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Oglesby v. City of Madison

Court of Appeals of Mississippi

August 19, 2014

MARCI HARVISON OGLESBY A/K/A MARCI H. OGLESBY A/K/A MARCI OGLESBY, APPELLANT
v.
CITY OF MADISON, MISSISSIPPI, APPELLEE

DATE OF JUDGMENT: 07/24/2013.

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCED TO FORTY-EIGHT HOURS AND TO PAY A FINE OF $900.

FOR APPELLANT: KEVIN DALE CAMP, JARED KEITH TOMLINSON.

FOR APPELLEE: JOHN GORDON (TRAE) SIMS III.

BEFORE IRVING, P.J., ISHEE AND ROBERTS, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

OPINION

NATURE OF THE CASE: CRIMINAL - MISDEMEANOR

ISHEE, J.

¶1. On October 2, 2012, Marci Harvison Oglesby was convicted of driving under the influence (DUI), first offense, and careless driving. She was sentenced for the DUI charge to serve forty-eight hours in the custody of the Sheriff of Madison County, Mississippi, as well as ordered to pay a fine of $900. For the charge of careless driving, she was ordered to pay a fine of fifty dollars. Oglesby ultimately appealed her conviction and sentence for DUI, first offense, to the Madison County Circuit Court. The circuit court upheld Oglesby's conviction and sentence. Aggrieved, Oglesby appeals.

Page 1023

STATEMENT OF FACTS

¶2. On February 11, 2012, at approximately 12:30 a.m., Oglesby was traveling eastbound on Hoy Road in Madison, Mississippi. Officer Britt Thomas of the Madison Police Department testified that he was traveling behind Oglesby when he witnessed her vehicle cross the white line into the gravel off Hoy Road. Subsequently, Officer Thomas pulled the vehicle over for careless driving and conducted a traffic stop. Officer Thomas asked Oglesby for her driver's license and proof of insurance, which Oglesby retrieved from her purse in the trunk of the vehicle. Officer Thomas testified that, at this time, he smelled an intoxicating substance coming from Oglesby's vehicle. He asked Oglesby if she had been drinking, and she said that she had a couple of drinks. Officer Thomas admitted under oath, however, that he did not observe anything about Oglesby's speech, eyes, or coordination to indicate that she was intoxicated. Officer Thomas then called Officer Drew Hall, also with the Madison Police Department, for assistance.

¶3. Officer Hall is certified in standard field sobriety testing, advanced roadside impaired-driving enforcement, and conducting the Intoxilyzer 8000. Although Officer Thomas is also certified in standard field sobriety testing, he testified that he asked for Officer Hall's assistance due to Officer Hall's lengthy tenure with the department as well as his experience. When Officer Hall arrived, Officer Thomas turned the traffic stop over to Officer Hall. Officer Hall introduced himself to Oglesby and informed her that he would be performing a field sobriety test. He asked Oglesby how many drinks she had consumed that evening, if any, and she stated two. He testified that he observed her eyes to be glassy and bloodshot. Officer Hall stated that he then asked Oglesby if she would be willing to submit to a preliminary breath test, but Oglesby refused. Oglesby, however, participated in the horizontal-gaze-nystagmus test (HGN) and the walk-and-turn test.

¶4. Prior to the HGN test, Officer Hall asked Oglesby if she had any physical impairments, to which she stated no. However, she later advised him that she suffered from a lazy eye. Officer Hall informed Oglesby that he would take that into account. He stated under oath that, during his training and certification process qualifying him to administer the HGN test, he was instructed on how to factor a lazy eye into the test. He declared that the HGN test can still be administered to a person with a lazy eye. During the HGN test, Officer Hall observed that Oglesby had difficulty following simple instructions, could not keep her head still, and would not follow his finger. Even though he had to discontinue the test, he found nystagmus present, thus indicating impairment.

¶5. Officer Hall then conducted the walk-and-turn test. During the walk-and-turn test, Officer Hall observed five out of a possible eight indicators of intoxication: inability to balance during instructions, missed heel-to-toe, incorrect turn, stops while walking, and steps off the line. He then asked her to perform a one-leg stand, for which he had to give her instructions twice. However, Oglesby ultimately refused to cooperate and complete the test. Subsequently, Officer Hall placed Oglesby under arrest for DUI and careless driving. Oglesby was transported to the ...


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