Graham v. State
| Docket Number: | 2002-KA-01208-COA Linked Case(s): 2002-CT-01208-SCT ; 2002-KA-01208-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-27-2004 Holding: Affirmed |
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| Additional Case Information: |
Topic: DUI third offense - Roadblock - HGN test - Intoxilyzer results - Section 63-11-5(1) - Weight of evidence Judge(s) Concurring: McMillin, C.J., Southwick, P.J., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-11-2002 Appealed from: Neshoba County Circuit Court Judge: Marcus D. Gordon Disposition: DUI 3RD OR SUBSEQUENT OFFENSE - SENTENCED TO SERVE A TERM OF TWO AND ONE-HALF YEARS IN THE CUSTODY OF MDOC AND PAY A FINE OF $2,000 AND COSTS OF COURT. 120 DAYS OF THIS TWO AND ONE-HALF YEAR SENTENCE WILL BE SERVED IN THE NESHOBA COUNTY JAIL WITH THE REMAINDER OF THE SENTENCE TO BE SERVED UNDER HOUSE ARREST. District Attorney: Ken Turner Case Number: 02-CR-0028-NS-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | Michael A. Graham |
TIMOTHY DANIEL RECORD
JAMIE KELLY MCBRIDE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | DUI third offense - Roadblock - HGN test - Intoxilyzer results - Section 63-11-5(1) - Weight of evidence |
| Summary of the Facts: | Michael Graham was convicted of DUI, third offense, and was sentenced to two and one-half years. Graham appeals. |
| Summary of Opinion Analysis: | Issue 1: Roadblock Graham argues that his Fourth Amendment rights were violated when he was stopped at a sobriety checkpoint which was randomly set up and resulted in an unconstitutional seizure. A determination of whether a roadblock is a reasonable seizure for purposes of the Fourth Amendment requires a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. While the record does not indicate the adoption of written directives regarding the roadblocks in question, it does indicate that all persons approaching the roadblock were to be stopped, without exception. The absence of specific written directives is not a fatal flaw, so long as the officers are neither arbitrary nor capricious in determining who will be stopped. Issue 2: HGN test Graham argues that the court erred in allowing testimony regarding the HGN test. Not only did Graham fail to object to the testimony, but evidence of the HGN was offered merely to explain the officer's actions, rather than as evidence of guilt. Issue 3: Intoxilyzer results Graham argues that the intoxilyzer results should not have been admitted into evidence because the officer failed to comply with the mandatory twenty minute pre-test observation period. Section 63-11-5(1) provides that no intoxilyzer test shall be given to any person within fifteen minutes of consumption of any substance by mouth. Here, the officer testified that approximately forty-four minutes passed from the time he encountered Graham until the time the test was run and that Graham was in his presence the entire time. The jury found the testimony of the officer to be credible on this question. Issue 4: Weight of evidence Graham argues that reasonable men could not have found beyond a reasonable doubt that he was guilty of DUI. The State presented evidence that when stopped at the roadblock, Graham had a strong odor of alcohol on his breath. The officer indicated that Graham's speech was slurred and he had trouble walking to the back of the vehicle. Graham was taken to the police station, where a breath alcohol test showed a blood alcohol level of .188. Based on this evidence, reasonable-minded jurors had substantial credible evidence upon which they could have found Graham guilty beyond a reasonable doubt of DUI. |
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