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probable cause to administer a field sobriety test can be the basis of probable cause to arrest and administer a breath test

Facts

In 2001, Tami Saucier was driving on Highway 53 near Poplarville, Mississippi. While on patrol, a Pearl River County sheriff’s deputy began to follow her. He observed Saucier increase and decrease her speed and “bump” the centerline. She was driving between 15 and 20 MPH in a 35 MPH zone. He followed her for about eight miles. As they entered Poplarville, Saucier went into the center lane and jerked her vehicle back into the right lane. The officer contacted the Poplarville Police Department for assistance.

A police officer responded and pulled his vehicle in between the sheriff deputy’s vehicle and that of Saucier. He followed her for perhaps three hundred yards. He observed Saucier cross the yellow line into the turn lane and then back into her lane. She was also driving rather slowly. The police officer then stopped Saucier.

As he approached Saucier’s vehicle, he smelled alcohol coming from inside her vehicle. He then noticed that Saucier’s eyes were bloodshot and glassy. He asked her to exit her vehicle. The sheriff’s deputy was also present and he saw Saucier sway. Saucier stated that she had been drinking wine earlier at a casino on the Gulf Coast.

Two field sobriety tests were conducted. Saucier did not successfully complete either, so she was asked to submit to an Intoxilizer exam for breath alcohol content. Saucier was transported to the Pearl River County Sheriff’s Department for the test. She was unable to complete it.

She was convicted of DUI, first offense, and sentenced to 48 hours in jail. On appeal, she argued there was not probable cause for the stop. MCOA affirmed.

Analysis

A. Traffic Stop

In Whren v. United States, 517 U.S. 806 (1996), the U.S. Supreme Court said that the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Miss. Code Ann. § 63-3-1213 (Rev. 1996), says that any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless driving.

Repeatedly, the vehicle that Saucier was driving crossed over the center line. This is careless driving under the statute. She was driving without due regard for the width and use of the street. This was observed by two law enforcement officers. The officer’s observations were sufficient for him to conclude that the traffic violation of careless driving had occurred.

B. Probable cause to administer Intoxilizer exam

In Young, MSC said that probable cause to administer a field sobriety test can be the basis of probable cause to arrest and administer a breath test.

The record reflects that the officers smelled alcohol, that Saucier’s eyes were glassy and bloodshot, that she swayed, and that she could not adequately perform two field sobriety tests. Saucier admitted to drinking at a casino that night. From this, the officer concluded that Saucier was intoxicated.

C. Proof of Intoxication

Saucier asserts that there is no evidence indicating she was intoxicated. This is the statute that Saucier was found to have violated:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who
(a) is under the influence of intoxicating liquor. Miss. Code Ann. § 63-3-30(1)(a) (Rev. 1996).

The circuit judge concluded Saucier was intoxicated based on the testimony of the police officer and the sheriff’s deputy. This evidence demonstrated that Saucier was driving carelessly, smelled of alcohol, had glassy eyes, swayed, and could not complete two field sobriety tests.

Saucier states that the evidence should be found to be inadequate because of Richbourg, a case where MCOA rejected the sufficiency of the Horizontal Gaze Nystagmus test as proof of intoxication in court. That specific test, involving the ability of a person suspected of being intoxicated to follow with his eyes the movement of the officer’s hand or finger, is not what was used in this case.

An HGN test is conducted by asking the driver to cover one eye and focus the other on an object–usually a pen–held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision he watches the driver’s eyeball to detect involuntary jerking. The officer then observes: (1) the inability of each eye to track movement smoothly; (2) pronounced nystagmus at maximum deviation; and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point.

Saucier received a different test, commonly called a field sobriety test. Saucier was asked to put her feet together. She then was asked to close her eyes and tilt her head back, extending her arms. With her eyes still closed, Saucier was asked to touch the tip of her nose with the index finger, first of one hand and then of the other.

She was then given what the officer called a finger-count test. It is unclear from the testimony whether other requests were made. The officer stated that she was unable to pass these tests of coordination. Such field sobriety tests have been distinguished from the HGN test.

The absence of evidence from a successfully administered Intoxilizer test does not prevent proof of intoxication.

 

https://courts.ms.gov/images/OPINIONS/CO12590.PDF