Facts
In 1995, Richard Leuer, a licensed driver in the State of Indiana, was taken into custody and charged with DUI and careless driving after he was stopped on Old Brandon Road in Rankin County. Brian Harper of the Flowood Police Department stopped Leuer after he observed his vehicle run off the road onto the shoulder, make a left turn and then go out into the middle of the roadway.
He testified that Leuer smelled strongly of alcohol, his eyes were glassy and he was having a little difficulty with his speech. Leuer admitted that he had had two or three bourbon and Cokes earlier in the evening. At the time he was stopped by Harper, Leuer testified that his date was sick and he had been looking for a place by the side of the road for her to throw up.
At the police station, Leuer stated that he tried to blow into the intoxilyzer but could not make it register. He recalled that Harper told him that he was “huffing” it. Harper contends that Leuer refused to take the breath test. Leuer’s test card indicated that no test results were obtained. No blood test was requested or given.
Leuer was convicted of DUI and careless driving and sentenced to 36 hours in jail. On appeal, he argued there was insufficient evidence to prove DUI. MSC affirmed.
Analysis
The first block, charging DUI under Sec. 63-11-30(1)(a), should be checked by the officer either when test results are not available or the results that are available show a BAC [blood alcohol content] of less than .10%, and when the officer has probable cause to believe that the person is driving or operating a vehicle under circumstances indicating that his ability to so drive or operate the vehicle has been impaired by the ingestion of intoxicating liquor (common law DUI).
The third block, charging an offense under Sec. 63-11-30(1)(c), should be checked when test results are available and are sufficient to give the officer probable cause to believe that the person is driving or operating a vehicle with a BAC of .10% or more.
Specifically, 63-11-30(1)(c) is designated for persons testing above .10 percent blood alcohol content; 63-11-30(1)(a) is either for persons not tested or for persons not registering above .10 percent blood alcohol level.
We conclude that Miss. Code Ann. § 63-11-30(1)(a) is not void for vagueness and does sufficiently provide fair notice of the proscribed conduct. Through §63-11-30(1)(a), the average person is put on notice that drinking intoxicating liquors and subsequently driving a motor vehicle is prohibited.
Driving “under the influence” is commonly understood to mean driving in a state of intoxication that lessens a person’s normal ability for clarity and control. Common understanding and practice recognize that Leuer’s behavior here is most consistent with being under the influence of intoxicating liquors, and thus clearly supports his conviction for DUI. Harper had a reasonable suspicion that Leuer was driving under the influence when he observed Leuer run off the road onto the shoulder, make a left turn and then go out into the middle of the roadway.
Once Leuer pulled over, Harper observed that Leuer smelled strongly of alcohol and had glassy eyes and difficulty speaking. Harper opined that Leuer was under the influence of intoxicating liquor. Leuer admitted having alcoholic drinks earlier in the evening, but predictably denied having anything else. Finally, he tried to excuse his careless driving by offering that his date was sick and needed to “throw up.”
Leuer refused the intoxilyzer according to Harper, and Leuer testified contrarily that the machine would not register. The record reveals that no test results were obtained. Since no BAC analysis was available, subsection (1)(a) is the offense committed as it is a different method of proving the same crime-DUI.