Ricks v. StateRicks v. State
Keith W. Ricks was convicted in the Webster County Circuit Court of driving a motor vehicle while under the influence of intoxicating liquor, a felony as he previously had been convicted three times for the same offense within the past five years. The court sentenced Ricks to a term of one year in the custody of the Mississippi Department of Corrections and ordered him to pay a $2,000 fine. On appeal Ricks contends his constitutional right against self-incrimination was violated when the Circuit Court allowed introduction of a statement he made upon being asked to take the breathalyzer test and also allowed introduction of his refusal to take the test into evidence. We affirm the Circuit Court‘s judgment, holding that the statute allowing refusal to take a breathalyzer test to be introduced into evidence is constitutional under both the Mississippi and U.S. Constitutions.
I.
On the evening of September 14, 1990, Thomas Latham was working at his grocery store in Bellefontaine, Mississippi, when he noticed a car in front of his store blocking traffic in the middle of Highway 9. Latham and a customer, Willie Jennings, noticed the driver was slumped over the steering wheel and walked out to the car. They asked the driver to move the vehicle, which he did, nearly hitting the store‘s gas pumps in the process. Both noticed the smell of alcohol when they asked the driver to move the vehicle.
Latham said the vehicle left his parking lot, barely missing a telephone pole as it headed down Highway 404. Jennings and Latham discussed the danger presented by the driver, and decided to notify the Sheriff‘s Department so the Sheriff‘s Department could help the driver in case he was sick or drunk. When Latham next noticed the same car headed south on Highway 9 — his store sits at an intersection of Highways 404 and 9 — he notified the Sheriff‘s Department of the change in direction.
Keith W. Ricks and his friend, Herbie Newcomb, had been cutting firewood that day in Montgomery County. Later that evening they purchased a twelve-pack of beer from Ray‘s Grocery on Highway 404. Ricks said Newcomb had been drinking earlier in the day, but he only had two beers from the twelve-pack before being pulled over.
Deputy Sheriff Donald Card met up with Ricks’ vehicle on Highway 9 when it entered his traffic lane and nearly hit his vehicle. Card turned around and proceeded after the vehicle. He said the car almost ran other people off the road before he got it pulled over. Card walked up to the car, opened the door and asked the driver for his license. He said he could smell alcohol and see beer cans in the front and back seats. Card told the driver, Keith W. Ricks, that he was arresting him for reckless driving. Although Ricks kept telling Card he wasn‘t drunk, Ricks was staggering and his speech was slurred, according to Card.
At the scene, Card informed Ricks of his Miranda1 rights, and told him he was going to take him to the Sheriff‘s Department and run the blood alcohol (breath) test. Ricks told Card he wasn‘t going to take the test. Card performed no field sobriety tests upon Ricks, but observed his bloodshot eyes, staggered walk and slurred speech.
Upon reaching the office, Ricks again was asked to take the test, whereupon he responded “[i]f you run me on that machine ... it‘ll probably show I‘m in a coma,” according to Card. Ricks said that comment was a reference to the Phenobarbital he takes for epileptic seizures. He had taken one pill earlier in the day, he said. Ricks did provide his driver‘s license number from memory and after his second refusal to take the breath test, Card locked
Ricks testified he asked Card repeatedly for a blood test instead of a breath test, as he was taking medicine for epileptic seizures and believed the medicine would appear as alcohol on the breathalyzer test. He said Card refused. Card claims Ricks never asked for a blood test, but admits Ricks was talking constantly and he didn‘t pay attention all the time.
At trial, Ricks’ refusal to take the breathalyzer test and his comment “[i]f you run me on that machine ... it‘ll probably show I‘m in a coma,” were admitted into evidence against him. The jury subsequently returned a guilty verdict.
II.
Ricks presents two issues upon appeal. First, he complains that his statement “[i]f you run me on that machine ... it‘ll probably show I‘m in a coma,” should not have been admitted into evidence. At a pre-trial hearing on suppression of this comment, the trial judge ruled that Ricks’ statement was voluntary. “The statement he made in response to an invitation, or request, to take the breathalyzer test was entirely voluntary on his part and, as such, is admissible... .” Ricks’ statement is essentially a confession of how drunk he was the night in question. This Court holds that a confession or statement relating to culpability may be admitted into evidence if it is given freely and voluntarily, and without the influence of promises or threats. Pinkney v. State, 538 So.2d 329, 342 (Miss. 1988); Cabello v. State, 490 So.2d 852 (Miss. 1986). Furthermore, the sheriff‘s deputy gave Ricks the Miranda warning prior to Ricks’ statement. He did not question Ricks about how drunk he was, but merely asked Ricks to take the breathalyzer test. Ricks volunteered the statement about the machine registering him in a coma.
“[A] volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to the warning and of course if it were voluntarily and spontaneously made subsequent thereto, it would remain admissible in evidence.” Burge v. State, 282 So.2d 223, 226 (Miss. 1973). Furthermore, this Court has said an officer is not required to turn a “deaf ear” to such statements. Burge, 282 So.2d at 226. This Court will not reverse a trial court‘s finding regarding admission of a confession unless it is manifestly wrong. Lockett v. State, 517 So.2d 1317, 1328 (Miss. 1987); Frost v. State, 483 So.2d 1345, 1350 (Miss. 1986). The evidence supports the trial judge‘s finding that the statement was voluntarily given without coercion from the sheriff‘s deputy.
In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), the U.S. Supreme Court held that the Miranda rule does not require suppression of statements made by a defendant when asked to submit to a breathalyzer examination. In that case, the officer read the defendant a prepared script explaining how the test worked, the nature of Pennsylvania‘s implied consent law, and the legal consequences of refusal. The defendant then asked the officer several questions about the test and the consequences of refusal, during which the defendant commented upon his state of inebriation. After offering to take the test after waiting a couple of hours or drinking some water, the defendant refused to take the test. The Court held that the defendant‘s statements were not prompted by an interrogation within the meaning of Miranda, therefore the absence of a Miranda warning did not require suppression of the statements. Pennsylvania v. Muniz, 496 U.S. 582, 605, 110 S.Ct. 2638, 2652, 110 L.Ed.2d 528, 554 (1990). In the case sub judice, Ricks was given the Miranda warning prior to being asked to take the test. As such and because his statement was spontaneous and voluntary, this issue has no merit.
III.
Ricks next complains that his refusal to take the breathalyzer test was erroneously admitted into evidence in violation of the
If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter.
Ricks was charged with violation of
While this Court has not faced this issue, the U.S. Supreme Court decided almost a decade ago that evidence of a defendant‘s refusal to take a blood alcohol test may be admitted into evidence against him or her without violating the
This state‘s case law has consistently applied the self-incrimination clause of
In South Dakota v. Neville, the U.S. Supreme Court held constitutional a South Dakota statute4 allowing evidence of refusal to submit to a blood-alcohol test5 admissible at trial for driving under the influence of alcohol. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Mississippi and South Dakota, along with a host of other states, have enacted implied consent laws which provide that persons operating a motor vehicle within the respective jurisdictions are deemed to have consented to a chemical test of the alcohol content of their blood if arrested for driving while intoxicated. In Schmerber v. California, the U.S. Supreme Court upheld a state-compelled blood test, finding that a blood test was “physical or real” evidence rather than testimonial evidence and therefore was unprotected
The U.S. Supreme Court noted that most courts applying general
Ricks complains that he was not informed by the sheriff‘s deputy that his refusal could be admitted into evidence against him. But admitting the refusal into evidence is not fundamentally unfair, even if the defendant is not specifically warned that his refusal could be used against him at trial. South Dakota, 459 U.S. at 565, 103 S.Ct. at 923. The U.S. Supreme Court characterized the defendant‘s right to refuse the blood-alcohol test as “simply a matter of grace bestowed by the South Dakota Legislature.” South Dakota, 459 U.S. at 565, 103 S.Ct. at 923. While the South Dakota officers did not inform the defendant of the consequence that evidence of refusal could be used against him in court, the Court held it unrealistic to say the warnings given implicitly assured the suspect that no consequences other than those mentioned, i.e. loss of license, would occur. That sort of failure to warn was not the type of implicit promise to forego future use of the evidence that would unfairly trick the defendant if the evidence were later used against him at trial. South Dakota, 459 U.S. at 566, 103 S.Ct. at 924.
This Court sees no legitimate reason to or basis for interpreting the scope of
IV.
As Ricks presents no issues on appeal which merit reversal, his conviction is affirmed.
CONVICTION OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR (FOURTH OFFENSE) AND SENTENCE TO SERVE A TERM OF ONE (1) YEAR IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE IN THE AMOUNT OF $2,000.00, SAID FINE TO BE PAID IN FULL TO THE CIRCUIT CLERK WITHIN ONE YEAR OF HIS RELEASE FROM ACTUAL CUSTODY, AFFIRMED.
PRATHER, J., concurs with separate opinion joined by SULLIVAN and BANKS, JJ.
McRAE, J., dissents with separate written opinion.
PRATHER, Justice, concurring:
I concur in the majority opinion with one exception. Ricks complains that the trial judge erroneously admitted into evidence his refusal to submit to a breathalyzer test. Ricks contends that the admission of this evidence violated his
In numerous cases preceding the one sub judice, this Court has explained that the development of evidentiary rules to govern criminal procedure in Mississippi is a core function of the judiciary — not the legislature. See, e.g., Mitchell v. State, 539 So.2d 1366, 1371 (Miss. 1989). Thus, a defendant‘s refusal to submit to a breathalyzer or other test to determine blood-alcohol content should not be deemed admissible under statutory law; rather, the defendant‘s refusal should be deemed admissible under the Mississippi Rules of Evidence. See
SULLIVAN and BANKS, JJ., join this opinion.
McRAE, Justice, dissenting:
While our drunk driving laws and sophisticated testing procedures have done much to deter the reckless practice of driving under the influence of alcohol, I feel compelled to voice again my concern that those charged under
The right to remain silent afforded by Miranda v. Arizona, 384 U.S. 436, 439, 86 S.Ct. 1602, 1609, 16 L.Ed.2d 694 (1966) may be voluntarily waived, provided that waiver is made knowingly and intelligently. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Our implied consent statutes do not absolutely require a driver arrested on a DUI charge to submit to a breath intoxilyzer test. However,
Notwithstanding that Ricks testified that he repeatedly asked to be given a blood test because he feared the medication he
The record indicates that there was far more persuasive evidence of Ricks’ intoxication than his statement or his refusal to submit to the breath intoxilyzer test. Deputy Sheriff Card testified that he observed Ricks driving recklessly, as did other witnesses. Further, he smelled alcohol and observed beer cans in the car and although he performed no field sobriety test, he observed Ricks’ bloodshot eyes, slurred speech and staggering gait. The arresting officer obviously had reason to believe that Ricks was drunk and therefore knew that he could neither knowingly nor intelligently waive his “rights.”
Were driving under the influence a mere misdemeanor offense, our laws would not serve to abridge an individual‘s constitutional rights. However,