Subject provided consent to take blood test in this case


In 1998, a collision occurred between Kenyon Wash and Conrad and Jeannie Fitzhugh. The evidence presented at trial established that at the time of the collision, Wash was driving on the wrong side of the road. Conrad Fitzhugh died some twenty hours later as result of injuries sustained in the accident.

An eyewitness of the accident saw Wash throw a paper sack into some bushes. When police arrived on the scene, the eyewitness directed them to where Wash had thrown the sack. There police found a paper sack containing a can of beer. Two police officers present at the scene testified that they smelled alcohol on Wash’s breath and that Wash was staggering as he walked and slurred his speech. Wash refused to take a “breathalyser” test, but told the officers that he would be willing to do anything else “to meet their satisfaction.”

Wash was taken to the county hospital, where a blood test was administered. The evidence showed that this test was administered two and one-half to three hours after the accident. The results of the blood test showed Wash to have a 0.13% alcohol level.

Wash was convicted of DUI manslaughter and sentenced to 20 years. On appeal, he argued the blood test was improper. MCOA affirmed.


We find that Wash consented to the drawing of his blood. In his own testimony, Wash stated that he indicated to the officers that he was unwilling to take a breathalyser test, but would take any other test. He even spoke with an attorney prior to allowing his blood to be drawn. Wash argues that if he were intoxicated, he could not have given a valid consent to the test.

However, the MSC has held that where the defendant appears to be aware of the circumstances surrounding his consent, the consent is valid despite his purported intoxication. See Mitchell v. State, 609 So.2d 416 (Miss. 1992). Wash had the presence of mind to refuse a breathalyser test and to request to speak with an attorney before consenting to the drawing of his blood. He was certainly competent to give valid consent. Therefore, the drawing of Wash’s blood for the purpose of testing its blood-alcohol content did not violate his constitutional protection against unwarranted search and seizure. Probable cause existed, and Wash consented to the test.

Furthermore, the officers handling the accident had probable cause to issue the blood test. As noted above, the officers on the scene were directed by an eyewitness to a paper bag which Wash had thrown in the bushes following the accident. This bag contained a can of beer. Two officers testified that Wash staggered as he walked, that his breath smelled of alcohol, and that his eyes were very red. In addition, the circumstances of the accident indicated negligent driving on the part of Wash.