Evans v. State

93 So. 3d 62, 2012 WL 917590, 2012 Miss. App. LEXIS 150
CourtCourt of Appeals of Mississippi
DecidedMarch 20, 2012
DocketNo. 2010-KM-01225-COA
StatusPublished
Cited by2 cases

This text of 93 So. 3d 62 (Evans v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. State, 93 So. 3d 62, 2012 WL 917590, 2012 Miss. App. LEXIS 150 (Mich. Ct. App. 2012).

Opinion

CARLTON, J.,

for the Court:

¶ 1. Thomas Evans Jr. appeals his conviction and sentence for driving under the influence (DUI), first offense. Evans raises the following assignments of error: whether (1) the verdict is against the overwhelming weight of the evidence; (2) the State failed to prove Officer John Marolt, a Mississippi State Highway Patrol officer, possessed sufficient qualifications and certifications to administer the breath-analysis tests; and (3) the trial court erred by failing to appoint him counsel to protect his Sixth Amendment rights. Finding no error, we affirm.

FACTS

¶ 2. On March 15, 2009, Evans was traveling on Highway 82 near Mathiston, Mississippi, when Officer Marolt stopped his vehicle. Officer Marolt testified he stopped Evans’s vehicle for speeding. Officer Marolt stated Evans was traveling at a high rate of speed, 105 miles per hour in a 65 miles-per-hour zone. Officer Marolt further testified that when he approached the vehicle, he asked Evans, the driver of the vehicle, for his driver’s license. As this was taking place, Officer Marolt said he noticed a strong smell of intoxicating beverage emitting from inside the vehicle. Officer Marolt asked Evans to step out of the vehicle, and Evans complied. Officer Marolt testified Evans’s eyes were dilated, and Evans slurred his speech. Officer Marolt testified that he then attempted to administer a portable breath test, but Evans refused to blow hard enough into the machine for the test to register. As a result, Officer Marolt decided to take Evans to the police department. Officer Marolt stated that while transporting Evans to the police department, Evans admitted consuming alcoholic beverages earlier that day.

¶ 3. Officer Marolt testified that the video equipment in his police car recorded the roadside stop and Evans’s transport to the police department; however, the video recording was admitted at trial for identification purposes only since the State experienced technical difficulties with the video equipment at trial.

¶ 4. Once at the police department, Officer Marolt offered Evans the Intoxilyzer test, but Evans refused. Officer Marolt testified:

I, what I recall is we got to the jail, and you [Evans] were offered the test at the end of the observation period, at which time you [Evans] refused. And I ran all the information through the machine, and then about ten minutes later[,] you [Evans] were wanting to take the test. That is not how it works. You are offered that test one time, and when you refuse it, you refused it.

Officer Marolt ticketed Evans for driving under the influence of alcohol, no proof of liability insurance, careless driving, and speeding.

¶ 5. On July 17, 2009, the Webster County Justice Court found Evans guilty of [64]*64DUI, first offense. Evans subsequently appealed to the Circuit Court of Webster County where, after a trial de novo, he was found guilty of DUI, first offense, in violation of Mississippi Code Annotated section 63 — 11—30(l)(a) (Supp.2011). The circuit court then imposed a forty-eight hour suspended sentence, and the court ordered Evans to pay a fine and court costs as well as to attend the Mississippi Alcohol Safety Education Program. Feeling aggrieved, Evans now appeals his conviction and sentence.

DISCUSSION

I. THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 6. Evans argues that his conviction is against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). “The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). We weigh the evidence, however, in the light most favorable to the verdict. Id. (citation omitted).

¶ 7. Evans cites to the following in support of his argument: the video recording of the roadside stop and his transport to the police department was not admitted into evidence at trial; the State presented no test results at trial to establish his intoxication; the State failed to show that Evans refused the Intoxilyzer test; Officer Marolt demonstrated bias toward him; and there was no proof, other than Officer Marolt’s testimony, that Evans was intoxicated. Furthermore, Evans argues no proof of probable cause existed as to why Officer Marolt stopped his vehicle on the night in question.

¶ 8. Here, we find the State offered ample evidence in support of Evans’s DUI conviction. Officer Marolt testified to the following: Evans was traveling at an extremely high rate of speed; Officer Marolt smelled alcohol emitting from Evans’s vehicle; Evans slurred his speech; Evans’s eyes were dilated; Evans admitted that he had consumed alcoholic beverages earlier that day; and Evans initially refused to take the Intoxilyzer test at the police department. Accordingly, we find that the evidence did not preponderate so heavily against the verdict that allowing the verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶ 9. Additionally, we find no merit to Evans’s claim that Officer Marolt lacked probable cause to initiate the traffic stop. We recognize that as a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Henderson v. State, 878 So.2d 246, 247 (¶ 7) (Miss.Ct.App.2004) (quoting Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). The record shows Officer Marolt witnessed Evans’s vehicle traveling 105 miles per hour, which was in violation of the 65 miles-per-hour speed limit. The officer’s observations were enough for him to determine that a speeding violation occurred. Thus, probable cause clearly existed for the traffic stop. This issue is without merit.

[65]*65II. OFFICER MAROLT’S TESTIMONY

¶ 10. Evans argues the State failed to prove Officer Marolt possessed the qualifications and certifications required to administer breath-analysis tests. Thus, Evans claims Officer Marolt improperly testified that he failed to blow hard enough into the portable breath test for it to register. In support of his argument, Evans cites Johnston v. State, 567 So.2d 237, 238 (Miss.1990) for the proposition that, “A chemical analysis of a person’s breath, blood, or urine is deemed valid only when performed according to approved methods; performed by a person certified to do so; and performed on a machine certified to be accurate.” (Emphasis added). Additionally, Evans cites to Mississippi Code Annotated section 63-11-19 (Supp.2011) for the proposition that the State failed to prove as part of its authenticity burden that Evans’s breath test was “performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis.”

¶ 11. After reviewing the record, we find no merit to this argument.

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Bluebook (online)
93 So. 3d 62, 2012 WL 917590, 2012 Miss. App. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-state-missctapp-2012.