Kimberly Sellers was stopped at a driver’s license checkpoint in Starkville. A subsequent Intoxilizer test revealed her blood- alcohol content to be .088, in excess of the legal limit.
Sellers was convicted of DUI, first offense, and sentenced to pay a fine of $600. On appeal, she argued the evidence should have been suppressed since the extending of her stop at the checkpoint was not based on probable cause. MCOA affirmed.
Sellers does not challenge the initial stop at the safety checkpoint, but, rather, the apparent diversion and extended detention of her vehicle for further examination. Sellers erroneously contended (and, indeed, continues to argue) that extending her detention required probable cause.
MSC said in Eaddy that an investigatory stop requires only reasonable, articulable suspicion that the person has committed or is about to commit a crime.
The DUI officer testified that he immediately noticed the smell of an intoxicating beverage that was emitting from the vehicle, and that Sellers was wearing a paper bracelet like the ones required by local establishments that serve alcohol.
MSC said in Watts that the odor of an alcoholic beverage is sufficient to establish reasonable suspicion for an investigatory stop. These things were in plain sight (or smell, as it were), and the circuit court could have reasonably inferred that the first officer had also observed them moments before, giving him reasonable suspicion to detain Sellers for further investigation.
Sellers next argues that officers lacked sufficient cause to demand that she submit to a breath test, which was ultimately administered and produced an incriminating result. The DUI officer testified that, in addition to smelling of alcohol, Sellers took and failed three field sobriety tests: Sellers demonstrated six of six clues on the horizontal gaze nystagmus test, four of eight clues on the walk-and-turn test, and two of four clues on the one-leg-stand test.
Sellers attacks the way the tests were administered, the officers’ recollection of one of the clues, and the like; but she presents only a single authority in support of her argument: MCOA Holmes which she erroneously argues entirely prohibits the use of horizontal gaze nystagmus test. We actually stated in Holmes that the HGN test can still be used to prove probable cause to arrest and administer the intoxilizer or blood test.