Search
Close this search box.

There was sufficient probable cause for car stop which resulted in DUI conviction

Facts

In 2018, Officer Joshua Parrot with the Horn Lake Police Department initiated a traffic stop on Kelvin Edwards. He was cited for operating a motor vehicle with a BAC of .08 percent or more in violation of Mississippi Code Annotated section 63-11-30(1)(d)(i) (Supp. 2017). Edwards was also cited for driving without headlights in violation of Mississippi Code Annotated Section 63-7-11 (Rev. 2013) and for having an open container of alcohol in violation of Horn Lake City Ordinance 05-09-151. On October 16, 2018, Edwards appeared in the Horn Lake Municipal Court and, following a trial, was found guilty of all these charges.

Edwards appealed only the DUI conviction to the County Court of DeSoto County. A de novo trial was held on January 11, 2021. The State called Officer Parrot, who was employed at the time of the traffic stop with the Horn Lake Police Department. Parrot testified that on April 18, 2018, “I was driving down Nail Road. I saw a white vehicle pull out of Donnie’s Deli with no lights on. I turned around and initiated a traffic stop. Parrot testified it was around eleven o’clock at night and very dark outside.”

When asked how far the car traveled before its headlights were on Parrot responded, “Approximately 500 yards.” Parrot stated he was driving in the opposite direction of the white car and had to turn around to safely initiate a traffic stop. The violation location listed on the DUI ticket was on Nail Road near Somerset Road. Parrot testified Edwards, the driver, had slurred speech and glassy eyes. Parrot testified he called to the scene Officer Brandon McCary, who was the DUI officer for the Horn Lake Police Department.

McCary testified, “I made contact with Edwards, and I noticed that he had extremely glassy, bloodshot eyes. I asked him how much he had to drink tonight. He said two beers two hours ago.” Further, McCary testified he observed an open corona bottle wedged between the passenger’s seat and center console half empty. McCary testified he then asked Edwards to step out of the vehicle so he could administer standardized field sobriety tests. McCary administered the field sobriety tests. McCary stated, “Based on the totality of the circumstances, I decided that Mr. Edwards was under the influence and unable to operate a motor vehicle safely and placed him into custody for DUI. McCary stated Edwards was then transported to the station where Edwards provided two breath samples to an Intoxilyzer 8000 machine. McCary stated the overall reading was a .20.

Edwards testified at his county court trial. Edwards admitted to drinking the beer found in the car with him and stated that he had had a couple beers over about a hour and a half, two hours. Edwards stated that on the night in question, “I got my cigarettes, got back in my car, and pulled out on Nail Road. Then I pulled out from up under the lights that was shining at that gas station, and when I pulled out on the road, I hit my lights and turned my light switch on and headed down Somer . . . no, Nail Road to Somerset.”

Edwards continued, “When I pulled up there before I pulled on the street, I couldn’t tell my lights were on because I had just left out from up under the gas pump. And I was in that little Versa car. Normally, I drive my GMC truck and which normally when I turn the switch on, my lights automatically comes up.” Edwards stated that when he turned his lights on he was still in the parking lot pulling onto the road.

The defense then re-called Officer Parrot as an adverse witness. The defense focused on the location of the stop. The defense asked, “But you’re saying McCary pulled him over at a different spot than you pulled him over?. . . First of all did you pull the him over, or did McCary pull him over? Parrot responded, “I did.” Parrot testified that Edwards was pulled over at Nail and Somerset. On cross-examination, Parrot clarified that when he initiated the traffic stop, he was on Nail Road approaching Somerset, and then the vehicle made a right turn onto Somerset, which puts you near the intersection of Somerset and Laurel.

The county court found Edwards guilty. The court found beyond a reasonable doubt that Edwards did operate his motor vehicle on the roadway without headlights, and therefore, the officer was within his rights to make the stop. Edwards appealed that decision to the DeSoto County Circuit Court, arguing two issues. Edwards claimed that the State failed to prove probable cause to support the traffic stop. Edwards also argued law enforcement officers failed to disclose to him that he had a right to an alternative BAC test under Mississippi Code Annotated section 63-11-13. On November 5, 2021, the circuit court affirmed the county court’s DUI conviction. MCOA affirmed.

Analysis

A. Probable cause for stop

Mississippi Code Annotated section 63-7-11 requires that every vehicle upon a highway within this state during the period from sunset to sunrise . . . shall be equipped with lighted front and rear lamps. It is well settled that when a police officer personally observes a driver commit what he reasonably believes is a traffic violation, he then has probable cause to stop the vehicle. See MSC Martin.

Edwards’s concern that the location of the violation listed on the ticket was different from the final stop location is unfounded. There are no inconsistencies in either officer’s testimony or in the record. Officer Parrot was clear in his testimony that on the date in question he observed Edwards pull out of Donnie’s Deli and drive approximately 500 yards on Nail Road without headlights on. Parrot’s ticket stated the location of the violation was on Nail Road near Somerset Road. Parrot then turned around and made the traffic stop, at which point Edwards had turned onto Somerset Road near Laurel Road. Officer McCary testified he responded to the traffic stop on Somerset Road near Laurel Road.

Officer Parrot testified that he observed Edwards drive on Nail Road without headlights. This is sufficient under Mississippi law to constitute probable cause for a traffic stop. The trial judge found Officer Parrot’s testimony to be credible and sufficient to show that probable cause existed for the traffic stop.

B. Alternative BAC testing

Edwards argues that law enforcement was required to inform him of his right pursuant to Miss. Code Ann. 63-11-13.

Section 63-11-13 provides the following:

The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a test, approved by the Mississippi Forensics Laboratory created pursuant to Section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine. The failure or inability to obtain an additional test by such arrested person shall not preclude the admissibility in evidence of the test taken at the direction of a law enforcement officer.

Edwards’s argument has been addressed and rejected. In Scarborough v. Kellum, 525 F.2d 931 (5th Cir. 1976), the court affirmed that in Mississippi, an officer is not required to advise the Defendant of his right to finance an additional test. In Green v. State, 710 So. 2d 862 (Miss. 1998), the MSC held that section 63-11-13 does not impose an affirmative duty on law enforcement to give notification of the right to an independent test, and Green is presumed to know his rights under the law.

Further, in Samuel, this Court rejected the same argument Edwards makes here, holding that law enforcement officers do not have to inform defendants of their right to have an independent BAC test under section 63-11-13.

 

https://courts.ms.gov/images/Opinions/CO166209.pdf