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Richbourg v. State6/22/1999
quest. It was not an invasive request. Because I am of that opinion, the Court is of the opinion that the defendant was guilty of DUI refusal . . . ."
The aforementioned excerpt from the record clearly establishes that the trial Judge did not apply the HGN test to substantiate a level of intoxication, but instead used it in the guise of probable cause which warranted administering an intoxilyzer test. As mentioned in the majority opinion, in Young v. City of Brookhaven, 693 So. 2d 1355, 1360-61 (Miss. 1997), the Mississippi Supreme Court stated that the "HGN in not generally accepted with the scientific community and cannot be used as scientific evidence to prove intoxication or as a mere showing of impairment. However, the HGN test can still be used to prove probable cause to arrest and administer the intoxilyzer or blood test." Therefore, with these factors in mind I find that the trial court was not in error when it held Richbourg was guilty of "DUI refusal."
. It must be kept in mind that the right to a driver's license is not a constitutional right. It is a privilege conditioned on obeying the rules and regulations of the State motor vehicle and traffic laws. As stated in Miss. Code Ann. § 63-11-5 (Rev. 1996), "Any person, [be it resident or non-resident], who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, . . ., to a chemical test or tests of his breath for the purpose of alcohol concentration." If an individual is stopped and there is probable cause, one must submit to the rules of the state and may be subjected to a request to take an intoxilyzer test. Under Mississippi law when an individual refuses the chemical breath test, the penalties incurred by that individual are equivalent to having taken the test and registered with an alcohol level which technically qualifies as driving under the influence . Under Miss. Code Ann. § 63-11-21 (Rev. 1996) it states: "If a person refuses to submit to a chemical test under the provisions of this chapter, the person shall be informed by the law enforcement officer that the refusal to submit to the test shall subject him to arrest and punishment consistent with the penalties prescribed by Section 63-11-30 for persons submitting to the test. . . ." Since the record is devoid of any evidence that would establish that Richbourg was not informed of the penalties for refusal, it is accepted that such was properly administered.
. In the case at bar, the record contained evidence which established probable cause for the officer's desire, indeed his duty, to request the breath test. As enumerated by the trial Judge, the record disclosed that Richbourg was involved in a motor vehicle accident, the officer smelled the odor of alcohol on Richbourg, that there were beer cans in the trunk, and the results of the HGN test all established prerequisite probable cause for the necessity of the officer requesting a chemical breath test. Additionally, the testimony elicited from Officer Conn established that when he had offered Richbourg the on-site Alcosensor, intoxilyzer test, Richbourg refused to take the test. Therefore, there was sufficient evidence to find Richbourg guilty of DUI refusal. It is for the aforementioned reasons that I respectfully Dissent.
BRIDGES AND PAYNE, JJ., JOINS THIS SEPARATE WRITTEN OPINION.
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