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Palmer v. City of Oxford12/4/2003
cused. Theoretically, a person arrested for a DUI on Friday night would then have to wait in jail until Monday morning when the clerk's office opens to receives his filed copy of the ticket. We find that this argument does not reflect the intent of Miss. Code Ann. 63-9-21 when read as a whole.
Accordingly, this issue is without merit.
IV. "Common law" DUI
. This next issue is predicated upon this Court finding that the admission of the BAC test is erroneous. Palmer argues that if this Court finds, as he believes, that the BAC was erroneously admitted then he requests this Court to determine whether the State adequately proved the element of what is commonly called "common law" DUI.
. We find that the BAC test was properly admitted and as such this Court need not address this issue in further detail. Accordingly, this issue is without merit.
. In the alternative, there was sufficient evidence to convict Palmer under Miss. Code Ann. 63-11-30. Block "a" of the ticket states that a person is in violation of the statute if he "willfully and unlawfully drive or otherwise operate a motor vehicle within this state (a) nder the influence of intoxicating liquor." Palmer argues that Officer Sockwell witnessed no erratic driving by him, and therefore, block "a" is inapplicable to him. Palmer's argument is without merit.
. The officer stopped Palmer for speeding. When he spoke to Palmer, the officer noticed the smell of an intoxicating beverage from Palmer's breath. The officer had Palmer step away from the car to determine if the smell was coming from the car or from Palmer himself. As Palmer stepped out of the vehicle he had to support himself on the vehicle. The officer then determined that the smell was from Palmer. The officer noticed that Palmer had some of the classic signs of intoxication such as the smell of an intoxicating beverage, slurred speech and unsteadiness. The officer then had Palmer perform a number of field sobriety tests, such as the walk and turn and one legged stand, all of which indicated that Palmer was impaired and was under the influence of intoxicating beverages. Officer Sockwell initially stopped Palmer for speeding, Palmer was driving the vehicle at the time the officer stopped him. The officer then determined that observed Palmer and determined that he was impaired and operating the vehicle under the influence of intoxicating beverages. This issue is without merit.
V. Non-adjudication
. Palmer argues, that if this Court finds that he is guilty of a first offense DUI under a "common law" theory, he is eligible for non-adjudication pursuant to the Zero Tolerance for Minors provision of the Implied Consent Law. Palmer received his citation and was convicted in 2001. Miss Code Ann. 63-11-30(3)(a) (2001) which was applicable at this time stated:
(3)(a) This subsection shall be known and may be cited as Zero Tolerance for Minors. The provisions of this subsection shall apply only when a person under the age of twenty-one (21) years has a blood alcohol concentration two one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If such person's blood alcohol concentration is eight one- hundredths percent (.08%) or more, the provisions of subsection (2) shall apply.
According to the 2001 Zero Tolerance for Minors provision of the Implied Consent Law, the subsection only applied if the BAC reading is at least .02 % and no more than .08 %. This Court finds that the BAC test is admissible and since Palmer's BAC level was .127 % it is not within the parameters of the Zero Tolerance for Minors provision of the Implied Consent Law. Therefo
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