Green v. State

• Decision Date: 16 April 1998
• Docket Number: No. 97-KA-00132-SCT,97-KA-00132-SCT
• Citation: 710 So.2d 862
• Parties: Victor GREEN a/k/a Victor E. Green v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 862

710 So.2d 862

Victor GREEN a/k/a Victor E. Green v. STATE of Mississippi.

No. 97-KA-00132-SCT.

Supreme Court of Mississippi.

April 16, 1998.

Anthony J. Buckley, Laurel, for Appellant.

Michael C. Moore, Attorney General, Deirdre McCrory, Special Asst. Atty. Gen., Jackson, for Appellee.

Before SULLIVAN, P.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

¶1 On July 7, 1995, Victor Green was stopped by Officer Robby McLaurin of the Laurel Police Department for speeding and for improper passing. Officer McLaurin clocked Green going 65 miles per hour in a 30 miles per hour speed zone and observed Green engage in illegal passing. Upon approaching Green's vehicle, McLaurin stated that he could smell the impurities of alcoholic beverage coming out of the vehicle and he noticed that Green had watery bloodshot eyes. Green did not have a valid driver's license but produced a social security card instead. McLaurin further stated that as Green exited the truck, he "had to use the door for support because he was awfully bad intoxicated."

¶2 McLaurin performed the horizontal gaze and nystagmus (HGN) test, which Green failed. Thereafter Green refused to do the other standardized field sobriety tests and McLaurin informed Green that he was under arrest for driving without a license, speeding and improper passing. Green was transported to the Laurel Police Department, where he was informed of his rights "regarding the CMI Intoxilyzer test." ¹ After waiting ¶3 Because Green had no driver's license, McLaurin was unable to check his record through NCIC. However, McLaurin did find a prior offense on Green's skeleton record as well as a "second offense DUI" charged at the Laurel Police Department. Accordingly, McLaurin charged Green with felony DUI pursuant to Miss.Code Ann. § 63-11-30(1) (Supp.1995). McLaurin then processed Green, took photographs and fingerprints and placed him in jail. McLaurin then called an investigator to advise that Green had been charged with felony DUI and left the paperwork in the investigator's office so that the investigator could carry on with the case the following morning.

a period of 20 minutes, McLaurin administered the Model 5000 Intoxilyzer test and Green scored .266. McLaurin then advised Green that he had the right to make a telephone call for legal or medical help.

¶4 McLaurin testified that when he initially placed Green in handcuffs, Green was put under arrest for improper passing, no driver's license and a speeding violation. McLaurin further explained that he did not have to advise Green that he was in "investigative custody" for suspected DUI, because he (Green) was already under arrest for the other charges. McLaurin further acknowledged that he did not issue a uniform traffic ticket in this case.

STATEMENT OF THE CASE

¶5 On October 5, 1995, the Grand Jury of Jones County, Mississippi, indicted Green for the crime of felony DUI third offense, in violation of Miss.Code Ann. § 63-11-30(1) (Supp.1995). On January 21, 1997, Green was tried without a jury in the Jones County Circuit Court, Honorable Billy Joe Landrum presiding. Judge Landrum found Green guilty of felony DUI and sentenced him to one (1) year in the custody of the Mississippi Department of Corrections, and ordered him to pay a $2,000.00 fine as well as court costs. Green then filed a motion for new trial in the Jones County Circuit Court, which was denied. Aggrieved by the lower court's decision, Green appeals, by and through his attorney, Anthony J. Buckley, and raises the following issues:

I. WHETHER GREEN'S CONSENT TO THE INTOXILYZER 5000 WAS INVALID SINCE GREEN WAS NEVER PLACED UNDER FORMAL ARREST FOR SUSPECTED DUI.

II. THE FELONY DUI OFFENSE WAS NOT PROPERLY BEFORE THE CIRCUIT COURT SINCE THE ARRESTING OFFICER FAILED TO ISSUE A UNIFORM STANDARD TICKET FOR SUCH.

III. WHETHER OFFICER MCLAURIN'S FAILURE TO ADVISE GREEN OF HIS RIGHT TO OBTAIN AN INDEPENDENT CHEMICAL TEST RENDERED THE INTOXILYZER RESULT INADMISSIBLE.

LEGAL ANALYSIS

I. WHETHER GREEN'S CONSENT TO THE INTOXILYZER 5000 WAS INVALID SINCE GREEN WAS NEVER PLACED UNDER FORMAL ARREST FOR SUSPECTED DUI.

¶6 Green maintains that "in order to be subjected to the continuing custody necessary for a breath test, [the defendant] must actually have been charged with suspected D.U.I." Green further asserts that the results of the breath test should be suppressed because the officer failed to arrest Green for suspected DUI prior to administering the field sobriety tests and before offering the Intoxilyzer 5000 test. In support of his argument, Green cites an Alabama Court of Criminal Appeals case, McDaniel v. State, 526 So.2d 642 (Ala.Crim.App.1988), a Colorado Supreme Court case, People v. Carlson, 677 P.2d 310 (Colo.1984), and Miss.Code Ann. § 63-11-5(1). The Mississippi statute upon which Green relies states in pertinent part:

Any person who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or tests of his breath for the purpose of Miss.Code Ann. § 63-11-5(1) (1996) ² (emphasis added).

determining alcohol concentration.... The test or tests shall be administered at the direction of any highway patrol officer ... when such officer has reasonable grounds and probable cause to believe that the person was driving or had under his actual physical control a motor vehicle upon the public streets or highways of this state while under the influence of intoxicating liquor or any other substance which had impaired such person's ability to operate a motor vehicle....

¶7 Mississippi's statute requires the officer to have "reasonable grounds and probable cause" before administering a test to determine blood alcohol concentration. There is no authority in support of Green's contention that the officer must arrest the individual before administering the breath test. Conversely, this Court's decision in Ashley v. State, 423 So.2d 1311 (Miss.1982), is dispositive of the case at bar. In Ashley, this Court stated

[the defendant] had not been lawfully arrested when his blood was withdrawn for testing. However, our examination of the facts must not stop here. We must determine whether Officer Santacruz had probable cause to detain [the defendant] and order a blood test after he went to the hospital.

Id. at 1313 (emphasis added).

¶8 Furthermore, in Sheppard v. Mississippi State Highway Patrol, 693 So.2d 1326 (Miss.1997), the defendant argued that the officer did not follow proper procedure when he arrested the defendant prior to requesting that he submit to a breath test. Id. at 1329. The defendant in Sheppard maintained that this procedure was "in direct contradiction of precedent and statutory requirements." Id. In Sheppard, this Court referred to Miss.Code Ann. § 63-11-5 and stated

As a practical matter a driver has been stopped and usually brought to the jail, or other testing has occurred, before he is asked to submit to a sobriety test. Probable cause to believe that the person is impaired by a substance is required before the test may be requested.

Sheppard, 693 So.2d at 1329 (emphasis added).

¶9 The circumstances regarding the arrest in the case at bar are similar to those in this Court's decision in Longstreet v. State, 592 So.2d 16 (Miss.1991). As stated in Longstreet,

Officer Rose did not arrest Longstreet at the hospital. Longstreet was not arrested until the grand jury returned an indictment which was several weeks after the results of the blood test revealed a blood alcohol content of .13. Officer Rose testified that it was common practice to await the blood alcohol test results from the crime lab in Jackson before seeking an indictment in such cases.

Id. at 18. Longstreet argued that the blood sample test results should be inadmissible due to the Officer's failure to inform him that he had a right to refuse such. This Court held that the test results were admissible based on the fact that the blood search was legal because it was based upon probable cause. Id. at 21. Even though the specific issue regarding whether the defendant must be arrested prior to giving consent to the intoxilyzer was not addressed in Longstreet, the case is indicative of the Court's willingness to allow test results into evidence as long as the law enforcement officer had probable cause to request the test. Similarly, in the case at bar, Green was not arrested for felony DUI until after the intoxilyzer results were obtained and the Grand Jury returned the indictment.

¶10 Based on this Court's precedent, it is clear that an argument based on impropriety in the sequence of the testing and the arrest would not render the result inadmissible. Accordingly, as long as there is probable cause to believe that the person is impaired by some substance, the officer has acted in accordance with Mississippi statute, and consequently, the results of the blood alcohol concentration tests are admissible.

¶11 In the case at bar, Officer McLaurin indicated that he smelled alcohol when he approached Green's vehicle, that Green's eyes were watery and bloodshot, that Green had to steady himself by holding onto the door of the truck, and that Green failed the HGN test. Therefore, this Court finds that Officer McLaurin had sufficient information upon which to establish probable cause to believe that Green was impaired. Consequently, the trial court's decision is affirmed.

II. THE FELONY DUI OFFENSE WAS NOT PROPERLY BEFORE THE CIRCUIT COURT SINCE THE ARRESTING OFFICER FAILED TO ISSUE A UNIFORM STANDARD TICKET FOR SUCH.

¶12 Green points out that under the implied consent law, Miss.Code Ann. § 63-11-5(3), the traffic ticket issued to a person arrested for violation of the implied consent law shall conform to the requirements of the Uniform Ticket Law, Miss.Code Ann. § 63-9-21(3). Because no third offense Uniform Traffic Ticket was issued, Green...