Police don’t have to observe subject driving to charge someone with DUI


In 2020, Madison County Sheriff’s Deputy Matthew Holcomb responded to a call for assistance from the fire department, which was attending to a vehicle that had flooded out in a roadway inundated with water. Holcomb testified that the firemen were of the opinion that Eugene Bullen was intoxicated. Bullen was still behind the wheel when Holcomb arrived.

Holcomb observed that Bullen’s pupils were abnormal. Holcomb also smelled alcohol in the vehicle. When asked why he had driven on a flooded road, Bullen replied that he had just “gotten a new truck and wanted to see what it could do.” Bullen admitted to having consumed alcohol but only “one or two drinks.”

Holcomb offered and Bullen refused a preliminary breath sample. After Bullen refused the breath sample, he was placed in custody and transported to the Madison County Detention Center. Upon arrival, Bullen was asked to blow into an intoxilyzer, but he refused.

Holcomb subsequently charged Bullen with a second-offense DUI based on a previous DUI conviction in Madison County.

He was convicted of DUI, second offense, and sentenced to 30 days. On appeal, he argued the officer did not observe him driving the truck. MSC affirmed.


It is unlawful for any person to drive or otherwise operate a vehicle within this state who is under the influence of intoxicating liquor. Miss. Code Ann. 63-11-30(1)(a) (Rev. 2013). This particular subsection of the statute is commonly referred to as common law DUI.

In Leuer, we said that in cases in which the defendant’s blood-alcohol results are unavailable 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, common-law DUI can be proved.

The evidence considered by the trial court in its determination of whether Bullen was driving under the influence was that: (1) the smell of alcohol was present in the vehicle; (2) Bullen admitted to consuming beers earlier in the evening; (3) Bullen drove down a flooded roadway; and (4) Bullen refused to submit to multiple breath tests.

Bullen argues that the State failed to meet its burden of proof beyond a reasonable doubt that he was driving under the influence of an intoxicating liquor. Bullen argues that the fact that Holcomb did not observe him operating the vehicle, paired with the lack of other physical signs of impairment, i.e., slurred speech, was evidence that he was not under the influence.

A. Consideration of the Smell of Alcohol

Bullen cited Richbourg for the proposition that the mere smell of alcohol on a person is not sufficient to establish a prima facie case of driving under the influence. Richbourg involved a motor vehicle accident. When the state trooper arrived, he smelled alcohol about the person. After the trial court excluded evidence of a failed horizontal gaze nystagmus test as being scientifically unreliable, the case rested on smell alone. MCOA found that smell alone was insufficient under the facts of that case to support a conviction of driving under the influence.

While this court has not addressed the issue of whether smell alone could support a DUI charge, the record in today’s case reveals that the trial judge considered other factors. Bullen admitted that he had consumed more than one beer, that he had purposefully driven into a flooded road, a reckless act, and that he refused multiple breathalyzer tests.

B. Consideration of Bullen’s Refusal of the Breathalyzer Test

Bullen contends that the circuit court’s consideration of his refusal to submit to multiple breath tests was erroneous. However, Holcomb testified that the arrest was based on Bullen’s admission he had been drinking, the smell of alcohol in the vehicle, reckless driving, and his refusal to submit to the breathlyzer test.

At the bench trial, the county judge stated: This court disagrees with Mr. Camp’s assessment of the evidence. I’ve got more than smell. I’ve got the flooded roadway-driving down a flooded roadway. I’ve got smell. I have got the admission of drinking, and then we get to the police department and I’ve got a refusal of the 8000 (breath alcohol test). I think that is enough under the law for the State to prove its case beyond a reasonable doubt that the defendant is guilty of a DUI second.

Mississippi Code Section 63-11-41 (Rev. 2013) states: If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action in this chapter.

The consideration of this evidence is by no means prejudicial to the defense, since Bullen admitted to having had a drink or two, and his vehicle smelled of alcohol. It was uncontested that Bullen had consumed alcohol prior to the incident. Therefore, we find that the circuit judge did not abuse his discretion by considering Bullen’s refusal to submit to the breathlyzer tests.

C. Consideration of Bullen’s Reckless Driving

Bullen contends that the fact that Holcomb did not observe Bullen driving the truck, paired with Bullen’s lack of slurred speech or behavior that was out of the ordinary, falls short of proof of intoxication. Bullen argues that there was no observation of erratic driving.

MCOA has addressed a similar issue in Pittman. There, the trial court had considered a reckless-driving charge in a case in which reckless driving was not directly observed. Analogous to this case, Pittman, the driver, was operating his vehicle prior to the officer’s arrival. Also, Pittman’s conviction was upheld absent evidence of a breath analysis, relying on the surrounding facts to support the conviction.

In today’s case, Holcomb observed a flooded out vehicle in a roadway inundated with water. When asked why he drove down the roadway, Bullen said he “just bought the vehicle Friday and wanted to see what it could do.” Bullen’s admission established that he had been driving.

The evidence presented in today’s case sufficiently established that Bullen was driving under the influence.


MSC cited MCOA Richbourg (the mere smell of alcohol on a person is not sufficient to establish a prima facie case of driving under the influence) and said that MSC has not weighed in on this issue. However, see MCOA cases Mayo and Dale, wherein MCOA said that there is a long line precedent in Mississippi which holds the smell of alcohol emanating from a car is enough to provide an officer with probable cause to make an arrest. Talk to your prosecutor for more guidance on this issue.