Smell, physical signs, and admission lead to DUI for substance other than alcohol


In 2004, the Tupelo Police Department set up a driver’s license checkpoint on Blair Street. At 11:00 p.m., James J. Weil encountered the checkpoint. As Officer Joe Sturm approached Weil’s vehicle, Weil sped off. Sturm jumped in his vehicle and chased Weil about a quarter of a mile down the road where Weil stopped his car.

When Sturm approached Weil’s vehicle, the windows were down and Sturm smelled burnt marijuana. Sturm asked Weil to step out of the vehicle, and placed him under arrest for failing to yield to the officer directing traffic. Sturm asked Weil if he had consumed any alcohol, and Weil replied that he had consumed four servings of beer.

Sturm then asked if he had consumed any marijuana, to which Weil replied, “not a whole lot.” Sturm observed that Weil had poor balance, bloodshot eyes, slurred speech, and dilated pupils. Sturm testified that he did not perform a field sobriety test due to his concern for Weil’s safety. Instead, Sturm administered an Intoxilizer test in which it was determined that Weil had a blood- alcohol content of .047, well under the legal limit. Based upon his observation of Weil and the smell of marijuana emanating from the car, Sturm additionally placed him under arrest for “DUI other.”

Weil was convicted of DUI, third offense, and sentenced to five years. On appeal, he argued there was not enough evidence for a conviction and his statement should have been suppressed. MCOA affirmed.



Weil was specifically charged with violating Mississippi Code Annotated §63-11-30(1)(b)(Rev. 2004). The elements of this crime are (1) operating a motor vehicle (2) while under the influence of any substance other than alcohol (3) which has impaired the driver’s ability to operate a motor vehicle. Miss. Code Ann. §63-11-30(1)(b).

The first element of §63-11-30(1)(b), operating a motor vehicle, is not in dispute. Weil attacks the second element of the offense, being under the influence of a substance other than alcohol. Sturm testified that he smelled a strong odor of burnt marijuana coming from Weil’s vehicle. He also testified that Weil had poor balance, bloodshot eyes, slurred speech, and dilated pupils, which Sturm opined were consistent with signs of someone under the influence of marijuana.

Most importantly, Sturm testified that when he asked Weil if he had been smoking marijuana that evening, Weil indicated that he had smoked a small amount. Officer Jason Brockman, who assisted Sturm with the arrest, also testified that he smelled a strong odor of marijuana emerging from the vehicle. He also observed that Weil had a difficult time standing and balancing.

Additionally, both officers testified as to their training at the regional counter drug training academy and other programs in which they were trained to recognize the signs of intoxication from alcohol and narcotic drugs. Both officers testified that, based on their training and experience, they believed that Weil was under the influence of marijuana. We find that a rational juror could have found that the State proved the second element of the offense beyond a reasonable doubt.

Regarding the third element of DUI other, Sturm testified that when he approached Weil’s vehicle at the checkpoint, Weil sped off. From this, a reasonable inference can be made that Weil’s judgment was impaired and thus his driving ability was also impaired. We also find that a reasonable juror could have inferred from the testimony of the officers regarding Weil’s poor balance, bloodshot eyes, slurred speech, and dilated pupils that his driving ability was impaired.

B. Statement

According to Sturm’s testimony, after Sturm advised Weil that he was under arrest for DUI, Weil told the officer that he recognized that “he had a problem,” and asked if he sought rehabilitation would Sturm dismiss the charges or help him out in court at a later date. Weil claims that the trial court erred in failing to suppress this statement as an offer to compromise under Mississippi Rules of Evidence Rule 408.

Mississippi Rules of Evidence Rule 408 states in pertinent part, Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

Weil’s argument fails because Rule 408 necessarily contemplates situations in which an offer of compromise is made to or by one who has the authority to compromise the claim or charge in question. Sturm, a law enforcement agent, personally observed Weil committing the felony of DUI third offense and executed his duty to take the offender into custody. Sturm had no authority to negotiate the charge against Weil. Therefore, this issue lacks merit.