Subject not in custody at hospital when he provided consent


On the evening of December 28, 2012, Duane John left his sister’s house in Philadelphia, Mississippi, and got into his vehicle along with his girlfriend, two other adults, and John’s five children. While trying to pass another vehicle on the road, John lost control of his vehicle, causing it to flip over and sink into a creek. John; his girlfriend, Deanna Jim; and another adult, Dale Chickaway, were able to climb out of the vehicle. One adult, Diane Chickaway, along with John’s five children, died as a result of the accident. A Neshoba County jury subsequently indicted John for six counts of DUI manslaughter.

Jonathan Spears, a DUI officer for the Neshoba County Sheriff’s Department, responded to the scene of the accident and observed that emergency personnel had already arrived. Spears testified that after the wrecker pulled John’s vehicle from the creek, he observed several alcoholic-beverage boxes, cans, and bottles inside of the vehicle. Spears explained that emergency personnel transported John to the hospital before law enforcement could interview him on the scene.

Kevin Baysinger, an investigator with the Neshoba County Sheriff’s Department, arrived at the hospital, met with John, and informed him that law enforcement suspected that John was under the influence of alcohol at the time of the accident. John signed a consent form allowing for a blood sample to be drawn. Baysinger then instructed the hospital staff to draw blood from John with a blood kit provided by the Mississippi Crime Lab (John’s BAC was .18%). Even though Baysinger informed John that he was suspected of driving while under the influence of alcohol at the time of the accident, Baysinger admitted that he did not read John his Miranda rights before John consented to have his blood drawn. The record also reflects that Investigator Baysinger knew John from his previous DUI arrest.

On December 31, 2012, after John had been discharged from the hospital, Spears interviewed John at the Neshoba County Jail. John provided a statement wherein he admitted to purchasing and drinking beer on the night of the accident. John was then read his Miranda rights and placed under arrest.

John was convicted of DUI manslaughter and sentenced to 90 years. On appeal, he argued his consent for the blood draw was invalid. MCOA affirmed.


John submits that if he had been at the police station, instead of the hospital, he would have been given a different set of rights prior to signing the consent form, including notice that he had the right to refuse the blood-alcohol test and that the results could be used against him. John asserts that Baysinger admitted at trial that nothing on the consent form advised John that he had a right to refuse to consent to the blood test.

In Irby, MSC explained that voluntary consent to a search eliminates an officer’s need to obtain a search warrant. The question whether a consent to a search was in fact voluntary or the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. In addition to voluntary consent, a knowledgeable waiver of this right to be free from unreasonable search also is required. The Irby court defined “knowledgeable waiver” as consent where the defendant knows that he or she has a right to refuse, being cognizant of his or her rights in the premises.

The consent established in this case is similar to that established in Wash, where the circumstances showed valid, voluntary consent existed for a blood- alcohol test.

In this case, the record reflects evidence that law enforcement asked John for his consent to draw his blood for testing, and that John provided verbal and written consent to provide blood samples.

During the suppression hearing, the trial judge heard testimony from Investigator Baysinger, who testified that he informed John at the hospital that law enforcement suspected that John was under the influence of alcohol while operating the vehicle at the time of the accident. Baysinger testified that he told John that since fatalities occurred in the accident, law enforcement needed to draw blood from all of the drivers involved. He then asked John if he would consent to having his blood drawn.

As stated, John agreed to have his blood drawn, and he signed a consent form allowing for a blood sample to be drawn. Baysinger then instructed the hospital staff to draw blood from John for testing purposes. The record shows that John was not under arrest or in custody at the time he consented to the drawing and testing of his blood; rather, John provided his consent in writing while at the hospital in a noncustodial environment. John also makes no argument assertion that he revoked consent at any time or attempted to revoke consent. See Turner.

Baysinger testified that while at the hospital, John appeared to understand what was going on around him and seemed aware of his circumstances. He confirmed that John appeared to understand that he knowingly and voluntarily granted permission for Baysinger to take a blood sample. Baysinger also confirmed that he had previously arrested John for a DUI.

Defense counsel stated that upon DUI arrests, police officers read the defendants a form at the police station, which lists their rights, including the right to refuse to consent to testing. Defense counsel then questioned Baysinger about the events that happened at the hospital just prior to John providing blood samples, asking: “Did you cover everything on that form that you would read in the police station, or did you just read what was on the card?” Baysinger replied, “No sir, I just asked him if he would give blood.” John also testified during the suppression hearing, stating that he gave no consent for Baysinger to draw his blood and take a sample for testing.

After hearing testimony from Baysinger and John, the trial judge overruled the defense objection. In making his ruling, the trial judge found that Baysinger’s testimony reflected that John possessed awareness of the consequences of signing the consent to a urine and blood test. The trial court held that “when you consider all the totality of all the evidence . . . I don’t think that [a] Miranda warning is necessary for a situation such as this[.]” The trial court thus determined that the totality of the circumstances established that John’s consent was valid.

The record of the the trial judge’s finding that the totality of the circumstances established that John provided valid, voluntary consent to provide blood samples for blood-alcohol testing. Therefore, John’s consent was valid until revoked by John or until completion of the blood draw. We therefore find no abuse of discretion in the trial court’s admission of this evidence.