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Graham v. State1/27/2004
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED
. Michael A. Graham was convicted of DUI, third offense, in the Neshoba County Circuit Court, and sentenced to a term of two and one-half years in the custody of the Mississippi Department of Corrections and ordered to pay a fine. The trial judge ordered that 120 days of the sentence be served in the Neshoba County Jail, with the remainder of the sentence to be served under house arrest, pursuant to the regulations of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Graham has appealed and raises the following issues:
I. Whether the trial court erred in failing to hold that the roadblock was an unconstitutional seizure which violated Graham's Fourth Amendment rights.
II. Whether the trial court erred in allowing Officers Peden and Callahan to give testimony regarding the administration of the HGN test.
III. Whether the trial court erred by allowing the results of Graham's intoxilyzer test into evidence when Officer Peden failed to comply with the mandated twenty minute pre-test observation period.
IV. Whether the verdict was against the overwhelming weight of the evidence.
FACTS
. On November 24, 2001, at approximately 9:00 p.m., Graham was stopped at a roadblock set up by the City of Philadelphia Police Department on Highway 21 South inside the city limits. The purpose of the roadblock was to check drivers' licenses and conduct safety checks. Officer Mitch Peden suggested the location of the roadblock. Advance notice of the roadblock was given to the public by newspaper publication.
. Officer Brian Callahan of the Philadelphia Police Department approached Graham's vehicle and asked to see his driver's license. Graham stated that he did not have his license with him. According to Callahan, he smelled the strong odor of an intoxicating beverage, and Callahan asked Graham to pull over to the side of the road.
. Called over to assist Callahan, Peden asked Graham to step to the back of the vehicle. Callahan testified that Graham "stumbled one time and almost fell, but he caught himself on the bed of the truck before he fell and hit the ground" and had slurred speech.
. Peden administered the HGN field sobriety test, which indicated that Graham might have been driving while intoxicated. Graham was transported to the Neshoba County Jail where he was offered an intoxilyzer test.
. According to Officer Peden, Graham was given his rights regarding the breath alcohol analysis. The machine was activated and Graham was offered the opportunity to take the breath alcohol exam. This is a timed test with a limited window of opportunity to complete it. Graham refused the exam, and the available time expired. Thereafter, Graham requested that he be given the opportunity to take the exam.
. On cross-examination, Peden indicated that the first test was offered to Graham at 9:44 p.m. and the second test was offered approximately fourteen minutes later.
ISSUES AND ANALYSIS
I. Whether the trial court erred in failing to hold that the roadblock was an unconstitutional seizure which violated Graham's Fourth Amendment rights.
. Graham asserts that his Fourth Amendment rights were violated when he was stopped at a sobriety checkpoint which was "randomly set up through the unbridled discretion of the officer in the field," and resulted in an unconstitutional seizure. He cites Drane v. State , 493 So. 2d 294, 296 (Miss. 1986) for the proposition that "the stop of a vehicle is a 'seizure' for Fourth Amendment purposes.
Page 1 2 3 Mississippi DUI Attorneys
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