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Ross v. State

Supreme Court of Mississippi

July 25, 2019

LOREN ROSS a/k/a LOREN WENDELL ROSS
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 03/21/2018

          RANKIN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. WILLIAM E. CHAPMAN, III

          TRIAL COURT ATTORNEYS: CYNTHIA ANN STEWART SAMUEL LEE WILKINS DAN W. DUGGAN, JR.

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES PHILLIP BROADHEAD

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART

          DISTRICT ATTORNEY: MICHAEL GUEST

          BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

          KITCHENS, PRESIDING JUSTICE

         ¶1. Loren Ross was convicted of felony driving under the influence (DUI), fourth offense. The Circuit Court of Rankin County imposed the maximum sentence of ten years in the custody of the Mississippi Department of Corrections (MDOC). Ross appeals, arguing that the trial court erred by not polling the jury to assure that the jurors had been unanimous in specifying the particular subsection of the DUI statute Ross had violated. He argues also that the trial court erred by sentencing him to the maximum statutory penalty instead of ordering rehabilitative treatment for his alcoholism. Finding no error, we affirm Ross's conviction and sentence.

         FACTS

         ¶2. At 12:10 a.m. on April 17, 2017, Brandon Holifield, a patrolman with the Richland Police Department, was traveling south on Highway 49 in the City of Richland in Rankin County. Upon approaching the Bud Street intersection, Officer Holifield observed a parked car positioned halfway in the road and halfway in a parking lot. He approached the driver's side door and discovered Loren Ross passed out inside the car with the engine running and the transmission in the "park" position. He opened the door, awakened Ross, and asked to see his driver's license. After viewing Ross's license, Officer Holifield had him step out of the car. Ross denied having diabetes or any other medical issues. When Officer Holifield asked whether Ross knew where he was, Ross answered, erroneously, that he was in Madison County. He said he had dropped a friend off at work and was on the way home. During the conversation, Officer Holifield detected the odor of intoxicating beverages emanating from Ross's breath and noticed that Ross had difficulty balancing himself. Ross was cooperative but appeared disoriented and confused, with red, bloodshot, glassy eyes. Based on his observations of Ross, Officer Holifield arrested him for DUI.

         ¶3. At the police station, Officer Holifield placed Ross in a holding cell. Ross began banging on the holding cell door and, when no one responded, he urinated in the holding cell. A few minutes later, Officer Holifield removed Ross from the holding cell and obtained Ross's rights waiver and his consent to administer the Intoxilyzer 8000 test. The test, administered at 1:24 a.m., revealed that Ross's blood alcohol content was .17 percent, based on a chemical analysis of his breath as measured by the Intoxilyzer 8000 machine.

         ¶4. Wendy Hathcock, a forensic toxicologist with the Mississippi Forensics Laboratory, testified that she is responsible for maintaining the Intoxilyzer 8000 machines used throughout the state. She testified that the Intoxilyzer 8000 machine used to test Ross's blood alcohol content had been calibrated on April 1, 2017, on May 1, 2017, and also moments before and after the test itself. She testified that, in her opinion, the results of Ross's blood alcohol test were reliable and accurate. The defense and State stipulated that Ross had three prior DUI convictions. The jury convicted Ross of felony DUI, fourth offense.

         LAW ...


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