Oxford Criminal Defense Blog

Possession of Paraphernalia a Broad Term

It is easily understood that being caught in possession of drugs such as marijuana and/or controlled substances is a crime which can carry severe legal consequences. What many do not realize is that being in possession of paraphernalia, even in the absence of drugs or controlled substances, is a crime. Paraphernalia is defined as anything used to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance….” As you can see, this is a broad definition leaving law enforcement with the authority to determine if they believe some of the items are being used for illegal purposes.

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From Minor to Major

In the event a driver is pulled over, even due to a minor traffic violation, this may give the officer the opportunity to discover more serious circumstances, such as a driver being under the influence. As is a fairly common occurrence, a driver is pulled over for a minor traffic violation but when the police officer comes to the driver’s window they smell marijuana or perhaps alcohol. At that point, the officer has the requisite probable cause to search the vehicle. Suddenly something as seemingly minor as rolling through a stop sign has evolved into something far more serious.

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From Careless Driving to Criminal Charges

Drivers often are confused or simply unaware of what types of actions give the police the right to make a traffic stop. Often the police claim “careless driving” as the reason for making a stop. “Careless driving” according to Mississippi law does give police a broad area in which to work when it comes to making a stop. According to Miss. Code Ann. § 63-3-1213 careless driving is defined as driving “any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances….” This definition can include swerving, rolling stops, or even crossing the fog line or hitting the rumble strips.  Being pulled over for even seemingly minor violations can land a driver in a much more serious situation if drugs and/or alcohol are discovered incident to the traffic stop.

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Breathalyzer Test Protocols

When a driver is suspected of “drunk driving” (DUI), and the police wish to employ the Intoxilyzer 8000 or to use the results of an Intoxilyzer 8000 test, certain protocols must be followed. One of the requirements for the Intoxilyzer 8000 test results to be admissible as evidence is a twenty-minute observation period being employed prior to the test being administered. This is a requirement under the Mississippi Department of Public Safety guidelines. This observation period is required in order to determine that the driver has not ingested anything prior to the collection of the breath sample.

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Admissibility of Intoxilyzer Results

Most drivers have heard of breath tests, and the use of the Intoxilyzer machine when suspected of DUI. While this test can provide important evidence for the prosecution, it is at times not allowed as evidence in a drunk driving case. It is important to confirm a number of requirements imposed upon officers were properly adhered to before the breath test results are allowed to be used in court. These requirements include: 1. that proper procedures were followed; 2. the operator of the breath test machine was properly certified to perform the test; and 3. the accuracy of the machine has been certified.

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It isn’t Over till it’s Over

There are simply times when things may not go your way in court, however, it is important to note, when facing DUI charges, that being found guilty in Justice Court or Municipal Court may not be the end of the line for your case. Even when unsuccessful in your trial, you do still have the right to appeal to a higher court, Circuit Court. However, while you have this right, it is not unlimited. Your notice of appeal must be filed within 30 days of your conviction or you lose your opportunity to appeal. It is always important to discuss the appeals process with your attorney so that you are able to make the decision which is best for you.

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Under the new Mississippi DUI laws, it is now possible for a person facing a conviction of Driving Under the Influence, (DUI or “Drunk Driving”) to qualify for non-adjudication. What does this mean for those facing a DUI charge? Non-adjudication allows for a person charged with DUI to avoid actual conviction and therefore keep the DUI off of their record. However, there are a number of rules that must be followed in order to qualify for non-adjudication.

To qualify for Mississippi DUI non-adjudication, it must be your first offense. You must not have refused a breathalyzer. Also, there are number of fees and other restrictions you must pay and agree to. These fees include a non-adjudication fee as well as all fines and court costs that would have been imposed under a conviction. You must attend and complete an alcohol safety education class, and if you wish to avoiding having to forfeit your driver’s license, you must install an interlock ignition device on your vehicle. If you are able to satisfy these and avoid any further charges, you can have the charges dismissed and maintain a clean record.

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The Term “Drunk Driving”

As has been discussed in a previous post, driving under the influence, or DUI is not necessarily what we might call “drunk driving.” In fact, if you take a look at the actual Mississippi DUI statute, you will find that the term “drunk” is nowhere to be found.

(1) It is unlawful for a person to drive or otherwise operate a vehicle within this state if the person: (a) Is under the influence of intoxicating liquor; (b) Is under the influence of any other substance that has impaired the person’s ability to operate a motor vehicle; (c) Is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or (d) Has an alcohol concentration in the person’s blood, based upon grams of alcohol per one hundred (100) milliliters of blood, or grams of alcohol per two hundred ten (210) liters of breath, as shown by a chemical analysis of the person’s breath, blood or urine administered as authorized by this chapter, of: (i) Eight one-hundredths percent (.08%) or more for a person who is above the legal age to purchase alcoholic beverages under state law; (ii) Two one-hundredths percent (.02%) or more for a person who is below the legal age to purchase alcoholic beverages under state law; or (iii) Four one-hundredths percent (.04%) or more for a person operating a commercial motor vehicle.

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Driving Under the Influence not Drunk Driving

While drunk driving is a common term, it is not necessarily the most accurate when discussing Mississippi law. Mississippi actually criminalizes “driving under the influence,” also known as DUI or DWI (driving while impaired). A driver can be considered to be driving under the influence without actually being drunk. However, despite not being “drunk,” you can be considered to be driving under the influence based on an officer’s observations, or perhaps the readings on a machine such as an intoxilyzer.

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Initial Appearance

Being arrested for DUI likely causes a great deal of stress for both the person arrested and their family. Much of this stress can be caused by fear of the unknown. After arrest for a DUI, a number of steps are taken and procedures observed, one of the first of these is the initial appearance. At the defendant’s initial appearance, the judge shall: 1. State the defendant’s true name, age, and address; 2. Inform the defendant of the charges; 3. If the arrest has been made without a warrant, determine whether there was probable cause; 4. Advise of the right to assistance of an attorney ; 5. If indigent and desires representation, counsel shall be appointed.

At the initial appearance, as a defendant, you have certain rights which you do not want to forget: 1. The right to remain silent; 2. The right to communicate with an attorney, family or friends; 3. The opportunity to be provided with the conditions, if any, under which the defendant may obtain release.

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