OF JUDGMENT: 03/01/2017
COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, HON. EDDIE H.
BOWEN TRIAL JUDGE
ATTORNEY FOR APPELLANT: MICHAEL DUANE MITCHELL.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LEE, C.J., CARLTON AND WESTBROOKS, JJ.
Pasquale Solitro was found guilty of driving under the
influence (DUI), first offense, in the Jasper County Justice
Court. He appealed his conviction to the Jasper County
Circuit Court for a trial de novo. Following a bench trial in
the circuit court, Solitro was convicted of common law DUI
first offense and was sentenced to two days in jail; fined
$1, 000; ordered to attend and complete the Mississippi
Alcohol Safety Education Program; and given a 90-day
suspension of driving privileges. Finding no arguable issue
for appeal, Solitro's appellate counsel filed a brief
pursuant to Lindsey v. State, 939 So.2d 743 (Miss.
2005). Solitro was given additional time to file a
supplemental brief, which he has not done.
AND PROCEDURAL HISTORY
At trial, Mississippi Highway Patrol Trooper Kevin Bentley
testified as the only witness on behalf of the State. Trooper
Bentley testified that on November 15, 2014, he was
dispatched to a wreck on Highway 15 North in Jasper County.
When he arrived on the scene, he found a vehicle with
significant front-end damage off the road and in the bushes
of a private residence's yard. Trooper Bentley
encountered a deputy sheriff, who pointed him toward the
driver-Solitro. Trooper Bentley testified that when he
approached Solitro, he immediately detected the presence of
an alcoholic beverage coming from Solitro's person and
breath. He also noticed that Solitro had urinated on himself.
As he attempted to gather information and question Solitro
about what happened, Solitro became belligerent and did not
want to answer any questions. Trooper Bentley testified that
it was at this point that the disorderly conduct came about,
and he realized that Solitro was intoxicated. Subsequently,
Trooper Bentley informed Solitro he was under arrest and
placed him in handcuffs. Trooper Bentley then went over to
the vehicle to examine its condition and noticed there were
empty beer cans in the rear of the vehicle and in the
passenger-side floorboard. At this time, Solitro attempted to
run away, and Trooper Bentley then placed Solitro in the back
of the patrol car.
Trooper Bentley testified that Solitro was unable to stand up
and even at one point fell down. He stated he did not offer
Solitro a field sobriety test and did not recall whether he
offered Solitro a portable breath test at the scene. Trooper
Bentley then transported Solitro to the county jail to
process him, and stated that on the way, Solitro was spitting
on him, cursing, and slurring his words. Because of this,
Trooper Bentley pulled Solitro's shirt over his head
while in the patrol car and took a picture of Solitro which
was shown at trial. At the jail, Trooper Bentley offered
Solitro the Intoxilizer 8000, which Solitro refused. Trooper
Bentley testified he could not recall whether any other law
enforcement officers witnessed him offer the Intoxilizer to
Solitro and that he did not have a video recording of him
offering Solitro the Intoxilizer.
Solitro testified in his own defense. He stated that on the
day of the wreck, he was driving to his uncle's house to
watch a football game on television, and he had purchased a
case of beer, which was in the back seat of the vehicle.
Solitro stated that while driving, a couple of deer came out,
and he overcorrected, consequently running off the road into
the gully. He stated he was knocked out for a few minutes,
and when he came to, he was covered with beer which had come
forward from the back seat and exploded on impact. He stated
he had not been drinking. He also stated that he suffered a
concussion. Though offered, Solitro did not receive any
medical attention at the scene. He did go to the doctor seven
or eight days later with complaints of headaches, where he
was diagnosed with a concussion.
Solitro further testified that despite his concussion, he
could clearly recall his interaction with Trooper Bentley.
Solitro denied that he attempted to run away at the scene and
that he spit on Trooper Bentley. He also denied that he had
urinated on himself, but rather that he was covered with beer
from the cans exploding on impact. The trial court noted,
however, that the photograph Trooper Bentley had taken of
Solitro revealed that Solitro's shirt was dry and Trooper
Bentley had testified that Solitro's shirt was dry.
Solitro also stated that Trooper Bentley did not offer him
the Intoxilizer on the date of the incident.
Following the bench trial, the judge found that Solitro's
testimony was not credible and that Trooper Bentley's
testimony was credible. Based on Trooper Bentley's
testimony and the evidence in the case, the judge found
Solitro guilty of first offense DUI. Again, Solitro's
counsel filed ...