Dominick v. State


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Docket Number: 2011-KM-00720-COA
Linked Case(s): 2011-KM-00720-COA ; 2011-CT-00720-SCT

Court of Appeals: Opinion Link
Opinion Date: 07-31-2012
Opinion Author: Barnes, J.
Holding: Affirmed

Additional Case Information: Topic: Careless driving & DUI - Confrontation rights - Period of observation - Section 63-11-5(1) - Probable cause
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ.
Procedural History: Bench Trial
Nature of the Case: CRIMINAL - MISDEMEANOR

Trial Court: Date of Trial Judgment: 04-15-2011
Appealed from: Rankin County Circuit Court
Judge: William E. Chapman, III
Disposition: AFFIRMED CONVICTION OF CARELESS DRIVING AND DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF $1,000 PLUS COSTS AND ASSESSMENTS, WITH $500 SUSPENDED, AND FORTY-EIGHT HOURS IN CUSTODY WITH CREDIT FOR TIME SERVED AND NINETY DAYS PROBATION
District Attorney: Michael Guest
Case Number: 22,463

  Party Name: Attorney Name:  
Appellant: Cynthia Dominick




KEVIN DALE CAMP



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT  

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Topic: Careless driving & DUI - Confrontation rights - Period of observation - Section 63-11-5(1) - Probable cause

Summary of the Facts: Cynthia Dominick was found guilty in the Brandon Municipal Court of careless driving and driving under the influence. At a bench trial in the County Court of Rankin County, Dominick was again found guilty and sentenced to pay a fine of $1,000, plus court costs and assessments, with $500 suspended, and ordered to serve forty-eight hours in the Rankin County Jail, with credit for time served, and ninety days of probation. The circuit court affirmed the county court’s sentencing and fines. Dominick appeals.

Summary of Opinion Analysis: Issue 1: Confrontation rights Dominick argues that the admission of Intoxilyzer 8000 results under the Confrontation Clause of the Sixth Amendment requires the person who calibrated the machine to testify. This Court addressed this issue in Matthies v. State, 85 So. 3d 872 (Miss. Ct. App. 2011), and held that the person who calibrated an intoxilyzer is not required to testify and that the certification is not always testimonial. Furthermore, the officer who administered the intoxilyzer test to Dominick testified as to the BAC revealed by the test. Issue 2: Period of observation Dominick argues that the officer did not observe her for a required uninterrupted twenty minutes prior to the test; therefore, the results of the Intoxilyzer 8000 should not have been admitted into evidence. While the statutory period found in section 63-11-5(1) is a minimum of fifteen minutes, the Mississippi Department of Public Safety’s guidelines and the Intoxilyzer 8000 Implied Consent Policies and Manual require a twenty-minute observation period prior to testing. A dispute as to whether the observation lasted the mandatory length of time or 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. Here, the officer testified that he observed Dominick for the required time. The State introduced video from the officer’s patrol car that showed the patrol car and Dominick’s car were in very close proximity and that Dominick was not out of the officer’s range of vision at any time. Thus, there is no error. Issue 3: Probable cause Dominick argues that there was no probable cause for the traffic stop. The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Here, the officer testified that Dominick’s car “bumped” or “simply rode” the fog line prior to changing lanes. Dominick did not dispute this, and her testimony validated the officer’s conclusion. Accordingly, there was sufficient evidence to support a finding of probable cause.


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