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McLaurin v. State9/14/2004
James Edward McLaurin was convicted in the Harrison County Circuit Court of felony driving under the influence and sentenced to five years to run consecutively to the sentence he is presently serving. Aggrieved, he asserts the following issues:
I. THE CHARGES AGAINST THE DEFENDANT SHOULD BE DISMISSED BECAUSE OF THE PRIOR CONVICTION IN JEFFERSON DAVIS COUNTY, MISSISSIPPI.
II. THE COURT SHOULD HAVE DIRECTED A VERDICT OF NOT GUILTY BECAUSE THE STATE HAS NO PROOF AS TO WHAT 10% OR MORE BLOOD BASED UPON GRAMS OF ALCOHOL PER TWO HUNDRED AND TEN LITERS OF BREATH IS.
III. THE COURT ERRED IN ALLOWING THE USE OF THE TWO MISDEMEANOR CONVICTIONS AGAINST THE DEFENDANT.
IV. THE COURT ERRED IN NOT ALLOWING THE DEFENDANT'S JURY INSTRUCTION D-8 AND, FURTHER, IN NOT ALLOWING THE DEFENDANT TO ARGUE THE RELATION BACK OR EXTRAPOLATION THEORIES TO THE JURY.
2. Finding no error, we affirm.
FACTS
3. On July 16, 2001, James Edward McLaurin was indicted on two counts of felony driving under the influence in the Harrison County Circuit Court. At the time he was indicted, McLaurin was serving a sentence for a conviction of driving under the influence out of the Jefferson Davis County Circuit Court. McLaurin filed a motion to dismiss for violation of the double jeopardy clause because the State was attempting to use the same two previous misdemeanor convictions for driving under the influence that were used in the Jefferson Davis County trial to enhance the charge in Harrison County to felony status. The prior two convictions were on December 30, 1996, and April 13, 1999. The Harrison County Circuit Court denied McLaurin's motion to dismiss.
4. At trial, Officer Roy Gibson of the Gulfport Police Department testified that he pulled McLaurin over for speeding in Gulfport, Mississippi at 4:41 a.m. on December 9, 2000. Gibson noticed a strong intoxicating odor and asked McLaurin for his driver's license. McLaurin instead produced a State of Mississippi Identification Card. Gibson had McLaurin exit the *270 vehicle and again detected the strong smell of alcohol. Officer Gibson then called for a DUI officer who arrived shortly thereafter, at 4:58 a.m. The DUI officer had McLaurin perform several field sobriety tests and also detected a strong smell of alcohol. McLaurin admitted to having been drinking from approximately 9:00 p.m. until approximately 1:00 a.m. The entire event with the DUI officer was videotaped and admitted at trial. McLaurin was given a breathalyzer test and the machine indicated an alcohol content of .151.
5. McLaurin testified that he was in jail in 1996 for a misdemeanor conviction of DUI and the judge had him sign some papers. McLaurin then testified that he worked on a garbage truck and was locked up at night. McLaurin admitted paying a fine for his misdemeanor conviction of DUI in 1999, but said that he knew he served some time on that conviction. At the conclusion of the trial, the jury found McLaurin guilty of two counts of felony DUI and he was sentenced to serve five years to run consecutively to the sentence he was presently serving from the conviction in Jefferson Davis County.
ANALYSIS
I. SHOULD THE CHARGES AGAINST THE DEFENDANT BE DISMISSED BECAUSE OF THE PRIOR CONVICTION IN JEFFERSON DAVIS COUNTY, MISSISSIPPI?
6. McLaurin argues that the charges against him should be dismissed because of the prior conviction in Jefferson Davis County, Mississippi. McLaurin feels harassed because of the two prior misdemeanor charges and feels he should only have to be harassed by the misdemeanor charges once. By using the same misdemeanor DUIs in his Harrison County conviction as well as in his Jefferson Davis County conviction, McLaurin argues that his constitutional right against double jeopardy has been violated.
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