McDuff v. State
| Decision Date | 04 May 2000 |
| Docket Number | No. 1998-KA-01010-SCT.,1998-KA-01010-SCT. |
| Citation | 763 So.2d 850 |
| Parties | Beverly Ann McDUFF a/k/a Beverly Hurst v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
T.K. Moffett, George S. Whitten, Jr., Tupelo, Attorneys for Appellant.
Office of the Attorney General by Dewitt T. Allred, III, Jackson, Attorney for Appellee.
EN BANC.
INTRODUCTION
¶ 1. The Court is asked to determine the constitutionality of Miss.Code Ann. § 63-11-8 (1998), which provides that any driver involved in an automobile accident from which a fatality occurs shall have his blood drawn and tested for the presence of alcohol or drugs, regardless of whether probable cause exists to believe that the driver was under the influence of alcohol or drugs.
¶ 2. On July 11, 1996, Beverly McDuff was traveling north on Highway 61 in DeSoto County when she lost control of her Toyota Camry, crossed the center line, and struck an on-coming southbound vehicle, a Pontiac 6000. As a result of this accident, the driver of the Pontiac was killed, and McDuff was injured.
¶ 3. McDuff was treated on the scene by E.M.T. Michael Hancock (Hancock), who subsequently transported her to the Regional Medical Center in Memphis, TN (hospital). Prior to leaving the scene, Hancock was given a blood alcohol kit (BAC kit) by a law enforcement officer with orders that McDuff's blood be drawn at the hospital for the purpose of testing for alcohol and drugs. Hancock did not know the name of the officer who gave him the BAC kit or for which department he or she worked. The identity of this officer has never been ascertained.
¶ 4. Just prior to McDuff being taken to the hospital, Sgt. William Williamson (Williamson) of the Mississippi Highway Patrol arrived at the scene. Although he did not see or talk with McDuff at the scene, he did speak with Richard Ramsey (Ramsey), a motorist who had been following McDuff for approximately 8 to 9 miles before the accident. After McDuff had left the scene, Ramsey informed Williamson that he observed McDuff driving in an erratic manner prior to the accident.
¶ 5. At the hospital, McDuff was treated by nurse Harry Coder (Coder). Hancock gave Coder the BAC kit, and while Coder was "drawing [their] own lab on [McDuff]" he filled two (2) tubes from the kit and gave them back to Hancock. At this point, McDuff had not been placed under arrest. Coder testified that he never told McDuff that he was drawing blood pursuant to law enforcement orders, and he obviously never obtained her consent to do so.
¶ 6. Upon completion of his preliminary investigation, Williamson left the scene of the accident and went to the hospital. At this point, he had yet to have any contact with McDuff. When Williamson arrived at the hospital, he met Hancock at the back door of the hospital, and Hancock gave him the BAC kit containing the two (2) tubes of McDuff's blood. After receiving McDuff's blood, Williamson went into the hospital and asked a nurse to draw McDuff's blood again so that he could personally witness the act. The nurse refused. Williamson testified that he asked for the second blood test for two (2) different reasons. One, he felt he had probable cause to believe that McDuff had been driving under the influence of alcohol or drugs, said belief being based on both Ramsey's statement that McDuff had been driving erratically prior to the accident, and also on the fact that his investigation revealed that McDuff's crossing the center line of the highway caused the accident. The trial court ruled that Williamson indeed had probable cause to request the second test. Additionally, he asked for the second test based on § 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident, regardless of the existence of probable cause to believe that alcohol or drugs were involved. Williamson subsequently had the BAC kit that he received from Hancock transported to the state crime lab for testing. Crime Lab tests showed McDuff's blood samples to contain .23% ethyl alcohol, well over the legal limit. On November 25, 1996, she was indicted on charges of negligently causing death while driving under the influence of alcohol (D.U.I.).1
¶ 7. At McDuff's trial, over her objection, the Crime Lab test results were introduced into evidence. After all the evidence was presented, she was convicted, and sentenced to a term of ten (10) years imprisonment, with five (5) years suspended. McDuff posted a $100,000 appeal bond, and now appeals her conviction, raising numerous assignments of error. This Court will only address two of the issues raised by McDuff, as the others are not dispositive on this case.
I. Under both the Fourth Amendment to the United States Constitution and Article 3, § 23 of the Mississippi Constitution, Miss.Code Ann. § 63-11-8 is null and void because it mandates search and seizure absent probable cause or consent.
¶ 8. The central issue in this case is the admissibility of the blood test evidence. This evidence was collected at the direction of an unidentified law enforcement officer at the accident scene. McDuff asserts that the officer lacked probable cause to require her to be subjected to a warrantless blood test. The officer who ordered Hancock to have McDuff's blood drawn and tested was never identified, and he obviously never testified at trial. Therefore, the record is void of any probable cause justifying such an order. McDuff was not under arrest at the time her blood was drawn, nor did she give consent to have her blood drawn for law enforcement purposes, nor was a search warrant obtained. Therefore, when Coder drew two (2) tubes of blood from McDuff in response to the law enforcement request as relayed by Hancock, this evidence was acquired not incident to a lawful arrest and without probable cause or a warrant or her explicit consent. Williamson subsequently developed probable cause to believe that McDuff may have been intoxicated; however, this occurred after McDuff was en route to the hospital with orders to have her blood drawn. Armed with the probable cause he eventually developed, Williamson unsuccessfully attempted to have McDuff's blood drawn again in his presence at the hospital.
¶ 9. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..." U.S. Const. Amend. IV. "The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search ..." Miss. Const. art 3, § 23 (1890). Miss.Code Ann. § 63-11-8(1), titled "Mandatory blood test for operators involved in fatal accidents" states, in relevant part, that "[t]he operator of any motor vehicle involved in an accident that results in a death shall be tested for the purpose of determining the alcohol content or drug content of such operator's blood, breath or urine." Unlike other statutes under Mississippi's Implied Consent laws, this statute does not require an officer to have probable cause to believe that a driver may be intoxicated before said officer can require a chemical test. Under § 63-11-5, an officer may test a driver when "such officer has reasonable grounds and probable cause to believe that the person was driving ... while under the influence ...". Under § 63-11-7, when a driver is unconscious, dead, or otherwise incapable of refusing a test as the result of an accident, that driver will be subject to a blood test "if the arresting officer has reasonable grounds to believe the person to have been driving ... while under the influence ..."
¶ 10. "A search made without warrant and not incident to a lawful arrest is not illegal per se, but if the fruits of the search are to withstand the exclusionary rule, the search must have been predicated on probable cause." Hailes v. State, 268 So.2d 345, 346 (Miss.1972). Cole v. State, 493 So.2d 1333, 1336 (Miss.1986) (quoting Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 919-20 (1966)).
¶ 11. In Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), the United States Supreme Court created a "special needs" exception to the probable cause requirement. The Court in Skinner considered a federal statute requiring railroad employees to submit to breath, blood and urine testing in certain situations, absent probable cause. The statute was found to be constitutional because it furthered the government's compelling interest in promoting rail safety, and because railway employees have a diminished expectation of privacy. Skinner, 489 U.S. at 634, 109 S.Ct. at 1422, 103 L.Ed.2d at 670.
¶ 12. Although the constitutionality of § 63-11-8 has never been considered by this Court, several other states have considered similar statutes. The Pennsylvania Supreme Court, in declining to apply the limited exception set forth in Skinner, struck down a statute which provided:
[a]ny person who drives ... a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcohol content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving ... a motor vehicle which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992). That court noted that the underlying purpose of the...
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