Restatement of Restitution § 139. See also Ex parte Odem, 537 So.2d 919 (Ala.1988) (describing the obligation of a minor to pay for necessary medical services as "arising] from a quasi-contractual relationship created by operation of law which enforces the implied contract to pay,” and holds the minor "liable for the just value of the necessaries”); Ex parte McFerren, 184 Ala. 223, 224, 63 So. 159, 159 (1913) (observing that "[i]n all cases in which [an infant lessee] has been held liable for rent or in which he has been denied to recover rents paid, he has received some actual benefit from the use of the property as a tenant”).


author: SHAW, Judge.

text:
    Christopher Wayne LUM v. CITY OF BREWTON.
    CR-02-1172.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.

      Paul M. Harden, Sr., Monroeville; and Edward T. Hines, Brewton, for appellant.
    Joe B. Thompson, Jr., Brewton, for ap-pellee.
   SHAW, Judge.

Christopher Wayne Lum was convicted in the Brewton municipal court of driving under the influence of alcohol (“DUI”), a violation of § 32-5A-191(a), Ala.Code 1975. He appealed to the circuit court for a trial de novo and was again convicted of DUI. The trial court sentenced Lum to 10 days in the county jail, but suspended the sentence and placed him on probation for 2 years.

The evidence adduced at trial indicated the following. On April 17, 2002, at approximately 2:00 a.m., Carney Lee Fillmore, a patrol officer with the Brewton Police Department, was traveling on U.S. Highway 31 when he noticed a vehicle at a gasoline station. According to Officer Fillmore, the vehicle went over the curb near the gasoline pumps and then proceeded onto the highway without stopping. Officer Fillmore followed the vehicle and noted that it was traveling approximately 55 miles per hour in a 40-mile-per-hour zone. Officer Fillmore then stopped the vehicle for a traffic violation.

When Officer Fillmore approached the vehicle, he saw that there were three occupants; Lum was the driver. Officer Fillmore also noticed an odor of alcohol emanating from the vehicle. Officer Fillmore testified that he asked Lum to get out of the vehicle and that Lum did so, but with difficulty. According to Officer Fillmore, Lum had to lean against the vehicle to keep his balance as he got out. In addition, Officer Fillmore said that Lum’s speech was slurred, his face was flushed, his eyes were glassy and red, and he was unable to focus. When asked how much he had had to drink, Lum told Officer Fillmore that he had had one beer. Officer Fillmore testified that he then administered two field-sobriety tests, both of which Lum failed. Officer Fillmore then arrested Lum for DUI and transported him to the police station. At the police station, Officer Fillmore administered the Draeger Aleotest 7110 MK III-C (“Drae-ger”) breath test; the results indicated that Lum’s blood-alcohol level was 0.08 percent.

I.

Lum contends that the trial court erred in allowing the City to introduce into evidence the Draeger test result because, he says, the City failed to lay a proper predicate for its admission. Specifically, he argues that the City failed to establish that the test was performed according to methods approved by the Department of Forensic Sciences (“the Department”), as required by § 32-5A-194(a)(l), Ala.Code 1975; section 32-5A-194(a)(l) provides:

“(a) Upon the trial of any civil, criminal or quasi-criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual control of a vehicle while under the influence of alcohol or controlled substance, evidence of the amount of alcohol or controlled substance in a person’s blood at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible. Where such a chemical test is made the following provisions shall apply:
“(1) Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this section shall have been performed according to methods approved by the Department of Forensic Sciences and by an individual possessing a valid permit issued by the Department of Forensic Sciences for this purpose. The court trying the case may take judicial notice of the methods approved by the Department of Forensic Sciences. The Department of Forensic Sciences is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Forensic Sciences. The Department of Forensic Sciences shall approve permits required in this section only for employees of state, county, municipal, and federal law enforcement agencies and for laboratory personnel employed by the Department of Forensic Sciences.”

(Emphasis added.) According to Lum, the City failed to present any evidence indicating that the Draeger device used in his case had been certified before it was put into service and recertified annually thereafter or that it had been electronically inspected every six months since it was put in service. To support his claim that annual certification and semiannual inspection are a necessary part of the statutory predicate for admission of test results from the Draeger, Lum relies on the following regulation of the Department:

“370-1-1-.02 Evidential Breath Alcohol Testing Instrument Inspections.
“(2) Each Draeger Alcotest 7110 MK III shall be certified by the Department of Forensic Sciences Technical Director or his designee prior to being placed in operation. Each Draeger Al-cotest 7110 MK III shall be electronically inspected at least once every six calender months by the Department of Forensic Sciences Technical Director or his designee. Each Draeger Alcotest 7110 MK III shall be recertified by the Department of Forensic Sciences Technical Director or his designee at least once a calendar year.”

Ala. Admin. Code (Dep’t of Forensic Sciences), Regulation 370-1-1-.02.

The City argues that certification and inspection of the Draeger device are not part of the statutory predicate pursuant to § 32-5A-194(a)(l) for admission of the test results because, it says, the annual certifications and semiannual inspections of the Draeger device are not considered part of the “methods” approved by the Department. According to the City, the “methods” referred to in § 32-5A-194(a)(l) are contained in Reg. 370-1-1-.01 of the regulations of the Department, not in Reg. 370-1-1-.02. The Department, which filed an amicus curiae brief addressing this issue, also argues that the “methods” referred to in § 32-5A-194(a)(l) are contained in Reg. 370 — 1—1—.01, and not in Reg. 370-1-1-.02. At the time Lum was convicted, Reg. 370-1-1-.01 provided, in part:

“370 — 1—1—.01 Evidential Breath Alcohol Testing.
“(1) Qualifications. Applicant must have satisfactorily completed the course in the theory and operational procedures of the breath alcohol testing instrument and be an employee for one of the agencies listed in Section 32-5A-194 Code of Alabama, 1975 as amended.
“(2) Certification Permits.
“(a) Permits to perform chemical analysis of a person’s breath pursuant to the Alabama Chemical Test for Intoxication Act will be issued by the Director of the Department of Forensic Sciences and certified by the Technical Director of the Department of Forensic Sciences.
“(3) Approved Evidential Breath Alcohol Testing Instrument List.
“(a) The following Evidential Breath Alcohol Testing Instruments are approved.
“1. Intoxilyzer 5000, CMI, Inc., Ow-ensboro, KY.
“2. Alcotest 7110 MK III, Draeger Safety, Inc., Durango, CO.
“(4) Methods Approved by the Alabama Department of Forensic Sciences.
“(a) Intoxilyzer 5000. The approved procedure, technique or method of operation appears on the Intoxilyzer 5000 Operational Procedure Card.
“(b) Draeger Alcotest 7110 MK III. The approved procedure, technique or method of operation resides in the software of the Draeger Alcotest 7110 MK III. The procedure requires the operator to input the following clerical data as prompted in order to initiate the test sequence.... Omission of an entry in any field will prevent the completion of the test.
“1. Permit Number. The operator must enter his permit number.
“2. <1> DUI <2> ADMIN <3> DEMO. The operator must select the type of test to be administered.
“3. Enter Dry Gas Standard # 1 Pressure. The operator must observe and record the pressure from the gas regulator gauge on bottle # 1.
“4. Enter Dry Gas Standard # 2 Pressure. The operator must observe and record the pressure from the gas regulator gauge on bottle # 2.
“5. Twenty Minute Deprivation Period. The operator must confirm that the subject has been under the control of the arresting officer and/or the operator for a minimum of 20 minutes. Enter T’ for yes or ‘N’ for no.
“6. Arresting Officer Same As Operator. The operator must designate whether the breath test operator is or is not the arresting officer. Enter TP for yes or ‘N’ for no. If the arresting officer is not the breath test operator then the following information on the arresting officer will also be required.
“(i) Arresting Officer’s Last Name. The operator must enter the last name of the arresting officer.
“(ii) Arresting Officer’s First Name. The operator must enter the first name of the arresting officer.
“(in) Arresting Officer’s Middle Initial. The operator must enter the middle initial of the arresting officer.
“(iv) Arresting Officer’s Identification Number. The operator must enter the badge number of the arresting officer.
“(v) Arresting Officer’s Agency. The operator must enter the agency name of the arresting officer.
“7. Date of Offense. The operator must enter date of offense using the format <MM/DD/YYYY>.
“8. Time of Offense. The operator must enter the approximate time of offense using military time designation. When the difference between the time of the offense and the real time is less than twenty minutes the unit will purge the system and abort the test.
“9. County of Offense. The operator must enter the county in which the offense occurred.
“10. Subject’s Uniform Traffic Complaint Number. The operator must enter the subject’s Uniform Traffic Complaint Number.
“11. Subject Last Name. The operator must enter the subject’s last name.
“12. Subject First Name. The operator must enter subject’s first name.
“13. Subject Middle Initial. The operator must enter subject’s middle initial.
“14. Subject Street Address/Apartment. The operator must enter subject’s street address or apartment address.
“15. Subject Town/City. The operator must enter subject’s town or city of residence.
“16. Subject State. The operator must enter subject’s state of residence using the appropriate two letter designation.
“17. Subject Driver License or Social Security Number. The operator must enter subject driver’s license, social security number of Alabama I.D. number.
■ “18. Subject <Male/Female>. The operator must designate the subject’s gender using ‘M’ for male and ‘F’ for female.
“19. Subject Date Of Birth. The operator must enter the subject’s date of birth using the format <MM7 DD/YYYY> or <MM/DD/YY>. An entry of 01/01/1900 will be used when the subject’s date of birth cannot be obtained.
“(5) Report of Breath Alcohol Test Result.
“(b) Draeger Alcotest 7110 MK III. For purposes of this regulation two (2) acceptable samples of breath shall constitute a breath alcohol test.
“1. The Draeger Alcotest 7110 MK III is programmed to require a second sample of breath be tested no less than two (2) minutes and not more than fifteen (15) minutes after the first sampling. The two samples must agree within +/-0.020 grams of ethanol per 210 liters of breath. If the two samples do not agree within +/-0.020 grams of ethanol per 210 liters of breath, the instrument is programmed to begin a second breath alcohol test procedure. The instrument will prompt the operator to have the subject provide two (2) additional samples of breath. Failure to provide two (2) acceptable samples of breath for the second breath alcohol test procedure will constitute a refusal of the whole test. The lowest of the breath alcohol results from the' completed breath alcohol test procedure will be reported. A record of the breath alcohol results from the breath alcohol test will be stored in the electronic memory. The Alcotest 7110 MK III is programmed to generate a Certifícate of Breath Alcohol Analysis.
“2. A complete breath alcohol test procedure shall incorporate two (2) calibration checks to verify the calibration of the Draeger Alcotest 7110 MK III. A 0.020 grams of ethanol per 210 liters of breath calibration check shall precede and a 0.080 grams of ethanol per 210 liters of breath calibration check shall follow each set of duplicate subject samples. The Draeger Alcotest 7110 MK III must produce a reading between 0.015 grams of ethanol per 210 liters of breath and 0.025 grams of ethanol per 210 liters of breath inclusive when a 0.020 grams of ethanol per 210 liters of breath calibration check vapor is introduced into the instrument to pass the calibration check. The Draeger Alcotest 7110 MK III must produce a reading between 0.076 grams of ethanol per 210 liters of breath and 0.084 grams of ethanol per 210 liters of breath inclusive when a 0.080 grams of ethanol per 210 liters of breath calibration check vapor is introduced into the instrument to pass the calibration check. The Alcotest 7110 MK III will discontinue the test sequence if the acceptable range for the 0.020 grams of ethanol per 210 liters of breath calibration check or the 0.080 grams of ethanol per 210 liters of breath calibration check is exceeded. ‘Calibration Checks Before and After Test — OK’ will be noted on the Certifícate of Breath Analysis to indicate the criteria for an acceptable calibration check was met.
“3. An internal diagnostic check is performed by the Draeger Alcotest 7110 MK III one hundred twenty eight (128) times per second. The Draeger Alcotest 7110 MK III will store in memory a record of the diagnostics test performed at the beginning and end of each test sequence. ‘Diagnostic Checks Before and After Test — OK’ will be noted on the Certificate of Breath Alcohol Analysis to indicate that no malfunction was detected.”

At trial, Officer Fillmore testified that the Draeger was the breath-testing device approved by the City of Brewton, and that he had been trained to operate the Drae-ger and had been issued a permit by the Department to operate the Draeger. Officer Fillmore testified that he followed the normal procedure for administering a Draeger breath test when he administered the test to Lum. Specifically, Officer Fillmore said that he subjected Lum to a 20-minute deprivation period before Lum gave a breath sample, during which Lum was not allowed to eat or drink anything; that he typed in all the relevant information for the testing sequence; that the device performed its internal calibration and diagnostic checks and indicated on the “Certificate of Breath Alcohol Analysis” that the checks both before and after the test were satisfactory; and that the test indicated that Lum’s blood-alcohol level was 0.08 percent. Officer Fillmore also testified that the Draeger device reports only the lowest result from two breath samples. During Officer Fillmore’s testimony, the City introduced into evidence the “Certificate of Breath Alcohol Analysis.” (C. 74.) The document lists all the information regarding the subject of the test and regarding the operator of the machine that is required to be typed into the device pursuant to Reg. 370-1-1-.01(4)(b). In addition, although the operator only inputs his or her permit number, the document, apparently based on the software programming in the device, also lists the expiration date of the permit number. The document also indicates that the internal calibration and diagnostic checks performed before and after the test were “OK.” (C. 74.) Finally, the document indicates that two breath tests were administered, but that only the lowest result is reported, and it indicates that result.

Both parties, as well as the Department, agree that caselaw regarding the admissibility of breath-test results from the Intox-ilyzer 5000 (“1-5000”), the predecessor device to the Draeger, and the photoelectric intoximeter (“P.E.I.”), the predecessor to the 1-5000, should be applied to the admissibility of breath tests from the Draeger to the extent that there must be evidence of the accuracy and reliability of the device, i.e., that the device was working properly when the test was administered, in order for the test results to be admissible. As to the nature of the evidence that must be presented to show that the device was working properly, however, Lum takes a different view than both the City and the Department. Lum argues that, like the requirement for admissibility of test results from the 1-5000, i.e., that evidence be presented indicating that the machine had been checked on a monthly basis, there must be evidence that the Draeger was certified annually and inspected semiannually before the test results are admissible. The City and the Department, on the other hand, argue that the admissibility requirements of the results of the Draeger are similar to the requirements for admissibility of the P.E.I., which did not require proof of periodic inspections because calibration checks were performed by the operator at the time of each breath test, in that the internal calibration checks that occur both immediately before and immediately after each breath test as well as the internal diagnostic checks that occur 128 times per second are sufficient evidence that the Draeger was in proper working condition at the time of the test and that, therefore, no evidence of annual certification and semiannual electronic inspections are necessary for admission of the test results. We agree.

It is well settled that for breath-test results to be admissible pursuant to § 32-5A-194, Ala.Code 1975, the following must be established: (1) that the law-enforcement agency involved has adopted the device that was in fact used, whether it be the P.E.I., the 1-5000, or the Draeger; (2) that the test was performed according to methods approved by the Department; and (3) that the person who administered the test had a valid permit issued by the Department. See Ex parte Bush, 474 So.2d 168 (Ala.1985).

In Ex parte Reed, 492 So.2d 293 (Ala.1986), the Alabama Supreme Court addressed an argument identical to Lum’s, but with respect to breath-test results from the P.E.I.; the Court stated:

“Defendant initially contends that the State failed to lay the proper predicate for the admission of the P.E.I. test results, since it did not show that the test equipment had been periodically inspected by an agent of the State Board of Health. Defendant cites this Court to the case of Patton v. City of Decatur, 337 So.2d 321, 322-23 (Ala.1976), for the proposition that the State must show that the test was performed according to the methods approved by the State Board of Health. He then relies on the following rule of the State Board of Health:
“ ‘420-1-1-.01 Breath
“ ‘(3) Methods Approved by the State Board of Health
“ ‘(a) There shall be a periodic inspection of each breath testing instrument. The inspection shall be conducted at reasonable time intervals set by the State Health Officer through the Technical Director.’
“Rules of State Board of Health, Rule 420-1-1-01(3).
“In Ex parte Bush, 474 So.2d 168 (Ala.1985), this Court addressed the issue of what elements were necessary to lay the proper predicate for admissibility of the P.E.I. test results. There we said:
“ ‘This predicate may be established by showing, first, that the law enforcement agency has adopted the particular form of testing that was in fact used. Alabama Code 1975, § 32-5A-192(a) [sic, § 32-5-192(a) ]. See Estes v. State, 358 So.2d 1050 (Ala.Crim.App.), cert. denied, 358 So.2d 1057 (Ala.1978). Second, there must be a showing that the test was performed according to methods approved by the State Board of Health. Alabama Code 1975, § 32-5A-194(a)(l). See Commander v. State, 374 So.2d 910 (Ala.Crim.App.1978). This may be proved by the introduction of the rules and regulations the officer followed while administering the test and the officer’s testimony that he did, in fact, follow those rules when he administered the test in question. Parker v. State, 397 So.2d 199 (Ala.Crim.App.1981). Patton v. City of Decatur, 337 So.2d 321 (Ala.1976). Third, there must be a showing that the person administering the test has a valid permit issued by the State Board of Health for that purpose. Alabama Code 1975, § 32-5A-194(a)(l).’
474 So.2d at 170.
“It is under the second element of the Bush predicate that defendant contends that the State needed to show a periodic inspection of the testing equipment as part of the predicate. However, we believe that imposing such a requirement for admissibility is not justified by our previous cases on the subject, the applicable statutes, or the rules of the State Board of Health.
“In Bush, we held that it was not a necessary part of the predicate for the admissibility of the P.E.I. test results that the State show that the person who had previously calibrated the test equipment was certified by the State Board of Health. After reviewing the applicable statutes, § 32-5A-194 and § 32-5-192(a), Code 1975, and the rules promulgated by the State Board of Health, we held that such a showing would be ‘superfluous, since the accuracy of the test results depends upon the final calibration by the administrator of the test, and not the previous calibrator.’ Bush, supra. Bush emphasized that the accuracy of the test results depends upon the final calibration by the test operator at the time the test is given. It is therefore the ‘methods approved by the State Board of Health’ for the point in time that the test is given that must be shown by the State as part of the predicate for admissibility.
“The methods established by the State Board of Health with respect to the point in time of the administering of the P.E.I. test is found in the following rule:
“ ‘(3) Methods Approved by the State Board of Health
“ ‘(b) Approval of Instrumentation.
“ ‘1. Photo-electric Intoximeter. The approved procedure, technique, or method of operation appears on the Photo-electric Intoximeter Operating Record Card.’
“Rules of State Board of Health, Rule 420-l-l-.01(3)(b). The clear import of this rule is that the test operator must follow the method or procedure outlined on the ‘operating record card’ when administering the P.E.I. test. It is this method, stated on the operator’s card, which the test operator must testify to in order to satisfy the predicate for admissibility of the P.E.I. test results. Therefore, there is no need for the State to offer testimony concerning a periodic inspection of the testing equipment in order to lay the predicate for admissibility of the P.E.I. test results.”

492 So.2d at 294-95.

As in Ex parte Reed, Lum’s argument centers on the second element of the statutory predicate for admission of breath-test results: that the test be performed according to methods approved by the Department. Lum does not challenge the first or third elements of the statutory predicate, and the record reflects that the State established each of those elements. Officer Fillmore testified that the Draeger had been specifically approved by the City of Brewton as its breath-testing device and that he had a permit from the Department to operate the Draeger. The only question in this case, as in Ex parte Reed, is whether the annual certification and semiannual inspections contained in Reg. 370-1 — 1—.02(2) are part of the “methods” approved by the Department that must be proven for admission of the breath-test results. We hold, as the Supreme Court did in Ex parte Reed, that they are not; it is the methods for the point in time the test is given that must be shown as part of the statutory predicate for admissibility. As noted in Reg. 370-l-1.01(4)(b), the approved methods for the Draeger device for the point in time that the test is administered are contained within the device’s computer software, which, upon initiation of a testing sequence, automatically requires the operator to input certain information and then performs internal calibration and diagnostic checks.

We recognize that, when Alabama began using the 1-5000, the Alabama Supreme Court held that for 1-5000 breath-test results to be admissible proof that the device had been inspected on a monthly basis was necessary. However, the Court did so because of the differences between the P.E.I. and 1-5000 devices; the Court stated, in relevant part:

“In numerous cases, this Court and the Court of Criminal Appeals have addressed the requirements for admission of evidence of chemical tests for intoxication. For cases holding that no proper predicate was laid, see, e.g., Commander v. State, 374 So.2d 910 (Ala.Cr.App.1978), cert. quashed, 374 So.2d 921 (Ala.1979); Webb v. State, 378 So.2d 756 (Ala.Cr.App.1979), cert. denied, 378 So.2d 758 (Ala.1979); McGough v. Slaughter, 395 So.2d 972 (Ala.1981); Whetstone v. State, 407 So.2d 854 (Ala.Crim.App.1981); Moore v. State, 442 So.2d 164 (Ala.Cr.App.1983); Kent v. Singleton, 457 So.2d 356 (Ala.1984); Ex parte Reed, 492 So.2d 293 (Ala.1986); and Ex parte Curtis, 502 So.2d 833 (Ala. 1986). For cases holding that a proper predicate had been laid, see, e.g., Patterson v. State, 344 So.2d 543 (Ala.Cr.App.1977), cert. denied, 344 So.2d 547 (Ala.1977); Estes v. State, 358 So.2d 1050 (Ala.Cr.App.1977), cert. denied, 358 So.2d 1057 (Ala.1978); Bagony v. City of Birmingham, 365 So.2d 336 (Ala.Cr.App.1978); Parker v. State, 397 So.2d 199 (Ala.Cr.App.), cert. denied, 397 So.2d 203 (Ala.1981); Childress v. City of Huntsville, 459 So.2d 1008 (Ala.Cr.App.1984); Harper v. City of Troy, 467 So.2d 269 (Ala.Cr.App.1985); Ex parte Bush, 474 So.2d 168 (Ala.1985); Nagem v. City of Phenix City, 488 So.2d 1379 (Ala.Cr.App.1986); Brown v. City of Montgomery, 504 So.2d 748 (Ala.Cr.App.1987); Pate v. State, 512 So.2d 138 (Ala.Cr.App. 1987); Jemison v. State, 513 So.2d 47 (Ala.Cr.App.1987); Baker v. City of Huntsville, 516 So.2d 927 (Ala.Cr.App.1987); Sanders v. City of Birmingham, 542 So.2d 325 (Ala.Cr.App.1988); and Seewar v. Town of Summerdale, 601 So.2d 198 (Ala.Cr.App.1992).
“In none of the above-cited cases, however, was the argument made that the rules shown to have been adopted were insufficient to ensure accuracy and reliability. Most of the cases pertain either to blood tests or to breath tests administered on the photoelectric intox-imeter (P.E.I.) machine. Of the above-cited cases, only Baker and Sanders concerned Intoxilyzer 5000 '(‘1-5000’) machines. Pate involved the question whether the evidence showed that the officer who administered the P.E.I. test had performed step 18 of the procedures for that machine. The P.E.I. was more complex to operate than the 1-5000 is, and much of the litigation regarding it arose from the fact that it could be calibrated at the time of a breath test by the officer administering the test. Thus, in Bush, this Court held that it was not necessary to show that the person who performed monthly inspections was certified by the Board of Health, because any calibration performed by the inspector was superfluous, ‘since the accuracy of the test results is dependent upon the final calibration by the administrator of the test, and not the previous calibrator.’ 474 So.2d at 170. Similarly, Reed held that there was no need to show periodic testing of a P.E.I. machine because of the final calibration made by the officer administering the test. 492 So.2d at 294-95.
“By contrast, an 1-5000 machine cannot be calibrated by an inspector or an operator, and if it gives inaccurate readings it must be returned to a manufacturer-authorized repair facility. Thus, while the procedures for operating it are much simpler than the procedures for the P.E.I., the necessity'for ascertaining that it has given an accurate result in a particular test cannot be met by a showing that the officer administering the test has followed the operating rules promulgated by the Board of Health.
“There was evidence that, before and after a breath test, the 1-5000 sets itself to zero. Dr. Jensen explained that this was not an internal check for calibration or accuracy, but only the setting of a baseline to adjust for the presence of any alcohol in the air of the room. This setting to zero, according to Dr. Jensen, does not assure that the 1-5000 will accurately measure a breath sample. The DFS [Department of Forensic Sciences] witnesses did not contradict Dr. Jensen’s testimony in this regard. Based on this evidence, we hold that the Court of Criminal Appeals in Harris v. State, 601 So.2d 1099 (Ala.Cr.App.1991), erroneously followed Ex parte Reed, 492 So.2d 293 (Ala.1986), in holding:
“ ‘The State is not required to prove that the machine used for testing had been previously determined to be accurate and had been periodically inspected. Ex parte Reed, 492 So.2d [at] 294 (Ala.1986). Trooper Hall testified that the instrument checks itself, sets to zero, takes its sample, then resets to zero, thus establishing the internal accuracy checks. Hence, it was merely harmless error for the trial court to allow Hall to testify concerning the log.’
“601 So.2d at 1102 (emphasis added [in Ex parte Mayo]). Reed concerned a P.E.I. machine, which, as explained above, was calibrated by the operator at the time of a breath test. The error in the conclusion that the 1-5000 internally checked itself for accuracy was not apparent from the record in Harris (this Court quashed its writ of certiorari), but, now that the error is apparent from Dr. Jensen’s testimony, we overrule Harris to the extent that it relied on such a conclusion.
“... [T]he failure to verify the accuracy and reliability of the 1-5000 at each individual breath test makes the monthly inspection more critical. We contrast this situation with the situation involving the P.E.I. machine, which was calibrated each time a test was given, causing the Court to hold in Bush and Reed that this individualized calibration made the monthly inspection less important.
“... At a minimum, DFS should adopt ... particularized rules to ensure that the Intoxilyzer 5000 machines are effectively inspected for accuracy and reliability. If DFS chooses to adopt the procedures advocated by Mayo’s witness for testing the machine with a simulator at the time of a breath test and for administering two breath tests, the significance of any periodic inspections will decrease ....”

Ex parte Mayo, 652 So.2d 201, 205-09 (Ala.1994)(emphasis added).

It is clear from the testimony presented at trial as well as from the regulations of the Department that the Draeger is more akin to the P.E.I. than it is to the 1-5000. Unlike the situation with the I-5000, the fact that the person administering the test followed the operating rules of the Department for the point in time the test is given alone establishes that the Draeger has given an accurate result in a particular test. The Draeger device is entirely computerized and controlled by software; when a test sequence is initiated, the operator must follow a checklist, just as with the P.E.I., and input certain information, see Reg. 370-l-l-.01(4)(b). If any of the information is not properly input, the device aborts the testing sequence. In addition, the device performs a calibration check immediately before each breath test and immediately after each breath test, as well as internal diagnostic checks 128 times per second. Unlike the 1-5000, the calibration and diagnostic checks do not merely reset the device to zero, they actually check the device to make sure it is in proper working order. If either of the calibration checks or internal diagnostic checks indicates a problem with the device, the testing sequence is aborted and no test results will be produced. Under these circumstances, just as with the previous P.E.I., it would be superfluous to require that both the annual certifications and the semiannual inspections of the Draeger device be proven when it is clear that the accuracy of the test results from the Drae-ger depends on the calibration checks and internal diagnostic checks performed by the device itself at the time each breath test is administered. Therefore, we hold that proof of the annual certifications and semiannual inspections contained in Reg. 870-1-1-02(2) are not a necessary part of the statutory predicate for admission of breath-test results from the Draeger.

In this case, the record reflects that the City established the statutory predicate for admission of the test results. As noted above, Officer Fillmore testified that the City of Brewton had approved the Draeger as a breath-testing device and that he had a permit from the Department to operate the Draeger, thus satisfying the first and third elements of the statutory predicate. In addition, Officer Fillmore testified that he followed the normal procedure for administering the test — inputting the appropriate information and observing the appropriate 20-minute deprivation period — and that the certificate of analysis produced by the Draeger showed that the device was operating properly at the time of the test and that two breath tests had been administered, but only the lowest result was reported, thus satisfying the second element of the statutory predicate. We also note that the certificate of analysis that the City introduced into evidence also establishes the second and third elements of the statutory predicate by itself. The certificate specifically states that the person operating the machine had a valid permit from the Department. In addition, as noted above, the failure to follow the procedure contained in the device’s software, the procedure specifically approved by the Department in its rules, results in the device aborting the test sequence and not producing any results. Thus, the mere fact that the device produced the certificate with a test result shows that the methods approved by the Department in Reg. 370-1-1-.01 were followed in administering the test.

Because the City properly established the statutory predicate for admission of Lum’s test results from the Draeger, the trial court properly admitted those results into evidence.

H.

Lum also contends that the trial court erred in denying his motions for a judgment of acquittal, made at the close of the State’s case and at the close of all the evidence, because, he says, the evidence was insufficient to sustain his conviction for DUI. Specifically, Lum argues that without the results of the Draeger breath test, there was no evidence indicating that he was driving under the influence of alcohol. However, we have already determined in Part I of this opinion that the results from the Draeger breath test were properly admitted. Suffice it to say, the test results, along with Officer’s Fillmore’s observations of Lum, were more than sufficient to sustain Lum’s conviction for DUI. Therefore, the trial court properly denied Lum’s motions for a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      .Lum was charged in the alternative with violating § 32-5A-191(a)(l) (driving or being in actual physical control of a vehicle while “[tjhere is 0.08 percent or more by weight of alcohol in his or her blood”) and § 32-5A-191(a)(2) (driving or being in actual physical control of a vehicle while ''[u]nder the influence of alcohol”).

      . Lum was also convicted of speeding; however, he does not appeal his conviction for that offense.

      . Officer Fillmore testified that Lum told him that he could not perform the ”heel-to-toe” test because he had been injured in an accident.

      . We note that Lum also argues, as Issue III in his brief, that the trial court erred in not including in the record (and in denying his motion to supplement the record) a copy of the regulations of the Department of Forensic Sciences that was marked as an exhibit at trial, although not formally introduced into evidence. According to Lum, without a copy of these regulations, the record is incomplete and this Court cannot conduct an adequate review. However, courts may take judicial notice of the regulations of the Department of Forensic Sciences regarding breath-alcohol testing procedures, and we do so in this case. See, e.g., Vizzina v. State, 533 So.2d 652 (Ala. Crim.App.1987), aff’d, 533 So.2d 658 (Ala.1988); § 32-5A-194(a)(1), Ala.Code 1975.

      5. The Draeger Alcotest 7110 MK III and the Draeger Alcotest 7110 MK III-C are the same instrument. See Hill v. City of Florence, 874 So.2d 585, 587 (Ala.Crim.App.2003), and Kirby v. State, 874 So.2d 581, 584 (Ala.Crim.App.2003).

      . In its brief, the Department notes that, effective August II, 2003, it implemented new regulations "retiring the Intoxilyzer 5000” as an approved breath-testing device, rescinding Reg. 370-1-1.02 (relied on by Lum), and relegating the inspections and certifications of the Draeger device to an appendix to the regulations. (Department’s brief at pp. 12-13.)

      . The City introduced into evidence a photocopy of Officer Fillmore's permit without objection by Lum.

      . Officer Fillmore stated that right before Lum was about to give a breath sample, Lum said that he had belched and could not take the test. Officer Fillmore then aborted the testing sequence on the machine and initiated a second testing sequence, imposing another 20-minute deprivation period oñ Lum.

      9. In Ex parte Bush, 474 So.2d 168 (Ala.1985), the Court stated:
      "Nowhere in Alabama Code 1975, § 32-5A-194 or § 32-5-192(a), do we find the requirement that the person who merely calibrates the machine must be certified by the State Board of Health. Bush contends this requirement should be inferred, arguing that it is illogical to require certification of the person administering the test, but not the person who calibrates the machine. We are not persuaded by this argument.
      "The methods and procedures set by the State Board of Health require the certified operator who administers the PEI test to follow a checklist every time the test is given. This checklist includes the procedure for calibration of the photoelectric in-toximeter. Rules of State Board of Health Administration, Rule 420-l-l-.01(4)(Ap-pendix A). Thus, the machine’s final calibration is performed by the administrator of the test, who must be shown to be certified. To require that the person who had previously calibrated the machine be shown to be certified is therefore superfluous, since the accuracy of the test results is dependent upon the final calibration by the administrator of the test, and not the previous calibrator. Likewise, since the administrator of the test must be shown to have followed the methods required by the State Board of Health in the final calibration of the machine, it is equally superfluous to require a showing that the previous calibration was performed according to those methods. We therefore reject this additional requirement for the laying of a predicate for the admission of PEI test results into evidence.”
      474 So.2d at 170.

      . When the device aborts a testing sequence, it produces a certificate indicating that the test had been aborted. (C. 75.)

      . Because we hold that the City laid the statutory predicate for admission of the test results, we do not address Lum’s alternative argument that the City failed to establish the traditional evidentiary predicate.


author: BASCHAB, Judge.

text:
    Nicholas Deandra McKINNON v. STATE of Alabama.
    CR-02-1492.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.

      William T. Gaither, Eufaula, for appellant.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On May 17, 2002, the appellant, Nicholas Deandra McKinnon, pled guilty as a youthful offender based on two counts of first-degree robbery. The trial court sentenced him to serve concurrent terms of three years in prison, but split his sentences and ordered him to serve one year in prison followed by three years on probation. On January 24, 2003, the State filed a motion to revoke the appellant’s probation. After conducting a revocation hearing, the circuit court revoked the appellant’s probation. This appeal followed.

I.

The appellant argues that the circuit court could not revoke his probation before his probationary period began because he “was never given any rules or conditions of probation, either verbally or in writing, by either the Court or the probation officer.” (Appellant’s brief at p. 9.)

“[B]eyond any expressed condition of probation, there exists the implied condition that the probationer live and remain at liberty without violating the law. Moore v. State, 494 So.2d 198 (Ala.Cr.App.1986); Ellard v. State, 474 So.2d 743 (Ala.Cr.App.1984), aff'd, 474 So.2d 758 (Ala.1985).”

Weaver v. State, 515 So.2d 79, 82 (Ala.Crim.App.1987).

The circuit court revoked the appellant’s probation because he had been found in contempt of court during the trial of a codefendant. The record does not specifically state whether the appellant was held in civil or criminal contempt of court. However, the Committee Comments to Rule 33.1, Ala. R.Crim. P., state, in pertinent part:

“Rule 33 applies both to civil contempt proceedings and to criminal contempt proceedings, so long as the proceedings arise out of criminal cases. The general distinction between civil and criminal contempt is the purpose for which the punishment is imposed. Where the punishment operates prospectively, i.e., to coerce compliance with a lawful order of the court, the contempt is civil. The person being punished holds the keys to the jail and can gain release at any time by complying with the order. See Shillitani v. United States, 384 U.S. 364 (1966). On the other hand, a criminal contempt proceeding is intended to punish for accomplished, not contemplated or ongoing, conduct, e.g., a willful failure to comply with lawful orders of the court. Its purpose is to vindicate the dignity of the court. Criminal contempt is a criminal offense for ivhich a specific punishment is meted out, over which the defendant has no control. See United States v. Barnett, 376 U.S. 681 (1964).”

(Emphasis added.) During the revocation hearing, the appellant admitted that he had been sentenced to serve seven days in lockdown as a result of being found in contempt of court. Therefore, it appears that the appellant was guilty of a criminal contempt. “[C]riminal contempt is classified as a violation for purposes of the criminal Code because imprisonment may not exceed 30 days.” Johnson v. State, 675 So.2d 512, 513 (Ala.Crim.App.1995). A violation is “[a]n offense for which a sentence to a term of imprisonment not in excess of 30 days may be imposed.” § 13A-1-2(16), Ala.Code 1975. Because the appellant’s contempt was a violation of the criminal Code, by being found in contempt he violated an implied term of his probation, i.e., that he remain at liberty without violating any law. Accordingly, the appellant’s argument is without merit.

II.

The appellant also argues that the circuit court abused its discretion in finding that his contemptuous conduct justified revoking his probation. During the revocation hearing, the State presented evidence indicating that, after the appellant had been placed on probation, he testified in the case of one of his codefen-dants, Johnny Grace; that, on January 21, 2003, the appellant was subpoenaed to testify in the case of another codefendant, Kevin Allen McKinnon; that the appellant refused to testify in that proceeding and stated that he was invoking his Fifth Amendment rights; that the trial court in that case held the appellant in contempt of court, but the appellant still refused to testify; and that the appellant was slouching, was chewing gum, showed disrespect to the trial court in that case, and did not cooperate with the trial court. The appellant admitted that he had been found to be in contempt of court in that case and that he had been sentenced to serve seven days in lockdown. Therefore, there was sufficient evidence to reasonably satisfy the circuit court that the appellant had violated the terms and conditions of his probation by committing the new offense of contempt of court. Accordingly, the appellant’s argument is without merit.

For the above-stated reasons, we affirm the circuit court’s judgment.

AFFIRMED.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs in the result.

      . To the extent the appellant may challenge the sufficiency of the evidence to support his finding of contempt, this appeal is not the appropriate proceeding for raising such a challenge.