In 2008, while driving a Ford Ranger pick-up truck, Thomas Irby collided with a Dodge van driven by Olivia Miller. Also occupying Olivia’s vehicle was her husband, Justin Miller. All three were injured. Both drivers sustained injuries to their legs and feet, and the passenger, Justin, sustained brain injuries and was in a coma for four weeks after the accident. At the time of trial, the Millers had incurred $2,000,000 in medical bills. Justin’s prognosis at the time of trial was uncertain, and doctors were unable to predict whether he would ever walk again. Irby’s charge of DUI maiming stemmed solely from the injuries sustained by Justin.
According to Olivia Miller’s testimony, she discovered a pick-up truck in her lane about a tenth of a mile in front of her, traveling south in the northbound lane. Olivia testified that to her right was a ditch, and that she did not feel she could safely veer off the road. Accordingly, she veered sharply into the left lane. As soon as she went left, Irby veered to his right into the proper lane. As a result, the two automobiles collided, not quite head-on, but at a slight angle. Olivia Miller further testified that just after the accident, while in close proximity with Irby, she had detected the smell of alcohol.
Clarke County Deputy Sheriff Jerry Ivey responded to the scene of the accident. He testified that he had smelled alcohol in the pick-up truck and had observed a beer can lying inside the truck on the driver’s side floorboard. Ivey followed the ambulance transporting Irby to a local hospital and spoke with Irby at the hospital. Ivey testified that he had asked for and received consent from Irby for a blood sample.
Ivey further testified that he had read to Irby the contents of the law-enforcement form requesting that the hospital withdraw a blood sample. Ivey testified that he had informed Irby of his right to refuse consent to draw the blood sample. Ivey testified that the nurse had read Irby a second form, the Consent by Individual form (hereinafter “consent form”), which both Irby and the nurse had signed. The consent form read, in pertinent part, as follows: “I, Thomas Irby, consent to the taking of a blood or urine specimen from me for an investigation by a duly authorized law enforcement official . . . .” Moreover, the form explicitly stated that “results of the test may be made available to law enforcement.” According to the deputy, Irby had appeared alert and awake. The consent form bears Irby’s signature.
Irby’s blood tested positive for benzodiazepines, benzoylecgonine (a breakdown product of cocaine), and opiates. Two additional witnesses for the State testified that they had seen Irby earlier in the day. Both testified that Irby had run his pick-up truck off Causeyville Road and had gotten stuck in a ditch.
Irby was convicted of DUI maiming and sentenced to 25 years. On appeal, he argued the blood evidence was improperly admitted. MSC affirmed.
Voluntary consent to a search eliminates an officer’s need to obtain a search warrant. Thus, this issue is procedurally barred. The question whether a consent to a search was in fact voluntary or was 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. In Graves v. State, 708 So. 2d 858 (Miss. 1997), this court held that if the defendant claims that his waiver was not knowledgeable, the burden is on him to raise the issue of lack of knowledgeable waiver. Knowledgeable waiver is defined 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.
Irby’s argument as to this issue is two-fold: (1) the trial court erred in admitting the blood analysis because the nurse who drew the blood did not testify to the voluntariness of Irby’s consent; and (2) because Irby was being prepared for surgery, he was incapacitated and unable to consent knowingly to providing a blood sample.
To be clear, Irby’s blood sample was not withdrawn subject to an arrest, nor was he in custody at the time it was withdrawn. The law enforcement officer who had been at the scene had Irby’s blood withdrawn based on Irby’s oral and written consent.
Irby never properly raised the validity-of-consent issue. Accordingly, Irby did not timely object to the admission of the blood-analysis evidence. We find that the blood-analysis evidence was properly admitted. Thus, this issue has no merit.
Irby also argues that he suffered from diminished capacity and could not validly consent to giving a blood sample. Because the record is insufficient on this issue, we find that this contention is better suited for a motion for post-conviction relief.