IN THE SUPREME COURT OF MISSISSIPPI
NO. 2021-KM-01081-SCT
EUGENE BULLEN a/k/a EUGENE BULLEN, IV a/k/a EUGENE SAMUEL BULLEN, IV
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/16/2021 TRIAL JUDGE: HON. STEVE S. RATCLIFF, III TRIAL COURT ATTORNEYS: JOHN K. BRAMLETT, JR. PAMELA L. HANCOCK KEVIN DALE CAMP COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KEVIN DALE CAMP ATTORNEY FOR APPELLEE: PAMELA L. HANCOCK DISTRICT ATTORNEY: JOHN K. BRAMLETT, JR. NATURE OF THE CASE: CRIMINAL - MISDEMEANOR DISPOSITION: AFFIRMED - 06/23/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.
RANDOLPH, CHIEF JUSTICE, FOR THE COURT:
¶1. Eugene Bullen was convicted of driving under the influence (DUI), second offense,
in the Justice Court of Madison County, Mississippi. He appealed to the County Court of
Madison County. Following a bench trial, the trial judge found Bullen guilty and sentenced
him to thirty days of imprisonment, a two year’s driver’s license suspension, an alcohol and
drug assessment, six months supervised probation, eighteen months unsupervised probation,
and eighty hours of community service within six months. Aggrieved by that decision, Bullen appealed to the Madison County Circuit Court. The circuit court held that the decision of the
county court was supported by substantial evidence and was not manifestly wrong. Bullen
has now appealed to this Court.
¶2. He asserts that the trial court erred by not granting his motion to dismiss for
insufficiency of the evidence. Bullen argues that the State did not meet its burden to prove
beyond a reasonable doubt that he was intoxicated. We hold the trial judge was presented
with sufficient evidence to find Bullen guilty of violating Mississippi Code Section 63-11-
30(1)(a). We affirm.
FACTS AND PROCEDURAL HISTORY
¶3. On February 10, 2020, Madison County Sheriff’s Deputy Matthew Holcomb
responded to a call for assistance from the fire department, which was attending to a vehicle
that had flooded out in a roadway inundated with water. Holcomb testified that the firemen
were of the opinion that Bullen was intoxicated. Bullen was still behind the wheel when
Holcomb arrived. Holcomb observed that Bullen’s pupils were abnormal. Holcomb also
smelled alcohol in the vehicle. When asked why he had driven on a flooded road, Bullen
replied that he had just “gotten a new truck and wanted to see what it could do.” Bullen
admitted to having consumed alcohol but only “one or two drinks.”
¶4. Holcomb offered and Bullen refused a preliminary breath sample. After Bullen
refused the breath sample, he was placed in custody and transported to the Madison County
Detention Center. Upon arrival, Bullen was asked to blow into an intoxilyzer, but he refused.
2 Holcomb subsequently charged Bullen with a second-offense DUI based on a previous DUI
conviction in Madison County.
¶5. At trial, Holcomb testified that based upon his observations, Bullen was under the
influence of alcohol while operating a vehicle. Holcomb first stated that Bullen’s dilated
pupils were one of the reasons for charging Bullen. After being corrected on cross-
examination that dilating means opening, he apologized for the wrong terminology. He stated
that he actually observed that Bullen’s pupils had contracted. Officer Holcomb further stated
that he relied not only on the effect on Bullen’s pupils, inter alia, but he also considered that
Bullen had driven into a flooded roadway.
¶6. At the close of the State’s case in chief, defense counsel moved for directed verdict.
The court denied the motion, stating that the odor of alcohol and the fact that Bullen had
driven down a flooded roadway and refused to submit to a breath test were sufficient to prove
that Bullen was driving under the influence. Following the denial of this motion, Bullen was
convicted of second-offense DUI.
STATEMENT OF THE ISSUE
¶7. Bullen argues that the trial court “erred by denying Mr. Bullen’s motion to dismiss
because there was insufficient evidence Mr. Bullen was intoxicated.”
STANDARD OF REVIEW
¶8. “The standard of review for a judgment entered following a bench trial is well settled.
‘A circuit court judge sitting without a jury is accorded the same deference with regard to his
3 findings as a chancellor,’ and his findings are safe on appeal where they are supported by
substantial, credible, and reasonable evidence.” City of Jackson v. Brister, 838 So. 2d 274,
277-78 (Miss. 2003) (quoting Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000)).
DISCUSSION
¶9. It is “unlawful for any person to drive or otherwise operate a vehicle within this state
who . . . is under the influence of intoxicating liquor[.]” Miss. Code Ann. 63-11-30(1)(a)
(Rev. 2013). This particular subsection of the statute “is commonly referred to as ‘common
law DUI.’” Gilpatrick v. State, 991 So. 2d 130, 133 (Miss. 2008). In cases in which the
“defendant’s blood-alcohol results are unavailable . . . but there is sufficient evidence that
the defendant operated a vehicle under circumstances indicating his ability to operate the
vehicle was impaired by the consumption of alcohol,” common-law DUI can be proved. Id.
(citing Leuer v. City of Flowood, 744 So. 2d 266, 268 (Miss. 1999)).
¶10. The evidence considered by the trial court in its determination of whether Bullen was
driving under the influence was that: (1) the smell of alcohol was present in the vehicle; (2)
Bullen admitted to consuming beers earlier in the evening; (3) Bullen drove down a flooded
roadway; and (4) Bullen refused to submit to multiple breath tests. Bullen argues that the
State failed to meet its burden of proof beyond a reasonable doubt that he was driving under
the influence of an intoxicating liquor. Bullen argues that the fact that Holcomb did not
observe him operating the vehicle, paired with the lack of other physical signs of impairment,
i.e., slurred speech, was evidence that he was not under the influence.
4 ¶11. The sufficiency of the evidence as a matter of law is viewed and tested in a light most
favorable to the State. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). The credible
evidence consistent with the defendant’s guilt must be accepted as true. Spikes v. State, 302
So. 2d 250, 251 (Miss. 1974).
A. Consideration of the Smell of Alcohol
¶12. Bullen cites Richbourg v. State, 744 So. 2d 352, 357 (Miss. Ct. App. 1999), for the
proposition that the mere smell of alcohol on a person is not sufficient to establish a prima
facie case of driving under the influence.
¶13. Richbourg involved a motor vehicle accident. Id. at 354. When the state trooper
arrived, he smelled alcohol “about the person.” Id. After the trial court excluded evidence
of a failed horizontal gaze nystagmus test as being scientifically unreliable, the case rested
on smell alone. Id. at 357. The Court of Appeals found that smell alone was insufficient
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2021-KM-01081-SCT
EUGENE BULLEN a/k/a EUGENE BULLEN, IV a/k/a EUGENE SAMUEL BULLEN, IV
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/16/2021 TRIAL JUDGE: HON. STEVE S. RATCLIFF, III TRIAL COURT ATTORNEYS: JOHN K. BRAMLETT, JR. PAMELA L. HANCOCK KEVIN DALE CAMP COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KEVIN DALE CAMP ATTORNEY FOR APPELLEE: PAMELA L. HANCOCK DISTRICT ATTORNEY: JOHN K. BRAMLETT, JR. NATURE OF THE CASE: CRIMINAL - MISDEMEANOR DISPOSITION: AFFIRMED - 06/23/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.
RANDOLPH, CHIEF JUSTICE, FOR THE COURT:
¶1. Eugene Bullen was convicted of driving under the influence (DUI), second offense,
in the Justice Court of Madison County, Mississippi. He appealed to the County Court of
Madison County. Following a bench trial, the trial judge found Bullen guilty and sentenced
him to thirty days of imprisonment, a two year’s driver’s license suspension, an alcohol and
drug assessment, six months supervised probation, eighteen months unsupervised probation,
and eighty hours of community service within six months. Aggrieved by that decision, Bullen appealed to the Madison County Circuit Court. The circuit court held that the decision of the
county court was supported by substantial evidence and was not manifestly wrong. Bullen
has now appealed to this Court.
¶2. He asserts that the trial court erred by not granting his motion to dismiss for
insufficiency of the evidence. Bullen argues that the State did not meet its burden to prove
beyond a reasonable doubt that he was intoxicated. We hold the trial judge was presented
with sufficient evidence to find Bullen guilty of violating Mississippi Code Section 63-11-
30(1)(a). We affirm.
FACTS AND PROCEDURAL HISTORY
¶3. On February 10, 2020, Madison County Sheriff’s Deputy Matthew Holcomb
responded to a call for assistance from the fire department, which was attending to a vehicle
that had flooded out in a roadway inundated with water. Holcomb testified that the firemen
were of the opinion that Bullen was intoxicated. Bullen was still behind the wheel when
Holcomb arrived. Holcomb observed that Bullen’s pupils were abnormal. Holcomb also
smelled alcohol in the vehicle. When asked why he had driven on a flooded road, Bullen
replied that he had just “gotten a new truck and wanted to see what it could do.” Bullen
admitted to having consumed alcohol but only “one or two drinks.”
¶4. Holcomb offered and Bullen refused a preliminary breath sample. After Bullen
refused the breath sample, he was placed in custody and transported to the Madison County
Detention Center. Upon arrival, Bullen was asked to blow into an intoxilyzer, but he refused.
2 Holcomb subsequently charged Bullen with a second-offense DUI based on a previous DUI
conviction in Madison County.
¶5. At trial, Holcomb testified that based upon his observations, Bullen was under the
influence of alcohol while operating a vehicle. Holcomb first stated that Bullen’s dilated
pupils were one of the reasons for charging Bullen. After being corrected on cross-
examination that dilating means opening, he apologized for the wrong terminology. He stated
that he actually observed that Bullen’s pupils had contracted. Officer Holcomb further stated
that he relied not only on the effect on Bullen’s pupils, inter alia, but he also considered that
Bullen had driven into a flooded roadway.
¶6. At the close of the State’s case in chief, defense counsel moved for directed verdict.
The court denied the motion, stating that the odor of alcohol and the fact that Bullen had
driven down a flooded roadway and refused to submit to a breath test were sufficient to prove
that Bullen was driving under the influence. Following the denial of this motion, Bullen was
convicted of second-offense DUI.
STATEMENT OF THE ISSUE
¶7. Bullen argues that the trial court “erred by denying Mr. Bullen’s motion to dismiss
because there was insufficient evidence Mr. Bullen was intoxicated.”
STANDARD OF REVIEW
¶8. “The standard of review for a judgment entered following a bench trial is well settled.
‘A circuit court judge sitting without a jury is accorded the same deference with regard to his
3 findings as a chancellor,’ and his findings are safe on appeal where they are supported by
substantial, credible, and reasonable evidence.” City of Jackson v. Brister, 838 So. 2d 274,
277-78 (Miss. 2003) (quoting Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000)).
DISCUSSION
¶9. It is “unlawful for any person to drive or otherwise operate a vehicle within this state
who . . . is under the influence of intoxicating liquor[.]” Miss. Code Ann. 63-11-30(1)(a)
(Rev. 2013). This particular subsection of the statute “is commonly referred to as ‘common
law DUI.’” Gilpatrick v. State, 991 So. 2d 130, 133 (Miss. 2008). In cases in which the
“defendant’s blood-alcohol results are unavailable . . . but there is sufficient evidence that
the defendant operated a vehicle under circumstances indicating his ability to operate the
vehicle was impaired by the consumption of alcohol,” common-law DUI can be proved. Id.
(citing Leuer v. City of Flowood, 744 So. 2d 266, 268 (Miss. 1999)).
¶10. The evidence considered by the trial court in its determination of whether Bullen was
driving under the influence was that: (1) the smell of alcohol was present in the vehicle; (2)
Bullen admitted to consuming beers earlier in the evening; (3) Bullen drove down a flooded
roadway; and (4) Bullen refused to submit to multiple breath tests. Bullen argues that the
State failed to meet its burden of proof beyond a reasonable doubt that he was driving under
the influence of an intoxicating liquor. Bullen argues that the fact that Holcomb did not
observe him operating the vehicle, paired with the lack of other physical signs of impairment,
i.e., slurred speech, was evidence that he was not under the influence.
4 ¶11. The sufficiency of the evidence as a matter of law is viewed and tested in a light most
favorable to the State. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). The credible
evidence consistent with the defendant’s guilt must be accepted as true. Spikes v. State, 302
So. 2d 250, 251 (Miss. 1974).
A. Consideration of the Smell of Alcohol
¶12. Bullen cites Richbourg v. State, 744 So. 2d 352, 357 (Miss. Ct. App. 1999), for the
proposition that the mere smell of alcohol on a person is not sufficient to establish a prima
facie case of driving under the influence.
¶13. Richbourg involved a motor vehicle accident. Id. at 354. When the state trooper
arrived, he smelled alcohol “about the person.” Id. After the trial court excluded evidence
of a failed horizontal gaze nystagmus test as being scientifically unreliable, the case rested
on smell alone. Id. at 357. The Court of Appeals found that smell alone was insufficient
under the facts of that case to support a conviction of driving under the influence. Id.
¶14. While this Court has not addressed the issue of whether smell alone could support a
DUI charge, the record in today’s case reveals that the trial judge considered other factors.
Bullen admitted that he had consumed more than one beer, that he had purposefully driven
into a flooded road, a reckless act, and that he refused multiple breathalyzer tests.
B. Consideration of Bullen’s Refusal of the Breathalyzer Test
¶15. Bullen contends that the circuit court’s consideration of his refusal to submit to
multiple breath tests was erroneous. However, Holcomb testified that the arrest was based
5 on Bullen’s admission he had been drinking, the smell of alcohol in the vehicle, reckless
driving, and his refusal to submit to the breathlyzer test. At the bench trial, the county judge
stated:
This Court disagrees with Mr. Camp’s assessment of the evidence. I’ve got more than smell. I’ve got the flooded roadway-driving down a flooded roadway. I’ve got smell . . . I have got the admission of drinking, and then we get to the PD and I’ve got a refusal of the 8000. I think that is enough under the law for the State to prove its case beyond a reasonable doubt that the defendant is guilty of a DUI second.
¶16. The standard of review governing the admission or exclusion of evidence is abuse of
discretion. Williams v. State, 991 So. 2d 593, 597 (Miss. 2008). Mississippi Code Section
63-11-41 (Rev. 2013) states: “If a person under arrest refuses to submit to a chemical test
under the provisions of this chapter, evidence of refusal shall be admissible in any criminal
action in this chapter.” This Court has found that evidence of a defendant’s refusal to submit
to a breathalyzer test is relevant and admissible under Mississippi Rule of Evidence 402.
Ricks v. State, 611 So. 2d 212, 215-16 (Miss. 1992). The consideration of this evidence is
by no means prejudicial to the defense, since Bullen admitted to having had a “drink or two,”
and his vehicle smelled of alcohol. It was uncontested that Bullen had consumed alcohol
prior to the incident. Therefore, we find that the circuit judge did not abuse his discretion by
considering Bullen’s refusal to submit to the breathlyzer tests.
C. Consideration of Bullen’s Reckless Driving
¶17. Bullen contends that the fact that Holcomb did not observe Bullen driving the truck,
paired with Bullen’s lack of slurred speech or behavior that was out of the ordinary, falls
6 short of proof of intoxication. Bullen argues that there was no observation of erratic driving.
The Court of Appeals has addressed a similar issue in Pittman v. City of Starkville, 151 So.
3d 1055 (Miss. Ct. App. 2014). There, the trial court had considered a reckless-driving
charge in a case in which reckless driving was not directly observed. Id at 1058. Analogous
to this case, Pittman, the driver, was operating his vehicle prior to the officer’s arrival. Id.
Also, Pittman’s conviction was upheld absent evidence of a breath analysis, relying on the
surrounding facts to support the conviction. Id. In today’s case, Holcomb observed a flooded-
out vehicle in a roadway inundated with water. When asked why he drove down the roadway,
Bullen said he “just bought the vehicle Friday and wanted to see what it could do.” Bullen’s
admission established that he had been driving.
¶18. “For review of the findings of a trial judge sitting without a jury, this Court will
reverse ‘only where the findings of the trial judge are manifestly erroneous or clearly
wrong.’” Amerson v. State, 648 So. 2d 58, 60 (Miss. 1994) (quoting Barnes v. Confidential
Party, 628 So. 2d 283, 290 (Miss. 1993)). The evidence presented in today’s case
sufficiently established that Bullen was driving under the influence.
CONCLUSION
¶19. Substantial evidence in the record supports Bullen’s conviction of second-offense
DUI. Further, this Court finds that trial did not err by denying Bullen’s motion to dismiss
for insufficiency of the evidence.
¶20. AFFIRMED.
7 KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.