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Briggs v. State6/22/1999
hough it is not clear, it appears that his contention is that the evidence of Briggs's performance on the intoxilizer was not probative of guilt. He claims that he had been left unattended at several points after his detention so that the State had failed to comply with the mandatory fifteen minute observation period that must precede administration of the intoxilizer test. See Miss. Code Ann. § 63-11-5(1) (Supp. 1998); Fisher v City of Eupora, 587 So. 2d 878, 882 (Miss. 1991). While Briggs himself testified to being left alone or in the company of the arresting officer's wife after he was detained, the officer himself testified to placing Briggs in his squad car and taking him immediately to the jail where he personally observed Briggs until the test was administered. "A dispute as to . . . whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the credibility of the witnesses." Id. at 882. At best, Briggs's contention was a disputed issue of fact to be raised at trial and submitted to the jury for resolution on proper instruction. The jury's verdict of guilty in this case demonstrates that it rejected any such issue and there is credible evidence in the record to support a finding that the necessary observation period was properly conducted. This issue is without merit.
IV.
The Admissibility of HGN Testing
. Briggs claims that his conviction must be reversed because evidence was put before the jury that Briggs had demonstrated several indicia of intoxication while being subjected to a Horizontal Gaze Nystagmus (HGN) test by the arresting officer. He cites Young v. City of Brookhaven as authority for this proposition. Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997). The Young case announced, in a "stern warning" to prosecutors that HGN test results were admissible only on the issue of probable cause to arrest and should not be offered to prove intoxication because the test is "not generally accepted within the scientific community . . . ." Id. at 1360-61.
. However, the Young case was not handed down until approximately one month after Briggs's case was tried, and, even if it had been handed down prior to trial, it is doubtful it would have caused the prosecution to re-think its presentation since the State did not introduce the evidence. The matter of the HGN test was raised by the defense during its cross-examination of the arresting officer. The defense cannot introduce evidence then later seek reversal, complaining that the evidence was inadmissible. Singleton v. State, 518 So. 2d 653, 655 (Miss. 1988).
V.
The Accuracy of the Intoxilizer
. Briggs actually raises four sub-issues under this general assignment of error. He claims the checklist prepared contemporaneously with the test indicates that a step was omitted. Secondly, he urges that freon gas on his clothing distorted the intoxilizer readings, thereby destroying their integrity. Thirdly, he claims that the State failed to demonstrate that the intoxilizer was properly calibrated. Lastly, he claims that the State failed to prove that the test was administered by a properly qualified individual. We will consider these sub-issues in the same order.
. Briggs argues that the checklist used to make sure the testing officer was following proper protocol was not completed thereby casting grave doubt on the test results. In fact, the only omission was that the testing officer did not check off the appropriate item indicating that he had turned on the machine. He testified, however, that he purposely left that item blank because the machine was already on when he undertook to administer the
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