Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Diaz, J
STEPHEN HOLLOWAY A/K/A STEPHEN, APPELLANT EDWARD HOLLOWAY v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 11/16/95
TRIAL JUDGE: HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: NEGLIGENTLY CAUSING THE DEATH OF ANOTHER WHILE DRIVING WITH A BLOOD ALCOHOL CONTENT OF.10% OR GREATER: SENTENCED TO SERVE A TERM OF 20 YRS IN THE CUSTODY OF THE MDOC
DISPOSITION AFFIRMED IN PART, REVERSED IN PART, AND REMANDED- 3/10/98
Stephen Holloway was convicted under Miss. Code Ann. § 63-11-30(4) of negligently causing the death of another while driving with a blood alcohol content of. 10% or greater. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. He makes the following arguments on appeal: (1) that the police officers lacked probable cause to justify their warrantless arrest; (2) that the officers disregarded Miss. Code Ann. § 63-11-21 by requiring him to submit to a blood test, notwithstanding his refusal to do so; (3) that the officers disregarded Miss. Code Ann. § 63-11-7 by forcibly taking a blood sample when he was neither dead nor unconscious; (4) that the failure of the Mississippi State Crime Laboratory to adopt testing procedures as required by Miss. Code Ann. § 63-11-19 should have precluded the use of blood test results at trial; (5) that the State failed to prove his blood alcohol in terms of "weight volume of alcohol"; (6) that the State's expert failed to meet the admissibility requirements of the Mississippi Rules of Evidence; (7) that the police officers deprived him of his right to access to a telephone for the purpose of obtaining legal or medical assistance pursuant to Miss. Code Ann. § 63-11-5; (8) that the court failed to properly instruct the jury on the issue of contributory negligence; and (9) that the passage of the law requiring service of at least 85% of a criminal sentence operates as an ex post facto law and is thus unconstitutional as applied to him. Finding only Holloway's sentencing argument deserving of merit, we reverse and remand for a sentencing hearing in accordance with this and affirm on all other grounds.
On April 25, 1993, at approximately 8:00 a.m., Stephen Holloway arrived at a Gulfport bar where he drank beer and coffee throughout the day until approximately 5:10 p.m. when he left the lounge in his truck. He traveled east along Victory Street, until he came to a "T" intersection controlled by a stop sign. Holloway ran the stop sign, crossing over Teagarden Road, and entered a private driveway. Roy Fiveash, Jr. was traveling north on Teagarden Road on his motorcycle when Holloway backed out of the driveway into Fiveash's lane of traffic. Fiveash hit Holloway's truck, which caused Fiveash to lose control of his motorcycle and hit a utility pole. Fiveash died as a result of the injuries he sustained in the accident. Holloway then left the scene of the accident and traveled north on Teagarden Road to the intersection of Pass Road, where he stopped to inspect the damage to his truck. A witness to the accident followed Holloway to that location and informed Holloway that he had injured someone and that he should return to the scene of the accident. Holloway ignored the witness and then turned west on Pass Road and drove to his apartment. The accident was reported to the police department, and Officer Steven Schlicht was dispatched to the location of the accident.
When the officer arrived at the accident site, witnesses gave him the description and the tag number of the vehicle involved in the accident. Based on the information he received at the scene, Officer Schlicht determined that Stephen Holloway was the owner of the vehicle in question. Officers Schlicht and Jordan then proceeded to Holloway's apartment to question him about the accident. Holloway opened the door and identified himself to the officers. The officers noticed that Holloway had red, watery eyes, that he was unsteady on his feet, and that he smelled of intoxicants. The officers then arrested Holloway and advised him of his Miranda rights. Officers Weatherford and Vance then requested a search warrant in order to obtain a sample of Holloway's blood. After receiving the warrant, the officers transported Holloway to the Gulfport Memorial Hospital so that a blood sample could be obtained. The blood was drawn at 12:35 a.m. and was later submitted to the Mississippi State Crime Laboratory for testing. The blood test ...