Shortly after midnight Bobby Heidelberg was traveling down Highway 84 East in the city limits of Laurel, Mississippi. Officer Larry Hayes of the Laurel Police Department was patrolling the area and noticed that Heidelberg had a broken taillight. Hayes decided to conduct a traffic stop to advise him of a traffic violation.
Hayes approached Heidelberg’s vehicle and asked for his license which was suspended. Hayes then requested Heidelberg to exit the vehicle. During this time, Hayes could smell an alcohol odor coming from the vehicle. He also noticed that Heidelberg’s eyes were bloodshot and his speech was slurred. In addition, Heidelberg seemed unsteady on his feet as he exited the vehicle.
After Heidelberg had exited the vehicle, he was offered a portable breath test which he took. Upon seeing the results, Hayes determined that Heidelberg should be taken into custody and then take the Intoxilyzer 5000 test at the police station for a more accurate reading of Heidelberg’s blood alcohol content. Once at the police station, Heidelberg refused to take the Intoxilyzer 5000 test.
Heidelberg was convicted of felony DUI and sentenced to three years. On appeal, he argued that the alcohol intoxication did not impair his ability to drive his car. MCOA affirmed.
While the phrase “impaired his ability to operate a motor vehicle” is an element of a crime listed under Section 63-11-30 (1), it is not an element of the specific subpart of the code section under which Heidelberg was tried and convicted.
A person can be convicted of a violation of Section 63-11-30 (1) if he (a) drives under the influence of intoxicating liquor; (b) drives under the influence of another substance that impaired his ability to drive; or (c) drives with an alcohol concentration of .08% or higher. These are not different elements of DUI, they are merely different ways one may be found in violation of Section 63-11-30 (1).
Here, the jury was instructed that in order to find Heidelberg guilty of felony DUI, it had to find that: (1) Heidelberg was driving or operating a motor vehicle, (2) at the time he was driving or operating the vehicle, he was under the influence of intoxicating liquor, and (3) he had been previously convicted of driving under the influence on at least two other occasions within the previous five years.
This Court addressed an analogous situation in Christian. The case involved the prosecution of a first offense DUI offender under Section 63- 11-30 (1). Christian alleged that the State failed to present any evidence as to impairment of his driving ability. We held that while the State did present evidence of impaired driving ability, it only needed to offer proof of his driving under the influence of intoxicating liquor.
Finding that Heidelberg’s sole allegation of error contains no merit, we affirm the conviction of felony DUI.