Evans v. State
| Docket Number: | 2010-KM-01225-COA Linked Case(s): 2010-KM-01225-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-20-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: DUI first offense - Weight of evidence - Authenticity of breath analysis test - Section 63-11-19 - Right to counsel Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Roberts, J. Procedural History: Bench Trial Nature of the Case: CRIMINAL - MISDEMEANOR |
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| Trial Court: |
Date of Trial Judgment: 07-01-2010 Appealed from: Webster County Circuit Court Judge: Joseph H. Loper Disposition: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCED TO SERVE FORTY-EIGHT HOURS IN JAIL SUSPENDED Case Number: 2009-21-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Thomas Evans, Jr. |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART |
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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 first offense - Weight of evidence - Authenticity of breath analysis test - Section 63-11-19 - Right to counsel |
| Summary of the Facts: | Thomas Evans Jr. was convicted of driving under the influence, first offense. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Evans argues that his conviction is against the overwhelming weight of the evidence, because the video recording of the roadside stop and his transport to the police department was not admitted into evidence at trial; the State presented no test results at trial to establish his intoxication; the State failed to show that Evans refused the Intoxilyzer test; the police officer demonstrated bias toward him; and there was no proof, other than the officer’s testimony, that Evans was intoxicated. However, the State offered ample evidence in support of Evans’s DUI conviction. The police officer testified to the following: Evans was traveling at an extremely high rate of speed; the officer smelled alcohol emitting from Evans’s vehicle; Evans slurred his speech; Evans’s eyes were dilated; Evans admitted that he had consumed alcoholic beverages earlier that day; and Evans initially refused to take the Intoxilyzer test at the police department. Issue 2: Authenticity Evans argues the State failed to prove the police officer possessed the qualifications and certifications required to administer breath-analysis tests and therefore, the officer improperly testified that he failed to blow hard enough into the portable breath test for it to register. Evans cites to section 63-11-19 for the proposition that the State failed to prove as part of its authenticity burden that Evans’s breath test was “performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis.” While the results of a breath-analysis test are only valid if performed by a person certified to give such a test, there were no breath-analysis test results presented at trial to establish Evans’s guilt. As such, the question of whether the officer possessed sufficient qualifications and certifications to administer breath-analysis tests is irrelevant. Issue 3: Right to counsel Evans argues that the trial court violated his right to counsel pursuant to the Sixth Amendment of the United States Constitution by failing to appoint him an attorney at trial. Though the right to counsel is absolute, the right to counsel of choice is not absolute. This right may not be used to thwart the progress of a trial. During his proceedings in justice court, Evans indicated that he wanted counsel and asserted he was indigent. However, the justice court’s order states that Evans proceeded pro se after receiving two continuances to obtain counsel. The record further shows that Evans appeared for trial before the circuit court without counsel. Evans advised the circuit judge that he owed money to his attorney and asked for a continuance, which the circuit court granted. Evans appeared at the next hearing, again without counsel. The record shows Evans neither requested a court-appointed attorney nor properly qualified himself as indigent with the circuit court prior to trial. Thus, this issue is without merit. |
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