On April 5, 2011 I tried a DUI (driving under the influence) case in the Florence Mississippi Municipal Court. My client was involved in a single car accident in the early morning hours. Police and emergency personnel came to the scene and found that my client had been ejected from his vehicle. The paramedics transported my client to University Hospital for treatment. Fortunately, my client suffered only minor injuries and was discharged the next day.
While at the hospital, nurses took blood and urine samples for medical diagnostic purposes. A few weeks after my client was discharged, the Florence police department obtained my client’s medical records through a Grand Jury Subpoena Duces Tecum. This was a very unusual procedure since my client was not going to be charged with a felony, which is what a grand jury investigates. Nonetheless, the medical records were delivered to the police department and my client was charged based upon the blood test performed on him.
At trial, the prosecutor attempted to introduce the medical records to show that my client’s blood alcohol content was above the legal limit. I objected for various reasons including improper use of the grand jury, hearsay, the medical records were privileged, and violation of the 6th amendment right to cross examine the medical personnel who had performed the blood test.
The judge allowed the medical records in evidence to my surprise and disappointment. The prosecutor did not call the medical doctor who analyzed the blood and rested after the police officer testified.
I argued that the DUI charge must be dismissed for the reasons stated above and because the State failed to show that the blood test was performed pursuant to the requirements of Mississippi law. The blood test was also flawed, I argued, because the blood test was performed on serum and not whole blood. Alcohol serum tests produce false alcohol readings.
The trial judge agreed with some part of my argument (he didn’t say which one) and dismissed the case. I was fortunate to have a trial judge who understood the law and was not afraid to apply it properly.
While waiting to try my case, I was fortunate to watch a citizen defend himself on a DUI second offense which carries up to 1 year in jail and a minimum sentence of 5 days in jail. The man was stopped for failing to dim his headlights. The arresting officer noted that the man had no problem operating his vehicle. The officer also noted that the man was able to exit his vehicle and walk without any problem.
The officer did testify that the man “failed” field sobriety tests, had a smell of alcohol on his breath and had slurred speech. The officer arrested the man and allowed him to take the Intoxilyzer 8000. The man complied and blew a .05, which was well below the .08 limit in Mississippi. Desptie passing the intoxilyzer test, the officer arrested the man.
The gentlemen testified in his own defense. He was an older person who had a normal speech pattern which sounded slurred. You could tell he had some sort of speech impediment that made his speech sound slurred even though he was not drinking. The same judge that heard my case determined that the state did not meet its burden and found the gentlemen not guilty.
The lesson I learned is that if you have been drinking never take the Intoxilyzer test. Even if you pass this test the officer can still arrest you. I have been defending DUI cases in Mississippi for over 16 years and your best defense to a DUI case is to refuse the test. Learn more about me at the Coxwell & Associates website.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.