Johnston v. State, 89-KA-201

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPRATHER; ROY NOBLE LEE
Citation567 So.2d 237
PartiesGeorge JOHNSTON v. STATE of Mississippi.
Docket NumberNo. 89-KA-201,89-KA-201
Decision Date19 September 1990

Page 237

567 So.2d 237
George JOHNSTON
v.
STATE of Mississippi.
No. 89-KA-201.
Supreme Court of Mississippi.
Sept. 19, 1990.

Jackson M. Brown, Starkville, for appellant.

Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Ass't Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

George Johnston was charged with driving under the influence of intoxicating liquor in Benton County on March 26, 1988. Johnston was tried and convicted in Justice Court and following his appeal and de novo trial he was again found guilty by the Benton County Circuit Court sitting without a jury.

I. THE FACTS

On March 26, 1988, Sheriff A.A. McMullen of Benton County received a telephone call at the Benton County Jail. The caller communicated to the sheriff that "George was on Hwy. 5, possibly 1055" or driving while intoxicated. McMullen then asked State Trooper Stephen Thompson who was at the county jail to check out the call.

Trooper Thompson went to Hwy. 5 to look for Johnston. Once there, Trooper Thompson was joined by Deputy Gary King. Johnston soon came by and both the Deputy and the Trooper began to follow him. Johnston drove along in a reasonable fashion, committing no violations; then he pulled into a Chevron Station. At that time

Page 238

Deputy King pulled in behind Johnston with his blue emergency lights on. Trooper Thompson pulled in behind Deputy King.

Evidence was presented at trial as to a "switched tag" on Johnston's vehicle as a possible reason for the stop and arrest. Trooper Thompson testified that he only stopped Johnston for the purpose of checking him for intoxication.

Trooper Thompson walked to Johnston's vehicle and noticed three empty beer cans on the back floorboard and on the driver's side. Trooper Thompson then asked Johnston if he had been drinking. Trooper Thompson smelled intoxicating liquor on Johnston's breath and noticed that his eyes were dilated.

Johnston was taken to the Sheriff's office where he was given the intoxilyzer test. Johnston's blood-alcohol content registered .16 and he was charged with driving under the influence of intoxicating liquor.

Johnston appeals the findings of the Benton County Circuit Court and assigns several errors; however since one error is dispositive of the case, this court addresses only the question of whether the court abused its discretion in ruling that a sufficient predicate had been laid for the admission of the intoxilyzer test.

I. WHETHER THE COURT ABUSED ITS DISCRETION IN RULING THAT A SUFFICIENT PREDICATE HAD BEEN LAID FOR THE ADMISSION OF THE INTOXILYZER RESULTS.

A. The Law

The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Hentz v. State, 542 So.2d 914, 917 (Miss.1989), Monk v. State, 532 So.2d 592, 599 (Miss.1988). The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.

Under M.R.E. 901, authentication and identification are conditions precedent...

To continue reading

Request your trial
149 cases
  • Davis v. State, 92-DP-00890-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • June 27, 1996
    ...largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990). "The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence." Johnston......
  • Peterson v. State, 92-KA-00648-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 22, 1996
    ...has been abused." Johnson v. State, 655 So.2d at 41; Roberson v. State, 595 So.2d 1310, 1315 (Miss.1992) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). The trial court expressed "that the issue in this trial is the guilt or innocence of this Defendant of the acts charged at the......
  • Mitchell v. State, 1998-DP-01785-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 29, 2001
    ...as follows: The relevancy and admissibility of evidence are left, in large part, to the discretion of the trial court. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Id. Reversal is prop......
  • Manning v. State, 95-DP-00066-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 25, 1998
    ...largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990)(citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989); Monk v. State, 532 So.2d 592, 599 (Miss.1988)). "Unless [the trial j......
  • Request a trial to view additional results
1 books & journal articles
  • Attacking and defending breath tests
    • United States
    • James Publishing Practical Law Books Attacking and Defending Drunk Driving Tests
    • May 5, 2021
    ...timely checks: • Missouri. [ Woodall v. Director of Revenue , 795 S.W.2d 419 (Mo. App. 1990).] • Mississippi. [ Johnston v. State , 567 So.2d 237 (Miss. 1990).] • Massachusetts. [ Commonwealth v. Barbeau , 585 N.E. 2d 1392 (Mass. 1992).] However, in the following state failure to comply wit......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT