Rehearing Denied Nov. 12, 2013.
Certiorari Denied Feb. 13, 2014.
Kevin Dale Camp, Jackson, attorney for appellant.
Boty McDonald, Jackson, attorney for appellee.
Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
¶ 1. On August 2, 2010, the County Court of Madison County found Aaron Carlson guilty of careless driving and driving under the influence, first offense. Carlson appealed his DUI conviction to the Madison County Circuit Court, which affirmed. Carlson now further appeals his DUI conviction and makes the following contentions: (1) the circuit court erred in affirming his conviction after the appellee's brief was struck; (2) the City of Ridgeland failed to prove beyond a reasonable doubt that he was under the influence of alcohol the night in question; and (3) the county court judge evinced bias against him. Finding no error, we affirm the judgment of the circuit court.
¶ 2. On February 5, 2010, Carlson and a coworker went out for dinner after their shift at work. The pair arrived at the Bulldog restaurant in Jackson around 11:00 p.m., but the restaurant's kitchen had closed for the evening, and food was no longer being served. Instead of remaining at the Bulldog, Carlson and his coworker went next door to the Electric Cowboy, where they had several drinks. Eventually, Carlson claimed that he did not feel well, and the two men paid their bill and left the Electric Cowboy around 2:00 a.m. The pair drove north on Ridgewood Road and turned west onto County Line Road. In the process, Carlson struck the concrete lane divider with his driver's side front tire.
¶ 3. Officer Stephen Webb of the Ridgeland Police Department was in his patrol car facing westbound at the intersection, stopped at the light. He witnessed a vehicle strike the concrete lane divider. Officer Webb activated his lights and siren and stopped the vehicle. As Webb approached the vehicle, the driver's door opened and the officer noticed a strong smell of alcohol. The driver provided Officer Webb with his driver's license, which identified him as Aaron Carlson.
¶ 4. Officer Webb asked Carlson if he had been drinking that evening. Carlson responded by asking to speak in private with Officer Webb. They went to the rear of the vehicle where Carlson stated that he " didn't need this." Officer Webb then administered
a series of field sobriety tests on Carlson. On the horizontal gaze nystagmus test, Officer Webb detected six out of six indications that Carlson was under the influence and impaired. On the walk and turn test, Officer Webb detected three out of eight indications. However, Officer Webb did not have a line on the ground for Carlson to walk along and instead used an imaginary line. Finally, on the one-leg stand test, Officer Webb observed four out of four indications.
¶ 5. Officer Webb placed Carlson under arrest and transported him to the Ridgeland Police Department. Carlson was placed under observation for the requisite twenty minutes before entering the Intoxilyzer room. While Officer Webb entered Carlson's information into the Intoxilyzer machine, Carlson fell backwards off the stool and struck his head on the wall behind him. Carlson then began to scream and convulse in what he claims was a seizure. Officers restrained Carlson to prevent him from further injuring himself, and they called for medical personnel to assist. Carlson was taken to the University Medical Center for evaluation.
¶ 6. At the trial de novo before the County Court of Madison County, the judge concluded that there was sufficient evidence to support a conviction for " common law DUI" under Mississippi Code Annotated section 63-11-30(1)(a) (Supp.2012), wherein Carlson was too impaired to safely operate a motor vehicle. Additionally, the county court judge found Carlson's condition that evening resulted from consuming alcohol and was not the product of any alleged medical condition. As such, Carlson was convicted of DUI, first offense. Carlson appealed this conviction to the Circuit Court of Madison County. The circuit court affirmed Carlson's DUI conviction. Carlson now further appeals.
STANDARD OF REVIEW
¶ 7. The City of Ridgeland failed to file an appellee's brief with this Court. As such, the appropriate standard of review comes from Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (internal citation omitted): " An appellee's failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed."
¶ 8. The City's failure to file a brief is troubling. More disturbing still is the fact that this does not appear to be an isolated incident. Instead, there is a pattern of conduct by the City of Ridgeland that places this Court in a precarious position of potentially acting as an advocate for the City. While the case at bar ...