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Alcohol on breath and diluted pupils led to DUI conviction

Facts

In 2012, D’Andre Terrell was charged with DUI after he stopped at a driver’s license checkpoint set up by Mississippi highway patrolmen Craig Morgan and Timothy Fuller. During trial in the circuit court, Trooper Morgan testified that Terrell drove towards the checkpoint as Morgan and Fuller were setting up. Morgan could not recall whether he had activated his blue lights before Terrell approached the checkpoint.

Morgan stated that when Terrell approached, he noticed that Terrell’s pupils were dilated, that his eyes were red, and that he was somewhat argumentative. Morgan also smelled alcohol on Terrell’s breath. Morgan testified that he checked Terrell’s driver’s license, which was valid. Morgan then asked Terrell to exit Terrell’s vehicle so that Morgan could administer an initial portable breath test (PBT), which yielded positive results.

Morgan stated that upon Terrell exiting his vehicle, Terrell had to lean on Terrell’s car for support. Morgan asked Terrell if he had been drinking, and according to Morgan, Terrell indicated that it was his birthday. Morgan also observed a marijuana cigarette in Terrell’s vehicle. Morgan then administered a second PBT, which also yielded positive results.

Morgan could not recall whether he asked Terrell to undergo any field sobriety tests. Morgan testified that he transported Terrell to the Copiah County Sheriff’s Department to administer a breath test to determine Terrell’s breath-alcohol-concentration (BAC) level. Morgan was not able to get any BAC-test results in two attempts.

During the first attempt, a frequency from a cell phone or some other device went off as the intoxilyzer was attempting to read the results. Morgan was not allowed to explain what happened the second time the attempt was made. Morgan testified that the factors that he considered in charging Terrell with DUI were the odor of alcohol on Terrell’s breath, the positive PBTs, and Terrell’s red eyes and dilated pupils.

According to Terrell, on that night, he left a friend’s house around 11:40 p.m. After driving approximately fifteen feet, he noticed flashlights on the side of the road. Terrell stated that he eventually noticed Morgan and Fuller, so he stopped his car to present his driver’s license to Fuller, not Morgan.

According to Terrell, after he stopped and rolled his window down, Fuller asked Terrell if he had been drinking, and Terrell stated that he had not, although it was his birthday. Fuller asked Terrell why his eyes were red, and Terrell replied that he had an irritated contact and that he was suffering from a cold. On cross- examination, Terrell stated that Fuller administered two PBTs, neither of which detected the presence of alcohol.

Also on cross-examination, Terrell testified that while in transport to the sheriff’s department, he revealed to Morgan that he had had several cough drops, which may have explained the smell of alcohol on his breath.

Jalisa Fulgham testified that Terrell had visited her on the night of November 10, 2012, and that Terrell did not seem to be intoxicated during his visit. Fulgham also stated that Terrell did not drink any alcoholic beverages while he was at her house, and that he did not seem intoxicated when he left her house around 11:40 p.m.

Terrell was convicted of DUI, first offense, and sentenced to a $500 fine. On appeal, he argued the evidence was insufficient to warrant a DUI conviction. MCOA affirmed.

Analysis

Mississippi Code Annotated section 63-11-30(1)(a) (Rev. 2013) states that it is unlawful for a person to drive or otherwise operate a vehicle within this state who is under the influence of intoxicating liquor. As noted, during trial, Morgan testified that when Terrell stopped at the checkpoint, he smelled alcohol on Terrell’s breath and he noticed that Terrell had dilated pupils and red eyes. Morgan stated that when he asked Terrell to exit his vehicle, Terrell had to lean on the vehicle to support himself. Additionally two PBTs revealed alcohol on Terrell’s breath.

Terrell argues that the evidence was insufficient to support his conviction because Morgan did not have firsthand knowledge of the events that occurred on the night of Terrell’s arrest. Therefore, Terrell insists that Morgan’s testimony should not have been admitted by the circuit court. However, during trial, Terrell acknowledged that Morgan was present at the checkpoint.

Terrell also argues that the evidence was insufficient because he had an adequate explanation for each factor that Morgan considered in charging him with DUI. However, this argument in effect challenges, not the sufficiency of the evidence presented by the State during trial, but the weight and credibility given by the circuit court to that evidence.

We conclude that the evidence was sufficient to support Terrell’s conviction. Accordingly, we affirm.

 

https://courts.ms.gov/images/Opinions/CO98980.pdf