BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Mar :39: KM COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STACY L. MILLER APPELLANT v. NO.2013-KM COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT M. Kevin Horan, MS Bar No Hartwell Harris, MS Bar No HORAN & HORAN, PLLC Post Office Box 2166 Grenada, Mississippi Telephone: (662) Counsel for Stacy L. Miller

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STACY L. MILLER APPELLANT v. NO KM COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this Court may evaluate possible disqualifications or recusal. 1. Stacy L. Miller, Appellant 2. Honorable Lane Greenlee, District Attorney 3. Josh McBride 4. Honorable Joseph Loper, Jr., Circuit Court Judge Thisthe 17 dayof_~m=a=r=ch~ 2014 Respectfully Submitted, By: /s/ Hartwell Harris Hartwell Harris, Appellant Counsel

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS...ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 SUMMARY OF FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 CONCLUSION... 5 CERTIFICATE OF SERVICE... 6 ii

4 TABLE OF AUTHORITIES STATE CASES Drabicki v. City of Ridgeland, No KM COA (Miss. Ct. App. 2013)...4 Harkins v. State, 735 So.2d 317 (Miss. 1999)...4 Mcilwain v. State, 700 So.2d 586 (Miss. 1997)...4 STATE STATUTES Miss. Code Ann Miss. Code Ann STATE REGULATIONS Mississippi Crime Laboratory Implied Consent Policies and Procedures Rule iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STACY L. MILLER V. STATE OF MISSISSIPPI APPELLANT NO KM COA APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE 1: WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE OFFICER HAD PROBABLE CAUSE TO ADMINISTER THE PORTABLE BREATHALYZER ISSUE 2: WHETHER THE TRIAL COURT ERRED IN FAILING TO PRECLUDE THE INTOXIL YZER RESULTS STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Montgomery County and a judgment of conviction for driving under the influence against Appellant Stacy L. Miller following a bench trial commenced on October 7, 2013 before the Honorable Joseph H. Loper presiding. Appellant was sentenced to 48 hours in jail, with 48 hours suspended, and fines. SUMMARY OF FACTS On July 5, 2012 at approximately 9:30 p.m. Appellant was stopped by Mississippi Highway Patrol troopers on highway 407 near Poplar Creek in Montgomery County. 1

6 (Record Excerpt ("RE") p. 4) The troopers were conducting a license checkpoint along with the Montgomery County Sheriff's Department. (RE p. 4) Appellant approached the checkpoint without incident. Trooper Josh McBride requested Appellant's driver's license, but McBride admitted that he did not see the manner in which Appellant was driving. McBride testified that he noticed empty beer cans in the floorboard of Appellant's vehicle, that he smelled the odor of intoxicating beverage, that Miller spoke with slurred speech and that Miller had red glassy eyes. (RE p. 5) McBride also testified that Appellant stated that he had been fishing and had several beers while fishing. (RE p. 5) McBride testified that he got appellant out of the vehicle. (RE p. 5) Under questioning by Appellant's counsel, McBride admitted that the only evidence of probable cause that he had to request that appellant get out of his vehicle was that he "appeared to be very intoxicated." (RE p. 15) McBride testified that Appellant was unsteady on his feet and that the odor of intoxicating beverages was emanating from his person and not just the vehicle. (RE pp. 5-6) McBride did not perform any field sobriety tests before offering Appellant the portable breath test. (RE p. 5) Next, Appellant was transported to Montgomery County Emergency Operating Center ("EOC") to be tested by the lntoxilyzer (RE p. 6) McBride testified that he was certified to administer the test and produced his card. (RE p. 6) The county attorney, Mr. Lane Greenlee, offered into evidence two certified calibrations for the lntoxilyzer that is maintained by the EOC-one dated July 1, 2012 and one dated August 1, (RE p. 7) Interestingly, July 1, 2012 fell on a Sunday as pointed out by Appellant's counsel. (RE p. 21) 2

7 Appellant's counsel questioned McBride about the calibration for the lntoxilyzer maintained at the EOC. McBride admitted that neither he nor the EOC kept a log that provided for the calibration of the machine. (RE pp McBride further admitted that he did not know the last time that the lntoxilyzer had been taken out of service. (RE p. 14) McBride also admitted that he did not know if there had been any independent calibration of the lntoxilyzer. (RE p. 14) "I just know how to operate it," he repeated. (RE p. 14) SUMMARY OF THE ARGUMENT The decision of the trial court should be reversed for two reasons. First, the officer did not have probable cause to administer the portable Breathalyzer. Second, the results of the lntoxilyzer 8000 should never have been admitted into evidence. The calibration certificates presented by the County were suspicious and unreliable. ARGUMENT First, pursuant to Mississippi Code Annotated Section the trooper did not have sufficient probable cause to administer the portable Breathalyzer and thus all evidence rendered by the portable should be disregarded. There was nothing about Appellant's driving that indicated that he was under the influence. Under crossexamination, the trooper admitted that his only "probable cause" to request that Appellant get out of the vehicle was that he "appeared" to be very intoxicated. Moreover, he administered absolutely no roadside tests that could have provided probable cause to administer the portable Breathalyzer. 3

8 Second, the trial court erred in admitting into evidence the results of the lntoxilyzer 8000 test for two reasons. First, under Mcilwain v. State, 700 So.2d 586 (Miss. 1997) the calibration certificates should not have been admitted into evidence because they were unreliable. There is a line of case law that states that calibration certificates are admissible as non-testimonial evidence in DUI cases and that such evidence does not violate the Confrontation Clause. See Harkins v. State, 735 So.2d 317, 319 (~5) (Miss. 1999); Matthies v. State, 85 So.3d 838 (Miss. 2012). There is a caveat, however, to this rule. "[O]ne of the only times that the State must present testimony and allow cross-examination of the calibrating officer is when there is a genuine issue as to the authenticity of the certification." Drabicki v. City of Ridgeland, No KM COA (Miss. Ct. App. 2013); citing Mcilwain v. State, 700 So.2d at 591 (~22) (Miss. 1997). In the case at hand, one of the calibration tests is dated on a Sunday, and thus indicates that it is unreliable because it is highly unlikely that the technicians that calibrate these machines work on Sundays. At the very least, this Sunday date is enough to raise reasonable doubt as to the accuracy and/or authenticity of the calibration certificate. This doubt casts doubt on the accuracy and/or authenticity of the other calibration certificate as well. Thus, the Circuit Court erred in admitting the calibration certificates into evidence without testimony as to their accuracy and/or authenticity by the calibrating officer. Without this evidence, the DUI conviction should be overturned. Second, there was no evidence that the lntoxilzyer 8000 had been calibrated on site. ''The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of the methods, machines or devices used in making chemical analysis of a person's breath as shall be necessary to ensure the accuracy thereof, and shall 4

9 issue its certificate to verify the accuracy of the same." Miss. Code Ann [emphasis added]. The statute requires that the State Crime Laboratory make quarterly tests of the methods used in administering the lntoxilyzer According to Mississippi Crime Laboratory Implied Consent Policies and Procedures Rule , "[t]he monthly calibration checks are performed remotely..." [emphasis added] Appellant argues that remote testing violates the statute because the statute requires tests of methods used in making chemical analyses of people's breath which cannot be performed remotely. CONCLUSION For the above stated reasons, the Appellant's DUI conviction should be overturned or, in the alternative, remanded for a new trial. Respectfully submitted this the 17 day of,m~a~rc~h' '2014. /s/ Kevin Horan Kevin Horan (MSB # 2638) Co-Counsel for Petitioner /s/ Hartwell Harris Hartwell Harris (MSB # ) Co-Counsel for Petitioner 5

10 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing Brief of the The Appellant with the Clerk of the Court using the MEG system which sent notification of such filing to the following: Honorable Jim Hood Attorney General P.O. Box220 Jackson, Mississippi John Henry Office of Attorney General P.O. Box220 Jackson, Mississippi Further, I hereby certify that I have mailed by first class U.S.P.S. the document to the following non-meg participants: Honorable Lane Greenlee 401 Summit Street Winona, Mississippi Honorable Joseph Loper, Jr. P.O. Box616 Ackerman, Mississippi This the 17 day of March 2014 ~~~~~~~~~~~~ /s/ Hartwell Harris Hartwell Harris 6