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Cannon v. State4/14/2005
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: JUDGMENT OF THE COURT OF APPEALS REVERSED, AND CONVICTION AND SENTENCE AFFIRMED - 04/14/2005
EN BANC.
. Jessie J. Cannon was convicted of felony DUI, third offense, in Webster County Circuit Court. He appealed, and the appeal was assigned to the Court of Appeals, which reversed the conviction and remanded the case for a new trial. A divided Court of Appeals held that the trial court erred: (1) by not granting a sua sponte limiting instruction concerning the testimony of an officer regarding Cannon's performance on a portable breath test, and (2) because the verdict was contrary to the law and the overwhelming weight of the evidence. Cannon v. State, 2004 WL 1381725 (MisS.Ct. App. 2004). The State filed a motion for rehearing with the Court of Appeals, which was denied. We granted the State's petition for a writ of certiorari. The State asserts that the Court of Appeals' decision conflicts with prior decisions of this Court. We agree.
FACTS
. On December 15, 2001, Cannon was stopped by Officer Keith Crenshaw of the Eupora Police Department after he was observed traveling south in the northbound lane of Highway 9, causing another automobile to pull over onto the shoulder to avoid a collision. Cannon, a diabetic, testified that at the time of the incident, he was en route to a nearby Shell station to get some orange juice and honey. Feeling nervous, weak and "sort of woozy," he had tested his blood sugar and found it to be dangerously low just prior to leaving his house.
. When asked to show his driver's license, Cannon advised Officer Crenshaw that it had been suspended for driving under the influence of alcohol. He then asked if he could speak to another Eupora police officer, Perry Yates. Officer Yates arrived shortly thereafter, accompanied by a reserve officer, Shane Box.
. Cannon was subjected to a portable breath test at the scene. No other field sobriety tests were given. The three officers presented testimony about Cannon's demeanor at the time of the stop. They testified that his eyes were bloodshot and he smelled like alcohol. Officer Yates noted that his stance and speech were normal. Officer Crenshaw found his speech slightly slurred.
. None of the officers involved with Cannon's arrest had ever observed an individual suffering a hyperglycemic incident. Cannon's physician, Dr. James Booth, testified that a blood sugar reading of 21, which Cannon had recorded prior to the incident, was extremely dangerous and would produce symptoms which could be mistaken for intoxication. He further stated that changes in a diabetic's glucose levels can produce ketones, leaving an acetone smell on the breath, which can be confused with alcohol.
. After the initial stop, Cannon was transported to the Webster County Sheriff's Office, where he submitted to testing on the Intoxilyzer 5000 machine. He blew into the machine three or four times, but was unable to blow long enough to complete the test or generate an accurate reading. By his own admission, Cannon became angry and argumentative at the sheriff's office when advised after his unsuccessful attempts to take the Intoxilyzer that he would not be released. Subsequently, Cannon was placed under arrest, charged with felony DUI and held overnight in jail.
. At the time of the incident, Cannon was in poor health. He had seen Dr. Booth several days previously, on December 10th, as well as on December 17th and 21st. In addition to diabetes, he suffered from an enlarged heart, congestive heart failure, high blood pressure and kidney problems. He was
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