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Murphy v. State10/16/2001
1988). But, the trial judge may refuse any instruction that "incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions." Murphy v. State, 566 So.2d 1201, 1207 (Miss. 1990). Here, the jury instruction D-11 is inaccurate and, therefore, the trial judge's refusal to place it before the jury is not reversible. See Collins v. State, 691 So.2d 918, 925 (Miss. 1997) (holding that a trial court's refusal to give an instruction that misstates the law cannot form a basis for reversal).
. Under Miss. Code Ann. § 63-11-30(1) it is against the law "for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor . . . (c) has ten one-hundredths percent (.10%) or more for persons who are above the legal age to purchase alcoholic beverages under state law . . . ." Miss. Code Ann. § 63-11-30(1) (Supp. 2000). Furthermore, " very person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another . . . shall, upon conviction, be guilty of a felony . . . ." Miss. Code Ann. § 63-11-30(4) (Rev. 1996), amended by Miss. Code Ann. § 63-11-30(5) (Supp. 2000). Therefore, under the Felony DUI causing death statute, the State must prove that Murphy not only consumed alcohol prior to the accident, but that he performed a negligent act that caused the death of another. Hedrick v. State, 637 So.2d 834, 837-38 (Miss. 1994).
. However, this Court has made it clear that § 63-11-30(4) "contains no requirement that the negligence has to be caused by the alcohol." Ware v. State, No. 1999-KA-01122-COA ( a) (Miss. Ct. App. 2001). In Ware, the accused proffered the following jury instruction:
The Court instructs the jury that if you find the Defendant operated a motor vehicle with ten one-hundredths percent (.10%) or more by weight volume of alcohol in his blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by chemical analysis of such person's breath, blood or urine but that such impairment did not cause the negligence that resulted in the deaths then you may find the Defendant guilty of DUI First Offense and not guilty of DUI Homicide. Id.
This Court affirmed the trial court's denial of the instruction, noting that § 63-11-30(4), unlike the culpable negligence manslaughter statute, does not require a causal nexus between the consumption of alcohol and the subsequent negligent act. Id.
. Here, the second paragraph of instruction D-11 orders the jury to acquit if it cannot find that Murphy's consumption of alcohol caused him to veer into the northbound lane of Highway 51. In light of this Court's ruling in Ware, instruction D-11 is an obvious misstatement of the law. As such, Murphy cannot claim that the trial court's denial violates his fundamental right to have the jury instructed on his theory of the case. Moreover, the Collins decision prohibits this Court from reversing the trial court's refusal to grant a jury statement that incorrectly states the law.
II. DID THE TRIAL COURT ERR WHEN IT ADMITTED INTO EVIDENCE RESULTS OF BLOOD TESTS TAKEN AT SOUTHWEST MISSISSIPPI REGIONAL MEDICAL CENTER?
. Murphy requested the trial court to exclude the first set of blood tests taken by the Southwest Mississippi Regional Medical Center, arguing that the tests were not performed in strict accordance with the provisions of the Mississippi Implied Consent Statute. Murphy contends that the chemical analysis of the blood was performed by an individual who had not been certified by the State Crime Laboratory as required under Mis
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