IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-KA-01049-SCT

EUGENE YOUNG A/K/A EUGENE R. YOUNG

v.

CITY OF BROOKHAVEN

DATE OF JUDGMENT: 09/28/94

TRIAL JUDGE: HON. KEITH STARRETT

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: V. W. CARMODY, JR.

PAMELA L. CASTLE

ATTORNEY FOR APPELLEE: JOHN D. SUTTON

DISTRICT ATTORNEY: NA

NATURE OF THE CASE: CRIMINAL - MISDEMEANOR

DISPOSITION: AFFIRMED - 5/15/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/5/97

BEFORE DAN LEE, C.J., BANKS AND MILLS, JJ.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. On September 27, 1993, Eugene R. Young was found guilty of driving under the influence of

intoxicating liquor, Miss. Code Ann. § 63-11-30 (1)(c), first offense in Brookhaven Municipal

Court. On September 29, 1993, Eugene R. Young perfected an appeal to the Lincoln County Circuit

Court requesting a trial de novo of the Municipal Court's findings. The state prosecuted Young on

charges of careless driving and driving while intoxicated. The jury found Young guilty on both

charges. The trial court sentenced Young to 48 hours of community service and a fine of $800 for

D.U.I. and $75 for careless driving. Young perfected his appeal to this Court questioning:

1. Whether reversible error occurred when the prosecution was permitted to proceed at

trial under both sections 63-11-30(1)(a) and 63-11-30(1)(c) of the Mississippi Code?

2. Whether reversible error occurred when evidence regarding certain field sobriety tests
was admitted at trial?

3. Whether reversible error occurred when evidence regarding the intoxilyzer results was

admitted at trial?

FACTS

¶2. On Saturday, July 31, 1993, Eugene Young and his brother spent the day fishing and swimming

at a lake in Hammond, Louisiana. Between 12:00 A.M. and 5:00 P.M., the two brothers testified to

drinking between six and eight twelve ounce beers each. During this time, they hiked, swam, and

enjoyed other outdoor activities. Upon leaving the park at 5:00, the brothers traveled to a friend's

house in Hammond where they stayed until 7:30 P.M. Soon thereafter, Young and his brother began

driving north on I-55 heading to Young's home in Richland, Mississippi.

¶3. South of Brookhaven, Young testified to becoming tired and crossing lanes. After stopping at a

rest area for a few minutes, the brothers continued the northward journey. In Brookhaven, the

brothers exited the interstate, traveled down Brookway Boulevard, and drove through Taco Bell.

Brookway Boulevard is a five lane undivided highway with a center turning lane. After leaving Taco

Bell, Young turned right on Brookway, allegedly straddled the westbound lanes and apparently could

not decide in which lane to travel. At approximately 10:00 P.M., Young turned onto the I-55

northbound on-ramp where he was stopped by Officers Hart and Brister.

¶4. Officer Brister administered three field sobriety tests including the "ABC" and the Horizontal

Gaze Nystagmus (HGN) tests. The officer testified that he attempted to give Young a "heel - toe"

test as well, but that the test was not completed since the officer was already confident of Young's

intoxication. Young was then handcuffed, frisked, and taken to the Lincoln County Sheriff's

department. 19 minutes later, Young was administered a breath test on an intoxilyzer. Young

returned a blood alcohol content of .285. At trial, Young's expert testified that to test .285 an hour

after stopping drinking, one must consume 17 beers within two hours of testing.

DISCUSSION

1. Whether reversible error occurred when the prosecution was permitted to proceed at

trial under both sections 63-11-30(1)(a) and 63-11-30(1)(c) of the Mississippi Code?

¶5. Eugene Young asserts that the state's failure to elect which D.U.I. offense upon which to

prosecute Young constituted reversible error. Young states that Miss. Code Ann. § 63-11-30(1)(a)

and 63-11-30(1)(c) constitute separate crimes which must be defended in different ways. The

relevant portion of the Mississippi D.U.I. statute reads as follows:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a)

is under the influence of intoxicating liquor; (b) is under the influence of any other substance

which has impaired such person's ability to operate a motor vehicle; (c) has ten onehundredths percent (.10%) or more for persons who are above the legal age to purchase

alcoholic beverages under state law, or eight one-hundredths percent (.08%) or more for

persons who are below the legal age to purchase alcoholic beverages under state law, 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 such

person's breath, blood or urine administered as authorized by this chapter; (d) is under the

influence of any drug or controlled substance, the possession of which is unlawful under the

Mississippi Controlled Substances Law; or (e) has an alcohol concentration of four onehundredths percent (.04%) or more, 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 such person's blood, breath or urine, administered as authorized by this

chapter for persons operating a commercial motor vehicle.

Miss. Code Ann. § 63-11-30(1) (1996).(1)

¶6. Young asserts that since the subsections are separated by "or", the state has an option of charges.

Young describes § 63-11-30 (1)(a) as the "common-law" D.U.I. charge while (1)(c) is a "per-se"

violation. See Fisher v. City of Eupora, 587 So. 2d 878, 888 (Miss. 1991). He points out that it is

possible for the state to charge a driver under (1)(a) while not charging under (1)(c) and vice-versa.

He asserts that the state's prosecution under both subsections resulted in prejudice to his defense

since different evidence and strategies may be required to defend against the two differing charges.

The state discounts this assertion by stating that § 63-11-30 (1) contains four different ways to

commit the same offense.

¶7. We have not previously addressed this issue and find it helpful to review the outcome of similar

cases in the courts of our sister states. The Arkansas D.U.I. statute reads as follows:

(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to

operate or be in actual physical control of a motor vehicle.

(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual

physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or

more by weight of alcohol in the person's blood as determined by a chemical test of the person's

blood, urine, breath, or other bodily substance.

Ark. Code Ann. § 5-65-103 (1995). In Johnston v. City of Fort Smith, 690 S.W.2d 358, 369 (Ark.

1985), the appellant asserted the failure to specify the subsection of the Arkansas D.U.I. law they

were charged constituted reversible error. Johnston, 690 S.W.2d at 369 (Ark. 1985). The Arkansas

Court has found that the two-subsections are "simply two different ways to prove a single violation."

Id. The Arkansas Court concluded that"the penalty is the same whether the act is violated by conduct

proscribed by either subsection. . . ." Id.

¶8. Alabama has a similar statute;

(a) A person shall not drive or be in actual physical control of any vehicle while:

(1) There is 0.08 percent or more by weight of alcohol in his or her blood;

(2) Under the influence of alcohol;

(3) Under the influence of a controlled substance to a degree which renders him or her

incapable of safely driving;
(4) Under the combined influence of alcohol and a controlled substance to a degree which

renders him or her incapable of safely driving; or

(5) Under the influence of any substance which impairs the mental or physical faculties of such

person to a degree which renders him or her incapable of safely driving.

Ala. Code Ann. § 32-5A-191 (Ala. 1996). The Alabama Court has also found that "subsections (1)

and (2) are not separate offenses, but are two methods of proving the same offense -- driving under

the influence of alcohol." Buckner v. City of Huntsville, 549 So. 2d 451, 452 (Ala. 1989)(citing

Sisson v. State, 528 So. 2d 1159 (Ala. 1988).

¶9. We interpret the Mississippi Statute in the same manner. Miss. Code Ann. § 63-11-30 merely

sets forth numerous methods of committing the same crime. Therefore, we find no merit in this

assertion of error.

2. Whether reversible error occurred when evidence regarding certain field sobriety tests

was admitted at trial?

¶10. Young asserts that the trial court committed reversible error in "admitting evidence of certain

field sobriety tests over objection where no scientific foundation was laid or a correlation established

between the results of the [tests] and the presence of intoxication."

Standard of Review

¶11. This Court has set forth the following standard of review in determining the appropriateness of

the admission of evidence:

Under the Supreme Court's standard of review, the admissibility of evidence rests within the

discretion of the trial court. Baine v. State, 1076, 1078 (Miss. 1992); Wade v. State, 583 So.

2d 965, 967 (Miss. 1991). However, this Court must also determine whether the trial court

employed the proper legal standards in its fact findings governing evidence admissibility. Baine

v. State of Mississippi, 606 So. 2d at 1078. If in fact the trial court has incorrectly perceived

the applicable legal standard in its fact findings, the Court applies a substantially broader

standard of review. Id. However, a denial of a substantial right of the defendant must have been

affected by the court's evidentiary ruling. Jackson v. State, 645 So. 2d 921 (Miss. 1994);

Newsom v. State, 629 So. 2d 611, 612 (Miss. 1993); Collins v. State, 594 So. 2d 29, 34 (Miss.

1992). Furthermore, the trial court's discretion must be exercised within the scope of the

Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion

resulting in prejudice to the accused occurs. Parker v. State, 606 So. 2d 1132, 1137-1138

(Miss. 1992).

Peterson v. State, 671 So. 2d 647, 655-56 (Miss. 1996). We have also stated that "[t]he mere fact

that the trial court committed error in an evidentiary ruling does not by itself warrant a reversal by

this Court." Peterson, 671 So. 2d at 656.

Admission of Horizontal Gaze Nystagmus Test

¶12. Young asserts that the trial court abused its discretion by allowing the state to present evidence
of the administration of three field sobriety tests by a police officer even though the officer had not

been qualified as an expert witnesses. Furthermore, Young asserts that the evidence was not

generally accepted as having scientific value as required by Polk v. State, 612 So. 2d 381 (Miss.

1992)(citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Polk requires that "the thing

from which the deduction is made [be] sufficiently established to have gained general acceptance in

the particular field in which it belongs." Polk, 612 So. 2d at 390.(2)

¶13. Young asserts that even thought the trial court ruled in a motion in limine that the horizontal

gaze nystagmus test and the "ABC" test could not be allowed as scientific evidence to "determine a

specific level of blood alcohol," it was actually allowed at trial.

Q Scott, in your training at the Law Enforcement Academy, what special training, if any, did

you have regarding determining if an individual was intoxicated or not?

A Went through a course of running the intoxilyzer and determining about public drunks and

determining how to use gaze nystagmus.

Q Just briefly, what is gaze nystagmus?

A Gaze nystagmus is a technique used on the field sobriety test to determine the involuntary

movement of the eyes.

Q And why would that be important?

A A sober person, his eyes would move at a smooth rotation, back and forth. If he's been

drinking or intoxicated, they would have a jerking motion. Depending on how much he's had to

drink is how much they're going to jerk and to what degree.

Q Is it fair to say that the more someone drinks the more someone's eyes jerk?

A Yes.

Q Have you had an occasion to give a gaze nystagmus test since you graduated from the

Highway Patrol Academy?

A Several.

Q You say several. How many do you --

A It's hard to say. It's more than fifty.

Q Have you ever had an occasion to give an individual a gaze nystagmus test and then run that

individual on the intoxilyzer?

A Yes, sir.

Q What correlation, if any, do you notice between the gaze nystagmus test and the results that

you have received from the intoxilyzer machine?

A After, after doing a number of gaze nystagmus, you can pretty well tell by the gaze
nystagmus what they're going to blow on the machine.

¶14. The horizontal gaze nystagmus (HGN) test has been used in the United States for over 30 years.

John P. Ludington, Annotation, Horizontal Gaze Nystagmus Test: Use in Impaired Driving

Prosecution, 60 A.L.R. 4th 1129 (1988). In the early 1960's, California police officers noticed that

users of barbiturates eyes' moved in jerky motions when the test was applied. Id. at 1131. By the

1980's, this test was used throughout the nation, primarily as a means of finding probable cause to

arrest. Id. HGN has "been held to be a 'search' within the meaning of the Fourth Amendment, but not

to require probable cause to search, so that the application of the test is justified by a police officer's

reasonable suspicion, based on specific, articulable facts, that the driver is intoxicated. Id. at 1132.

¶15. An HGN test is conducted by asking the driver to "cover one eye and focus the other on an

object - usually a pen - held by the officer at the driver's eye level. As the officer moves the object

gradually out of the driver's field of vision he watches the driver's eyeball to detect involuntary

jerking. Id. The officer then observes: "(1) the inability of each eye to track movement smoothly; (2)

pronounced nystagmus at maximum deviation; and (3) onset of the nystagmus at an angle less than

45 degrees in relation to the center point." Id.

¶16. This Court has not directly dealt with the validity of the horizontal gaze nystagmus test as a

method of determining intoxication. The Alabama Supreme Court in Malone v. City of Silverhill,

575 So. 2d 106 (Ala. 1990) stated "[t]he problem created by the improper admission of the HGN

evidence is due to the scientific nature of the test and the disproportionate impact it might have had

on the jury's decision-making process. . . . a jury 'might give undue weight to [HGN] evidence since it

may appear to lend the certainty of an exact discipline to problematic fact finding.'" Malone, 575 So.

2d at 106. Furthermore, the Alabama Supreme Court found that improper introduction of the results

of the HGN was reversible error. Malone, 575 So. 2d at 106.

¶17. Tennessee's Supreme Court has not yet reached a decision on the admissibility of the HGN test;

however, in a series of unreported cases their appellate courts have found that "[a]fter careful review

of the two alternative positions,(3) we believe that the better course is to hold that the underlying

premise behind the HGN test is grounded in science, not in common knowledge of lay persons. . . ."

State v. Murphy, 1995 WL 594715 (Tenn. Crim.App. 1995)(currently on appeal before the

Tennessee Supreme Court).(4)

¶18. Arkansas has reached a vastly different conclusion. In Whitson v. State, 863 S.W.2d 794 (Ark.

1993), the HGN test was:

not used to quantify a precise percentage of blood alcohol content but rather to show some

indication of alcohol consumption in conjunction with other field sobriety tests. Using the test

to identify a precise blood alcohol content under § 5-65-103 (b) is vastly different from testing

to indicate some alcohol in the system for purposes of intoxication under § 5-65-103 (a).(5)

Whitson, 863 S.W.2d at 797. The Arkansas Court pointed out that other states have questioned the

wisdom of allowing officers to testify to the correlation between HGN results and precise blood

alcohol content. Id. See, e.g. State v. Superior Court of County of Cochise, 718 P.2d 171, 60

A.L.R.4th 1103 (Ariz. 1986). The Arkansas Court pointed out that the Arizona Court "drew a clear

distinction between 1) using nystagmus to prove a percentage of blood alcohol content . . . and 2)
using it to prove driving under the influence . . . ." Whitson, 863 S.W.2d at 797. Arkansas, therefore,

allows the admission of an officer's administration of HGN tests to prove intoxication, but not to

prove blood alcohol content. Id. at 798.

¶19. We find that the HGN test is a scientific test. The potential of a juror placing undue weight upon

testimony about the administration of the test is high. Whereas most other field sobriety tests arise

out of a juror's common experiences, i.e., one stumbles, slurs words, and staggers when drunk, the

HGN test relies upon a scientifically or at least professionally relevant set of observations.

¶20. Therefore, this Court finds that the HGN test is not generally accepted within the scientific

community and cannot be used as scientific evidence to prove intoxication or as a mere showing of

impairment.

¶21. However, the HGN test can still be used to prove probable cause to arrest and administer the

intoxilyzer or blood test. This is the only allowable use for the test results. As stated in Cole v. State,

493 So. 2d 1333 (Miss. 1986);

A search made without warrant and not incident to a lawful arrest is not illegal per se, but if the

fruits of the search are to withstand the exclusionary rule, the search must have been predicated

on probable cause. Hailes v. State, 268 So. 2d 345, 346 (Miss. 1972). The existence of

probable cause and the determination of whether there has been a violation of the constitutional

protection against unreasonable search and seizure is determined on a case by case basis.

Penick v. State, 440 So. 2d 547 (Miss. 1983).

Cole, 493 So. 2d at 1335. Since the HGN test can only be used to show probable cause, the test

results should only be presented to the trial court at a probable cause hearing. Therefore, the test

results are not admissible before the jury. This is of extreme import due the high degree of likelihood

that the jury would confuse the proper weight to be given the test results.

¶22. We deliver a stern warning concerning using the HGN test for reasons other than to establish

probable cause. The State cannot use the results of the HGN test merely as an indicator to show that

the defendant was "under the influence of intoxicating liquor" to prove the requisite elements of

Miss. Code Ann. § 63-11-30 (1)(a). Furthermore, the State cannot attempt to introduce the HGN

test as scientific evidence to show degree of intoxication.

¶23. Other evidence in this case overwhelmingly proves the State's case against Young. Therefore,

we find the use of the HGN test in this case to be harmless error. However, in future cases, this

Court will not allow the use of the HGN test as an indicator of impairment or as a specific measure

showing intoxication.

3. Whether reversible error occurred when evidence regarding the intoxilyzer results was

admitted at trial?

¶24. Young asserts that the best evidence rule requires the State to provide the actual test cards used

in the calibration of the intoxilyzer, rather than allowing the testimony of the individual who

conducted the calibration. The State refutes asserting that since the officer who conducted the tests

was present and available for full cross-examination, the best evidence rule does not apply.
Furthermore, the State asserts that the requirements of Miss. Code Ann. § 63-11-19 (1996)

(requiring proof of calibration) were substantially complied with as required by Fulton v. City of

Starkville, 645 So. 2d 910, 913 (Miss. 1994).

¶25. Miss. Code Ann. § 63-11-19 (1996) establishes specific requirements upon the methods of

testing, the qualifications of those who give the tests, and the calibration of the intoxilyzer, and states

as follows;

A chemical analysis of the person's breath, blood or urine, to be considered valid under the

provisions of this section, shall have been performed according to methods approved by the

State Crime Laboratory created pursuant to Section 45-1-17 and the Commissioner of Public

Safety and performed by an individual possessing a valid permit issued by the State Crime

Laboratory for making such analysis. . . .

The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of

the methods, machines or devices used in making chemical analysis of a person's breath as shall

be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the

accuracy of the same.

Miss. Code Ann. § 63-11-19 (1996)(emphasis added). This Court has addressed the admissibility of

the intoxilyzer in Bearden v. State, 662 So. 2d 620 (Miss. 1995) and Fulton v. City of Starkville,

645 So. 2d 910 (Miss. 1994). The test is admissible as long as the State "substantially complies" with

the requirements of the statute. Fulton, 645 So. 2d at 913. However, Young focuses not upon

substantial compliance, but rather upon the evidentiary requirements of admission of the evidence.

¶26. Miss. Code Ann. § 63-11-19 (1996) requires the state to verify the accuracy of the intoxilyzer

once every three months. At trial, the State presented the testimony of the officer responsible for the

calibration of the Lincoln County machine. Prior to trial, Young had a subpoena duces tecum issued

to the highway patrol for the production of the actual calibration cards used in verifying the

calibration of the Lincoln County machine. As per state policy, the calibration cards had been

disposed of by the verifying officer. Young asserts that the calibration cards are the best evidence of

the calibration of the machine, and without the actual cards, the State could not adequately prove the

accuracy of the machine.

¶27. In Johnston v. State, 567 So. 2d 237, 239 (Miss. 1990), the State could not provide a

certification that the machine had been calibrated within the required 120 days. Johnston, 567 So. 2d

at 239. The testimony of the Trooper who administered the test was found insufficient under the best

evidence rule. Id. This Court apparently desired the production of a certificate showing that the

machine had been calibrated within the required time requirement. Id.

¶28. Even though the production of the actual calibration cards used in testing the intoxilyzer would

be an excellent method of proving the calibration of the machine, it would be an onerous burden upon

the state. Miss. Code Ann. § 63-11-19 requires only a "Certification" of the calibration check of the

machine. Therefore, to certify the accuracy of the intoxilyzer, the State must present the testimony

and allow cross-examination of the calibrating officer along with the records of the results of the tests

performed.
¶29. Furthermore, the best evidence rule is inapplicable in this case. "The best evidence rule only

expresses a preference for original documents, but does not preclude the admission of secondary

evidence." Watson v. State, 465 So. 2d 1091, 1092 (Miss. 1985). However, in the absence of the

original document, the loss or destruction of the original must be explained. In the case sub judice,

the State effectively shows that the results of the actual test were effectively recorded in the log

book. Therefore, secondary evidence supplied through the log book and the testimony of the testing

officer are adequate to prove the certification of the intoxilyzer.

CONCLUSION

¶30. The trial court properly allowed conviction under both portions of the D.U.I. statute. Like

Alabama and Arkansas, our statute simply enounce's different ways one can commit the same offense.

¶31. The trial court's abuse of discretion in the admission of the officer's testimony concerning the

administration of the horizontal gaze nystagmus (HGN) test was error. This State does not recognize

the use of the HGN test as evidence of impairment or intoxication. The test is allowable to show

probable cause. However, due to the overwhelming evidence presented by the State to prove the

intoxication of Young, this error was harmless.

¶32. Finally, no error occurred below in the State's proof of calibration of the intoxilyzer. The State

complied with the requirements of the statute.

¶33. CONVICTION OF CARELESS DRIVING AND DRIVING UNDER THE INFLUENCE

OF INTOXICATING LIQUOR AND SENTENCE OF FORTY-EIGHT (48) HOURS IN JAIL

WHICH MAY BE SUBSTITUTED FOR COMMUNITY SERVICE WORK AND

PAYMENT OF AN $800 FINE FOR D.U.I., A $75 FINE FOR CARELESS DRIVING,

COURT COSTS AND HIS DRIVERS LICENSE SUSPENDED AFFIRMED.

LEE, C.J., PRATHER, P.J., BANKS, ROBERTS AND SMITH, JJ., CONCUR. PITTMAN, J.,

CONCURS IN RESULT ONLY. SULLIVAN, P.J., CONCURS IN PART AND DISSENTS IN

PART WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN AND McRAE, JJ.

McRAE, J., CONCURS IN PART AND DISSENTS IN PART WITH A SEPARATE WRITTEN

OPINION.

SULLIVAN, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN

PART:

¶34. I respectfully dissent with the majority's analysis of issue I concluding the Miss. Code Ann.

Section 63-11-30(1) sets forth numerous methods of committing the same crime. A strict

interpretation of 63-11-30(1) lists five separate crimes which are defended in different ways.

¶35. According to the majority's analysis, the five subsections of 63-11-30(1) are read as
conjunctive/disjunctive such that a person may be convicted by one or more of the listed subsections.

However, the strict and literal meaning of 63-11-30(1) lists five separate crimes which are defended

in different ways. The subsections (a) - (e) are separated by a disjunctive "or". Therefore, a person is

guilty of unlawfully operating a vehicle if s/he: a)is under the influence of intoxicating liquor, b) under

the influence of another substance impairing the ability to operate a vehicle, c) has a blood alcohol

content above .10 percent if at least twenty-one, d) under the influence of an illegal controlled drug,

or e) an alcohol concentration of .04 percent measured etc. If the legislature meant that a person may

be convicted for more than one of the listed crimes, then the legislature would have included "and/"

before "or".

¶36. The distinction between "common law" DUI and DUI per se was made in Hendrick v. State,

637 So.2d 834 (Miss. 1994). In interpreting 63-11-30(1) and (4) in attempt to analyze whether

Hendrick violated 63-11-30(4) for purposes of the felony when one kills or maims a victim while

violating 63-11-30(1), Hendrick stated that the elements are "operating a vehicle under the influence

of intoxicating liquor, or operating a vehicle with ten one-hundredths percent or more ...." Hendrick,

637 So.2d at 837. See also Fisher v. State, 587 So.2d 888 (Miss. 1991). By definition, the two

subsections of 63-11-30(1) pertaining to common law DUI and per se DUI require different

standards for determining a violation of the separate crime:

[I]t is the opinion of this office that the first block, charging DUI under Sec. 63-11-30(1)(a),

should be checked by the officer either when test results are not available or the results that are

available show a BAC [blood alcohol content] of less than .10%, and when the officer has

probable cause to believe that the person is driving or operating a vehicle under circumstances

indicating that his ability to so drive or operate the vehicle has been impaired by the ingestion of

intoxicating liquor. The third block, charging an offense under Sec. 63-11-30(1)(c), should be

checked when test results are available and are sufficient to give the officer probable cause to

believe that the person is driving or operating a vehicle with a BAC of .10% or more.

DUI Traffic Citation, Op. Att'y Gen. (Jan. 6, 1987). Thus, the Attorney General specifically

distinguishes between common law DUI and per se DUI. Specifically, 63-11-30(1)(c) is designated

for persons testing above .10 percent blood alcohol content; 63-11-30(1)(a) is either for persons not

tested or for persons not registering above .10 percent blood alcohol level.

¶37. Young contends that allowing the State to prosecute under both DUI offenses prejudiced his

ability to defend since each offense required different proof. Namely, in order to prove the common

law DUI, the State must prove that a driver was under the influence by evidence of his ability to

operate a vehicle as well as observations of the arresting officer after the driver has been stopped. In

order to prove a per se DUI, the State must merely show that the driver's alcohol content was above

.10 percent while operating the vehicle and that the testing procedures were appropriate. Thus

Young contends that allowing the state to prove both offenses allows the State to use evidence not

necessary in one offense to prove the other.

¶38. While I do not believe that Young was so prejudiced as to reverse his case, I believe that the

State should prosecute a driver under one offense or the other. In arresting a driver for a per se DUI,

the police must have probable cause when they pull a driver over and demand that a breathalyzer test

be taken. Probable cause is similar to some of the elements in the common law DUI. It stands to
reason then, that when a driver registers above .10 percent blood alcohol content, the state should

elect to prosecute under 63-11-30(1)(c). Similarly, where a test was not taken, the state should

prosecute under 63-11-30(1)(a). Therefore, until the legislature amends the statute otherwise, a

proper interpretation of 63-11-30(1) sets forth five separate offenses.

PITTMAN AND McRAE, JJ., JOIN THIS OPINION.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶39. I disagree with the conclusion reached in Issue 3 that the testimony of the officer who last

conducted the calibration test on the intoxilyzer coupled with the log book certifying that it had been

calibrated within the past 120 days is sufficient evidence that the machine was properly calibrated.

The best evidence to prove the accuracy of the machines would be the actual calibration cards.

Absent any actual evidence of the machine's accuracy, the confrontation rights of an individual

charged with DUI are seriously abridged. Accordingly, I dissent from that part of the opinion.

¶40. Because our DUI statues create a presumption of intoxication based on an intoxilyzer reading,

the machine and the results it produces are extremely important. Whether the machine is properly

calibrated, therefore, is critical to an individual's case. An officer's recollection that a machine was

properly calibrated when he tested it provides no meaningful opportunity for confrontation. To the

contrary, the actual calibration cards - - and not just the log book indicating that the machine was

tested on a given date - - would be the better evidence.

¶41. The intoxilyzer is a delicate instrument, akin to a computer. If not properly calibrated, the results

it produces will be skewed. To require maintenance of the actual calibration cards would not, as the

majority suggests, place an onerous burden on the State. There are not that many machines and they

are only checked four times a year. While keeping the cards would go beyond the requirement of

Miss. Code Ann. § 63-11-19 that only certification records be kept, it would go along way to

preserving our due process rights. Young's intoxilyzer reading of .285 would require a Herculean

consumption effort to produce, especially in light of the other facts of the case, calling into question

the accuracy of the machine's calibration. His expert indicated that to register a blood alcohol level of

that magnitude an hour after an individual stopped drinking would require that he consume seventeen

beers within the two hours prior to the test. Thus, Young would have had to have consumed

seventeen beers in an hour while he was driving north from Hammond to Richland rather than the six

to eight beers that he testified that he had had over the course of the day. Perhaps the calibration was

off. Especially where, as in the case sub judice, the test results are so inconsistent with the other

evidence, the officer's testimony and a record indicating only when the intoxilyzer last was calibrated

simply is not good enough. Accordingly, I disagree with the majority's conclusions in Issue 3 and

would reverse on this issue.
1. This statute has been amended numerous times since the 1993 arrest. However, the relevant

portions of Miss. Code Ann. § 63-11-30(1)(a) and (1)(c) have not changed.

2. This test is hereinafter referred to as the Frye / Polk test.

3. The Tennessee Court of Criminal Appeals cited the following cases finding HGN to not be a

scientific test. See, e.g., Whitson v. State, 863 S.W. 2d 794, 798 (Ark. 1993); State v. Murphy,

451N.W. 2d 154, 157 (Iowa 1990); State v. Garris, 603 So. 2d 277, 282 (La. Ct. App. 1992); State

v. Nagel, 506 N.E. 2d 285, 286 (Ohio 1986); State v. Klawitter, 518 N.W. 2d (Minn. 1994); State v.

Sullivan, 426 S.E.2d 766, 769 (S.C.1993).

However, as stated by the Tennessee Court, "[a]nother line of cases, indeed the majority of

jurisdictions which have addressed this issue, holds that the HGN test and results therefrom are

scientific for the purposes of Frye." See, e.g., Malone v. City of Silverhill, 575 So. 2d 101, 105

(Ala.Crim.App.1989); State v. Superior Court, 718 P.2d at 179-181; People v. Leahy, 8 Cal.4th

587, 34 Cal.Rptr.2d 663, 882 P.2d 321, 333-34 (Cal.1994); State v. Garrett, 119 Idaho 878, 811

P.2d 488, 490 (1991); People v. Vega, 145 Ill.App.3d 996, 99 Ill.Dec. 808, 496 N.E.2d 501, 504-05

(1986); State v. Witte, 836 P.2d at 1115-16; State v. Wheeler, 764 S.W.2d 523, 524-25

(Mo.App.1989); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551, 559 (1986); People v. Torrey,

144 A.D.2d 865, 534, N.Y.S.2d 807, 809 (1988); State v. Reed, 83 Or.App. 451, 732 P.2d 66, 68

(1987); Commonwealth v. Miller, 367 Pa.Super. 359, 532 A.2d 1186, 1188 (1987); State v. Cissne,

72 Wash.App. 677, 865 P.2d 564, 568 (1994); State v. Barker, 179 W.Va. 194, 366 S.E.2d 642, 645

(1988).

4. Cases heard by the Tennessee Court of Criminal Appeals which are pending Supreme Court review

are not published; however, Tenn. Rules of Crim. App. Proc. allow unpublished opinions to be cited

in court if copies of opinions are given to the court.

5. The Arkansas statute is constructed similarly to the Mississippi D.U.I. law.