Probable cause for blood draw found in this case


In 1995, Joel Craig Wilkerson was driving Westbound on Stateline Road in DeSoto County, Mississippi. He struck the vehicle driven by Cynthia McGowan in a head on collision. Witnesses to the accident included Wilkerson, McGowan and Candida Sears, who claims to have witnessed the accident through her rear view mirror. Randy Parks also witnessed Wilkerson driving recklessly shortly before the accident. Juanita Wilson, a passenger in McGowan’s vehicle, was pronounced dead after arrival.

Officer Max Herring of the Southaven Police Department gained the assistance of Sherri Reinberg, a nurse with the Regional Medical Center to draw Wilkerson’s blood. This was done without a warrant. It was determined to be .15% ethyl alcohol.

Wilkerson was convicted of felony DUI and sentenced to 20 years. On appeal, he argued there was no probable cause for the blood draw. MSC affirmed.


Probable cause for a search is a common sense determination that the facts and circumstances known to the police officer, either through his own direct knowledge or gained second-hand from reliable sources, are such that contraband or evidence material to a criminal investigation will be found in a particular place. It must be more than mere or reasonable suspicion, but it need not meet the requirements of proof beyond a reasonable doubt.

We noted in Longstreet v. State, 592 So. 2d 16 (Miss. 1991), that blood searches based upon probable cause are legal.

In this case, Officer Herring knew from his personal knowledge and from statements of eyewitnesses that (1) Wilkerson had been involved in a head-on collision; (2) that the collision occurred in the other vehicle’s traffic lane; (3) that just before the collision Wilkerson had been driving recklessly and at a very high rate of speed and almost sideswiped another car just before the accident; and (4) that Wilkerson, immediately after the collision had a strong odor of intoxicants about him.

Considering these facts that were available to Officer Herring immediately following the accident, probable cause existed to withdraw a blood sample from Wilkerson.