Before Sullivan, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: 02/21/97
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 11/12/98
¶1. The issues presented in this appeal from the conviction and sentence for DUI homicide include: whether the lower court erred by failing to suppress the blood alcohol test results as an illegal seizure; whether the blood samples for the test, obtained from a foreign jurisdiction, should have been suppressed; whether appellant's request for appointment of an expert witness was wrongfully denied; whether sentencing under a lesser included crime which carried a longer sentence was error resulting in cruel and unusual punishment; whether appellant's proposed jury instructions were properly excluded; and whether motions for a directed verdict or judgment notwithstanding the verdict should have been granted. We conclude that these issues are without merit and affirm the appellant's conviction and sentences accordingly.
¶2. On or about August 26, 1995, Joel Craig Wilkerson was traveling Westbound on Stateline Road in DeSoto County, Mississippi. The automobile being driven by Wilkerson struck the vehicle driven by Cynthia McGowan in a head on collision. Witnesses to the accident included Wilkerson, McGowan and Candida Sears, who claims to have witnessed the accident through her rear view mirror. Randy Parks also witnessed Wilkerson driving recklessly shortly before the accident.
¶3. Southaven Police and medical personnel arrived and transported all injured parties to the hospital. They took McGowan and Wilkerson to the Regional Medical Center (the Med.) in Memphis, Tennessee. They took Juanita Wilson, a passenger in the other vehicle, to Baptist-DeSoto Hospital in Southaven, DeSoto County, Mississippi where she was pronounced dead after arrival.
¶4. Officer Max Herring of the Southaven Police Department left the scene with directions to follow up on potential blood testing of Wilkerson. Herring shortly after that noticed that he could not continue in the westbound direction he was traveling and had to back track and head eastbound on Stateline Road. Upon realizing that he did not have a blood testing kit with him, Herring traveled to the city of Horn Lake, Mississippi, which is approximately 15 miles from the Med. After obtaining a blood testing kit from the Horn Lake Police Department, Officer Herring went to the Med.
¶5. When he arrived at the Med., Officer Herring gained the assistance of Sherri Reinberg, a nurse with the Med. Reinberg withdrew a blood sample from Wilkerson after 30-45 minutes awaiting approval from supervisors. This was done without a warrant.
¶6. Reinberg gave the blood sample to Officer Herring who turned it over to the Mississippi Crime Laboratory Batesville office.
¶7. On August 30, 1995, the sample was transported from the Mississippi Crime Laboratory Batesville office to Jackson. On October 5, 1995 Sharon Jones of the Mississippi Crime Lab opened the sample, without testing it at that time. She instead resealed and re-shelved the sample for later testing. On February 9, 1996, Ms. Jones reopened the sample. She determined that the blood alcohol content of Wilkerson at the time of testing was 15% ethyl alcohol. Jones testified that she could not relate the blood alcohol reading at the time of withdrawal to Wilkerson's blood content at the time of the accident.
¶8. Wilkerson was found guilty of violating Miss. Code Ann. § 63-11-30(4) (1996). *fn1 He was sentenced to twenty years imprisonment in the Mississippi Department of Corrections, with two years suspended and to payment of restitution. Post-trial, Wilkerson filed a motion for j.v.o.v, or alternatively, a new trial. The trial court overruled the motion. Aggrieved, Wilkerson appeals to this Court for relief. II.
¶9. Wilkerson asserts three grounds under which his blood test evidence should have been suppressed.
¶10. The first point of contention is that Officer Herring violated Miss. Code Ann. § 63-11-8 (1972 as amended) *fn2 in obtaining the blood evidence. Section 63-11-8 is one of several statutes found under the Implied Consent Law. See Miss. Code Ann. tit. 63, § 11 (Supp. 1998). Where there is substantial compliance with implied consent statutes, there is no error in admitting test results into evidence. Fulton v. City of Starkville, 645 So. 2d 910, 913 (Miss. 1994).
¶11. The record reflects that Herring drew the blood sample within two and ½ hours after the accident, as opposed to two hours as required by the statute. The record also reflects that the nurse at the Med., Sherri Reinberg drew Wilkerson's blood only after obtaining permission from her supervisor.
¶12. While section 63-11-8 requires the attending physician to deem the blood test clinically permissible, there is no reference in the record to the attending physician. Therefore, reason would suggest the authorizing supervisor contacted by Nurse Reinberg was the physician in charge of the trauma area on August 26, 1995. Moreover, Officer Herring testified that Nurse Reinberg refused to administer the test until she spoke with a doctor. Nurse Reinberg, a registered nurse, was medically qualified under the statute to administer the test, and would not have taken Wilkerson's blood if not medically feasible. Section 63-11-8 further states the blood test shall be administered within two hours, if possible. Officer Herring, by getting the test administered within two and ½ hours, substantially complied with this requirement. If not for his traveling to Horn Lake, Mississippi to obtain a Blood Alcohol Kit, and waiting for Nurse Reinberg to obtain permission from her supervisor, the test would have ...