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Russell v. State

Court of Appeals of Mississippi

November 19, 2013

Benjamin RUSSELL a/k/a Benjamin Rodgers Russell a/k/a Benjamin R. Russell a/k/a Benjamin Rodger Russell, Appellant
v.
STATE of Mississippi, Appellee.

Page 146

Kevin Dale Camp, Jared Keith Tomlinson, Jackson, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before LEE, C.J., MAXWELL and FAIR, JJ.

FAIR, J.

¶ 1. On July 7, 2011, Benjamin Russell entered a nolo contendere plea in Flowood Municipal Court to one count of speeding and one count of driving under the influence (DUI), first offense. Russell appealed to the Rankin County County Court where, after a trial de novo, he was convicted of both charges. Russell then appealed to the Rankin County Circuit Court, which affirmed the county court's conviction and sentence. Russell now appeals to this court, asserting: (1) the State failed to establish the Rankin County County Court had jurisdiction, and (2) the Rankin County County Court erred in allowing the results of the Intoxilyzer 8000 into evidence. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. On May 8, 2011, at around 2 a.m., Officer David Penson of the Flowood Police Department observed a vehicle traveling eastbound on Highway 25 at a high rate of speed in a 50-miles-per-hour zone. Officer Penson's radar showed that the driver was traveling 70 miles per hour. He stopped the vehicle and identified the driver as Russell.

Page 147

¶ 3. During the stop, Officer Penson smelled alcohol on Russell and noticed his eyes were bloodshot. Officer Penson asked Russell to exit the vehicle. After determining the smell of alcohol was from Russell's breath, Officer Penson asked him how long it had been since he had a drink. Russell replied, " About two hours." Officer Penson conducted a field sobriety test, which Russell struggled to complete. During the one-leg-stand test, Russell lost his balance and swayed. On the walk-and-turn test, he missed the heel-to-toe movements and made improper turns. At that point, Officer Penson asked Russell to submit to a portable breath test. Russell complied, and the test registered positive for alcohol.

¶ 4. At that point, Russell was arrested and transported to the Flowood Police Department. Officer Penson administered two Intoxilyzer 8000 tests on Russell. The tests indicated Russell's blood-alcohol content was .11%.

¶ 5. At trial, the county court judge found Russell guilty of speeding and DUI. Russell then moved to dismiss the case based on the State's failure to establish jurisdiction. The prosecutor responded:

Your Honor, the Court living in that area and being familiar with it, I think the Court well knows where Lakeland and Marshal is and that that is in the City of Flowood. Had I not specifically asked, I think the Court knows that that is in the City of Flowood. We'd ask the Court to take judicial notice of that.

The judge stated that " as a practical matter, I absolutely know that's in the City of Flowood," but he was uncertain as to whether he could take judicial notice. At that time, the court took the motion under advisement so the parties could brief the issue. The court also noted that Russell would be tentatively convicted and sentenced until further ruling on the motion to dismiss. On the speeding charge, Russell was ordered to pay court costs and a $50 fine. For the DUI conviction, Russell was sentenced to forty-eight hours in the county jail, but the sentence was suspended provided he complete six months' probation and the Mississippi Alcohol Safety Education Program. He was also ordered to pay a $750 ...


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