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Jackson v. Daley11/19/1998
on Whitehurst v. State, 540 So. 2d 1319, 1323 (Miss. 1989) for the proposition that Miss. R. Evid. 401 allows the admission of blood alcohol tests in evidence. However, the majority fails to refer to Stong v. Freeman Truck Line, Inc., 456 So. 2d 698, 712-13 (Miss. 1984), where we held that the results of a blood test taken from a deceased motorist, under the provisions of Miss. Code Ann. § 63-11-7 (prohibiting the use of the results of blood tests against a tested person in court without the consent of the person so tested, or, if deceased, that person*s legal representative), were inadmissible in a civil trial resulting from a suit filed after the accident. This Court further recognized in Bryant v. Alpha Entertainment Corp., 508 So. 2d 1094, 1098 (Miss. 1987) that when Miss. Code Ann. § 63-11-7 is read in conjunction with § 63-11-43, the results of a blood test may not be used in evidence against a person in any court without the consent of the person so tested, or, if deceased, that person*s legal representative.
.The case sub judice is distinguishable from Clark v. City of Pascagoula, 507 So. 2d 70, 75 (Miss. 1987), because in that case, even though the results were deemed admissible by this Court, the evidence submitted was in defense of the person tested. Here the results of Bryan Jackson*s blood test were submitted by U.S.F. & G. to show that he was intoxicated, despite the appellant*s objection to the admission of the urinalysis and the blood tests. There was no consent given by Jackson*s legal representative to use the results and there was no way to refute the evidence since the sample had been destroyed. See Banks v. State, 1997 W.L. 751940 (Miss. 1997)(defendant had no way to refute evidence of bite marks in bologna sandwich after State*s expert threw it away, rendering his trial fundamentally unfair). The results, therefore, should not have been presented to the jury.
.Additionally, the majority relies on Miss. Code Ann. § 63-11-30 (1996), enacted after Jackson*s accident. Reading the statute as cited by the majority, there is no weight or volume component to be used in evaluating the amount of alcohol in the bloodstream. As a result, there is no way to discern the meaning of "grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath." Strict compliance has to be enforced, and even without it, there is no meaning to as to what the percentage in the statute refers.
V.
.For these reasons, I respectfully Dissent. The plaintiff was ambushed in so many ways by the trial court, the defense attorney and this Court that Justice and fair play were thrown out the window. The case should be reversed and remanded for a new trial based on the inadmissibility of Jackson*s blood test results and the prejudicial comments made by defense counsel and the trial Judge.
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