Miller v. State

• Decision Date: 02 December 2014
• Docket Number: No. 2013–KM–01881–COA.,2013–KM–01881–COA.
• Citation: 152 So.3d 1184
• Parties: Stacy L. MILLER a/k/a Stacy Liddell Miller a/k/a Stacy Miller, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

152 So.3d 1184

Stacy L. MILLER a/k/a Stacy Liddell Miller a/k/a Stacy Miller, Appellant

v.STATE of Mississippi, Appellee.

No. 2013–KM–01881–COA.

Court of Appeals of Mississippi.

Dec. 2, 2014.

Mark Kevin Horan, Greenwood, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before IRVING, P.J., FAIR and JAMES, JJ.

Opinion

JAMES, J., for the Court:

¶ 1. Stacy Miller was charged with driving under the influence of alcohol after being stopped at a license checkpoint and registering a .10% blood-alcohol concentration (BAC) on the Intoxilyzer 8000. After being convicted as a first-time offender in justice court, Miller appealed to the Circuit Court of Montgomery County, Mississippi. The circuit court affirmed his conviction, and he was sentenced to pay a fine of $550.50 plus court costs and to forty-eight hours in jail, to be suspended upon the payment of the fine and court costs. Miller appeals raising the following issues: (1) whether the trial court erred in holding that the officer had probable cause to administer the portable breathalyzer; and (2) whether the trial court erred in failing to exclude the intoxilyzer results.

FACTS

¶ 2. The Montgomery County Sheriff's Department and the Mississippi Highway Patrol were conducting a license checkpoint on Mississippi Highway 407 in the Poplar Creek area of Montgomery County on July 5, 2012. Miller arrived at the checkpoint around 9:30 p.m. Mississippi Highway Patrol Trooper Josh McBride encountered Miller at the checkpoint. Trooper McBride testified that he asked for Miller's driver's license and he noticed several empty beer containers on the driver's floorboard. Trooper McBride also smelled a strong order of alcohol in the car and then inquired about Miller's alcohol consumption.

¶ 3. Miller admitted that he, along with a few friends, had gone fishing and had several beers. Trooper McBride then offered Miller a portable breath test. Miller submitted to the breath test, which detected alcohol, and Trooper McBride ordered Miller out of the vehicle. When Miller stepped out, Trooper McBride testified that Miller seemed to be unsteady on his feet. Trooper McBride then noted that there was a strong alcohol odor emanating from Miller's person, and Miller was transferred to Montgomery County Emergency Operations Center. Miller was then tested on the Intoxilyzer 8000 around 10:15 p.m. Miller registered a .10% BAC and was charged with driving under the influence of alcohol.

¶ 4. Miller was convicted in justice court and appealed to the Circuit Court of Montgomery County. The circuit court also found Miller guilty, and he was ordered to pay a fine of $550.50 plus court costs, and was sentenced to forty-eight hours in jail, with the jail time suspended upon payment of the fine and court costs.

¶ 5. Miller appeals.

STANDARD OF REVIEW

¶ 6. When reviewing the results of a bench trial, “[a] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.”Mason v. State, 799 So.2d 884, 885 ( ¶ 4) (Miss.Ct.App.2001). “In a bench trial, the trial judge is the jury for all purposes of resolving issues of fact.” Lindley v. State, 143 So.3d 654, 657 ( ¶ 11) (Miss.Ct.App.2014). The appellate court “will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong.” Sendelweck v. State, 101 So.3d 734, 739 ( ¶ 19) (Miss.Ct.App.2012). “Decisions regarding the admissibility of evidence will be reversed only if the trial court has abused its discretion.” Drabicki v. City of Ridgeland, 130 So.3d 113, 115 ( ¶ 7) (Miss.Ct.App.2013).

DISCUSSION

I. Whether the trial court erred in holding that the officer had probable cause to administer the portable breathalyzer.

¶ 7. Miller argues that no probable cause existed to administer the portable breathalyzer test. Miller also asserts that the trooper's observation that he “appeared” to be very intoxicated does not meet the threshold required for probable cause.

¶ 8. Sufficient evidence exists to establish probable cause for Trooper McBride to administer the portable breathalyzer test. First, Trooper McBride smelled alcohol in the car and saw open beer containers on the floorboard. Second, Trooper McBride noted that Miller's eyes were “red and glassy,” an indication of intoxication. Also, Miller admitted to drinking several beers earlier in the day while fishing with friends. Finally, once Miller stepped out of the vehicle, Trooper McBride noted that Miller seemed to be “unsteady on his feet,” and he smelled alcohol on Miller's person. We have previously stated that “[t]here is a long line of precedent in Mississippi which holds the smell of alcohol emanated from a car is enough to provide an officer with probable cause to make an arrest.” Dale v. State, 785 So.2d 1102, 1107 ( ¶ 16) (Miss.Ct.App.2001). In Deloach v. City of Starkville, 911 So.2d 1014, 1017 ( ¶ 12) (Miss.Ct.App.2005), we held that an officer's testimony about the defendant's appearance and behavior and the defendant's statement to the police were sufficient to establish a prima facie case for common-law driving under the influence.

¶ 9. Miller also attributes the fact that Trooper McBride did not administer “roadside tests” to a lack of probable cause. Field sobriety tests “may create probable cause to arrest for driving under the influence.” Edwards v. State, 795 So.2d 554, 563 ( ¶ 34) (Miss.Ct.App.2001). There were several other factors previously discussed that attributed to Trooper McBride's conclusion that Miller was driving under the influence. Field sobriety tests are not the only tools available to law enforcement when determining if an individual is under the influence. Therefore, this issue is without merit.

II. Whether the trial court erred in failing to exclude the intoxilyzer results.

¶ 10. Miller contends that the results from the Intoxilyzer 8000 are unreliable. According to Miller, although calibration certificates are admissible as nontestimonial evidence, when there is a genuine issue of authenticity of the certificate, the State must present the calibrating officer for testimony and an opportunity for cross-examination. Miller next argues that there is no evidence that the Intoxilyzer 8000 had been calibrated on-site as required by statute.

¶ 11. Miller cites Mississippi Code Annotated section 63–11–19 (Rev. 2013):

The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of the methods, machines or devices used in making chemical analysis of a person's breath as shall be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the accuracy of the same.

The statute requires periodic calibration tests of machines similar to the Intoxilyzer 8000. We have previously stated, however, that “[t]his statute ... is not a rule of evidence, so that evidence otherwise admissible will not be excluded because of failure to comply with the statute.” Hudspeth v. State, 28 So.3d 600, 603–04 ( ¶ 12) (Miss.Ct.App.2009).

¶ 12. We have also...