Murphy v. State10/16/2001
g smell of alcohol coming from him." Additionally, Officer Crawford stated that Murphy's voice crackled during their conversation, that his eyes were red, and that he had a difficult time finding his license when asked to produce it. However, Murphy told Officer Crawford that he had not consumed any alcohol prior to the accident. No one arrested Murphy at this time.
. Several doctors and paramedics also admitted smelling alcohol on Murphy. Murphy, contrary to his statements made to Officer Crawford, admitted that he had consumed a few alcoholic drinks.
. Prior to arriving at the hospital, a paramedic performed an Accu-Check, a test that measures an individual's blood sugar. Murphy's blood sugar measured 84. According to Dr. Barry Suber, a measurement of 84 is low-normal but not indicative of a loss of consciousness. Nonetheless, when Murphy arrived at the hospital, Dr. Suber, as a precautionary measure, started Murphy on an I.V. in order to prevent his blood sugar from getting any lower.
. Dr. Suber, solely for the purposes of evaluation, ordered two blood samples to be taken from Murphy. Suber testified blood tests are necessary when treating diabetics due to their increased susceptibility to medical complications. One of the tests, performed forty minutes after Murphy arrived at the hospital, revealed a blood alcohol content of .13 percent. A few hours later, the Highway Patrol, for the first time, requested a blood sample for the purpose of testing Murphy's ethyl alcohol level. This time, approximately three and one-half hours following the accident, Murphy's blood alcohol content measured .07 percent.
LAW AND ANALYSIS
I. WAS MURPHY ENTITLED TO A JURY INSTRUCTION EXPLAINING HIS VERSION OF THE FACTS?
. Murphy asserts that the trial court violated his right to have jury instruction D-11 submitted as a factual issue for the jury. Jury instruction D-11 reads:
In order for you to find the Defendant guilty, you must find, beyond a reasonable doubt, that on October 24, 1998, he was driving a vehicle while under the influence of intoxicating liquor or had an alcohol concentration of ten one-hundredths percent (.10%) or more.
You must also find that, because he was under the influence of intoxicating liquor or had an alcohol concentration of ten one-hundredths percent (.10%) or more, he operated his motor vehicle in a negligent manner and caused the death of Elsie H. Elliott.
Therefore, if you find that the Defendant's negligent operation of his vehicle, i.e., while proceeding south on Highway 51 crossing into the northbound lane of traffic and driving there until the collision with Mrs. Elliott's vehicle, was caused by another condition, low blood sugar, then you must find the Defendant "Not Guilty."
. The Mississippi Supreme Court has repeatedly held that " n determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Coleman v. State, 697 So.2d 777,782 (Miss. 1997) (quoting Collins v. State, 691 So.2d 918, 922 (Miss. 1997)). However, in a homicide case, the court commits reversible error when it fails to instruct the jury "as to [the defendant's] theories and grounds of defense, justification, or excuse supported by the evidence . . . ." Hester v. State, 602 So.2d 869, 872 (Miss. 1992). Moreover, the defendant's right is absolute, regardless of whether the evidence supporting the defense is slight and its factual basis improbable. O'Bryant v. State, 530 So.2d 129, 132 (Miss.
Page 1 2 3 4 5 6 Mississippi DUI Attorneys
DUI Lawyers
|