A person may be convicted of DUI even if there is no eyewitness presented who viewed the defendant operating the vehicle


In 2000 Officer Mark Wilcher of the Leake County Sheriff’s Department and Constable Randy Atkinson of Leake County responded to a call regarding a disturbance at 4585 Midway Road. Mrs. Janie Wilbanks testified that someone (later identified as Gary Horn) came to her door and stated that he had run off the road and would pay her to pull him out of the ditch.

Because Horn had been drinking, Mrs. Wilbanks closed and locked the door, and phoned a neighbor and asked that he go to the church and get her husband. Next, Mrs. Wilbanks called the sheriff’s office for assistance. She testified to being frightened when Horn started banging on her door and yelling, “Don’t call the police, don’t call the police.”

According to Mr. Wilbanks, upon returning home he could see Horn’s car in the ditch. Mr. Wilbanks walked across the street toward the car, as Horn sat in the car revving the motor up. Wilbanks stated that Horn was the only person in the car. Wilbanks testified that Horn didn’t have a shirt on, and, he had vomit on his face and on his shoulder, and, the car was a total mess inside.

Mr. Horn testified that he and his wife had gone to the casino to eat and had several drinks. Horn stated that he was escorted out of the casino by two security guards and placed in his wife’s car. He indicated that while his wife was driving down the road, he got sick and started to vomit.

At trial, Horn testified that his wife was driving the car and that he did not tell anyone because he did not want her to be charged with DUI. Horn’s wife testified that she was driving the car as well. She stated that she ran into the ditch, left the vehicle and Mr. Horn and attempted to walk home.

When Officer Wilcher responded to Mrs. Wilbanks’s call, he found Horn inside the vehicle. Wilcher testified that Horn was unsteady on his feet and had slurred speech. Through questioning, Wilcher found that Horn did not have a driver’s license and placed him under arrest. Further investigation revealed that Horn’s driver’s license had been suspended because of two previous DUI convictions.

Horn was transported to the Leake County Jail, where Wilcher read to him his rights regarding the taking of an intoxilyzer test. Horn was then asked to take the intoxilyzer 5000 test, but refused. He was convicted of DUI, third offense, and sentenced to three and one half years in jail.


The below was not discussed (he argued issues such as double jeopardy etc.) but this case was cited in Holloway for the following:

A person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence.