"It is therefore well settled by our decisions that it is not permissible to show that a defendant was drinking, or under the influence of intoxicating liquors, a substantial time after the commission of an offense, unless it first be shown that the defendant had no access to such liquor between the time of the offense and the time he was observed. Moates v. State, 40 Ala. App. 234, 115 So.2d 277; Blevins v. State, 38 Ala. App. 584, 90 So.2d 98; Gamble v. State, 36 Ala. App. 581, 60 So.2d 696; Rainey v. State, 31 Ala. App. 66, 12 So.2d 106; Phillips v. State, 25 Ala. App. 286, 145 So. 169; Turner v. State, 26 Ala. App. 397, 160 So. 774. "When the defense objected to the questions seeking testimony as to appellant's condition of sobriety, the solicitor informed the court he expected to introduce statements or admissions against interest made by the appellant at the time of his interview, and the questions therefore sought evidence going to the credibility of such admissions.

In contrast, where there is a gap between the operation of the vehicle and the test during which the defendant is not in custody or otherwise supervised, evidence that he was drunk when arrested has been held insufficient to show he was drunk when he was driving, particularly when there was little or no evidence of intoxication at the earlier time. United States v. DuBois, 645 F.2d 642 (8th Cir. 1981); State v. Dodson, 496 S.W.2d 272 (Mo.App. 1973); Blevins v. State, 38 Ala. App. 584, 90 So.2d 98 (1956). However, if the defendant had no access to alcohol or denies drinking during the gap, evidence may be admitted showing that the defendant was drunk when arrested and the jury may then weigh the materiality of the "gap."

The length of time between the actual driving incident and the blood test, while not fatal to the test, does place an additional burden on the State to insure that nothing occurred in the interim to influence the test. State v. Guthrie, 85 S.D. 228, 180 N.W.2d 143; State v. Hamer, 223 Iowa 1129, 274 N.W. 885; Blevins v. State, 38 Ala. App. 584, 90 So.2d 98. [4,5] Respondent's argument that this was an actual consent instead of an implied consent, is not persuasive. The actual consent was given after he had been read the alternative to consent under the implied consent law of losing his drivers permit for one year.

McClusky v. State, 209 Ala. 611, 96 So. 925. Under the evidence charge 3 was due to be given for defendant. McBryde v. State, 156 Ala. 44, 47 So. 302. Testimony that thirty minutes after the shooting defendant appeared to be intoxicated or was drinking was erroneously admitted, there being no evidence that from the time of the shooting until the time referred to defendant had had no access to alcohol. Blevins v. State, 38 Ala. App. 584, 90 So.2d 98. John Patterson, Atty. Gen., and Robt. C. Dillon, Asst. Atty. Gen., for the State.

"It is therefore well settled by our decisions that it is not permissible to show that a defendant was drinking, or under the influence of intoxicating liquors, a substantial time after the commission of an offense, unless it first be shown that the defendant had no access to such liquor between the time of the offense and the time he was observed." Moates v. State, 40 Ala. App. 234, 115 So.2d 277; Blevins v. State, 38 Ala. App. 584, 90 So.2d 98; Gamble v. State, 36 Ala. App. 581, 60 So.2d 696; Rainey v. State, 31 Ala. App. 66, 12 So.2d 106; Phillips v. State, 25 Ala. App. 286, 145 So. 169; Turner v. State, 26 Ala. App. 397, 160 So. 774. Montgomery v. State, 44 Ala. App. 129, 203 So.2d 695, 696 (1967) (quoting Kelso v. State, 40 Ala. App. 627, 119 So.2d 916 (1960)).

Moates v. State, 40 Ala. App. 234, 237, 115 So.2d 277, cert. denied, 269 Ala. 698, 115 So.2d 283 (1959) (emphasis added). In the following cases, evidence of the accused's intoxicated condition was inadmissible because a "substantial" period of time had passed after the offense and it was not shown that the accused had no access to intoxicating liquors in the meantime: Montgomery v. State, 44 Ala. App. 129, 131, 203 So.2d 695 (1967) (under particular circumstances, 15-20 minutes "border line"); Blevins v. State, 38 Ala. App. 584, 585, 90 So.2d 98 (1956) (twenty to thirty minutes); Gamble v. State, 36 Ala. App. 581, 582, 60 So.2d 696 (1952) (25 or 30 minutes); Rainey v. State, 31 Ala. App. 66, 67, 12 So.2d 106 (1943) (1 1/2 hours); Phillips v. State, 25 Ala. App. 286, 287, 145 So. 169 (1932) ("some time"). See also Briley v. State, 21 Ala. App. 473, 109 So. 845 (1926) (the fact that the accused was drunk or drinking 24 hours after the homicide, "without evidence showing continuation back to time of the act, is not a part of the res gestae, and is inadmissible in evidence"); Goodman v. State, 20 Ala. App. 392, 394, 102 So. 486 (1924) (fact that accused was intoxicated and had whiskey in car when arrested more than one hour after accident "were too remote and unconnected with the accident to be a part of the res gestae").

Although innocuous testimony furnishes no basis for a reversal, Duchac v. State, 52 Ala. App. 327, 292 So.2d 135, cert. denied, 292 Ala. 251, 292 So.2d 139 (1974), where illegal evidence has been admitted, a reversal must follow, unless the court can clearly see that the illegal evidence could not have prejudiced the defendant. Jackson v. State, 52 Ala. 305 (1875); Blevins v. State, 38 Ala. App. 584, 90 So.2d 98 (1956); Capps v. State, 29 Ala. App. 192, 194 So. 689, cert. denied, 239 Ala. 221, 194 So. 693 (1940). "In deciding whether error is prejudicial, we may not merely determine that other evidence presented is sufficient for conviction and then disregard the illegal evidence. If this was the case, prosecutors could fill the record which all types of prejudicial hearsay, irrelevant and unpredicated material, and never suffer a reversal if in addition thereto they made out a prima facie case.

These facts differentiate State v. Dodson, 496 S.W.2d 272 (Mo.App. 1973), where there was no proof that defendant was intoxicated at the time he was driving his automobile which was approximately one hour prior to the time defendant was arrested at his home. There was no evidence in Dodson that defendant had been driving his vehicle immediately prior to his arrest, nor any circumstances permitting a legitimate inference that he had been doing so, as is the case here. Cases such as Blevins v. State, 38 Ala.App. 584, 90 So.2d 98 (Ala.App. 1956), where some time after defendant was first seen driving he was "drunk", (held, insufficient to support the conviction because it was some time after the alleged offense had been committed) are, on the facts, likewise distinguishable. Cases such as those cited in Dodson, particularly State v. Liechti, 209 Iowa 1119, 229 N.W. 743 (1930), condemning a backward travelling presumption, are also inapplicable, because there is no need, under the proven facts and circumstances permitting an inference of driving in the present while intoxicated, to apply any retroactive presumption.

Welch v. State, 28 Ala. App. 273, 183 So. 879; Ford v. State, 33 Ala. App. 134, 30 So.2d 582. The admission of illegal evidence raises a presumption of injury necessitating reversal of the judgment unless the remaining evidence is without conflict and is sufficient to sustain the judgment. Blevins v. State, 38 Ala. App. 584, 90 So.2d 98; Halford v. State, 24 Ala. App. 540, 137 So. 679. Where the only language in the judgment entry relating to an adjudication of guilt of the defendant is a statement by the court sentencing the defendant to serve a specified sentence, it is insufficient to imply a valid adjudication of the defendant's guilt and to sustain a conviction on appeal. Wells v. State, 19 Ala. App. 403, 97 So. 681; Blakely v. State, 28 Ala. App. 574, 190 So. 102. William J. Baxley, Atty. Gen., and John A. Yung, IV, Asst. Atty. Gen., for the State.

It is therefore well settled by our decision that it is not permissible to show that a defedant was drinking, under the influence of intoxicating liquors, a substantial time after the commission of an offense, unless it first be shown that the defendant had no access to such liquor between the time of the offense and the time he was observed. Moates v. State, Ala.App., 115 So.2d 277; Blevins v. State, 38 Ala. App. 584, 90 So.2d 98; Gamble v. State, 36 Ala. App. 581, 60 So.2d 696; Rainey v. State, 31 Ala. App. 66, 12 So.2d 106; Phillips v. State, 25 Ala. App. 286, 145 So. 169; Turner v. State, 26 Ala. App. 397, 160 So. 774. Ant, p. 234.