Fisher v. City of Eupora

• Decision Date: 18 September 1991
• Docket Number: 89-KA-1067,Nos. 89-KA-1066,s. 89-KA-1066
• Parties: Lenard Ray FISHER v. CITY OF EUPORA. Larry D. WALLS v. CITY OF EUPORA.
• Court: Mississippi Supreme Court

Page 878

587 So.2d 878

Lenard Ray FISHER v. CITY OF EUPORA.

Larry D. WALLS v. CITY OF EUPORA.

Nos. 89-KA-1066, 89-KA-1067.

Supreme Court of Mississippi.

Sept. 18, 1991.

Jan R. Butler, Butler & Butler, Eupora, for appellants.

George M. Mitchell, Jr., Fortner & Mitchell, Eupora, for appellee.

Before ROY NOBLE LEE, C.J., SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

This appeal involves two cases which have been consolidated. The appellants, Lenard Fisher and Larry Walls, were found guilty of separate charges of DUI in violation of Miss.Code Ann. Sec. 63-11-30(1)(c) in the Municipal Court of Eupora on August 30, 1988, and October 11, 1988, respectively. Both appealed to the Webster County Circuit Court where their cases were tried de novo. In each case, the jury returned a verdict of guilty. The court sentenced each to nine months in the county jail. Both have appealed.

FACTS

LENARD FISHER

On August 13, 1988, Officers Wells and Bowles of the City of Eupora Police Department received a bulletin from the Sheriff's office that Lenard Fisher was on his way to Eupora from Walthall and that he was intoxicated. He was said to be driving an old green Ford pickup and it was thought that he was heading to the hospital.

Approximately five minutes later, the officers saw the truck at the red light located at Highway 9 and Fox Avenue. The truck turned east on Fox Avenue and entered the Foodway parking lot. The officers saw Fisher get out of the truck and try to get into another vehicle in the parking lot. Fisher was talking to the man in the other vehicle.

Fisher was acting in an uncoordinated manner. He had to hold onto vehicles, his speech was slurred, his eyes were bloodshot, and he smelled strongly of alcoholic beverages. The officers asked him if he was going to the hospital and he said he was not. They decided that he was intoxicated and placed him under arrest. The officers searched the truck but found no liquor. Fisher made the statement that he had just rinsed his mouth out with Listerine. The officers did in fact find some Listerine in the truck.

The arrest took place at approximately 3:25 p.m. Fisher was handcuffed and placed in the back seat of the patrol car. The events in the parking lot leading to the arrest took about eight or ten minutes. Fisher was not out of the officers' range of vision during that period. The officers said that Fisher did not take any sustenance or regurgitate.

Fisher was taken to the Webster County Jail. Officer Wells did the driving while Officer Bowles kept Fisher under observation. After arriving at the jail, the officers watched Fisher some more and then tested him on the intoxilyzer machine at 3:40 p.m. The reading obtained from testing Fisher as to his blood alcohol content was .24%.

LARRY WALLS

On September 9, 1988, Officer Bowles of the City of Eupora Police Department, while travelling on Highway 9, noticed a vehicle pass which had no tail lights. He pulled the vehicle over at the Cotton Boll restaurant. As the individual inside the car stepped out, he staggered. He had trouble finding his driver's license because of impaired coordination. Officer Bowles noticed that the individual smelled strongly of intoxicants and had red eyes. He placed the individual, Larry Walls, under arrest.

Walls was placed in the back seat of the patrol car and taken to the Webster County Sheriff's Department. It took about two minutes to get there. After arriving at the At the end of the twenty minute waiting period, Walls was tested on the intoxilyzer. The reading obtained from testing Walls as to his blood alcohol content was .17%.

Sheriff's Department, Officer Bowles observed Walls for twenty minutes. Officer Kevin Wells was with him during that period. Walls did not take any sustenance during that period nor did he regurgitate.

LAW

Fisher assigns five issues as error. Walls appeals four of those same issues.

I. MAY AN ACCUSED BE CONVICTED OF DRIVING A MOTOR VEHICLE WHILE HAVING A BLOOD ALCOHOL CONTENT OF .10 PER CENT OR GREATER BASED UPON A BREATH TEST GIVEN WITH LESS THAN A FIFTEEN MINUTE OBSERVATION PERIOD FROM THE TIME OF ARREST WHEN THE TESTING PROCEDURES REQUIRE A TWENTY MINUTE OBSERVATION PERIOD?

Only Fisher appeals this issue. He contends that he was not under observation for the twenty minute period required before administration of a breath test since he was placed under arrest at 3:25 p.m. and the test was given at 3:40 p.m., a period of only fifteen minutes. His contention is actually twofold: that he was not observed for twenty minutes and that the observation was not continuous.

Officer Bowles testified that the mandatory observation period of a person charged with driving under the influence before administration of a breath test is twenty minutes. The operational checklist which is filled out by the intoxilyzer operator includes the statement, "No test shall be given to any person within 20 minutes after regurgitation or consumption of any substance by mouth." Miss.Code Ann. Sec. 63-11-5 (Rev.1990) states that the test shall not "be given by any officer or any agency to any person within fifteen (15) minutes of consumption of any substance by mouth."

The states which have enacted a DUI law prescribe either a fifteen minute or twenty minute waiting period during which the person charged with driving under the influence should be observed. Some courts have held that strict compliance with the observation period is necessary. Hawaii has held that the required observation period "has a direct bearing on the validity and accuracy of the test result and must be strictly complied with." State v. Takahaski, 7 Haw.App. 627, 630, 789 P.2d 1133, 1135 (1990). Texas has said that a fact issue is created where the officer did not watch the mouth of the defendant during the observation period. Gifford v. State, 793 S.W.2d 48 (Tex.App.1990).

Other courts have applied a less strict standard. In Goode v. State, 303 Ark. 609, 798 S.W.2d 430 (1990), the defendant was stopped by a deputy who administered a series of field sobriety tests. The defendant was placed under arrest at 11:27 p.m., read his rights, handcuffed and placed in the back seat of the police car. The deputy then left the defendant for two or three minutes to inspect the defendant's car which was to be towed. After inspecting the car, the deputy got in the car with the defendant and waited for the tow truck to arrive. The drive to the sheriff's office took seven to ten minutes. The test was administered at 12:16 a.m.

The deputy testified that the observation time began when the defendant was handcuffed and placed in the car. The Arkansas court held that the deputy's testimony made a prima facie showing of substantial compliance with the Arkansas regulation requiring continuous observation for twenty minutes since "[t]he officer is not required to stare fixedly at the arrested person for the entire time in order to comply with the 20-minute regulation." Goode, 798 S.W.2d at 433.

The Kentucky Court of Appeals has labeled the twenty minute period the "eyeball" rule. In Tipton v. Commonwealth, 770 S.W.2d 239 (Ky.1989), the Court said that the fact that the officer never left the presence of the defendant during the twenty minutes was enough to establish continuous observation. "[S]o long as the officer can observe by a presence-sense perception In State v. Smith, 16 Conn.App. 156, 547 A.2d 69 (1988), the defendant argued that he was not under continuous observation because the officer was involved in other activities during that time, i.e., driving the car, preparing the intoximeter, and filling out paperwork. The Connecticut court said that drinking, eating, smoking, and regurgitating are activities which can be perceived by the officer as long as the defendant is in his presence. To require an officer to stare at the defendant during the whole of the observation period "would not only be practically impossible to perform but would allow a subject to thwart compliance with the regulation simply by turning his head away from the observing officer." Smith, 547 A.2d at 73.

of the arrestee, the standard operating procedures are met." Tipton, 770 S.W.2d at 242.

In Gilbreath v. Municipality of Anchorage, 773 P.2d 218 (Alaska 1989), the defendant's car was stuck in the snow. After he was arrested, the officers helped push his car out of the snow. They included this time in the observation period. The court said that a disagreement about compliance with the period goes to the weight of the evidence. Thus, the defendant could argue this issue to the jury.

Illinois has also held that the requirement as to the observation period is met as long as the defendant is in the presence of the officer. In the case In re Ramos, 155 Ill.App.3d 374, 108 Ill.Dec. 323, 508 N.E.2d 484 (1987), the officer observed the defendant for the twenty minute period but then had to reset the machine prior to performing the test. The officer's attention was focussed on the machine during the six minutes it took to reset the machine. The defendant argued that this was not continuous observation. The court said that the six minutes was not a serious failure to comply with the requirement since the defendant was in the presence of the officer.

The length of time that a person charged with driving under the influence must be observed prior to the administration of the breath test is mandatory. In Mississippi, by statute, that length of time is fifteen minutes; however, police procedure requires that the person be observed for twenty minutes. The observation itself can be performed as long as the defendant is in the presence of the officer. The officer is not required to stare at the defendant for the observation to be effective. A dispute as to whether the observation lasted the mandatory length of time or whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the...