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Richbourg v. State6/22/1999
DATE OF JUDGMENT: 08/02/96
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION: D. U. I. CONVICTION; SENTENCED TO SERVE 48 HOURS IN THE MONROE COUNTY JAIL, SUSPENDED TO TIME SERVED; FINED $250.00.
DISPOSITION: REVERSED AND RENDERED - 06/22/99
. The appellant, Randall Richbourg, was convicted of driving under the influence (DUI) first offense in the Justice Court of Monroe County, which conviction he appealed to the Circuit Court of Monroe County. Pursuant to a bench trial in that court, the trial Judge found Richbourg guilty and sentenced him to pay a fine of $250 and court assessments of $127 to the Monroe County Justice Court Clerk. The circuit court also sentenced Richbourg to serve 48 hours in the Monroe County Jail but suspended the time to serve in jail and thus effectively reduced Richbourg's jail sentence to the time he had already served after his arrest. Richbourg filed a motion for new trial, which the circuit court denied. In his appeal from the circuit court's order finding that Richbourg was "guilty as charged of driving under the influence of intoxicating liquor in violation of Section 63-11-30(1)(a) [of the Mississippi Code]," Richbourg assigns the following four issues, which we quote verbatim from his brief:
ISSUE ONE
THE TRIAL JUDGE IMPROPERLY ALLOWED OFFICER CONN TO TESTIFY REGARDING THE HORIZONTAL GAZE NYSTAGMUS TEST AND ITS RESULTS WITHOUT PROVIDING THE FOUNDATION OF RELIABILITY OR INTERPRETATION REQUIRED BY M. R. E. 702.
ISSUE TWO
THE TRIAL JUDGE IMPROPERLY ALLOWED OFFICER CONN TO TESTIFY TO THE HEARSAY STATEMENT OF OFFICER BAILEY THAT APPELLANT HAD REFUSED THE INTOXILYZER TEST.
ISSUE THREE
THE TRIAL JUDGE APPLIED AN ERRONEOUS LEGAL STANDARD TO REACH HIS VERDICT.
ISSUE FOUR
THE TRIAL JUDGE'S VERDICT WAS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE.
Our analysis of Richbourg's first and fourth issues results in our reversing and rendering the circuit court's order of Richbourg's conviction of DUI first offense.
I. FACTS
. Around 5:30 or 6:00 o'clock on the morning of February 25, 1995 Randall Richbourg began driving a 1995 Geo Prizm automobile, which he had rented, from a Howard Johnson's motel in Kansas City, Missouri, toward his home in Panama City, Florida. Richbourg spent the previous night partying to celebrate his having successfully completed twenty-one days of apprenticeship training as a boiler maker at the National Apprenticeship School in Kansas City. He had placed some unopened cans of beer which remained from the previous night's celebration in the trunk of the Geo. He stopped for lunch about 11:30 that morning in St. Louis. There he drank one beer. When Richbourg reached Memphis, he unintentionally turned south on Interstate 55. After he realized his error, Richbourg, who was reading an old Mississippi highway map, turned east and was traveling on Mississippi State Highway No. 8 in Monroe County.
. The Prizm which Richbourg was driving collided with another vehicle in the intersection of Highway 8 with U.S. Highway 45 Alternate. Trooper Larry Conn, then a twenty-three day veteran with the Mississippi Highway Patrol, was dispatched to the intersection of Highways 8 and 45 Alternate at 4:14 p.m. When Trooper Conn arrived on the scene, he observed some cans of beer in the Geo which Richbourg had been driving, and he smelled alcohol "about the person" of Richbourg. The impact of the two vehicles apparently caused a forty-five
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