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McDuff v. State5/4/2000
DATE OF JUDGMENT: 05/08/1998
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED
EN BANC.
INTRODUCTION
. The Court is asked to determine the constitutionality of Miss. Code Ann. § 63-11-8 (1998), which provides that any driver involved in an automobile accident from which a fatality occurs shall have his blood drawn and tested for the presence of alcohol or drugs, regardless of whether probable cause exists to believe that the driver was under the influence of alcohol or drugs.
STATEMENT OF THE CASE
. On July 11, 1996, Beverly McDuff was traveling north on Highway 61 in DeSoto County when she lost control of her Toyota Camry, crossed the center line, and struck an on-coming southbound vehicle, a Pontiac 6000. As a result of this accident, the driver of the Pontiac was killed, and McDuff was injured.
. McDuff was treated on the scene by E.M.T. Michael Hancock (Hancock), who subsequently transported her to the Regional Medical Center in Memphis, TN (hospital). Prior to leaving the scene, Hancock was given a blood alcohol kit (BAC kit) by a law enforcement officer with orders that McDuff's blood be drawn at the hospital for the purpose of testing for alcohol and drugs. Hancock did not know the name of the officer who gave him the BAC kit or for which department he or she worked. The identity of this officer has never been ascertained.
. Just prior to McDuff being taken to the hospital, Sgt. William Williamson (Williamson) of the Mississippi Highway Patrol arrived at the scene. Although he did not see or talk with McDuff at the scene, he did speak with Richard Ramsey (Ramsey), a motorist who had been following McDuff for approximately 8 to 9 miles before the accident. After McDuff had left the scene, Ramsey informed Williamson that he observed McDuff driving in an erratic manner prior to the accident.
. At the hospital, McDuff was treated by nurse Harry Coder (Coder). Hancock gave Coder the BAC kit, and while Coder was "drawing [their] own lab on [McDuff]" he filled two (2) tubes from the kit and gave them back to Hancock. At this point, McDuff had not been placed under arrest. Coder testified that he never told McDuff that he was drawing blood pursuant to law enforcement orders, and he obviously never obtained her consent to do so.
. Upon completion of his preliminary investigation, Williamson left the scene of the accident and went to the hospital. At this point, he had yet to have any contact with McDuff. When Williamson arrived at the hospital, he met Hancock at the back door of the hospital, and Hancock gave him the BAC kit containing the two (2) tubes of McDuff's blood. After receiving McDuff's blood, Williamson went into the hospital and asked a nurse to draw McDuff's blood again so that he could personally witness the act. The nurse refused. Williamson testified that he asked for the second blood test for two (2) different reasons. One, he felt he had probable cause to believe that McDuff had been driving under the influence of alcohol or drugs, said belief being based on both Ramsey's statement that McDuff had been driving erratically prior to the accident, and also on the fact that his investigation revealed that McDuff's crossing the center line of the highway caused the accident. The trial court ruled that Williamson indeed had probable cause to request the second test. Additionally, he asked for the second test based on § 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident, re
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