Gregg v. State

• Court: Mississippi Supreme Court
• Writing for the Court: BROOM; PATTERSON
• Citation: Gregg v. State, 374 So.2d 1301 (Miss. 1979)
• Decision Date: 19 September 1979
• Docket Number: No. 51428,51428
• Parties: Harold D. GREGG v. STATE of Mississippi.

Page 1301

374 So.2d 1301

Harold D. GREGG v. STATE of Mississippi.

No. 51428.

Supreme Court of Mississippi.

Sept. 19, 1979.

Jackson M. Brown, Starkville, for appellant.

A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, BROOM and COFER, JJ.

BROOM, Justice, for the Court:

Blood test results were admitted into evidence (over objection) in the Circuit Court of Oktibbeha County wherein the appellant Harold D. Gregg, Jr. (defendant herein) was convicted of manslaughter. The indictment charged him with culpable negligence in operating an automobile upon a public highway thereby causing the death of Randy Kemp. Sentenced to nine years' imprisonment, defendant Gregg appeals. We affirm.

Testimony in the record establishes that on May 18, 1978, the defendant, traveling in a westerly direction on Highway No. 12 in Oktibbeha County, unlawfully crossed over the centerline into the lane of oncoming traffic and collided with a car coming from the opposite direction (West to East). Randy Kemp, a passenger in the oncoming car, was killed in the collision. Several witnesses established that in driving a pickup truck, the defendant had passed a third vehicle and gotten back into his proper traffic lane. Then he zigzagged across the centerline from his proper lane of travel into the South lane (his wrong land) of travel provided for eastbound traffic where the collision occurred.

Several law officers promptly arrived at the scene of the collision which occurred about 8:00 or 8:30 p. m. at night. Policeman Edmonds testified that when he arrived at the scene, he saw the defendant standing on the shoulder of the road propped up on a car. Edmonds testified that the defendant voluntarily stated that he was the driver of the pickup. According to Edmonds, the defendant Gregg smelled of alcohol, had a thick tongue, and had "trouble standing". This officer established that the weather was clear and dry. He said that it was his opinion that the defendant, who kept falling down, was intoxicated. At the scene, the defendant was given his rights after which he was arrested by Officer Edmonds.

Officer Sisk, on the night of the accident, appeared before William D. Eshee, Municipal Judge of Starkville, Mississippi, and made affidavit for a search warrant to obtain blood from the person of the defendant. After obtaining a search warrant, the officers went to the Oktibbeha County Hospital where a medical technologist, Jane Snodgrass, withdrew blood from the defendant who had refused to sign a consent form. She stated that the defendant did not appear to be intoxicated but that she didn't pay much attention to him. An expert, Dr. Arthur Hume of the Mississippi State Crime Laboratory, tested the blood extracted from the defendant for alcohol. Using a scientifically accepted test, he determined that the defendant's blood contained 0.344 percent ethyl alcohol by weight. The results of his tests were placed into evidence over objection, and after the trial court overruled the defendant's motion to suppress.

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE RESULTS OF THE TEST MADE ON THE BLOOD EXTRACTED FROM THE DEFENDANT? The defendant argues here that the search warrant issued to search his person is void and therefore the results of the search (blood extraction and test) are inadmissible. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) held:

(T)hat that attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. (384 U.S. at 771, 86 S.Ct. at 1836).

On this basis, the U.S. Supreme Court said that the extraction of the blood without a search warrant but as incident to a lawful arrest was proper. The stated reason was that the investigating officer might reasonably have believed that he was confronted with an emergency in which the delay necessary

(T)o obtain a warrant, under the circumstances, threatened "the destruction of evidence," Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, (883, 11 L.Ed.2d 777, 780.) We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. (384 U.S. at 770, 771, 86 S.Ct. at 1835-1836).

In the present case there can be no question but that the arrest of the defendant Gregg was a lawful arrest. ¹ This is true because when Officer Edmonds first observed Gregg, he was "propped up" against a vehicle on the side of the road; spoke with a thick tongue and had trouble standing; smelled of alcohol; and in Edmonds' opinion was intoxicated. It was under those circumstances that Gregg told Edmonds that he was driving the vehicle which Edmonds observed in the ditch. Upon such facts, the arrest of Gregg was legal. Yet there is another reason why the arrest was legal: Gregg was drunk in a public place in the presence of two or more persons. The offense (drunkenness) occurred on a public highway in the presence of Officer Edmonds and, according to the testimony of defendant's own witness, Edwards, it was in the presence of himself (Edwards) and at least two officers. Ewing v. State, 300 So.2d 916, 919 (Miss.1974). Edwards admitted smelling alcohol on Gregg. Under such circumstances the law officers were duty bound to arrest Gregg and use all reasonable means to discover and gather relevant evidence pertaining to Gregg's unlawful acts, including his connection with the tragic collision which had so recently occurred.

The arrest being legal under Schmerber, supra, the officers had the right to react reasonably to the emergency situation which was that the potential loss of evidence caused by the fact that "the percentage of alcohol in the blood begins to diminish shortly after the drinking stops." 384 U.S. at 770, 86 S.Ct. at 1836. Given a legal arrest and an emergency, the officers could without any warrant attempt to secure evidence of blood-alcohol content as an appropriate incident to that arrest. Safety of people traveling upon our highways is a matter of great concern to the state. Public policy mandates that law officers use all reasonable means to investigate and apprehend traffic violators.

Study of the present record reveals that according to the testimony of several state witnesses, accepted by the jury, the defendant was intoxicated. Their testimony also established the relevance and likely success of a test of his blood for alcoholic content, as was true in Schmerber, supra. The officers here were also faced with an emergency situation in that critical evidence (alcoholic content of Gregg's blood) would be lost if they did not extract his blood. Schmerber held that the extraction of blood in a hospital environment and according to accepted medical practices was both a reasonable test for blood-alcohol level and a reasonable means of performing that test. Here the extraction of blood conformed to Schmerber...