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Palmer v. City of Oxford12/4/2003
His Rights
. Palmer argues that the warning is statutory pursuant to 63-11-21 and part of the procedure approved by the State Crime Lab and the Commissioner of Public Safety. Further, Palmer asserts that the State must prove the warning beyond a reasonable doubt as an element of 63-11-30(c). The State argues that the officer did not deviate from the implied consent warning and that there was only one completed test with a breath sample. At issue is the second checklist which has a warning time of 01:09 prior to the second test at 01:10. Likewise, Officer Sockwell testified that he read Palmer his rights when he administered the test. On cross-examination, Officer Sockwell also testified that he read Palmer his rights prior to each and every intoxilyzer test. However, there are only two intoxilyzer checklists. On redirect, Officer Sockwell stated that the rights that he read to Palmer never changed between the first, second or third reading. The testimony indicates that Officer Sockwell read Palmer his rights before attempting to administer the intoxilyzer test and obtaining a BAC reading. Accordingly, this issue is without merit.
III. Irregularities in the "copy" of the citation/affidavit
. Palmer's argument again boils down to whether there was substantial compliance by the officer in the administration of the citation. Palmer asserts that the copy of the citation that he received was different than the original filed citation. He cites to three irregularities, two of which he admits are of "relatively insignificance" and one that is "substantial." Significantly, Palmer received a copy of citation that had a blank space or no BAC reading under subsection C of the citation. He contends that at a minimum this Court should reverse and remand as to the conviction and exclude the intoxilyzer test result. The State argues that Palmer has never asserted that he did not know with what offense he was charged and all proceedings were based upon the original ticket at the arraignment, the municipal court and the circuit court.
. Indeed, Officer Sockwell admitted that the copy of the citation that he served upon Palmer did not have the .127 BAC result. Officer Sockwell merely checked block A and C on the citation served upon Palmer. However, Officer Sockwell also testified that he explained the test to Palmer that night and told him his test result.
. Palmer relies in part upon Edwards v. State , 800 So.2d 456, 461 (Miss. 2001), a case dealing with statutory construction of burglary of a business as opposed to a dwelling. In Edwards, this Court stated:
This Court in Reining v. State , 606 So.2d 1098, 1103 (Miss.1992), provided guidance in cases involving criminal statutes as follows:
Although a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose. United States v. Brown , 333 U.S. 18, 25, 68 S.Ct. 376, 380, 92 L.Ed. 442, 448 (1948); see also State v. Burnham , 546 So.2d 690, 692 (Miss.1989). Strict construction means reasonable construction. State v. Martin , 495 So.2d 501, 502 (Miss.1986). This Court has held that the test concerning statutory construction is whether a person of ordinary intelligence would, by reading the statute, receive fair notice of that which is required or forbidden. Burnham , 546 So.2d at 692; Roberson v. State , 501 So.2d 398, 400 (Miss.1987); Cassibry v. State , 404 So.2d 1360, 1368 (Miss.1981). 800 So.2d at 461. Miss. Code Ann. 63-9-21(3)(b) and (c) and 63-9-21(6)(2001)) state:
(b) The traffic ticket, citation or affidavit which is issued to a person arrest
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