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Dove v. State10/18/2005
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED 10/18/2005
BEFORE BRIDGES, P.J., MYERS AND CHANDLER, JJ.
. Daniel Dove was convicted by a jury in the Harrison County Circuit Court for felony DUI. Dove appeals, raising the following issues:
I. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING DOVE'S MOTION TO SUPPRESS THE EVIDENCE
II. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING DOVE'S MOTION IN LIMINE TO PREVENT EVIDENCE OF DOVE'S PRIOR CONVICTIONS
. Finding no error, we affirm.
FACTS
. On November 26, 2000, at approximately 11:00 a.m., Larry Isaiah and Larry Hartfield were involved in a car accident with Daniel Dove at the parking lot of the Studio Apartments in Gulfport. Officer James Vaughan responded to the accident. He instructed Dove to turn his car off, but instead he drove another three feet. Dove complied with the request after Officer Vaughan repeated the command.
. Officer Vaughan noticed that Dove had a beer in his hand and was trying to hide it. He also noticed that Dove's "words were slurry, his eyes were bloodshot, and he really didn't know where he was." He also noticed that Dove's car smelled of alcohol.
. Officer Vaughan decided to obtain the assistance of Officer Jerry Birmingham, who has received training in detecting drunk driving . Officer Birmingham approached Dove and observed him stagger and stumble. He then asked Dove to recite the alphabet, but Dove failed after reaching the letter G. At 11:37 a.m., Officer Birmingham was of the opinion that Dove was under the influence of alcohol and arrested him. Dove refused to submit to an intoxilyzer test, so Officer Birmingham obtained a warrant from a municipal court judge to draw Dove's blood. The test was administered at 1:24 p.m. and showed a blood alcohol concentration of .39 percent. At the time of the arrest, the legal limit for driving under the influence was .10 percent. Miss. Code Ann. § 63-11-30(1)(c) (Rev. 2000).
. While Dove was in custody, the police learned that Dove had been found guilty of a DUI on January 13, 1997, and pleaded guilty to a second DUI on March 11, 1999. Dove was arrested and later indicted for felony driving under the influence of alcohol. Miss. Code Ann. § 63-11-30(1)(a)(2)(c) (Rev. 2004). The case went to trial, and the jury returned a guilty verdict.
I. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING DOVE'S MOTION TO SUPPRESS THE EVIDENCE
. On the day of Dove's trial, his attorney made a motion to suppress evidence of Dove's blood alcohol results, claiming that the warrant authorizing the blood alcohol test was invalid. The court denied the motion. Dove contends that the municipal court violated his Fourth and Fourteenth Amendment rights when it issued a warrant authorizing a blood alcohol test without Dove's consent.
. In Schmerber v. California, 384 U.S. 757, 758-59 (1966), Schmerber was being treated at a hospital for injuries he suffered in an automobile accident. A police officer directed a physician to take a blood sample from Schmerber's body. The blood sample showed that Schmerber was intoxicated at the time of the accident. Schmerber was indicted for driving under the influence of alcohol, and the blood sample was introduced at trial. Schmerber claimed that the blood test was given without his consent, was the product of an unlawful search and seizure, and violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution. The United States Supreme Court disagreed and held that taking blood alcohol samples from a defendant who had been lawfully arrested did not violat
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