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Green v. State

April 16, 1998

VICTOR GREEN A/K/A VICTOR E. GREEN
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT: 01/21/97 TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT BY: DEIRDRE McCRORY DISTRICT ATTORNEY: JEANNENE T. PACIFIC NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION AFFIRMED - 4/16/98

Before Sullivan, P.j., McRAE And Smith, JJ.

The opinion of the court was delivered by: Smith, Justice

¶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." *fn1 After waiting 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.

¶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.

¶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 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. . . .

Miss. Code Ann. § 63-11-5(1) (1996) *fn2 (emphasis added).

¶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 ...


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