69 So. 3d 50
Miss. Ct. App.2011Background
- Nelson was convicted of a third DUI within five years under Miss. Code Ann. §63-11-30(2)(c).
- On December 27, 2008, Nelson was stopped at a roadblock; he admitted drinking and showed a suspended license; Breathalyzer and Intoxilyzer tests indicated intoxication (0.13%).
- State introduced two prior DUI convictions: Richland Municipal Court (June 7, 2006; arrest date February 6, 2006) and Rankin County Justice Court (June 19, 2006; offense March 13, 2006).
- Jury found Nelson guilty of three DUIs within five years and sentenced him to two years with 120 days in jail and house arrest remainder, plus a $2,000 fine.
- Nelson challenged (1) sufficiency of proof for three DUI offenses within five years and (2) indictment sufficiency regarding essential elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proof of three DUIs within five years | Nelson argues three DUIs within five years were not proven. | State argues arrest dates imply offense dates within five years of each other. | Sufficiency established; jury could find three offenses within five years. |
| Indictment adequately states offense elements | Nelson contends 'weight volume' term is vague and not the statutorily exact term. | State asserts 'weight volume' treatment is standard in related DUI authorities and the indictment sufficiently described the offense. | Indictment sufficiently notified Nelson of the DUI charge. |
Key Cases Cited
- Smith v. State, 950 So.2d 1056 (Miss.Ct. App. 2007) (arrest date usually corresponds to offense date)
- Winters v. State, 52 So.3d 1172 (Miss. 2010) (indictment may describe offense without exact statutory terms)
- Sanders v. State, 678 So.2d 663 (Miss. 1996) (we will not consider issues raised for the first time in a reply brief)