Smith v. State
| Docket Number: | 2004-KA-01385-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-14-2006 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated DUI - Admissibility of test results - Section 63-11-30(5) - Expert testimony - M.R.E. 702 - Right to counsel - Sentencing guidelines - Section 47-5-1003 Judge(s) Concurring: King, C.J., Lee, P.J., Southwick, Chandler, Ishee and Roberts, JJ. Concurs in Result Only: Irving, Griffis and Barnes, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-22-2004 Appealed from: Pearl River County Circuit Court Judge: Michael R. Eubanks Disposition: CONVICTION OF AGGRAVATED DUI WITH INJURY IN VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-11-30(5) AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF MDOC, WITH FIVE YEARS TO BE SERVED IN THE INTENSIVE SUPERVISION PROGRAM AND FIFTEEN YEARS SUSPENDED PENDING SUCCESSFUL COMPLETION OF A FIVE YEAR PERIOD OF POST-RELEASE SUPERVISION PURSUANT TO MISSISSIPPI CODE ANNOTATED SECTION 47-7-34. District Attorney: CLAIBORNE MCDONALD Case Number: K2002-0596E |
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| Party Name: | Attorney Name: | |||
| Appellant: | James M. Smith a/k/a James Michael Smith |
R. WAYNE WOODALL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY |
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| Topic: | Aggravated DUI - Admissibility of test results - Section 63-11-30(5) - Expert testimony - M.R.E. 702 - Right to counsel - Sentencing guidelines - Section 47-5-1003 |
| Summary of the Facts: | James Smith was convicted of aggravated driving under the influence of alcohol. He was sentenced to twenty years, with five years to be served in the intensive supervision program, under house arrest, and the remaining fifteen years suspended pending successful completion of a five year period of post-release supervision. He appeals, and the State cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Admissibility of test results Smith argues that the four hour delay in obtaining a sample of his blood was unexplained and rendered the test results inadmissible. Smith relies chiefly on section 63-11-8. This statute mandates that a test for determining blood alcohol content be performed on the operator of any motor vehicle involved in an accident resulting in “death.” The statute further provides that such test “shall be administered within two hours of the accident, if possible.” This case does not involve a vehicle accident resulting in “death” under section 63-11-8; rather, Smith was convicted under section 63-11-30(5), aggravated DUI with injury. Section 63-11-30(5) is silent as to a time within which a blood test must be administered in order to be admissible at trial. Any delay between the collision and the drawing of blood was reasonable under the circumstances and attributable solely to Smith, who put the State to the time consuming task of obtaining a warrant, late on a Saturday evening, and then transporting him to a local hospital where blood could be drawn. Smith also argues that in order for his BAC to be admissible, the State must prove what his BAC was at the time of the accident. However, the effect of such a ruling would be to virtually abrogate chapter 11 of the Mississippi Code, the implied consent laws. Issue 2: Expert testimony Smith argues that the trial court erred when it allowed the State’s forensic toxicologist to testify that Smith’s BAC would have been higher at the time of the accident than the level present at the time the blood sample was taken, because the testimony was based on an application of retrograde extrapolation, a mathematical calculation which Smith’s expert in forensic toxicology contends is an unreliable scientific method not generally accepted within the field of forensic science, and therefore inadmissible under M.R.E. 702. Under Rule 702, expert testimony should be admitted only if the witness is qualified by virtue of his or her knowledge, skill, experience or education, and the witness's scientific, technical or other specialized knowledge will assist the trier of fact in understanding or deciding a fact in issue. The trial judge must determine whether the expert testimony rests on a reliable foundation and is relevant in a particular case. In deciding whether or not a scientific method, such as retrograde extrapolation, is reliable, the trial judge may rely on the body of knowledge and research available in the field and discoverable through both expert testimony and independent research. In the present case, the trial judge held an extensive hearing on the issue of the expert’s proffered testimony. He carefully considered testimony from both parties’ experts, and concluded that their opinions were each based on facts, data, and methods that were scientifically reliable. The trial judge further determined both experts conclusions to be relevant to a material issue. The trial judge exercised his gatekeeping responsibility as to the admission of the expert’s testimony in the precise manner in which the Mississippi Supreme Court intended, and there was no abuse of discretion. Issue 3: Right to counsel Smith argues that the officer’s refusal to allow Smith to telephone counsel prior to the completion of the booking process violated his constitutional right to counsel. Constitutional questions not asserted at the trial level are deemed waived. The trial record contains no motion to suppress Smith’s blood test results on this basis, and the issue was not raised until the hearing on Smith’s motion for a new trial. In addition, an ambiguous mention of possibly speaking with one’s attorney is insufficient to trigger the right to counsel. Smith’s response when asked if he would submit to a breath or blood test was ambiguous at best. Since the officers request for and taking of a blood sample cannot be considered custodial interrogation under the law, there was no violation of Smith’s right to counsel as a result of such tests being administered. Issue 4: Sentencing guidelines On cross-appeal, the State argues that the trial court erred in applying the sentencing guidelines of section 47-5-1003, by sentencing Smith to the intensive supervision program, under house arrest and that Smith should be classified as a violent offender. However, section 47-5-1003 does not require the trial court to make an on the record determination that the accused is a violent offender. The statute mandates that persons convicted of sex crimes and felonies involving the sale of drugs shall be excluded from participation in the intensive supervision program. Aggravated DUI does not fall within either of the excluded categories. Furthermore, the United States Supreme Court has held that state DUI offenses, such as the one here, which require only a showing of negligence, cannot be considered crimes of violence. |
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