Jones v. State

798 So. 2d 592, 2001 WL 808353
Court of Appeals of Mississippi·Decided July 17, 2001·No. 2000-KM-00590-COA·Published·Cited by 5 cases

Opinion

798 So.2d 592 (2001)

Donald C. JONES a/k/a Donald Christopher Jones, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2000-KM-00590-COA.

Court of Appeals of Mississippi.

July 17, 2001.
Rehearing Denied October 30, 2001.

Kevin Dale Camp, Elizabeth Windsor, Jackson, Attorneys for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Jackson, Attorney for Appellee.

Before KING, P.J., PAYNE, and MYERS, JJ.

MYERS, J., for the court:

¶ 1. Donald C. Jones was convicted of his first DUI on October 6, 1999, in the Justice Court of Franklin County with Honorable Jerry Crane presiding. Following this bench trial, Jones appealed to circuit court. Honorable Forrest A. Johnson convicted Jones on February 28, 2000, and handed down a sentence of forty-eight hours in jail, suspended one-year probation, a fine of five hundred dollars, and mandatory attendance and completion of an alcohol safety education program. Jones perfected his appeal to this Court. Jones assigns two errors on appeal. The first error alleged is that the trial court erred in admitting and using copies of documents that were not properly authenticated to convict Jones. The second assignment of error is that the trial court erred in using an intoxilyzer test result that was not proven to be accurate to convict Jones.

FACTS

¶ 2. The Mississippi Highway Patrol was conducting a driver's license checkpoint on State Highway 33 in May of 1999. Donald C. Jones was asked to show proof of his license at the checkpoint but was unable to find it. Patrolman Tidwell told Jones to pull off the road and look for the license. *593 While looking, Tidwell observed Jones' slurred speech, red dilated eyes and also that Jones smelled of alcohol. Jones admitted to drinking a few drinks at a wedding about an hour and a half earlier. A field sobriety test was performed and Jones was placed under arrest. He was taken to the sheriff's department for administration of the intoxilyzer test. Tidwell administered the test and Jones' alcohol level, according to the machine, was.147%. Mr. Jones was charged under Miss. Code Ann. § 63-11-30(1) (Rev.1996) with driving under the influence of alcohol first offense.

¶ 3. Over the objection of the defense, the trial judge admitted Exhibit 3, a "copy of the page of the log book with the Intoxilyzer" as evidence that the intoxilyzer had been properly calibrated. The defense also objected to the admission of Exhibit 4, the "copy of a certification" regarding calibration that contained the "copy of a seal." Upon admission into evidence, both documents were deemed valid. The court then based its decision regarding Jones' guilt on the assumed validity and accuracy of the intoxilyzer readings.

DISCUSSION

1. Whether the trial court erred when it allowed uncertified copies into evidence?
2. Whether Jones was erroneously convicted based on an intoxilyzer reading that was not authenticated.

¶ 4. Patrolman Tidwell testified for the State that the copy of the page from the log book reflected the dates upon which the intoxilyzer was calibrated and the date the test was administered to Jones. He also testified that he had known the calibrating officer for several years and that the document under his review was a copy of a certificate of calibration. Tidwell said that he was able to operate an intoxilyzer, i.e., turn it on, administer it and turn it off, but was unable to explain how it worked. Nor was he aware of how body temperature or a person's blood to breath ratio affected the machine. He did not know details regarding the accuracy of the machine. There is no dispute as to whether the papers offered by the State were copies. The dispute is to whether they were properly authenticated and thus properly accepted into evidence.

¶ 5. Mississippi Rules of Evidence 901 requires that a document must be authenticated prior to its admission into evidence. The following is taken verbatim from two previous decisions by our supreme court in order to illustrate that this is not a new thought process in evidentiary procedure. In Johnston v. State, our supreme court stated:

The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Hentz v. State, 542 So.2d 914, 917 (Miss.1989). The discretion of the trial court must be exercised within the boundaries of the Mississippi Rule of Evidence. Under M.R.E. 901, authentication and identification are conditions precedent to admissibility. Generally these serve simply to establish that a matter is what it is claimed to be. However in the illustrations listed for Rule 901, a process or system may be authenticated or identified when it is shown that the process or system is used to produce a result and that it produces an accurate result. 901(b)(9) Mississippi Rules of Evidence.
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. Certification *594 of the machines must take place at least quarterly. Miss.Code Ann. § 63-11-19 (1972). These safeguards insure a more accurate result in the gathering of scientific evidence through intoxilyzers and are strictly enforced. Where one of the safeguards is deficient the State bears the burden of showing that the deficiency did not affect the accuracy of the result. Gibson v. State, 458 So.2d 1046, 1047 (Miss.1984).

Johnston v. State, 567 So.2d 237, 238 (Miss.1990) (citations omitted).

In Monroe v. State, 515 So.2d 860, 868 (Miss.1987), we defined a "certified copy" as "[a] copy of a document or record, signed and certified as a true copy by the officer to whose custody the original in [sic] intrusted." Monroe v. State, 515 So.2d at 868 (quoting Blacks Law Dictionary, 207, (5th Ed.1979)). To certify is "[t]o authenticate or vouch for a thing in writing. To attest as being true as represented."

McIlwain v. State, 700 So.2d 586, 591 (Miss.1997).

¶ 6. The State needed to prove that the test was administered according to approved methods, administered by qualified personnel, and administered on a machine certified to be accurate. Without one of those elements, the test is inadequately performed; then the State must prove that the inadequacy did not affect the accuracy of the result. Gibson, 458 So.2d at 1047. At no time did the State meet this burden.

¶ 7. Jones suggests that he was wrongly convicted because copies of these documents were introduced into evidence without meeting the elements of M.R.E. 901(b)(7) or M.R.E. 902(4). Mississippi Rules of Evidence 901(b) illustrates examples of authentication or identification which conform to Rule 901(a). One such example is Rule 901(b)(7) which provides that "[e]vidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept." Mississippi Rule of Evidence 902(4) further provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to:

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Jones v. State, 798 So. 2d 592, 2001 WL 808353 (Mich. Ct. App. 2001).

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