You can be intoxicated and still provide consent


On his way home from working the night shift in 2002, Samuel Comby bought a six pack of beer. Comby drank the beer and ate breakfast as he worked around his house that morning. Shortly after noon, Comby offered to give a friend a ride across the Choctaw reservation, about a forty minute drive.

After Comby dropped his friend off, he stopped by another friend’s house who gave him several warm beers to take home. Comby then stopped by a convenience store and bought ice to cool off the beer. On his return home, Comby was south-bound on Conahatta-Prospect Road, when he crossed the double yellow lines, striking Patsy Butler, a motorist traveling north.

Butler was pronounced dead on the scene. Comby was taken via ambulance to Alliance Laird Hospital, where he consented to a blood test. Comby’s blood alcohol level registered at 0.19. A few days later Comby was arrested for DUI manslaughter.

Comby was convicted of DUI manslaughter and sentenced to 21 years. On appeal, he argued his consent was not valid and the search of his automobile was improper. MCOA affirmed.


A. Consent

The MSC in McDuff v. State, 763 So.2d 850 (Miss.2000), held that taking a blood sample had to be based on probable cause, a warrant or consent. In our case, Comby signed a consent form to have his blood drawn and tested for law enforcement purposes. The trial court, outside the presence of the jury, heard testimony from the nurses who were present when Comby signed the consent form, the deputy who obtained Comby’s consent, and Comby himself. The trial court determined that Comby voluntarily consented to having his blood drawn.

Comby also argues that his blood alcohol level of 0.19 calls into question his ability to consent. In Wash, we held that where the defendant appears to be aware of the circumstances surrounding his consent, the consent is valid despite his purported intoxication.

Comby was aware that he had collided with Butler. At the scene of the accident Comby inquired about Butler. While being loaded into the ambulance Comby had the presence of mind to tell the officers that his driver’s license was in the car in the glove compartment. The emergency medical technician who delivered Comby to the hospital testified that Comby was able to answer all of his questions en route to the hospital.

At the hospital Comby signed the consent form. The nurses attending Comby testified that Comby appeared to understand what was going on. The nurses testified that Comby was able to answer their questions, and that they communicated back and forth with him. The deputy who secured Comby’s consent testified that Comby understood what was going on and that he was lucid as he talked with personnel in the room. We cannot say that the trial court erred in finding that Comby’s consent was valid despite his intoxication.

B. Vehicle

Comby argues that evidence obtained from his car should have been suppressed because no warrant was obtained to search the vehicle and Comby did not consent to the search. The U.S. Supreme Court in California v. Acevedo, 500 U.S. 565 (1991), held that under the automobile exception police may conduct a warrantless search of an automobile and any containers therein if they have probable cause to believe that it contains contraband or evidence of crime.

Thus, a search of Comby’s car must be supported by probable cause even though a warrant was not necessary. A probable cause determination should be based on the totality of the circumstances. Deputy Jody Pennington, who responded to the scene of the accident, testified that Comby’s eyes were bloodshot, that his breath smelled of alcohol, and that his motor skills were impaired. Comby also identified himself as the driver of one of the vehicles.

Pennington testified that after he read Comby his Miranda warnings, Comby told him that he had consumed about eight or nine beers that day, but that he had not had anything to drink in about three hours. Clearly, under the totality of the circumstances, there was probable cause to believe that Comby’s vehicle contained evidence of a crime.

Additionally, some of the beer was found lying in the back floorboard of the car. The smell of alcohol on Comby’s breath, coupled with his impaired coordination and his statement that he had consumed a good bit of alcohol earlier in the day constituted probable cause sufficient to seize the beer the officers found in plain view. The incriminating nature of the beer was apparent, and the deputy spotted the beer from a lawful vantage point. There was sufficient probable cause to search the vehicle, and there was sufficient probable cause to seize the beer.

Because there was adequate probable cause, the trial court did not err in allowing the evidence found in Comby’s vehicle. This issue is without merit.