Category Archives: Uncategorized

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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Domestic Violence Consequences Beyond the Conviction

In our previous post we discussed Simple Assault, a related crime is that of Domestic Violence. In Mississippi Domestic Violence is an action which meets the definition of Simple Assault, but also has the element of the Simple Assault being committed against a person with whom the Defendant has a certain type of relationship. This relationship factor is broad in nature and includes: Current or former spouse; Current or former domestic partner; Current or former dating partner; Anyone related by blood or adoption to the Defendant; Foster parents; Step parents; Anyone who currently resides or used to reside with the Defendant; or Grandparents, parents, children or grandchildren of the Defendant.

While the punishment for a Domestic Violence conviction includes up to a $500.00 fine and imprisonment in the county jail for up to six months, the accompanying ramifications can be much further reaching. A person convicted of Domestic Violence could face other consequences such as weaker custody or visitation rights, reduced employment opportunities, money damages, or even the loss of your right to own or possess a firearm.

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Simple Assault Not Always So Simple

In Mississippi simple assault is defined as: (1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.

Most commonly simple assault causes bodily injury without the use of a weapon. It usually involves minor injuries such as bruises and scrapes. Accordingly, simple assault is a misdemeanor. As such, simple assault can carry from zero to six months of jail time. However, the most likely scenario for a first time offender is to have that sentence suspended rather than actually facing jail time.

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Possession of Paraphernalia Defined

When dealing with possession of paraphernalia, Miss. Code Ann. § 41-29-139(d) states in pertinent part: (1) It is unlawful for a person who is not authorized by the State Board of Medical Licensure, State Board of Pharmacy, or other lawful authority to use, or to possess with intent to use, paraphernalia 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 in violation of the Uniform Controlled Substances Law. Any person who violates this subsection (d)(1) is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($ 500.00), or both; however, no person shall be charged with a violation of this subsection when such person is also charged with the possession of thirty (30) grams or less of marijuana under subsection (c)(2)(A) of this section. (2) It is unlawful for any person to deliver, sell, possess with intent to deliver or sell, or manufacture with intent to deliver or sell, paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be 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 in violation of the Uniform Controlled Substances Law. Except as provided in subsection (d)(3), a person who violates this subsection (d)(2) is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($ 500.00), or both. (3) Any person eighteen (18) years of age or over who violates subsection (d)(2) of this section by delivering or selling paraphernalia to a person under eighteen (18) years of age who is at least three (3) years his junior is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than one (1) year, or fined not more than One Thousand Dollars ($ 1,000.00), or both. (4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as paraphernalia. Any person who violates this subsection is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($ 500.00), or both. (e) It shall be unlawful for any physician practicing medicine in this state to prescribe, dispense or administer any amphetamine or amphetamine-like anorectics and/or central nervous system stimulants classified in Schedule II, pursuant to Section 41-29-115, for the exclusive treatment of obesity, weight control or weight loss. Any person who violates this subsection, upon conviction, is guilty of a misdemeanor and may be confined for a period not to exceed six (6) months, or fined not more than One Thousand Dollars ($1,000.00), or both.

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Penalties for Possession of Paraphernalia

In Mississippi, possession of paraphernalia is a misdemeanor. If convicted of possession of paraphernalia, a misdemeanor, you could face up to six (6) months in a local jail and be required to pay a $500.00 fine. One thing to keep in mind is that the penalties for possession of paraphernalia, in many instances, are even greater than those for possession of marijuana.

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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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