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Price v. State8/3/1999
a juror's common experiences, i.e., one stumbles, slurs words, and staggers when drunk, the HGN test relies upon a scientifically or at least professionally relevant set of observations."
Therefore, this Court finds that the HGN test is not generally accepted within the scientific community and cannot be used as scientific evidence to prove intoxication or as a mere showing of impairment.
However, the HGN test can still be used to prove probable cause to arrest and administer the intoxilyzer or blood test. This is the only allowable use for the test results. Id. at 1360-1361 (citations omitted) (emphasis added).
. Under this holding, clearly it was proper and within the sound discretion of the trial Judge to allow the admission of the test results of the alcosensor for purposes of proving probable cause to arrest and to administer the intoxilyzer. There is no merit to this assignment.
V. The Sufficiency of the Evidence
. Price contends that his witnesses explained his allegedly impaired driving and that but for the erroneous admission of the results of the alcosensor test, there was no evidence of probable cause for his arrest. He then reasons that cumulative errors followed the admission of the alcosensor test and that such cumulative errors require a reversal and remand by this Court. Price apparently ignores the testimony of Deputy Springer which testimony clearly provided a legal basis for his arrest even in the absence of the results of the alcosensor test. Deputy Springer observed Price driving off the paved portion of the road for a good distance after Price had failed or refused to dim his lights. Price then wove back to the right side and down the center of the road. Clearly this was reckless driving, and Deputy Springer was warranted in stopping him for reckless driving. Upon learning that Price was driving with a suspended license, Springer had a legal basis to arrest him. It was at that point that Springer asked Price to step out of the truck. When Price complied, Springer smelled alcohol on Price.
. In May v. State, 460 So. 2d 778, 781-82 (Miss. 1984) the Mississippi Supreme Court held:
"We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable inJustice. [citation omitted] Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal Justice system."
. When the applicable standards described above are applied to the evidence in this case it is obvious to this Court that this assignment of error is without merit and that the trial Judge acted well within his discretion in denying Price's motion for a new trial. Finding no error, the decision of the lower court is affirmed.
. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF FELONY DUI, THIRD OR GREATER OFFENSE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $2,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, LEE, PAYNE, AND THOMAS, JJ., CONCUR. MOORE, J., NOT PARTICIPATING.
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