Category Archives: Driving under the infuence and Other Alcohol Related Offenses

Facing a Breath Test, DUI Defense Part 2

Following the initial stop and an officer’s suspicion that you are operating a motor vehicle under the influence of alcohol, you may find yourself facing a breath test. Under Mississippi’s implied consent law the police have the right to request that you submit to a breath test. You will also likely be informed that your refusal to submit will result in losing your license for 90 days.

The breath test is generally performed with the use of a breathalyzer, or even more specifically the “intoxilyzer”. In the event you submit to the test and the breathalyzer determines that your blood alcohol level is 0.08 or more the police and the prosecution will have a strong piece of evidence which may be able to be used against you. However, just because you have “failed” a breath test does not mean that you will absolutely be convicted of DUI. There are a number of defenses available which are specific to attacking the results of a breath test.

When defending against a breathalyzer reading, several questions should be asked, including: was the breathalyzer properly calibrated? Did the police officer follow the proper guidelines for observation prior to administering the test? Was the officer properly licensed and trained in the use of the breathalyzer? If the answer to any of these questions in “no”, then the results of the breathalyzer test may be inadmissible as evidence or at least cast doubt on the results.

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DUI the Initial Stop, Part 1

Being charged with a DUI in Mississippi is very serious and if convicted can have far reaching consequences. Accordingly, it is important to know what options and defenses are available to you as a defendant. In order to be found guilty of Driving Under the Influence the prosecution must prove that you were operating or in control of a motor vehicle and that you were under the influence while doing so. Also, the officer must have had a legal reason for pulling you over to begin with. Most people have heard the term “probable cause” and understand it to apply to a police officer making an arrest or a search of a person or place. However, a police officer need only have “reasonable suspicion” in order to legally pull over a driver suspected of being under the influence. While reasonable suspicion is a lower standard than probable cause, it still has to be more than just a “hunch” or a “feeling”, in fact, an officer must be able to give specific and articulable facts as to why he/she pulled you over. Without this, the entire stop may have been illegal and the charges against you may be dismissed.

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Mississippi Getting Tough On DUI/DWI

The advocacy group Mothers Against Drunk Driving (MADD) ranks the states in an annual report concerning how strict the DUI laws are in various states. MADD in determining the rankings considers a number of factors, including the amount of special training officers receive in detecting signs and behaviors of drunk drivers, the required use of interlock systems, the frequency of sobriety check points and the severity of punishments for those convicted of Driving While Impaired (DWI). All factors considered, Mothers Against Drunk Driving concluded that Mississippi has instituted policies which MADD finds to be the most beneficial in cracking-down on DUI/DWI offenders.

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Various Levels of a DUI Offense

Generally speaking, Mississippi has several forms or types of DUI’s or Driving Under the Influence crimes, including: DUI/DWI First Offense, this is driving while over the legal blood alcohol content level which is 0.08.  There is also what is referred to as DUI Other and is similar to alcohol related DUI offenses but applies when the substance a driver is under the influence of is other than alcohol.  A DUI Second Offense refers to a situation in which you receive a DUI and you have received a previous DUI within the past 5 years.  A DUI Third Offense, as you can imagine, is what you face is you receive a DUI after previously having two DUI’s within the prior 5 years.   When you reach DUI Third Offense you have crossed over into the real of felonies and can face up to 5 years in prison.

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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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Non-Adjudication

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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