 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Dove v. State10/18/2005
e a person's constitutional rights. In reaching this conclusion, the Court recognized the urgency of administering alcohol tests quickly, noting that "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." Id. at 770.
. A police officer desiring an arrest warrant must obtain a judicial determination that probable cause exists. Conerly v. State, 760 So. 2d 737, 740 ( ) (Miss. 2000). The issuing judge's determination of the existence of probable cause is determined by the totality of the circumstances. Haddox v. State, 636 So. 2d 1229, 1235 (Miss. 1994). On review of a judge's issuance of an arrest warrant, this Court determines whether the facts and circumstances before the judge provided a " 'substantial basis . . . for conclud that probable cause existed.'" Byrom v. State, 863 So.2d 836, 860 ( 65) (Miss. 2003) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). In the present case, Officer Birmingham observed Dove's slurred speech and staggered walk, and he noted that Dove's breath smelled of alcohol. He also noted that Dove actually admitted to having drunk four beers that morning and was unable to recite the alphabet. The municipal court judge was within his discretion in issuing a warrant.
II. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING DOVE'S MOTION IN LIMINE TO PREVENT EVIDENCE OF DOVE'S PRIOR CONVICTIONS
. On the day of trial, Dove's attorney made a motion in limine to suppress evidence of Dove's prior DUI convictions. The court heard the motion and denied it. Dove asserts that the State presented evidence of four prior DUI convictions, over Dove's attorney's objection. This assertion is factually incorrect. In reality, the State presented into evidence four documents representing two prior DUI offenses.
. Dove also contends that Dove's prior DUI convictions unfairly prejudiced the jury and claims that the prejudicial effect outweighed the probative value. M.R.E. 403. However, the Mississippi Supreme Court has specifically addressed this very issue. In Weaver v. State, 713 So. 2d 860 (Miss. 1997), the defendant was convicted of a felony third offense DUI. Weaver claimed that the felony DUI trials should have been bifurcated due to the prejudicial nature of the underlying misdemeanor convictions. Id. at 865 ( ). The Mississippi Supreme Court rejected this claim and noted that the evidence of the defendant's prior DUI convictions was necessary to meet the State's burden of proof and obtain conviction for a felony DUI. Id. at 865 ( ). Likewise, in the present case, it was necessary for the State to produce evidence of Dove's prior DUI convictions in order to secure a felony DUI conviction, because the prior arrests were elements of the crime with which he was charged. Moreover, in the case sub judice, the circuit court took steps to minimize the potentially prejudicial effects of Dove's prior convictions. The jury was given a cautionary instruction mandating that Dove's prior DUI convictions were not to be considered as evidence against Dove. This issue is without merit.
. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF FIVE YEARS, SENTENCE TO RUN CONSECUTIVELY WITH SENTENCE APPELLANT IS CURRENTLY SERVING, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS, AND BARNES, JJ., CONCUR. ISHEE, J NOT PARTICIPATING.
|