In 2012, Officer Derrick Nelson of the Starkville Police Department was performing his regular patrol on South Nash Street in Starkville, Mississippi. Just after midnight, he observed a vehicle positioned halfway in the street and halfway on the curb. He immediately pulled over to investigate.
Upon closer inspection, Nelson noticed several garbage cans strewn about the adjacent yard. Based on the position of the vehicle, he believed that the garbage cans had just been hit by the vehicle. Nelson made contact with David Pittman and observed Pittman sitting in the driver’s seat with the key still in the ignition. Nelson believed Pittman was very impaired by some kind of substance due to Pittman’s behavior and the smell of intoxicating substances, including both alcohol and marijuana.
Nelson proceeded to help Pittman exit the car. According to Nelson, Pittman was very off balance, staggering, and struggling to hold himself up on the car. Nelson opened the tailgate on the vehicle to allow Pittman to sit down. Pittman informed Nelson that he lived at the house, but several witnesses nearby denied this statement and, instead, asserted that Pittman had run into the garbage cans and into the yard.
Nelson attempted to ask Pittman what had happened, but stated that Pittman was so intoxicated that he was unable to hold a conversation. Nelson then called Officer Brooke Manigold Carpenter, a DUI officer with the Starkville Police Department, for assistance.
Although Pittman denied having consumed any alcoholic beverages, Carpenter noticed his slurred speech, glassy eyes, and a strong odor of an intoxicating beverage coming from his breath. She also noticed a strong odor of unburnt marijuana. Nelson then performed a search, but no marijuana was found.
Carpenter asked Pittman to perform field sobriety tests and a preliminary breath test, but he refused. Based on the classic signs of intoxication that both she and Nelson observed, Carpenter placed Pittman under arrest. As Pittman made his way to the patrol car, Carpenter stated that Pittman relied on her for support because he was very unsteady on his feet.
At the police station, Pittman refused to submit to an Intoxilyzer blood-alcohol test and continued to exhibit signs of intoxication. He continued to need physical support.
Pittman was convicted of DUI, first offense, and sentenced to 48 hours. On appeal, he argued nobody testified that he was driving the car. MCOA affirmed.
Section 63-11-30(1)(a) makes it unlawful for any person to drive or otherwise operate a vehicle within this state who is under the influence of intoxicating liquor. Section 63-11-30(1)(a) is often referred to as common-law DUI.
Common- law DUI is proven when a defendant’s blood-alcohol results are unavailable or the defendant’s blood-alcohol content tests under the legal limit, but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.
Pittman argues that neither Officer Nelson or Officer Carpenter saw him move the vehicle, and that the officers only relied upon statements of witnesses that were not called to testify at trial. As such, he asserts that the City failed to prove beyond a reasonable doubt the element that he was driving or operating the vehicle.
In Lewis v. State, 831 So. 2d 553 (Miss. Ct. App. 2002), we found that in order to establish that a defendant was driving or operating a vehicle, the following must be shown: That the vehicle at least be capable of being moved by the defendant, whether the accused was then in the act of causing it to move or not. Both the accused and the vehicle must have a present ability to cause the hazards against which this statute attempts to protect. That hazard is a moving vehicle with an intoxicated person in control.
Further, in Holloway, we said that 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.
The position of the vehicle and the garbage cans in the yard were the first things that alerted Nelson to stop and investigate. He arrived on the scene and witnessed Pittman sitting in the driver’s seat of the vehicle with the key in the ignition. Although Nelson did not watch Pittman drive the vehicle, Pittman was in a position where he was capable of moving the vehicle.
At all times during the stop, both officers testified that Pittman was unable to walk, talk, or stand without extreme difficulty. Both officers also stated that they smelled an intoxicating substance when they encountered Pittman. As such, we find that the City proved that Pittman operated the vehicle within the definition provided by the statute. Further, we find that the City proved beyond a reasonable doubt that Pittman was guilty of common-law DUI. As such, we affirm the circuit court’s judgment.