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Leuer v. City of Flowood6/24/1999
DATE OF JUDGMENT: 10/01/1997
TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
DISPOSITION: AFFIRMED - 6/24/1999
EN BANC.
. Richard Leuer appeals an October 1, 1997, order of the Rankin County Circuit Court affirming his conviction for driving under the influence of intoxicating liquor pursuant to then applicable Miss. Code Ann. § 63-11-30 (1)(a) (1995) and careless driving in violation of Miss. Code Ann. § 63-3-1213 (1996). Leuer now asks this Court to consider for the first time whether both statutes are facially void for vagueness and thus in violation of the due process clauses of the Fifth and Fourteenth amendments to the United States Constitution and Art. 3, § 14 of the Mississippi Constitution of 1890. We conclude that both § 63-11-30 (1)(a) and § 63- 3-1213 provide drivers with adequate notice of the conduct for which they are subject to be penalized. Thus, the judgment of the circuit court is affirmed.
I.
.Richard Leuer, a licensed driver in the State of Indiana, was taken into custody and charged with DUI and careless driving after he was stopped on Old Brandon Road in Rankin County at 2:30 a.m. on November 11, 1995. Officer Brian Harper of the Flowood Police Department stopped Leuer after he observed his vehicle run off the road onto the shoulder, make a left turn and then go out into the middle of the roadway. He testified that Leuer smelled strongly of alcohol, his eyes were glassy and he was having a little difficulty with his speech. Leuer admitted that he had had two or three bourbon and Cokes earlier in the evening, around 10:00 or 10:30 p.m. He denied having anything to drink subsequently. At the time he was stopped by Officer Harper, Leuer testified that his date was sick and he had been looking for a place by the side of the road for her to throw up.
.At the police station, Leuer stated that he tried to blow into the intoxilyzer but could not make it register. He recalled that Harper told him that he was "huffing" it. Harper contends that Leuer refused to take the breath test. Leuer's test card indicated that no test results were obtained. No blood test was requested or given.
.Leuer filed a motion to dismiss the charges on June 14, 1996, asserting that the laws under which he was charged were unconstitutionally vague "in that they fail to give adequate notice of the conduct they seek to prohibit." A bench trial was held on August 21, 1996, in the County Court of Rankin County, and Leuer was found guilty as charged. He was sentenced to pay a $50 fine and a $19 assessment for the careless driving charge. For the DUI charge, he further was ordered to pay an $800 fine plus assessments of $137, to attend the MASEP driving course in Mississippi or a similar course in his home state of Indiana, where he was licensed, as well as one session of the Victim's Impact Response Seminar, and to serve a term of forty-eight hours in the Rankin County Jail, with credit given for the twelve hours he was detained after his arrest. Leuer then appealed the County Court judgment to the Circuit Court of Rankin County, where his conviction was affirmed.
II.
.Leuer first asserts that Miss. Code Ann. § 63-11- 30(1)(a)(1995) (as enacted by 1995 Miss. Laws Ch. 540), the statute under which he was convicted, fails to adequately advise citizens as to how much an individual may drink without subjection to criminal penalties. He further contends that it does not provide law enforcement officers with adequate guidance in its enforcement and thus is unconstitutionally va
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