IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-KA-00132-SCT

VICTOR GREEN a/k/a VICTOR E. GREEN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/21/97

TRIAL JUDGE: HON. BILLY JOE LANDRUM

COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: ANTHONY J. BUCKLEY

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: JEANNENE T. PACIFIC

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 4/16/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/7/98

BEFORE SULLIVAN, P.J., McRAE AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

¶1. On July 7, 1995, Victor Green was stopped by Officer Robby McLaurin of the Laurel Police

Department for speeding and for improper passing. Officer McLaurin clocked Green going 65 miles

per hour in a 30 miles per hour speed zone and observed Green engage in illegal passing. Upon

approaching Green's vehicle, McLaurin stated that he could smell the impurities of alcoholic beverage

coming out of the vehicle and he noticed that Green had watery bloodshot eyes. Green did not have a

valid driver's license but produced a social security card instead. McLaurin further stated that as

Green exited the truck, he "had to use the door for support because he was awfully bad intoxicated."

¶2. McLaurin performed the horizontal gaze and nystagmus (HGN) test, which Green failed.

Thereafter Green refused to do the other standardized field sobriety tests and McLaurin informed

Green that he was under arrest for driving without a license, speeding and improper passing. Green

was transported to the Laurel Police Department, where he was informed of his rights "regarding the

CMI Intoxilyzer test."(1) After waiting a period of 20 minutes, McLaurin administered the Model

5000 Intoxilyzer test and Green scored .266. McLaurin then advised Green that he had the right to

make a telephone call for legal or medical help.
¶3. Because Green had no driver's license, McLaurin was unable to check his record through NCIC.

However, McLaurin did find a prior offense on Green's skeleton record as well as a "second offense

DUI" charged at the Laurel Police Department. Accordingly, McLaurin charged Green with felony

DUI pursuant to Miss. Code Ann. § 63-11-30(1) (Supp. 1995). McLaurin then processed Green,

took photographs and fingerprints and placed him in jail. McLaurin then called an investigator to

advise that Green had been charged with felony DUI and left the paperwork in the investigator's

office so that the investigator could carry on with the case the following morning.

¶4. McLaurin testified that when he initially placed Green in handcuffs, Green was put under arrest

for improper passing, no driver's license and a speeding violation. McLaurin further explained that he

did not have to advise Green that he was in "investigative custody" for suspected DUI, because he

(Green) was already under arrest for the other charges. McLaurin further acknowledged that he did

not issue a uniform traffic ticket in this case.

STATEMENT OF THE CASE

¶5. On October 5, 1995, the Grand Jury of Jones County, Mississippi, indicted Green for the crime of

felony DUI third offense, in violation of Miss. Code Ann. § 63-11-30(1) (Supp. 1995). On January

21, 1997, Green was tried without a jury in the Jones County Circuit Court, Honorable Billy Joe

Landrum presiding. Judge Landrum found Green guilty of felony DUI and sentenced him to one (1)

year in the custody of the Mississippi Department of Corrections, and ordered him to pay a $2,

000.00 fine as well as court costs. Green then filed a motion for new trial in the Jones County Circuit

Court, which was denied. Aggrieved by the lower court's decision, Green appeals, by and through his

attorney, Anthony J. Buckley, and raises the following issues:

I. WHETHER GREEN'S CONSENT TO THE INTOXILYZER 5000 WAS INVALID SINCE

GREEN WAS NEVER PLACED UNDER FORMAL ARREST FOR SUSPECTED DUI.

II. THE FELONY DUI OFFENSE WAS NOT PROPERLY BEFORE THE CIRCUIT

COURT SINCE THE ARRESTING OFFICER FAILED TO ISSUE A UNIFORM

STANDARD TICKET FOR SUCH.

III. WHETHER OFFICER MCLAURIN'S FAILURE TO ADVISE GREEN OF HIS RIGHT

TO OBTAIN AN INDEPENDENT CHEMICAL TEST RENDERED THE INTOXILYZER

RESULT INADMISSIBLE.

LEGAL ANALYSIS

I. WHETHER GREEN'S CONSENT TO THE INTOXILYZER 5000 WAS INVALID

SINCE GREEN WAS NEVER PLACED UNDER FORMAL ARREST FOR

SUSPECTED DUI.

¶6. Green maintains that "in order to be subjected to the continuing custody necessary for a breath

test, [the defendant] must actually have been charged with suspected D.U.I." Green further asserts

that the results of the breath test should be suppressed because the officer failed to arrest Green for

suspected DUI prior to administering the field sobriety tests and before offering the Intoxilyzer 5000

test. In support of his argument, Green cites an Alabama Court of Criminal Appeals case, McDaniel
v. State, 526 So. 2d 642 (Ala. Crim. App. 1988), a Colorado Supreme Court case, People v.

Carlson, 677 P.2d 310 (Colo. 1984), and Miss. Code Ann. § 63-11-5(1). The Mississippi statute

upon which Green relies states in pertinent part:

Any person who operates a motor vehicle upon the public highways, public roads and streets of

this state shall be deemed to have given his consent, subject to the provisions of this chapter, to

a chemical test or tests of his breath for the purpose of determining alcohol concentration. . . .

The test or tests shall be administered at the direction of any highway patrol officer . . . when

such officer has reasonable grounds and probable cause to believe that the person was

driving or had under his actual physical control a motor vehicle upon the public streets or

highways of this state while under the influence of intoxicating liquor or any other substance

which had impaired such person's ability to operate a motor vehicle. . . .

Miss. Code Ann. § 63-11-5(1) (1996)(2) (emphasis added).

¶7. Mississippi's statute requires the officer to have "reasonable grounds and probable cause" before

administering a test to determine blood alcohol concentration. There is no authority in support of

Green's contention that the officer must arrest the individual before administering the breath test.

Conversely, this Court's decision in Ashley v. State, 423 So. 2d 1311 (Miss. 1982), is dispositive of

the case at bar. In Ashley, this Court stated

[the defendant] had not been lawfully arrested when his blood was withdrawn for testing.

However, our examination of the facts must not stop here. We must determine whether Officer

Santacruz had probable cause to detain [the defendant] and order a blood test after he went to

the hospital.

Id. at 1313 (emphasis added).

¶8. Furthermore, in Sheppard v. Mississippi State Highway Patrol, 693 So. 2d 1326 (Miss. 1997),

the defendant argued that the officer did not follow proper procedure when he arrested the defendant

prior to requesting that he submit to a breath test. Id. at 1329. The defendant in Sheppard

maintained that this procedure was "in direct contradiction of precedent and statutory requirements."

Id. In Sheppard, this Court referred to Miss. Code Ann. § 63-11-5 and stated

As a practical matter a driver has been stopped and usually brought to the jail, or other testing

has occurred, before he is asked to submit to a sobriety test. Probable cause to believe that the

person is impaired by a substance is required before the test may be requested.

Sheppard, 693 So. 2d at 1329 (emphasis added).

¶9. The circumstances regarding the arrest in the case at bar are similar to those in this Court's

decision in Longstreet v. State, 592 So. 2d 16 (Miss. 1991). As stated in Longstreet,

Officer Rose did not arrest Longstreet at the hospital. Longstreet was not arrested until the

grand jury returned an indictment which was several weeks after the results of the blood test

revealed a blood alcohol content of .13. Officer Rose testified that it was common practice to

await the blood alcohol test results from the crime lab in Jackson before seeking an indictment

in such cases.
Id. at 18. Longstreet argued that the blood sample test results should be inadmissible due to the

Officer's failure to inform him that he had a right to refuse such. This Court held that the test results

were admissible based on the fact that the blood search was legal because it was based upon

probable cause. Id. at 21. Even though the specific issue regarding whether the defendant must be

arrested prior to giving consent to the intoxilyzer was not addressed in Longstreet, the case is

indicative of the Court's willingness to allow test results into evidence as long as the law enforcement

officer had probable cause to request the test. Similarly, in the case at bar, Green was not arrested for

felony DUI until after the intoxilyzer results were obtained and the Grand Jury returned the

indictment.

¶10. Based on this Court's precedent, it is clear that an argument based on impropriety in the

sequence of the testing and the arrest would not render the result inadmissible. Accordingly, as long

as there is probable cause to believe that the person is impaired by some substance, the officer has

acted in accordance with Mississippi statute, and consequently, the results of the blood alcohol

concentration tests are admissible.

¶11. In the case at bar, Officer McLaurin indicated that he smelled alcohol when he approached

Green's vehicle, that Green's eyes were watery and bloodshot, that Green had to steady himself by

holding onto the door of the truck, and that Green failed the HGN test. Therefore, this Court finds

that Officer McLaurin had sufficient information upon which to establish probable cause to believe

that Green was impaired. Consequently, the trial court's decision is affirmed.

II. THE FELONY DUI OFFENSE WAS NOT PROPERLY BEFORE THE CIRCUIT

COURT SINCE THE ARRESTING OFFICER FAILED TO ISSUE A UNIFORM

STANDARD TICKET FOR SUCH.

¶12. Green points out that under the implied consent law, Miss. Code Ann. § 63-11-5(3), the traffic

ticket issued to a person arrested for violation of the implied consent law shall conform to the

requirements of the Uniform Ticket Law, Miss. Code Ann. § 63-9-21(3). Because no third offense

Uniform Traffic Ticket was issued, Green asserts that he was not properly charged with violating the

Implied Consent Law, and therefore, the felony DUI charge was not properly before the Circuit

Court.

¶13. Miss. Code Ann. § 63-11-5(3) (1996)(3) states:

The traffic ticket, citation or affidavit issued to a person arrested for a violation of this chapter

shall conform to the requirements of Section 63-9-21(3)(b).

(emphasis added).

¶14. Miss. Code Ann. § 63-9-21(3)(b) (1996)(4) states:

The traffic ticket, citation or affidavit which is issued to a person arrested for a violation of the

Mississippi Implied Consent Law shall be uniform throughout all jurisdictions in the State of

Mississippi. It shall contain a place for the trial judge hearing the case or accepting the guilty

plea, as the case may be, to sign, stating that the person arrested either employed an attorney or

waived his right to an attorney after having been properly advised of his right to have an
attorney. If the person arrested employed an attorney, the name, address and telephone number

of the attorney shall be written on the ticket, citation or affidavit.

(emphasis added).

¶15. In the case at bar, Green was prosecuted in Circuit Court, not pursuant to a traffic ticket, but

pursuant to an indictment charging him with felony DUI. Officer McLaurin testified that he did not

issue a uniform traffic ticket for the felony DUI, but completed the necessary paperwork and left it

for the investigator, Dewey Lee, to complete the next morning. Lee testified that a felony DUI is

different from a misdemeanor DUI in that the driving history has to be checked for prior DUI

offenses and the supporting documentation must be compiled to support the felony charge. The fact

that Green did not have a driver's license prohibited Officer McLaurin from being able to run the

necessary checks. Instead, McLaurin was only able to run a skeleton record and thus was not able to

obtain a complete record as well as the supporting documentation. Therefore, it was necessary for

Investigator Lee to continue the case the following morning. Once Lee had the necessary information

and compiled the required paperwork, he filed an affidavit in lieu of a uniform traffic ticket. Based

upon the affidavit, Green was indicted by the Jones County Grand Jury for Felony DUI pursuant to

Miss. Code Ann. § 63-11-30 (Supp. 1995).

¶16. The statute Green relies upon provides for an affidavit containing the required information as

well as a ticket. Additionally, the appellant does not argue that the affidavit was not in compliance

with the statute. Therefore, we hold that there is no merit to Green's contention that the felony DUI

charge was not properly before the Circuit Court.

III. WHETHER OFFICER MCLAURIN'S FAILURE TO ADVISE GREEN OF HIS

RIGHT TO OBTAIN AN INDEPENDENT CHEMICAL TEST RENDERED THE

INTOXILYZER RESULT INADMISSIBLE.

¶17. Green argues that since Officer McLaurin did not advise Green of his right to an independent

blood test at the defendant's expense, the blood alcohol content reading should be suppressed. The

pertinent Mississippi statute states:

The person tested may, at his own expense, have a physician, registered nurse, clinical

laboratory technologist or clinical laboratory technician or any other qualified person of his

choosing administer a test, approved by the state crime laboratory . . . , in addition to any other

test, for the purpose of determining the amount of alcohol in his blood at the time alleged as

shown by chemical analysis of his blood, breath or urine. The failure or inability to obtain an

additional test by such arrested person shall not preclude the admissibility in evidence of the test

taken at the direction of a law enforcement officer.

Miss. Code Ann. § 63-11-13 (1996).(5)

¶18. In support of his argument Green cites the following cases from other jurisdictions. State v.

McCard, 326 S.E.2d 856 (Ga. Ct. App. 1985); Mitchell v. City of N. Little Rock, 692 S.W.2d 624

(Ark. Ct. App. 1985)(6); and People v. Batista, 491 N.Y.S.2d 966 (N.Y. Crim. Ct. 1985). However,

review of these cases reveal that they are distinguishable from the case at bar in that the states'

statutes involved in McCard and Mitchell require the law enforcement official to advise the
defendant of his right to obtain an independent test. See Ga. Code Ann. § 40-6-392(a)(4) (1997)(7)

and Ark. Code Ann. § 5-65-204 (Michie 1997). (8)However, Mississippi's statute does not require

law enforcement officials to advise the defendant of his right to an independent test. See Miss. Code

Ann. § 63-11-13 (1996).

¶19. Additionally, the Batista case, which Green relies upon for authority, has been abrogated by a

New York Court of Appeals decision, People v. Finnegan, 647 N.E.2d 758 (N.Y. 1995). Even

though the court in Finnegan did not specifically address the notice requirement which is at issue in

the case at bar, the New York Court pointed out in its analysis that

[The d]efendant specifies at least three additional obligations not expressly prescribed in the

statute: (1) the police must give notice of the right to an independent test; (2) the police

must transport defendant to the doctor or hospital where the additional test would be performed

or presumably arrange for an independent physician or technician to make a precinct call; and

(3) the police must obtain the independent test within two hours of defendant's arrest.

Finnegan, 647 N.E.2d at 760 (emphasis added). Furthermore, in discussing the rule of statutory

construction, the Finnegan court pointed out that "[t]he statute is starkly silent as to any

implementary duties imposed on the law enforcement personnel as to notice or to direct assistance in

obtaining an independent chemical test." Id. at 760-61. Accordingly, Green's reliance on these cases

is unfounded.

¶20. "It is a well recognized principle of law in this State that ambiguity must exist in the language

used by the Legislature in a statute before resort will be had to any rules of statutory construction or

interpretation." Forman v. Carter, 269 So. 2d 865, 868 (Miss. 1972). There is no ambiguity in § 63-

11-13, nor is there any requirement that law enforcement officials notify the defendant of his right to

an independent test. Furthermore, a review of the case law from other jurisdictions that have

addressed this issue, reveals that those states that require notification do so based upon the fact that

the statute specifically provides for such. Of the thirty-three (33) states that have specifically

addressed the issue at bar, fifteen (15) have statutes that do not specifically require notification,(9)

sixteen (16) have statutes that do require notification,(10) and two (2) have statutes that require an

excess specimen be maintained for additional testing which renders the notification requirement

unnecessary.(11) Of the sixteen (16) states that have statutes that do not require notification, only one

(1) has judicially imposed a duty on law enforcement to give notification even though the statute does

not so provide. See State v. Strand, 951 P.2d 552 (Mont. 1997). Furthermore, three (3) of the states

having statutes that specifically require notification, have held that failure to provide such notification

does not render the police administered test results inadmissible.(12)

¶21. As stated earlier, Mississippi's statute does not provide for notification to be given regarding the

individual's right to independent testing. Alabama's statute is similar to the Mississippi statute in

question. In holding that law enforcement officers are not required to inform individuals of their right

to an independent test, the Alabama Criminal Court of Appeals stated:

Appellant next contends that he was denied due process of law because the arresting officer did

not make a statement to him that he could have an independent blood test made at his own

expense. The Legislature did provide in § 32-5A-194, Code of Alabama 1975 for such a private

test at the expense of the person charged.
There is, however, no obligation on the part of anyone to advise the defendant of the existence

of this code section or of his right to alternative testing at his own expense. The Legislature

does require the testing officers to inform the person being tested of the consequences of his

refusal to submit to the test. The Legislature could have made a law requiring that the testing

officer discuss alternative testing. They did not. We will certainly not add something which the

Legislature has not required to the already complicated responsibilities of these officers.

Bush v. City of Troy, 474 So. 2d 164, 166 (Ala. Crim. App. 1984).

¶22. This Court adopts the majority rule declining to impose obligations that are not specifically

delineated by the Legislature in the statute. As in the Alabama statutes, the affirmative duty to inform

the defendant of certain rights is expressly stated in other subsections of Mississippi's Implied

Consent Law.(13) Therefore, it follows that had the Legislature intended notification of the right to

independent testing be given, it would have been expressly stated in § 63-11-13. Furthermore, as the

Washington Court of Appeals pointed out there is no constitutional right to notice of the right to

independent tests. State v. Carranza, 600 P.2d 701, 705 (Wash. Ct. App. 1979). But in ruling that

the defendant must be apprized of the right to independent testing, the Washington Supreme Court

expressly stated that this requirement is based upon a statutory right rather than a constitutional right.

State v. Turpin, 620 P.2d 990, 991-92 (Wash. 1980) Additionally, as United States Supreme Court

Justice O'Connor stated "persons are presumed to know their rights under the law . . .." California v.

Trombetta, 467 U.S. 479, 492 (1984) (O'Connor, J. concurring).

¶23. It is also important to note that in the case at bar, Green did not request an independent test, but

was given the opportunity to make a phone call for medical or legal assistance, which he did not

exercise. Had Green exercised his right to make a phone call for legal assistance, he might have been

advised to request an independent test or he might have been advised that an independent test would

not be in his best interest. Nonetheless, it is not for this Court to second guess or speculate as to the

legal strategies that a defense attorney may employ. Because the statute does not impose an

affirmative duty on law enforcement to give notification of the right to an independent test, and

Green is presumed to know his rights under the law, and was given the opportunity to obtain legal

assistance, this Court holds that there is no merit to Green's claim that the results of the intoxilyzer

test administered by Officer McLaurin should be suppressed.

¶24. Green further maintains that the intoxilyzer results should be suppressed because Officer

McLaurin testified that he would not have allowed Green to obtain a blood test if Green had

requested one. However, because Green did not request an independent test and thus was not refused

such, he has no standing to assert this argument.

¶25. Furthermore, § 63-11-13 specifically states that "[t]he failure or inability to obtain an additional

test by such arrested person shall not preclude the admissibility in evidence of the test taken at the

direction of a law enforcement officer." Miss. Code Ann. § 63-11-13 (1996). Accordingly, the trial

court's decision is affirmed.

CONCLUSION

¶26. Green argues that his consent to the Intoxilyzer 5000 was invalid because he was never placed
under formal arrest for suspected DUI. However, Mississippi's statute and case law requires law

enforcement officers to have probable cause before administering a test to determine blood alcohol

concentration. There is no authority to support Green's contention, therefore, this Court affirms the

trial court's ruling.

¶27. Green further argues that his felony DUI offense was not properly before the Circuit Court since

the arresting officer failed to issue a uniform standard ticket for this charge. However, Mississippi's

statute provides for an affidavit containing the same information that is required on the uniform

standard ticket. Green was prosecuted in Circuit Court, not pursuant to a traffic ticket, but pursuant

to an indictment charging him with felony DUI. Furthermore, the indictment was issued based upon

an affidavit submitted by Investigator Lee. Therefore, this Court finds that there is no merit to

Green's claim that he must be issued a Uniform Standard Ticket. Accordingly, it follows that there is

no merit to Green's contention that the felony DUI charge was not properly before the Circuit Court.

¶28. Green further maintains that the intoxilyzer results were inadmissible because Officer McLaurin

failed to advise him of his right to obtain an independent chemical test as provided by Miss. Code

Ann. § 63-11-13 (1996). However, a review of the case law from those states that have considered

this issue reveals that the vast majority of states that require such notification do so because their

statutes specifically require notification. Mississippi's statute does not specifically provide for such

notification. However, the Legislature has specifically provided for notification of other rights within

the Implied Consent Law. Therefore, this Court adopts the majority rule declining to impose

obligations that are not specifically delineated by the Legislature in the statute.

¶29. Accordingly, the trial court's decision is affirmed.

¶30. CONVICTION OF FELONY DUI AND SENTENCE OF ONE (1) YEAR IN THE

CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF

$2,000.00 AND ALL COURT COSTS AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, ROBERTS, MILLS

AND WALLER, JJ., CONCUR.

1. Specifically, McLaurin informed Green that he had the right to refuse the intoxilyzer test which

was being offered to determine his blood alcohol content and that should he elect to refuse, his

driver's license would be suspended for ninety days if this is the first offense or for one year if he had

been previously convicted for violation of Miss. Code Ann. § 63-11-30 (Supp. 1995).

2. Although Green's arrest occurred prior to the effective date of this statute, the pertinent parts of

this statute have not been changed since the date of his arrest on July 7, 1995.

3. This section of the statute has not been changed from the statute in effect at the time of Green's

arrest on July 7, 1995.

4. This statute has not been changed from its July 1, 1991 effective date.
5. This statute has not been changed since its effective date of July 1, 1981.

6. In Mitchell, the defendant was advised of his right to an additional blood or urine test, but was not

advised that he could have another breath test. In Qualls v. City of Clarksville, 719 S.W.2d 702, 703

(Ark. Ct. App. 1986), the Court stated "[t]o the extent that our decision in Mitchell might infer that

a defendant is entitled to be informed of the full range of additional tests available, such a holding

would be in conflict with the supreme court's ruling in Hegler v. State, 691 S.W.2d 129 (Ark. 1985).

In Hegler, the court held . . . that substantial compliance is all that is required."

7. The statute states in pertinent part, "[t]he arresting officer at the time of arrest shall advise the

person arrested of his rights to a[n additional] chemical test . . .." Ga. Code Ann. § 40-6-392(a)(4)

(1997).

8. The statute states in pertinent part, "[t]he law enforcement officer shall advise the person of [the

right to an additional test]." Ark. Code Ann. § 5-65-204(e)(1) (Michie 1997).

9. See Bush v. City of Troy, 474 So. 2d 164 (Ala. Crim. App. 1984); State v. Ramos, 745 P.2d 601

(Ariz. Ct. App. 1987); State v. Rountree, 922 P.2d 1072, 1074-75 (Idaho Ct. App. 1996) (citing

State v. Woolery, 775 P.2d 1210, 1216 (Idaho 1989)); State v. Steadman, 350 N.W.2d 172 (Iowa

1984); State v. Adams, 457 A.2d 416 (Me. 1983); Ruffenach v. Commissioner of Pub. Safety, 528

N.W.2d 254 (Minn. Ct. App. 1995); Zadina v. Weedlun, 190 N.W.2d 857 (Neb. 1971); State v.

Mercer, 511 A.2d 1233 (N.J. Super. Ct. App. Div. 1986); City of Farmington v. Joseph, 575 P.2d

104 (N.M. Ct. App. 1978); State v. Rambousek, 358 N.W.2d 223 (N.D. 1984); State v. Osburn,

508 P.2d 837 (Or. Ct. App. 1973) (holding failure to inform does not make result inadmissible);

State v. McKinney, 605 S.W.2d 842 (Tenn. Crim. App. 1980); Provo City v. Werner, 810 P.2d 469

(Utah Ct. App. 1991); State v. York, 338 S.E.2d 219 (W. Va. 1985).

10. See Hegler v. State, 691 S.W.2d 129 (Ark. 1985); State v. Peters, 440 S.E.2d 515 (Ga. Ct. App.

1994); Barnhart v. Kansas Dep't of Revenue, 755 P.2d 1337 (Kan. 1988); Flynn v. State Dep't of

Pub. Safety, 597 So. 2d 529 (La. Ct. App. 1992), rev'd on other grounds, 608 So. 2d 994 (La.

1992); Commonwealth v. Chistolini, 650 N.E.2d 1278 (Mass. App. Ct. 1995) vacated, 665 N.E.2d

994 (Mass. 1996); Harbison v. Secretary of State, 383 N.W.2d 123 (Mich. Ct. App. 1985), rev'd on

other grounds, 437 N.W.2d 255 (Mich. 1987); State v. Dery, 496 A.2d 357 (N.H. 1985); State v.

Langella, 650 A.2d 478 (R.I. 1994); State v. Smith, 467 S.E.2d 110 (S.C. Ct. App.1996) rev'd on

other grounds, 482 S.E.2d 777 (S.C. 1997); State v. Karmen, 554 A.2d 670 (Vt. 1988); State v.

Turpin, 620 P.2d 990 (Wash. 1980); City of Mequon v. Hess, 463 N.W.2d 687 (Wis. Ct. App.

1990); Olson v. State, 698 P.2d 107 (Wyo. 1985).

11. See Gunderson v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990) (holding that

effective compliance consisting of notification of the right to independent testing is a permissible

alternative to preserving breath samples); Webster v. State, 859 P.2d 1122 (Okla. Ct. App. 1993).

12. See Kesler v. Department of Motor Vehicles, 459 P.2d 900 (Cal. 1969); City of Hilliard v.

Elfrink, 672 N.E.2d 166 (Ohio 1996); Wohlford v. Commonwealth, 351 S.E.2d 47 (Va. Ct. App.

1986).

13. See Miss. Code Ann. § 63-11-5(2) (1996) which provides that the "officer shall inform such
person that his failure to submit to such chemical test or tests of his breath shall result in the

suspension of his privilege to operate a motor vehicle upon the public streets and highways of this

state for a period of ninety (90) days in the event such person has not previously been convicted of a

violation of Section 63-11-30, or, for a period of one (1) year in the event of any previous conviction

of such person under Section 63-11-30." (emphasis added).