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McDuff v. State5/4/2000
rs in jurisdictions other than their own so long as that other territory is within the state pursuant to Miss. Code Ann. § 99-3-13 (1994). See also McLean v. Mississippi, 96 F.2d 741 (5th Cir. 1938) (the functions of the sheriff are confined to his own county except when pursuing a fleeing offender). Outside of the state's boundaries, Mississippi police officers have powers no greater than those possessed by any citizens. That is, officers may effect a person's arrest where a felony had been committed or where a breach of the peace is being threatened or attempted, but a citizen may not require a person to submit to chemical testing. Therefore, outside the state of Mississippi, Mississippi police officers are without the authority to require a person to submit to blood alcohol testing or order one done. If he orders it done, can the officer arrest the person in Tennessee if he refuses?
. In this case, the officer could have asked McDuff to submit to a blood test, and McDuff could have either given or withheld her consent. But McDuff was never consulted as to whether she consented to have an analysis of her blood alcohol content performed. Therefore, the results should have been suppressed since the officer did not have the authority to require her to submit to blood alcohol testing outside of Mississippi.
. At common law, a police officer outside his jurisdiction does not act in his official capacity and has no official authority to arrest. Perry v. State, 794 S.W.2d 141 (Ark. 1990); People v. Vigil, 729 P.2d 360, 365-66 (Colo. 1986); State v. Hodgson, 200 A.2d 567 (Del. Super. Ct. 1964); People v. LaFontaine, 705 N.E.2d 663 (N.Y. 1998); Commonwealth v. England, 375 A.2d 1292 (Pa. 1977); State v. Hart, 539 A.2d 551 (Vt. 1987); State v. Slawek, 338 N.W.2d 120 (Wis. Ct. App.1983); 5 Am.Jur.2d Arrest § 50, at 742-43; 4 Wharton's Criminal Law and Procedure § 1614, at 277 (R. Anderson ed.1957). He has only the power to make a citizen's arrest. State v. O'Kelly, 211 N.W.2d 589, 595 (Iowa 1973); State v. Bickham, 404 So.2d 929, 932 (La. 1981); Restatement (Second) Torts, § 121, cmt. a (1965). A police officer outside his territory, then, may exercise authority beyond that of a citizen only where there is explicit legislation allowing him to do so. As there is no such legislation in this state, the results of the blood alcohol test performed on McDuff without her consent should have been suppressed.
. For these reasons, I concur with the holding that Miss. Code Ann. § 63-11-8 is unconstitutional. However, I dissent from the majority's failure to hold, or even discuss, that Mississippi law enforcement cannot require blood testing be done outside the state of Mississippi.
. The majority is also misguided in holding that the blood drawn by hospital personnel in Tennessee can be used in a second trial pursuant to Ashley. The blood test results of the defendant in Ashley were not admitted into evidence through statute, but instead because the defendant called the doctor to the stand, thus waiving any medical privilege, including the results of his blood test. Since McDuff never waived this privilege, allowing his blood results entered into evidence at the second trial would clearly violate M.R.E. 503 which applies in criminal proceedings. Cotton, 675 So.2d at 312, see Ashley, 423 So.2d at 1314; Keeton v. State, 175 Miss. 631, 167 So. 68 (1936).
. Accordingly, I concur in part and dissent in part.
DIAZ, J., JOINS THIS OPINION.
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