IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KM-01647-COA STEPHEN NOLAN A/K/A STEPHAN NOLAN A/K/A STEPHEN R. NOLAN A/K/A STEPHEN RAYMOND NOLAN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/20/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: KEVIN DALE CAMP JARED KEITH TOMLINSON ATTORNEY FOR APPELLEE: BOTY MCDONALD CITY PROSECUTOR: BOTY MCDONALD NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, FINED $900, AND SENTENCED TO FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, W ITH THE SENTENCE SUSPENDED UPON THE CONDITION THAT APPELLANT COMPLETE THE MISSISSIPPI ALCOHOL SAFETY EDUCATION PROGRAM, OR THE EQUIVALENT IN APPELLANT’S PLACE OF RESIDENCE IN ONTARIO, CANADA, AND TW O YEARS OF UNSUPERVISED PROBATION; CONVICTED OF FOLLOW I NG TOO CLOSELY AND FINED $50 DISPOSITION: AFFIRMED - 01/12/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND JAMES, JJ.BARNES, J., FOR THE COURT:

¶1. Stephen N olan appea l s h i s c o n v i ctions of driving under the inf luence (DUI), f

irst of f ense, and f

ollowing too closely (tailgating). Nolan a rgues: the verdicts were a gainst the weight and suf

f iciency of the e vidence; the trial court im properly considered his ref

usal to subm it to t he Intoxily

z er 8000 test as evidence of guilt; a nd the tailgating s tatute, Mississippi Code Annotated section 63-3-619 (Rev. 2013), is unconstitutionally vague. W e f ind no error and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On January 20, 2013, at a pproxim ately 1:56 a . m ., Of f icer Ry an A insworth observed Nolan’s vehicle traveling at an unsaf e distance behind a nother vehicle on Rice R oad in Ridgeland, Mississippi. Nolan’s vehicle then swerved, and his passenger-side ti r e s s t ruck the f o g line o n the right side of the road. Of f icer Ainsworth f

ollowed Nolan as h e drove west down Rice Road and as he turned l ef t onto O ld Canton Road. Observing that Nolan was still tailgating the vehicle in f ront of him , Of f icer Ainsworth conducted a traf f i c stop. ¶3. Of f icer Ainsworth asked Nolan if he k new the driver of

the car in f

ront of him , and Nolan said h e d i d

. During their c onversation, Of f icer Ainsworth sm elled a n “overwhelm ing” odor o f alcohol com ing f

rom Nolan’s vehicle, a nd he noticed Nolan appeared lethargic and had bloodshot, g lassy ey es. Nolan adm itted he had drunk two twelve-ounce beers between approxim a tely 1 0 and 10:30 p.m . O f f i cer Ainsworth sm elled alcohol on Nolan’s breath, and

a prelim inary b reath test indica t e d t h e p resence of alcohol. Of f i cer Ainsworth then conducted the horizontal-gaze-ny stagm us test, f rom which he observed six of six c lues. He

2then conducted a series of f ield sobriety tests. Of

f icer Ainsworth o bserved f ive of eight clues

on the walk-and-turn test. O n t h e o n e - leg-stand t est, Of f icer Ainsworth observed three of f our clues. Nolan was arrested and taken t o the Ridgeland Police Departm ent. He ref used the Intoxily er 8000. The traf f ic stop was videoed by

Of f icer Ainsworth’s dash cam era. ¶4. On July

30, 2013, Nolan entered a no-contest plea in Ridgeland Municipal Court to DUI, f irst of f e nse, and tailgating. He was f ound guilty

. He a p p e a l e d to c ounty court. A b e n c h t r i a l w a s held, and he w as again f ound guilty

. On the DUI conviction, Nolan was f ined $ 900 and s e n t e n c e d to serve f orty -eight hours in the custody of the M adison County Sherif f ’s D epartm ent. T h e sentence was suspended pending Nolan’s com pletion of the next

a v ailable Mississippi Alcohol Saf ety Education Program or an equivalent p rogram i n h i s place of residence i n Ontario, Cana d a , a n d t wo y ears of unsupervised probation. On the

t a i lgating conviction, h e was f ined $50. He appealed to Madison County Circu i t C o u r t , where his convictions and sentences were af f i rm ed. ¶5. Nolan raises f

i ve i ssues on appeal to this Court: ( 1) t he evidence was insuf f icient to support the DUI c onviction; ( 2 ) t he trial court judge im properly considered his r ef usal to subm it to the Intoxily

zer 8000 as evidence of guilt; (3) there was no reasonable s uspicion or probable cause f

or the traf f ic stop; (4) the verdicts were against the overwhelm ing weight of the evidence; and (5) the tailgating statute, section 63-3-619, is unconstitutionally vague. DISCUSSION ¶6. As is com m on with a ppea l s f r o m t h e C i t y o f R idgeland, City Prosecutor Boty

3McDonald has f a i l e d t o f ile a n appellee’s brief

. 1 “An appellee’s f

ailure to f ile a brief on appeal is tantam ount to c onf ession of the e rror s a l l e g ed by the appellant. However,
autom atic reversal is not required if this Court can say w ith conf idence that the case should be af f irm ed.” Clack v. City of Ridgeland , 139 So. 3 d 778, 781 (¶17) (Miss. Ct. App. 2014) (quoting Chat m a n v
. State , 761 So. 2d 851, 854 (¶9) (Miss. 2000)). W e f ind this case can be conf idently af f irm ed.
I. Sufficiency of the Evidence Supporting the DUI Conviction ¶7. A challenge t o t h e s u f f i c i e n c y of t he evidence requires t his C ourt to determ ine

w h e t h er the evidence shows “bey ond a r e a sonable doubt that [ the] accused com m itte d t h e act charged, and that he d id so under such circum stances t hat every elem ent of the of f ense existed[ .]” Bush v. State , 895 So

. 2d 836, 843 (¶16) (Miss. 2005). The evidence will be deem ed insuf

f icient to support the verdict w here “the f a cts and inf

erences . . . point in f

avor of the def endant on any elem ent of the of f ense with suf

f i cient f orce t hat reasonable [

jurors] could not have f

ound bey ond a r easonable doubt that the def e ndant w as guilty [ .]” Id. The evidence is viewed in the light m ost f avorable to the State. Id. ¶8. Nolan was convicted o f com m on-law DUI u nder Mississippi C ode Annotated section 63-11-30(1)(a) (Supp. 2015). This statute provides that “ [ i]t is u nlawf ul f or a person to drive

1 S ee R o b in ette v. S t

a t e , 2 0 1 4 -K M -0 1 6 4 9

- C O A , 2 0 1 5 WL 7 2 5 3 2 4 6 , a t * 5 (¶1 7 ) (M iss. C t. A p p . N o v . 1 7 , 2 0 1 5 ); C a m ero n v. S ta te , 1 7 5 S o . 3 d 5 7 4 , 5 7 7 n .2 (M i ss. C t. A p p . 2 0 1 5 ); Wo o d

s v. S t a t e , 1 7 5 S o . 3 d 5 7 9 , 5 8 0 ( ¶ 9 ) (M iss. C t. A p p . 2 0 1 5 ); C la c k v. C ity o f R i d g ela n d , 1 3 9 S o . 3 d 7 7 8 , 7 7 8 (¶1 ) (M iss. C t

. A p p . 2 0 1 4 ); C a rlso n v. C ity o

f R id g ela n d , 1 3 1 S o . 3 d 1 2 2 0 , 1 2 2 2 (¶8 ) (M iss. C t

. A p p . 2 0 1 3 ) ; L o b o v. C ity o f R id g ela n d , 1 3 5 S o . 3 d 1 4 8 , 1 5 2 (¶1 2 ) (M i ss. C t. A p p . 2 0 1 3 ); D ra b icki v. C ity o f R id g ela n d , 1 3 0 S o . 3 d 1 1 3 , 1 1 8 (¶1 9 ) (M iss. C t. A p p . 2 0 1 3 ). 4or otherwise operate a vehicle within this state if the person . . . [ i]s under the inf luence of intoxicating liquor.” Id. “ Com m on[ -]law DUI is proven when a d ef endant’s b lood[ -]alcohol results a re unavailable b u t there is suf f i cient evidence to [ show] that the def endant operated

a m otor v ehicle under circum sta n c e s indicating his ability to operate the vehicle was im p aired b y the consum

p tion of alcohol.” Y

oung v. State , 119 S o. 3d 309, 315 (¶19) (Miss. 2013) (quoting Gilpatrick v. State , 991 So. 2d 130, 133 (¶18) (Miss. 2008)). ¶9. Of f icer Ainsworth t estif

ied that N olan’s vehicle caught his attention because it was traveling too closely t o the vehicle in f ront of it. Of

f icer Ainsworth t hen o bserved Nolan’s vehicle swerve into the right f og line. Af

ter Nolan’s vehicle continued to t r a v e l unsaf ely close t o the vehicle in f

ront of it, Of

f icer Ai n s w o r t h c o n d ucted a traf f ic stop. Of

f icer
A i n sworth sm elled the “overwhelm i ng” presence o f alcohol com ing f r om N olan’s vehicl e and o n Nolan’s breath. Nolan appeared lethargic and had glassy , b loodshot ey es. He adm itted to drinking earlier that night. During the wa l k

- a nd-turn t est, Of f icer Ainsworth observed f

ive o f eight clues. Nolan was unable to w alk heel-to-toe consistently , was unable

to turn p roperly , had t o u se his arm s f or balan c e , w a s u nable to m aintain b alance during instructions, and began the test too soon. D u ring the one-leg-stand t est, O f f icer Ainsworth observed three of f

our clues. Nolan put his f oot down f

or balance, sway ed while on one leg, and used his arm s f

or balance. Finally , Nolan ref used the Intoxily er 8000. ¶10. In addition to Of

f icer Ainswort

h ’ s t e s t i m o n y , t

h e dash-cam era f

ootage w as introduced into evidence. The j udge stated that he watched the video m ultiple tim es bef

ore m aking his decision. The judge f

ound Of f icer Ainsworth’s testim ony credible and consistent with the

5video.

¶11. Nolan argues that this C ourt should not f ocus on the f

oregoing ev i d e n ce, but rather

t h e lack of evidence that h is ability to operate his v ehicle was dim inished. Specif ic a l l y , N o lan argues that the S tate f ailed to prove intoxication because there was no evidence his “norm al ability f

or c larity a nd control” was lessened. See L euer v. City of F lowood , 744 So. 2d 266, 269 (¶11) (Miss. 1999) (citing Gov’t of Virgin Islands v. Steven , 134 F.3d 526, 528 (3rd C ir. 1998)). He r elies on Of f icer Ainsworth’s testim ony that at no o ther tim e than d u r i ng the f

ield sobriety tests did Nolan exhibit balance problem s a nd that at no point was his s peech slurred. Also, Nolan points out that h e had no problem saf ely stopping or exiting his vehicle and that he was cooperative throughout the traf f ic stop and arrest. ¶12. W e p oint out, however, t h a t w h e n reviewing a challenge to the suf f i ciency of the evidence, the evidence is viewed in the light m ost f avorable to the State. As such, we f ind Nolan’s assert i o n s w ithout m erit. In Saucier v. City of Poplarville , 8 58 So. 2d 933, 936 (¶¶16-17) (Miss. Ct. A pp. 2 003), this Court u pheld a f i nding of intoxication f

or com m on-law
DUI where the def

endant s m elled of alcohol, had glazed ey es and slurred speech, and f ailed

to perf orm the f ield sobriety tests adequately

. Likewise, we f ind t he e vidence here suf

f icient

to support a f

inding of intoxication. Altho u g h N o l a n ’s speech was not slurred, Nolan adm itted to drinking, sm e lled of alcohol, had glassy , bloodshot ey es, and f ailed to perf

orm
t h e f i eld sobriety tests adequately

. Further, Nolan inconsistently testif ied regarding t h e

am ount he drank bef

ore the traf

f ic stop. First he stated he had a “f ew beers ,” then on

cross-exam ination he stated he had “two beers.”

6¶13. Viewing the evidence in the light m o st f avorable to t he S t a t e , w e f i n d the evidence was suf f icient to support the DUI conviction.
II. Refusal to Subm it to the Intox i lizer 8000 Considered as Evidence ¶14. Nolan next argues the trial court im properly consider e d h i s ref usal to subm it to the Intoxily z er 8000 as evidence of intoxication. He a rgues t hat because the State f ailed to prove intoxication, his ref

usal to subm it to the Intoxily zer was irrelevant. ¶15. Nolan’s ref

usal to subm i t to the breath test was properly adm itted i nto evidence. “If

a p erson under arrest ref

uses to subm it to a chem i cal test under the provisions of t his chapter, evidence of ref

usal s h a l l b e adm issible in any crim inal a ction under this chapter.” Miss. Code Ann. § 63-11-41 (Rev. 2013). Further, our suprem e court has held that “Mississippi Rule of Evidence 402 also provides f or the introduction of a ref usal to subm it to a chem ical

test a s i t is relevant and not otherwise constitutionally inadm issible.” Starkey v. State , 941 So. 2d 899, 9 0 1 ( ¶ 5 ) (Miss. Ct. App. 2006) (citing Ricks v. State , 611 So. 2d 212, 215-16 (Miss. 1992)). ¶16. Having f

ound the State presented suf f icient evidence of intoxication, we c annot f ind the judge erred in adm itting N olan’s ref usal to subm it to the Intoxily zer 8000 into e vidence. This issue is without m erit.
III. Reasonable Suspicion and Probable Cause ¶17. Determ inations of probable cause a nd reasonable suspicion are r e v i e w e d d e novo. Cook v. State , 159 So. 3 d 534, 537 (¶6) (Miss. 2015). “But the de novo review i s lim ited to the trial court’s ‘decision based on historical f a c ts reviewed under the substantial evidence

7and clearly erroneous standards.’” Id. (quoting Dies v. S t a t e , 9 26 So. 2d 910, 917 (¶20)

(Miss. 2006)). ¶18. An investigative s top is perm issible “as long as an of f icer h as ‘reasonable suspicion, grounded in specif

i c and articulable f

a cts, that a person they encoun t e r w a s i nvolved in or is wanted in connection w ith a f elony or a s long as the of f icers have s om e objective

m anif estation that the person stopp e d i s , o r is a bout to be e ngaged in crim inal activity .’”
Dies , 926 So. 2d at 918 (¶22) ( quoting Floyd v. City of C rystal Springs , 749 So. 2d 110, 114 (¶16) (Miss. 1999)). “[ I]f it is c l e a r that w hat t he police observed did not constitute a violation of the cited tra f f i c law, there is no ‘objective basis’ f o r the stop, a nd t he stop is illegal.” Moore v. State , 986 So. 2d 9 28, 933 (¶14) (Miss. 2008) (quoting W a lker v. State , 913 So. 2d 198, 226 (¶91) (Miss. 2005)). ¶19. Of f icer A insworth testif

ied that he con d u c t e d t h e t r af f ic stop because Nolan was tailgating the vehicle in f ront of him

. Section 63

- 3

- 619, w hich prohibits tailgating, states: “The d river o f a m otor vehicle shall not f ollow a nother vehicle m ore closely than is reasonable and prudent, h aving due regard f or the speed of such vehicles and the traf f ic upon and the condition of

the highway .” ¶20. Of f icer Ainsworth articulated that his attention w as d r a w n t o w ard Nolan’s vehicle b e c a u s e i t was “f

ollowing an unknown m otorist a t an unsaf e distance.” The lead vehicle turned onto Old Canton Road, an d N o l a n ’ s vehicle “continue[ d] to f ollow at an unsaf

e distanc e b e h i nd the m o torist.” W hen asked how close the vehicles were together, Of f icer Ainsworth testif

ied, “I j ust rem em

ber it being an unsaf

e distance

. . . [ , ] [ w]ithin a car length.

8He was pretty close.” He later described the distance a s “ extrem ely close.” He was then

asked what h e deem ed to be an unsaf e distance, to which he responded: “I don’t believe that he would be abl e t o s t o p a ppropriately to a void a collision if the subject in f ront of h im im m ediately

slam m ed on his brakes[ .]” ¶21. I n B a r r o w v. State , 121 So. 3d 935, 936 (¶1) (Miss. Ct. App. 2013 ) , B a r r o w w a s convicted of

tailgating. In upholding the conviction, we considered that the of f icer “m ade it clear f r om the s tart that B arrow’s f ollowing the [ vehicle in f ront of him ] so closely was what drew his attention to Barrow.” Id. at 938 (¶ 9 )

. We f o u nd the of

f icer’s testim ony suf f i cient evidence of guilt. I d

. W e likewise f

ind the of f icer’s testim ony here s uf

f icient to support the tailgating charge a nd s u f f i c ient to establish probable cause f or the traf f ic stop. Of f icer Ainsworth was able to articulate a n o bjective basis f or the traf f ic stop under section 63-3-619—that Nolan’s vehicle was f ollowing “another v ehicle m ore c l o s e l y than is reasonable and prudent”—thus m aking the traf f ic stop legal. ¶22. Despite now arguing there was no reasonable suspi c i o n o r p r o b able c ause f or the traf f i c stop, we note that Nolan adm itted during trial he was f ollowing closely

to the car in f ront of him

. Nolan testif

ied he had been out drinking with business associates, and he was f ollowing them to his hotel. He testif ied he was unf

am iliar with t h e area, and he was f ollowing closely so as not to lose track of the vehicle in f ront of him

. ¶23. G i v e n O f

f i c e r Ainsworth’s testim ony , as well as Nolan’s, we f i n d r e a s o n a b l e suspicion and probable cause existed f or the traf f ic stop.
IV. Weight of the Evidence of DUI and Tailgating

9¶24. “[ W ]e will o nly disturb a verdict when it is so contrary to the overwhelm ing weight of t he evidence that to allow it to s tand would sanction an unconscionable injustice.” Bush , 895 So. 2d at 844 (¶18). The evidence is viewed in the light m ost f avorable t o the verdict.
I d

. A new trial should be granted “only in exceptional cases in which the evid e n c e preponderates heavily

against the verdict.” Id. ¶25. Nolan argues the c onvictions were against the weight of the evidence. H e argues the

t a i l g a t i n g conviction was against the weight of the e v idence because Of f icer Ainsworth testif i ed inconsistently as to N olan’s speed—f irst stating Nolan was traveling approxim ately f orty m iles per hour, then stating he was traveling approxim ately t hirty m iles per hour. And he argues the DUI conviction w as against the weight of t he evidence because h e was “calm , cooperative, and without balance issues,” other than the balance issues d em onstrated during the f ield sobriety

tests, throughout the traf f ic stop and arrest. ¶26. Viewing the evidence in the light m o st f avorable to the verdict, we f ind no m erit to these argum ents. O f

f i cer Ainsworth’s attention was d rawn to Nolan’s v ehicle because it was f o llowing at a n unsaf

ely close distance to the vehicle in f ront of it. Nolan admi t t e d t o f ollowing the vehicle closely , a s the driver in f ront of him was guiding him to h is hotel, and he did not want to get separated f rom the vehicle. Nolan inadequately perf orm ed the f

ield sobriety t ests, sm elled o f a lcohol, adm itted he had drunk earlier that night, and had glassy , bloodshot ey es. The f

act that he was calm and cooperative and did not exhibit balance issues other than during the f

ield sobriety tests does n o t negate a f inding of intoxication. The convictions are not contrary to the weight of

the evidence.

1 0V. Constitutionality of Section 63-3-619(1)

¶27. Finally , Nolan argues the trial court e rred in upholding the traf f ic stop a n d f

inding him guilty of tailgating because Mississippi’s tailgating statute is unconstitutionally vague. ¶28. Nolan did not challenge the constitutionality of t he statute at trial. “ The g eneral rule is that [ an appellate court] w ill not address issues raised f or the f i rst tim e on appeal, particularly where constitutional questions a r e concerned.” 5K Farms Inc. v. Miss. Dep’t of
Revenue , 9 4 So. 3d 2 21, 224 (¶12) (Miss. 2012). However, a n “obvious error which was not properly raised b y the def

e ndant and which af

f ects a def endant’s f undam ental, substantive right” can be addressed under the plain-error doctrine. B urdette v. State , 110 So. 3d 296, 303 (¶23) (Miss. 2013). “[ A] conviction under an unconstitutionally vague statute v iolates the
Due Process Clause,” and is “an e rror af f ecting a fu n d a m ental constitutional right.” Fulgham v. State , 47 So. 3d 698, 700 (¶6) (Miss. 2010). Thus, we will address this issue. ¶29. T h e c h a l l e n g e d statute p rovides: “The driver of a m otor vehicle shall not f ollo w another vehicle m ore closely than is reasonable and prudent, having due regard f or the speed of such v ehicles and the traf f i c upon and the condition of the highway .” M iss. Code Ann. § 63-3-619(1). ¶30. “[ T]he void-f

o r-vague n e s s d octrine requires that a penal statute def ine the crim inal of f ense with s uf

f icie n t d ef initeness that ordinary people can understand what conduct is prohibited and in a m anner that does n ot encourage arbitrary an d d iscrim inatory enf orcem ent.” Fulgham , 47 So. 3d at 701 (¶8) (quoting Kolender v. Lawson , 461 U.S. 352, 357 (1983)). “[ T]he test is whether the language convey s [ a] suf f i ciently def

inite warning

1 1as to the proscribed conduct when m easured by c om m on understanding and practices.” Id.

(quoting Kolender , 461 U.S. at 357). The chall e n g i n g p a r t y m ust prove the statute’s unconstitutionality bey ond a reasonable doubt. Crook v. City of Madison , 168 So. 3d 930, 935 (¶14) (Miss. 2015). Statutes a re given a s t rong presum ption of validity , and all doubts

m ust be resolved in f

avor of the statute. Id. ¶31. In addressing a void-f o r - v a g u e n ess a r gum ent, our suprem e court has held that the f ollowing f

actors m ust be considered: 1. The court m

ust consider whether the statute af f ects a constitutional right. 2. If the s tatute im

plicates n o constitutionally protected r ight, the court should consider whether the statute is im perm issibly vague in all of its applications, apply ing the statut e to the com p lainant’s conduct bef

ore considering any hy pothetical scenarios. I n apply in g t h e statute to the f acts at hand, the court m ust cons i d e r w hether the com plainant h ad notice of what conduct is prohibited and whethe r l a w enf orcem ent had def

inite standards to avoid arbitrary enf

orcem ent. Fulgham , 47 So. 3d at 702 (¶13) (internal c itations om itted). T h e s tatute here does not im p licate a constitutionally protected ri g h t ; t h u s, we m ust exam ine whether the statute is im p erm issibly vague in a ll its applications, f irst considering the s tatute as applied to Nolan’s conduct. ¶32. Nolan argues the statute’s vagueness was evidenced by Of f i cer Ainsworth’s struggle

t o d e f i n e i ts m eaning adequately , and his use of a s ubjective standard—that i s, what he def ined as an unsaf

ely close distance—in conducting the traf f ic stop. Nolan also points out that the trial court noted that the statute “does not give m uch guidance.” ¶33. W h ile our suprem e c ourt h a s n o t a d d r e s s e d the constitutionality o f section 63-3-

1 2619(1), m

u ltiple other jurisdictions have u p h e l d identical statutes as constitutional. In United States v. Hunter , 663 F.3d 1136, 1 142 (10th Cir. 2011), the appellant argued that Kansas’s tailgating statute, which is identical to Mississippi’s, is unconstitutionally vague because the “reasonable and prudent” language is subjective. The United States Court of Appeals f or the Tenth Circuit rejected this argum e nt, holding: [ I]m precision in statutes such as the one here sim p ly build[ s ] i n n e e d ed f lexibility w h i l e incorporating a com prehensible, n orm ative standard easily understood by the ordinary driver, and giving f air w arning as to what conduct on his or h e r part i s prohibited. Further , r e f e r e n c e s in these statutes to c o n s i d e r a t i o n s s u c h a s s peed, traf f ic and road conditions, channel enf orcem en t

. Id. In reaching its decision, the Tenth Circuit cited a case f rom the Court of Crim inal Appeals of Tennessee, State v. Harton , 1 0 8 S .W

. 3d 253, 260 (Tenn. Crim

. App. 2002),

w h ich held that Tennessee’s tailgating statute, which, again, is i dentical to M ississippi’s , “provides f

air warning o f prohibitive conduct and provides suf f icient guidance to prevent arbitrary and discrim inatory enf orcem ent

. . . [ and] is neither unconstitutionally vague nor overbroad.” See Hunter , 663 F.3d at 1142 & n.2 (citing Harton , 108 S.W .3d at 259-60). ¶34. T h e f

o l l o w i n g j urisdictions have also upheld identical or substantiv e l y s i mi l a r tailgating s t a t u tes containing the “reasonable and prudent” standard: United States v. Mendez–Cejas , No. 2 :08-cr-00024-JCM-GW F , 2 0 0 9 W L 914873, at *4 ( D. Nev. Jan. 15, 2009) (f inding probable cause existed f or the t raf

f i c s top becaus e “ p e o p l e of ordinary intelligence would understand that f ollowing another vehicle within the d istance and at the speed Def

endant’s vehicle w a s traveling is not reasonable and p rudent”); U nited States v. Marmolejo , No. 3:04-cr-132, 2007 W L 915195, at *2 (S.D. Ohio 2007) (f inding the statute

1 3“def

ine[ s] the of

f ense with suf

f icient def i niteness t hat ordinary people can understand [ the] prohibited conduct”); United States v. Johnson , No. 5:04CR65-1-V, 2006 W L 435975, at *4 (W .D.N.C. Feb. 21, 2006) (holding the “statute’s f ailure to s pecif

y an exact ‘saf

e’ distance does not render [ it] unconstitutionally vague”); State v. Giovengo , 692 S o. 2d 462, 463 (La. Ct. App. 1997) (“[ T]he language of the statute, given a g enerally accepted m e a ning and read in pari m ateria, would indicate that a f ollowing car s h ould leave enough room in case the car in f ront stopped suddenly .”); Logan City v. Carlsen , 585 P.2d 449, 450 (Utah 1978) (holding “that the ordinance is n ot unconstitutionally vague and that i t adequately inf orm s the operators of m otor vehicles o f the kind of c o nduct t hat is f orbidden”); S

mith v. State , 237 So. 2d 139, 140 (Fla. 1970) (holding “it is clear that ‘m en of com m on intelligence’ would know [ t he statute’s] m eaning and would not be required t o guess as to its a p plication”); State v
. Heid , 270 N.Y.S.2d 474, 4 7 6 ( N

. Y

. C ty

. C t. 1966) (f inding “the instant statute is not too vague or indef

inite and is theref

ore not unconstitutional”). ¶35. I n Leuer v. City of Flowood , 744 So. 2d 266, 270 (¶14) (Miss. 1999), a v a g u e n e s s challenge sim ilar to the one raised here was m ade to Mississippi’s careless-driving statute. See Miss. Code Ann. § 6 3

- 3

- 1 2 1 3 (Rev. 2013) (“Any person who drives any vehicle i n a careless or im

prudent m anner, without due regard f or the width, grade, curves, corner, traf f ic and use o f the streets a nd highway s and all other attendant circum stances is g uilty of careless driving.”). The appellant a rgued “that the phrase ‘careless o r im prudent m anner’ is vague and s ubjective and p rovides no objective criteria by which an individual is put on notice of what conduct the statute proscribes.” Leuer , 744 So. 2d at 2 70 (¶14). Looking at the plain

1 4language of the statute, along with cases f rom other jurisdictions upholding sim ilar statutes, the suprem e court f

o und that “[ w]hen our careless[ -]driving statute is coupled with the rules of the road, there is specif icity suf f icient to withstand c onstitutional scrutiny .” Id. (internal citation om itted). ¶36. W e f

i nd the sam e is true here regarding the tailgating statute. A pply ing the statute to the f acts of this case, O f

f icer Ain s w o r t h testif

ied that N olan was f

ollowing the vehicle in f ront of him m ore c losely than was reasonable and prudent because Nolan would not have been able to stop h ad the vehicle in f ront of him slam m ed o n brakes. It is clear that a driver should leave e nough distance between h im and t he car i n f ront of h im such that the cars would not collide if the f

irst slam m ed on brakes. In determ ining w hat is a s af e distance, the

statute gives certain f

actors to consider, such as the speed of the vehicles, the traf f ic, and the condition of

the road. ¶37. We c a n n o t f

i n d that section 6 3-3-619(1) is im perm i ssibly v ague or f

ails to give a driver notice of the prohibited c onduct. The statute, coupled with the ru l e s o f t h e road, is suf f i ciently def

inite such that an ordinary person can understand the p rohibited conduct and that law e n f

o r c e m ent can avoid arbitrary enf o rcem ent. W e f

ind the statute suf

f iciently specif ic to pass constitutional scrutiny . This issue is without m e rit. ¶38. T H E J U D G M E N T O F T H E M ADISON COUNTY C IRCUIT C OUR T O F CONVICTION OF DRIVING UNDER THE I NFLUENCE, F IRST OFFENSE, FINE OF $900, AND SENTENCE O F FORTY-EIG H T HOURS IN THE CUSTODY OF THE M ADIS O N COUNTY SHERIFF’S DEPARTMENT, WITH THE SENTENCE SUSPENDE D UPON THE CONDITION THAT APPELLANT COMPLETE THE MIS S I SSIPPI ALCOHOL S AFETY E DUCATION PROGRAM, O R THE EQUIVALENT IN APPELLANT’S P LACE O F RES I D E N CE IN ONTARIO, C A NADA, AND T WO YEARS OF U NSUPERVISED PROBATION; A N D

1 5CONVICTION O F FOLLOWING TOO CLOSELY AND FINE OF $50 IS

AF F I RMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVI N G A N D GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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