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Saucier v. City of Poplarville11/4/2003
hicle one time to drift slightly across a lane marker was not an offense under Texas law. Hernandez v. State of Texas, 983 S.W. 2d 867, 870 (Tex. Ct. App. 1998). The driver was on a five lane highway, and he did not cross over into the lane for oncoming traffic. The court discussed the legislative history of the relevant Texas statute, and found that there was a violation only when a driver "fails to stay within its lane and such movement is not safe or is not made safely." Id. at 871. The failure to prove the unsafe nature of the lane violation is what caused the court to find that no traffic offense had occurred.
. We note factual distinctions. First, there was not a one-time and brief drifting across the painted stripe separating lanes as in Hernandez, but a multiple intrusion across the dividing stripe on the highway. The frequency of the failure to maintain the proper lane suggests a greater degree of risk and carelessness. Secondly, Hernandez drifted across the stripe dividing his lane from others going the same direction; Saucier crossed over the centerline into the lane for traffic going the opposite direction. A witness specifically stated that Saucier was drifting into the lane used by oncoming traffic. We do not find Hernandez persuasive as to the resolution of this appeal.
. In a factually similar decision, this Court found that a driver who was seen several times permitting his vehicle to cross over into a turning lane (apparently a center lane usable by traffic in each direction) could be found guilty of careless driving. Guerrero v. State, 746 So. 2d 940, 943 (Miss. Ct. App. 1999).
. There was probable cause to believe a traffic offense had been committed. Saucier was properly stopped for further police action.
. Saucier also argues that even though she might properly have been stopped, there was not sufficient basis to believe that she was intoxicated. Consequently, she argues that the results of the field sobriety test should be suppressed.
. Probable cause to administer a field sobriety test can be the basis of probable cause to arrest and administer a breath test. Young v. City of Brookhaven, 693 So. 2d 1355, 1361 (Miss. 1997). The record reflects that the officers smelled alcohol, that Saucier's eyes were glassy and bloodshot, that she swayed, and that she could not adequately perform two field sobriety tests. Saucier admitted to drinking at a casino that night. From this, the officer concluded that Saucier was intoxicated. It was not clearly erroneous for the circuit court to conclude there was probable cause to administer the Intoxilizer exam. Saucier was unable to complete this test.
2. Proof of intoxication
. Saucier asserts that there is no evidence indicating she was intoxicated. This is the statute that Saucier was found to have violated:
(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who
(a) is under the influence of intoxicating liquor.
Miss. Code Ann. § 63-3-30(1)(a) (Rev. 1996).
. The circuit judge concluded Saucier was intoxicated based on the testimony of the police officer and the sheriff's deputy. This evidence demonstrated that Saucier was driving carelessly, smelled of alcohol, had glassy eyes, swayed, and could not complete two field sobriety tests.
. Saucier states that the evidence should be found to be inadequate because of a precedent that rejected the sufficiency of the Horizontal Gaze Nystagmus test as proof of intoxication. Richbourg v. State, 744 So. 2d 352, 354 (Miss. Ct. App. 1999). That specific test, involving the ability of a person
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