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Wilkerson v. State11/12/1998
wo years suspended and to payment of restitution. Post-trial, Wilkerson filed a motion for j.v.o.v, or alternatively, a new trial. The trial court overruled the motion. Aggrieved, Wilkerson appeals to this Court for relief. II.
. Wilkerson asserts three grounds under which his blood test evidence should have been suppressed.
a.
. The first point of contention is that Officer Herring violated Miss. Code Ann. § 63-11-8 (1972 as amended) in obtaining the blood evidence. Section 63-11-8 is one of several statutes found under the Implied Consent Law. See Miss. Code Ann. tit. 63, § 11 (Supp. 1998). Where there is substantial compliance with implied consent statutes, there is no error in admitting test results into evidence. Fulton v. City of Starkville, 645 So. 2d 910, 913 (Miss. 1994).
. The record reflects that Herring drew the blood sample within two and ½ hours after the accident, as opposed to two hours as required by the statute. The record also reflects that the nurse at the Med., Sherri Reinberg drew Wilkerson's blood only after obtaining permission from her supervisor.
. While section 63-11-8 requires the attending physician to deem the blood test clinically permissible, there is no reference in the record to the attending physician. Therefore, reason would suggest the authorizing supervisor contacted by Nurse Reinberg was the physician in charge of the trauma area on August 26, 1995. Moreover, Officer Herring testified that Nurse Reinberg refused to administer the test until she spoke with a doctor. Nurse Reinberg, a registered nurse, was medically qualified under the statute to administer the test, and would not have taken Wilkerson's blood if not medically feasible. Section 63-11-8 further states the blood test shall be administered within two hours, if possible. Officer Herring, by getting the test administered within two and ½ hours, substantially complied with this requirement. If not for his traveling to Horn Lake, Mississippi to obtain a Blood Alcohol Kit, and waiting for Nurse Reinberg to obtain permission from her supervisor, the test would have been given within the exact two hour time frame set out in 63-11-8. In light of the circumstances surrounding administration of the test, Herring acted in substantial compliance with 63- 11-8. Thus, the trial court did not err in admitting the blood evidence.
b.
. Wilkerson next challenges that the investigating officer lacked probable cause to require a warrantless blood test of the defendant. Officer Herring obtained a blood sample from Wilkerson once at the hospital to measure alcohol content in his blood. Probable cause for a search is a common sense determination that the facts and circumstances known to the police officer, either through his own direct knowledge or gained second-hand from reliable sources, are such that contraband or evidence material to a criminal investigation will be found in a particular place. It must be more than mere or reasonable suspicion, but it need not meet the requirements of proof beyond a reasonable doubt. Rooks v. State, 529 So. 2d 546, 554-55 (Miss. 1988). This Court noted in Longstreet v. State, 592 So. 2d 16, 21 (Miss. 1991), that blood searches based upon probable cause are legal. Where the state is justified in requiring a blood test to determine the alcoholic content in a suspect's blood, and the test has been performed, the state is entitled to the benefit of the test results. Id. (citing Ashley v. State, 423 So. 2d 1311, 1314 (Miss. 1983)).
. This case is similar to Ashley. The facts that were available to the officer then were that Ashley was driving an automobile that had struck another automobile in the
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