Winters v. State
| Docket Number: | 2009-KM-00178-SCT Linked Case(s): 2009-KM-00178-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-04-2010 Opinion Author: Lamar, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Felony DUI - Sufficiency of indictment - Section 63-11-30(1)(c) Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Chandler and Pierce, JJ. Dissenting Author : Kitchens, J., Dissents With Separate Written Opinion Dissent Joined By : Graves, P.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-15-2008 Appealed from: Bolivar County Circuit Court Judge: Al Smith Disposition: Conviction of felony driving under the influence and sentence of one (1) year in the custody of the Mississippi Department of Corrections, intensive supervision program, followed by four (4) years probation, with conditions. District Attorney: Brenda Fay Mitchell Case Number: CR-2007-034 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Jeremy Winters |
JULIE ANN EPPS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
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: | Felony DUI - Sufficiency of indictment - Section 63-11-30(1)(c) |
| Summary of the Facts: | Jeremy Winters was convicted of felony driving under the influence after his third DUI offense within five years and the trial judge’s determination that his blood-alcohol content registered higher than .08%. He was sentenced to one year in the Mississippi Department of Corrections Intensive Supervision Program, followed by four years of probation. He appeals. |
| Summary of Opinion Analysis: | Winters argues that the indictment does not charge felony DUI. An indictment is considered sufficient if it tracks the language of the statute under which it is drawn. However, it is not a requirement that the indictment use the exact words of the statute if the crime can be substantially described without using them. In most instances, it is not necessary to recite the code section under which the indictment is being drawn; however, it is recommended. Winters’s indictment specifically references section 63-11-30(1)(c). This provision of the DUI statute defines the crime and is the starting point for subsequent sections which provide the sentencing guidelines. Contained within the DUI statute is the “Zero Tolerance for Minors” law, which establishes less severe penalties for persons under the age of twenty-one. But, the “Minors” law applies only to underage persons with a BAC of more than .02%, but less than .08%. Although Winters was under twenty-one at the time of his arrest, the “Zero Tolerance for Minors” law does not apply, because the trial judge, as the trier of fact, found Winters’s BAC to be higher than .08%. So Winters’s conviction falls under section 63-11-30(2), which applies to all individuals with a BAC of more than .08%. Further, Winters falls under section 63-11-30(2)(c), as this DUI charge is at least his third offense within five years. Thus, the trial judge sentenced him appropriately. While it is true that the indictment does not specifically state “.08%,” it does state that Winters operated a vehicle while having two one-hundredths percent (.02%) or more by weight volume of alcohol in his blood. And the indictment states that Winters feloniously drove or otherwise operated a vehicle while under the influence of an intoxicating liquor, and is headed “FELONY DUI MCA Section 63-11-30(1)(c).” The indictment clearly lists Winters’s previous convictions for DUI, which should have put him on notice that the State was seeking an enhanced penalty. There was no substantial doubt as to which statute should be applied in this case, and Winters therefore was properly sentenced. |
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