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Jones v. State5/6/2003
reasonableness.
. The case of Cutchens v. State, 310 So. 2d 273 (Miss. 1975), addresses the question of reasonableness regarding a blood test performed by a person without a permit issued by the State Board of Health. We find that this case offers significant guidance toward the resolution of our issue.
. In Cutchens, the Mississippi Supreme Court was confronted with a fact situation almost identical to the one we have here. There, the appellant contended that the results of a blood analysis were invalid because "the chemical analysis of his blood was not performed by an individual possessing a valid permit issued by the State Board of Health for making such analysis under section 63-11-19." Cutchens, 310 So. 2d at 277. In disposing of the appellant's contention, the Cutchens court held that " he tests authorized by the Implied Consent Law are not exclusive . . . . This section does not limit the evidence of chemical tests to the chemical tests provided for by the Act, but permits the production of 'any other competent evidence' bearing on the question of intoxication." Id. at 277-78.
. We note, however, that the Cutchens court, in reaching its decision, relied primarily on section 63-11-39(2) of the Mississippi Code of 1972 as annotated and amended which has since been repealed. That section, as it existed then, provided that " o provisions of this chapter [chapter containing the provisions of the Implied Consent Law] shall be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the person was under the influence of intoxicating liquor." Miss. Code Ann. § 63-11-39(2) (repealed 1991).
. We further note that the Cutchens court, although relying primarily on the statutory language of the now repealed section, also cited Schmerber v. California, 384 U.S. 757 (1966), which applied a test of reasonableness to the procedures utilized in tests designed to measure the blood-alcohol level of persons charged with crimes. Cutchens, 310 So. 2d at 278. After quoting an extensive passage from Schmerber, the Cutchens court opined:
Since the tests authorized in the Implied Consent Law are not the exclusive tests that may be used to determine the blood-alcohol level in the body of a person, the question then presents itself, was a reasonable test performed on Cutchens? Id.
Finally, the court in Cutchens concluded its consideration of the issue with a discussion of the qualifications of the persons involved in performing the blood analysis, and held as follows:
It is unquestioned that Cutchens' blood was withdrawn and the test performed by persons qualified to perform such functions. No question is raised as to the procedures used by Mrs. Shows and Dr. Hume. We therefore hold that the test was reasonable and the results thereof admissible as other competent evidence under section 63-11-39(2). Id.
. Although section 63-11-39(2), which expressly authorized admission of "any other competent evidence" bearing upon the issue of whether a person was intoxicated, has been repealed, it is not debatable that, in DUI cases, evidence regarding intoxication is not limited to evidence presented by the State from persons who hold a State Crime Laboratory permit to analyze blood, urine and breath samples. Mississippi Code Annotated § 63-11-13 (Rev. 1996) makes clear that test results from persons performing analyses at the behest of the accused may be admitted. The pertinent portion of this section reads:
The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualif
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