Officer doesn’t have to see subject driving vehicle to charge them under 63-11-30


In 2001, Johnny Ray Holloway drove to a club in Hakley, Louisiana. He indicated that he drank one 16 ounce beer and decided to return to his home in Foxworth, Mississippi. According to Holloway, while driving home near Dexter, he heard a popping noise and pulled to the side of the road, where the vehicle just shut down.

Holloway stated that the power went off and he steered the vehicle out of the road. According to Holloway, his cell phone would not work in that area, so after moving the vehicle, he moved to the passenger side and lay on the front seat.

Deputy Sheriff Norman Goleman of the Walthall County Sheriff’s Department testified that he received a call regarding a vehicle on Highway 48 East of Dexter, which may have been broken down. Upon arriving at that location, Goleman and Deputy Randy Boyd saw a vehicle parked just across the bridge, on the highway in the eastbound lane, with its lights off.

Goleman went to the driver’s side of the vehicle and saw Holloway asleep behind the steering wheel of the vehicle. He tapped on the window until Holloway responded and then asked him to exit the vehicle. Goleman asked for Holloway’s driver’s license, Holloway said he did not have it with him. Goleman then asked for Holloway’s driver’s license number or his social security number.

A check of the number given by Holloway showed that the license was suspended. Goleman indicated that he smelled the odor of alcohol emanating from Holloway’s breath as he inquired about the driver’s license number. At this time, Goleman noted that Holloway’s speech was slurred as well.

Goleman testified that Holloway was kind of swaying as he was questioned about his driver’s license and why his car was parked in the road. Holloway indicated that he heard something pop on his vehicle and just stopped in the road. When asked by Goleman why he did not coast to the shoulder of the road, Holloway offered no response.

When Holloway exited the vehicle, Goleman noticed that Holloway’s eyes were dilated and glassy. After questioning Holloway, Goleman placed him under arrest for driving under a suspended license.

Goleman did not attempt to start Holloway’s vehicle and was thus unable to state whether it was in working condition. Following standard procedure, a tow truck was called to pick up the vehicle. En route to the sheriff’s office, Holloway fell asleep. After arriving at the sheriff’s office, Holloway was advised of his rights, and then consented to take the intoxilyzer test. The results indicated that Holloway had a blood alcohol content of .125%.

Holloway was convicted of operating a motor vehicle while under the influence of intoxicating liquor and sentenced to 5 years. On appeal, he argued the State could not prove he was operating a vehicle. MCOA affirmed.


Holloway cites Lewis v. State, 831 So.2d 553 (Miss. Ct. App. 2002), where this court indicated that Mississippi Code Annotated Section 63-11-30 (Rev.1996) required 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.

In this case, Holloway did not indicate that anyone else had been driving. In fact, he testified that he was the person who drove the vehicle. Where the defendant admits having driven the vehicle to its present location, no additional proof of its ability to be driven is required.

Pursuant to Lewis, to be guilty of driving or operating a motor vehicle while under the influence of drugs or alcohol, or with an illegally high blood-alcohol content, the person must be shown by direct proof or reasonable inferences to have driven the vehicle while in that condition, or to be operating the vehicle while sitting behind the wheel, in control with the motor running.

In Horn, 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.

Holloway’s statement to Deputy Goleman that he had consumed some beer prior to driving the vehicle to its then location, in conjunction with Deputy Goleman’s observations of Holloway, and the results of the intoxilyzer test, provided sufficient evidence that Holloway was guilty of DUI.