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Wilkerson v. State11/12/1998
rear, killing the occupant of that vehicle. Ashley had not been lawfully arrested, but the facts show that the officer was aware that Ashley had been driving an automobile which had run into the rear end of another automobile stopped at a traffic signal, that an occupant of the stopped vehicle had been killed, and that in the opinion of the officer, Ashley was intoxicated. Ashley v. State, 423 So. 2d at 1313. Additional facts show that after leaving the scene of the collision, the officer went to the hospital where Ashley was taken after the collision. There, the officer observed Ashley to be belligerent and drunk. Id. at 1312. Information gathered by the officer at the scene and at the hospital provided the officer not only with probable cause to arrest Ashley, but probable cause to believe that Ashley was intoxicated, indicating the need for a blood test. Id. at 1313.
. In the present case, officer Herring knew from his personal knowledge and from statements of eyewitnesses that (1) Wilkerson had been involved in a head-on collision; (2) that the collision occurred in the other vehicle's traffic lane; (3) that just before the collision Wilkerson had been driving recklessly and at a very high rate of speed and almost sideswiped another car just before the accident; and (4) that Wilkerson, immediately after the collision had a strong odor of intoxicants about him. Considering these facts that were available to Officer Herring immediately following the accident, probable cause existed to withdraw a blood sample from Wilkerson.
c.
. The next issue for this Court to decide is whether the implied consent law of Mississippi rather than Tennessee, applies to a Mississippi law enforcement official's request to submit to blood alcohol tests after a driver was involved in an accident in Mississippi but transported to a Tennessee hospital. Wilkerson did not address this issue at trial. It is one that this Court has not addressed previously. Officer Herring crossed the Mississippi state line into Tennessee, where they were treating Wilkerson for injuries, to obtain the evidence in question, a blood sample.
. Wilkerson argues that the officer lacked authority to enter a foreign jurisdiction to demand withdrawal of the blood sample. Wilkerson failed to raise this issue in the trial court. This Court has repeatedly held that before an issue may be assigned and argued in this Court, it must first have been presented to the trial court. Read v. State, 430 So. 2d 832, 838 (Miss. 1983). Where the issue has not been timely presented below, it is deemed waived. Id. However, in the interests of Justice, this issue will be discussed.
. This issue before the Court on appeal is a matter of first impression in the state of Mississippi. We therefore look to other jurisdictions for guidance. The Pennsylvania Supreme Court has held that, " he fact that Appellant was treated for his injuries in another jurisdiction immediately after an accident which occurred in Pennsylvania is irrelevant as to the issue of whether a Pennsylvania law enforcement officer retains ... authority to secure BAC test results from a driver suspected of driving under the influence of alcohol in Pennsylvania." Commonwealth v. Stair, 699 A. 2d 1250, 1254 (Pa. 1997). Similarly, a Minnesota police officer may invoke the Minnesota Implied Consent Advisory to request an alcohol concentration test from an alleged intoxicated driver who was involved in a traffic accident in Minnesota but was taken to North Dakota for medical treatment. See Boland v. Commissioner of Pub. Safety, 520 N.W. 2d 487 (Minn. Ct. App. 1994).
. The present case is parallel to Boland, and Stair, in that the defendants were in
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