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Wilkerson v. State11/12/1998
he accident was caused by the defendant's negligence. The only issue here was whether there was proof beyond a reasonable doubt that the defendant was operating the vehicle in violation of the drunk driving statute. Moreover, the instruction given clearly required the jury to find that the defendant negligently caused the victim's death. Finally, the instruction proffered was confusing and abstract. Thus, while defendant was entitled to an instruction on proximate cause, for the forgoing reasons the failure to give the instruction proffered was not reversible error.
b.
. Wilkerson claims that Jury Instruction D-6 is a proper statement of the law. Its purpose is to keep the jury from assuming negligence without the state establishing the elements required. Jury Instruction D-6 states, "As a general rule, the mere fact that an accident has occurred is not, of itself, evidence of negligence on the part of anyone." The use of that instruction in the instant case, however, is extraneous in light of the facts. The accident occurred in Wilkerson's oncoming lane. Accidents of this type, barring additional factors out of the driver's control, do not normally occur but for the negligence of a party. Wilkerson did not introduce any evidence of a collateral factor that forced him into the lane of oncoming traffic. Absent additional evidence, there are no circumstances that would allow a reasonable juror to conclude that neither party was negligent. As a result, Jury Instruction D-6 is not warranted and was properly refused by the trial court.
c.
. Wilkerson asserts that the lower court erred in refusing Jury Instruction D-9, which reads:
"The law in the state of Mississippi requires that the operator of any motor vehicle involved in an accident that results in a death shall be tested for the purpose of determining the alcohol content or drug content of such operator's blood. The law further requires the following: (1) the blood test shall be administered at a hospital if the operator is alive; and (2) the attending physician must deem that the drawing of a blood sample is clinically permissible; and (3) the blood test shall be administered by a physician, mortician, registered nurse, clinical laboratory technologist or clinical laboratory technician; and (4) the test shall be administered within two (2) hours after such accident, if possible, (5) to the extent possible the exact time of the test shall be recorded. In this case, the following violations of the law occurred: (A) No physician deemed the drawing of blood clinically permissible; (B) The blood test was not administered within two hours and said test was possible within two hours; (C) The blood test was performed at the Mississippi Crime Laboratory rather than a hospital. The jury, as the trier of fact, is sole Judge as to the weight to be given these violations and should evaluate the credibility of the testimony in light of the weight given to such violations."
. The first part of the instruction summarized the statute and pointed out possible violations of the law. This instruction charges the jury to contemplate the testing procedures set forth in § 63-11-8. This instruction is barred by the principles set forth in Sudduth v. State, 562 So. 2d 67, 72 (Miss. 1990), in which this Court has repeatedly condemned confusing and misleading instructions. Instruction D-9 would have confused the jury because the state maintains and this Court agrees that the officer obtained the blood sample from Wilkerson because he had probable cause to do so, not pursuant to § 63-11-8. In that the state's actions were based on probable cause, this instruction is irrelevant to this matter.
d.
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