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Palmer v. City of Oxford12/4/2003
n the trial court for non-adjudication under the zero tolerance for minors portion of the implied consent law.
LEGAL ANALYSIS
I. Intoxilyzer Test
. Palmer's main contention is that the BAC test result should not have been admitted into evidence. In his testimony, Officer Sockwell, the sole witness at trial, referenced a "booklet" which was the operating manual for the Intoxilyzer 5000 machine. Palmer argues that the trial court erred by not admitting in toto the operating manual of the Intoxilyzer 5000 machine. He also argues that the trial judge never explicitly ruled on his motion for admission of the manual. He claims that the failure to admit the manual deprived him "of convincing evidence of the test's unreliability and of the failure of the testing officer to follow protocol as established by his training and the source of the testing instrument." Palmer requests that this Court reverse the trial court and, at a minimum, remand for a rehearing with the admission of the manual. In the alternative, Palmer requests that this Court take independent notice of the manual and remand for a rehearing and deny the admission of the BAC test because of violations of the procedures mandated by the Implied Consent Law.
. This Court in the DUI case McIlwain v. State , 700 So.2d 586, 590 (Miss. 1997), held that:
The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Hentz v. State , 542 So.2d 914, 917 (Miss. 1989), Monk v. State , 532 So.2d 592, 599 (Miss. 1988). The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.
McIlwain , 700 So.2d at 590 (quoting Johnston v. State , 567 So.2d 237, 238 (Miss. 1990). In McIlwain , the Court set forth a three-prong test based upon Johnston , "for laying the predicate prior to admitting the results of a D.U.I. test." Id.
The court must determine whether the 1) proper procedures were followed, 2) whether the operator of the machine was properly certified to perform the test, and 3) whether the accuracy of the machine was properly certified.
Id. (citing Johnston, 567 So.2d at 238).
. Officer Sockwell was the sole witness to testify at trial. During his testimony, a certificate certifying that the intoxilyzer machine was inspected, working, calibrated and met acceptable standards was admitted into evidence. Officer Sockwell also stated that he had a certificate showing that he was qualified to use the Intoxilyzer 5000 machine. The certificate, entitled "Mississippi Department of Public Safety Permit To Conduct Breath Analysis," was admitted into evidence.
. When questioned by the prosecution about the test result readings for the first two tests (00:48 and 01:10), Officer Sockwell stated that the results on both test cards stated "invalid test, check ambient conditions." The prosecution then asked the officer what the results meant resulting in the following exchange:
Q.[State] Do you know what - - when intoxilyzer five thousand machine gives you that message [Invalid test, check ambient conditions], do you know what that means, sir? What are you supposed to do?
A. It says in the booklet.
[Defense] May I object to a booklet being received. [Court] I think you have already objected to him answering his question.
I am going to see what his answer is and if you need to make a further objection after he answers it I will let you.
[Defense] I apologize. Just wanted to be timely.
[Co
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