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McDonald v. City Of Aberdeen12/14/2004
1. The Municipal Court of the City of Aberdeen found Michael McDonald guilty of driving under the influence, first offense, improper stopping, and possession of an open container of beer. McDonald appealed his conviction to the Monroe County Circuit Court. In a bench trial, the trial court found McDonald guilty of driving under the influence, first offense, but dismissed the charges of improper stopping and possession of an open container of beer. McDonald was sentenced to two days' incarceration in the Monroe County jail, with said sentence suspended, upon the condition that he not violate any laws or statutes of the State of Mississippi. McDonald was also placed on unsupervised probation for 180 days, fined $1,000 and court costs, and ordered to attend and complete an alcohol safety education program.
2. Aggrieved, McDonald appeals his conviction and argues that the trial court committed reversible error in failing to grant his motion to dismiss the DUI charge due to the City's failure to prove beyond a reasonable doubt that he was under the influence of alcohol at the time of his arrest.
3. Similarly, the City of Aberdeen cross-appeals and alleges that (1) the City offered sufficient evidence that McDonald was in possession of an open container of beer, and (2) the police officer's ticket sufficiently charged McDonald with "improper stopping" in violation of Mississippi Code Annotated section 63-3-903 (Rev.2004).
4. Finding no reversible error, we affirm McDonald's DUI conviction and the trial court's dismissal of the charges of improper stopping and possession of an open container.
FACTS
5. On April 29, 2001, Officer Randy Perkins, a lieutenant with the Aberdeen Police Department, testified that he was dispatched to the intersection of Commerce Street and Highway 45 where he found a vehicle sitting in the road blocking traffic. [FN1] He stated that the car's engine was running and that McDonald was lying over the steering wheel asleep. The officer also testified that McDonald's car was approximately twenty feet beyond the stop sign and that the front end of McDonald's car was sitting in the roadway jutting into Highway 45, so that other cars had to go around it. The officer stated that he had to beat on McDonald's window several times before awaking him. Officer Perkins testified that when McDonald woke up, he looked around as if he was lost, and when he asked McDonald to step out of the vehicle, Officer Perkins saw an open container of beer on the console and could smell a strong odor of alcohol emanating from McDonald. As McDonald exited the car, he staggered and almost fell. Officer Perkins had to support him to the rear of the vehicle. Officer Perkins testified that he asked McDonald several questions to determine if McDonald had diabetes or was ill. Officer Perkins administered to McDonald the Horizontal Gage Nystagmus test (HGN) and a portable Intoxilyzer test. McDonald was then arrested and transported to the Aberdeen Police department. While at the station, McDonald informed Officer Perkins that McDonald had drunk three beers but refused to give a breath sample for an analysis by an Intoxilyzer machine.
FN1. On cross-examination, when asked how far out McDonald's vehicle was in the highway, the officer testified that McDonald was not across the whole lane, but was in the first lane of the four lane highway. He stated that other cars had to go into the second lane to go around McDonald.
*2 6. McDonald, however, testified that his car was not jutting out into the highway as alleged by Officer Perkins. Rather, he was sitting beside a stop sign with his vehicle in drive. McDonald also testified that at the time of the incident, he was taking medications for depression and anxiety. Additional fact
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