IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-KM-01401-SCT DANIEL PARISH a/k/a DANIEL JORDAN PARISH

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 08/29/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER TRIAL COURT ATTORNEYS: KEVIN D. CAMP JARED K. TOMLINSON W H ITNEY M. ADAMS COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: KEVIN D. CAMP JARED K. TOMLINSON ATTORNEY FOR APPELLEE: W H ITNEY M. ADAMS NATURE OF THE CASE: CRIMINAL - MISDEMEANOR DISPOSITION: AFFIRMED - 10/22/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. Daniel Parish appeals his Rankin County conviction f

o r d riving under the inf

luence of m arijuana, arguing that the prosecution f ailed to present suf

f icient evidence to prove the elem ents of

the charged of

f e nse. Finding no error, we af f i rm . F ACTS & PROCEDURAL HISTORY ¶2. At around 12:30 a.m . on October 9, 2012, Parish encountered a driver’s license saf ety checkpoint while driving on Luckney Road in Brandon, M ississippi. Of f icer Jam es King ofthe Brandon Police Departm e nt was conducting the c heckpoint, and h e observed that Parish

“slowed down trem endously and did kind of a crawl roll to the checkpoint.” Of f ic e r K i ng approached Parish’s c ar and asked to see his driver’s l icense. Upon shining his f lashlight in the car, Of

f icer King noticed that Parish “had a green leaf y substance all over his pants and

som e ash and he was really nervo u s . ” O f f icer King suspected the leaf y substance to be

m arijuana. Of

f icer King also sm elled burnt m a rijuana on Parish’s breath and in the vehicle. Parish’s speech was slurred, and his ey es were red. Of f i cer King asked Parish if he had been d r i n k i ng, and Parish responded in the negative. H owever, Parish adm i tted that he had sm oked

m arijuana approxim ately

twenty m inutes prior to encountering the checkpoint. ¶3. Of f icer King asked Parish if he had any m a rijuana in his possession. Parish initially stated that he had som e m a rijuana in a backpack in h is c a r, but he later clarif ied that he had only a h o okah pipe. Parish gave Of f icer King consent to s earch the backpack, and Of f icer King f ound a hookah pipe inside. The pipe sm elled of burnt m arijuana. ¶4. Of f icer King instructed Parish to pull o v e r i n t o a n adjacent parking lot and exit his vehicle so he could adm i nister a f ield sobriety test. Prior to s ubm itting to these tests, Parish af f irm ed that he did not have any m edical i ssues or phy sical im pairm ents that w ould hinder his ability to com

plete the tests. First, Of

f icer King perf

orm ed a horizontal-gaze n y stagm us test o n P arish. O f

f icer King did not observe any s igns of im pairm ent based on this t est. Next, Of f icer King conducted a lack-of -convergence test. Parish’s ey es f ailed to converge during this te s t

. F inally , Of

f icer K ing adm inistered the R o m berg Balance Test, which j udges the subject’s a

bility t o p e rceive the passage of tim e. P arish tested within the n o r ma l range f or

2judging the passage of tim e, b ut h e exhibited ey elid and l e g t r e m ors while perf o rm ing the test. Af ter adm inistering these tests, and af ter considering Parish’s dilated pupils, bloodshot ey es, and slurred speech, Of f icer King c am e to the conclusion that P arish had been driving under the inf

luence of m arijuana. At that point, Of f icer King placed Parish under arrest. ¶5. Parish consented to having his blood drawn f or testing, so Of

f icer King transported him t o Crossgates River Oaks Hospital. A f ter Parish’s blood was drawn, it was sent to the M i s s i s s i p p i Crim e Laboratory f or testing, along with the hookah pipe f ound in his car. Parish’s blood and the hookah pipe both tested positive f or m arijuana. ¶6. Parish w as charged with f irst- o f f e n s e D U I in violation of Section 63-11-30 of the Mississippi Code. Specif ically , Parish w a s charged under Section 63-11-30(1)(b), which prohibits the operation o f a m otor vehicle while “under the inf luence of any other s ubstance which has im

paired s uch person’s ability to operate a m otor vehicle,” a n d S e c tion 63-11- 30(1)(d), w hich prohibits the operation of a m otor vehicle while “under the i nf luence of any drug or controlled s u b s t a n ce, the possession of which is unlawf ul under the Mississippi Controlled Substances Law[ .]” Miss. Code A nn. § 63-11-30(1)(b),(d) (Rev. 2013). 1 Parish also w as charged with p ossession of d rug pa r a p h e r n a l ia in violation of Section 41-29- 1 3 9 ( d ) ( 2 ) of the Mississippi Code. On April 17, 2 013, Parish entered a plea of no contes t to these charges in the Municipal Court of Brandon and was f

ound guilty

.

1 S e ctio n 6 3 -1 1 -3 0 w a s am en d ed in 2 0 1 4 , an d S ectio n 6 3

- 1 1 -3 0 (1 ) w as reo rg an ized

. S ee M i ss. C o d e A n n . 6 3- 1 1- 30(1 ) (S u p p . 2 0 1 5 ). H o w ev er, th e statu t o ry l an g u ag e ap p licab le to th e in stan t case w as n o t ch an g e d

. 3¶7. Parish tim ely appealed his convictions to the Rankin County Court, and a bench trial

was h eld on August 30, 2013. At the trial, Of f i cer K ing testif

ied concerning his interactions

w i t h P arish at the checkpoint. T h e State also called Em ily Harper, a f orensic toxicol o g i s t with th e M i s s i s s i ppi Crim e Laboratory , as an expert witness. H arper had conducted the testing o n P arish’s blood af ter h e was arrested. Harper conf irm ed that Parish’s blood contained both active and inactive m etabolites of m arijuana. Harper explained that inactive

m etabolites are an indicator o f past usage, while the presence of active m etabolites in the blood indicates that the drug was still a cting upon the body at the tim e the blood was drawn. Based o n the r esults of her testing, Harper opined that P a r i s h w a s under the inf luence of

m arijuana when he encountered the checkpoint. She c larif ied that it would be im

possible to determ ine to what extent he was im paired based solely

on the test results. ¶8. Parish t estif

ied in h is own def

ense at t r i a l

. P a r i sh e xplained that he had been at a f riend’s house prior to encountering the checkpoint. He a dm itted that he and his f riends had been sm oking m arijuana f rom a hookah pipe. Af

ter they f inished sm oking, Parish s tated that they put the hookah pipe away and talked f or a while. He denied telling Of f icer King that he had sm oked m arijuana twenty m i nutes bef

ore reaching the c heckpoint. He claim ed that he had s topped sm o king f

o r m ore than twenty m inutes bef ore even l eaving his f

riend’s house. On cross-exam i nation, h e s t a t e d that the m a rijuana h ad g iven him “a little bit of a body buzz,” but he asserted that he was not too im paired to drive. ¶9. The def

ense also c a l l e d T o n y C o r r o t o , a r etired police of f i cer specializing in the “adm inistration and interpretation of DUI d etection.” Corroto was accept e d a s a n expert

4witness in the f ields of sobriety t esting, Drug R ecognition E xpert p rotocols, and the ef f ects of a lcohol and drugs on the hum an body

. Corroto reviewed the police reports and crim e lab reports concerning Parish’s case a nd cam e to the conclusion that “I see s igns of c o nsum ption of cannabis, but im

p airm e nt, I don’t see it[ .]” Corroto t estif ied that a person who is under the inf luence of cannabis (m arijuana) would have p ronounced im paired perception o f tim e and dis t a n c e . He also s tated that individuals who are under the inf luence of cannabis have signif icant problem s d ividing their attention between dif f erent tasks. Corroto opined that the sobriety tests adm inistered by Of f icer King d id not account f or this ty pe of im pairm ent, and he did n o t o b s e r v e any evidence that Parish e xhibited any signs of im pairm ent during his interaction with Of

f icer King. Corroto also claim ed that the lack-of -convergence test lacked scientif ic validity

. On c ross-exam i n a t i o n , C orrotto conceded that Parish was, clinically speaking, under the inf

l uence of m arijuana, but he m a intained that there was no evidence of intoxication or im

pairm ent. ¶10. Af ter both sides had rested, the trial c o u r t f o u n d t h a t the prosecution had proved bey ond a r easonable d oubt that Parish was g uilty of driving under the inf luence of m arijuana in v iolation o f S e c t ion 63-11-30(1)(d). The trial court did not rule o n the prosecution’s charge under Section 63-11-30(1)(b). Parish was sentenced to s erve f o rty -eight hours in jail,

was required to pay a $1,000 f ine, plus costs and assessm ents, a n d was ordered to attend the next available session o f the Mississippi Alcohol Saf e ty Education Program

. The trial court also o rdered Parish to attend a Victim Im pact Response s em inar b ut s u spended that order on

5the condition that Parish m et the o ther term s o f his sentence. The trial court held in abey ance

the prosecution’s request to have Parish pay the f e e s associated with the crim e lab’s services. ¶11. The trial c ourt also f ound Parish guilty of possessing paraphernalia and sentenced him to six m o nths’ i m

prisonm ent, with f

ive m onths and twent y -f ive d ay s suspended, to run consecutively to his sentence on the DUI charge, f or a total of s e v e n d a y s t o serve. In addition to the s entence of im prisonm ent, the trial court ordered Parish to pay a $500 f ine, with $250 suspended. The trial c ourt held in abey ance the prosecution’s request to assess the crim e lab f

ees associated with the paraphernalia charge to Parish. ¶12. On appeal, the Rankin C ounty Circuit Court af f irm ed the trial court’s judgm ent in all respects. Aggrieved, Parish has appealed his DUI conviction 2 to this Court, arguing that the prosecution presented insuf f icient evidence that he was driving under the inf l u e n c e of

m arijuana. STANDARD OF REVIEW ¶13. In review i n g a c h a l l e n g e to the suf f iciency of the evidence, the c ritical inquiry is “whether, af

ter viewing the evidence in the l ight m o st f a v orable t o the p rosecution, any rational trier of f

act could have f

ound the essential elem e n ts of the crim e bey ond a r easonable doubt.” B ush v. State , 895 So. 2d 836, 843 (Miss. 2005) (quoting Jackson v. V irginia , 443 U.S. 3 07, 315, 99 S. C t. 2781, 61 L. Ed. 2 d 560 (1979)). T he credible e v idence s u pporting the def endant’s g uilt m

ust be taken as true, and the prosecution m ust be g iven the benef

it of all reasonable inf

erences that m ay be reasonably drawn f r om the evidence. M

cClain v. State ,

2 P arish d o es n o t ap p eal h i s co n v ictio n f o r p o ssessio n o f

p a rap h ern alia. 6625 So. 2d 774, 778 ( Miss. 1993). In addition, when reviewing the decision of a trial judge

sitting with o u t a jury , this Court af f ords the judge “ the sam e def erence with regard to his f indings as a chancellor, and his f i n d i n gs are saf

e on appeal where they are supported by substantial, credible, and reasonable evidence.” Johns v. State , 926 So. 2d 1 88, 2 02 (Miss. 2006) (quoting Chantey Music Publ’g, Inc. v. Malaco, Inc. , 915 So. 2d 1 052, 1055 (Miss. 2005)). DISCUSSION ¶14. Parish’s sole argum ent on appeal is that the State f ailed to present suf

f icient evidence that h e was driving under the inf luence of m arijuana. Parish was convicted of violating Section 63-11-30(1)(d) o f the Mississippi Code, which provides, “It is unlawf ul f or any person to d

rive o r otherwise operate a vehicle within this state who

. . . is under the inf luence of any drug o r c o n t r o l l e d substance, the possession of w hich is unlawf ul under the Mississippi Controlled Substances Law[ .]” Miss. Code Ann. § 63-11-30(1)(d) ( Rev. 2013). This Court has f

ound that the phrase “under the inf luence” is com m only understood to m ean “driving i n a s t ate of in t o x i c a t i o n t hat lessens a person’s norm al ability f or clarity and control.” Leuer v. City of Flowood , 744 So. 2d 266, 269 (citing Gov’t of V irgin Islands v. Ste v e n , 1 3 4 F .3d 526, 528 (3d Cir. 1998)). At trial, Parish conceded that h e had sm oked

m arijuana, a Schedule I controlled substance, on the night of his arrest. See Miss. Code Ann. §§ 41-29-113(c)(23)(A), 41-29-139(c) (Rev. 2013). H owever, Parish argues that th e S tate

was required to present p r o of that his ability to operate his vehicle was im paired by his

consum ption of m arijuana.

7¶15. This Court has had f ew o c c a s i o ns to consider the suf f i ciency of a DUI conviction involving m arijuana. H owever, the Court of Appeals has conside r e d t h is issue on several occasions. For exam

ple, i n Weil v. State , 936 So. 2 d 400, 402 (Miss. Ct. App. 2006), the def enda n t was driving through a driver’s license checkpoint when the arresting of f icer not i c ed sm elled the odor of burnt m arijuana com i ng f rom h is vehicle. The def endant adm itted that he had sm oked m arijuana prior to driving. Id. Af t er asking the def

endant to exit his vehicle, t h e o f

f i cer testif ied that the def

endant had bloodshot e y e s, dilated pupils, slurred speech, and poor balance, all of which were signs that the def endant was under the i n f l u e n c e of m arijuana. I

d. at 403-04. The Court of Appeals af f irm ed the def

endan t ’ s conviction, f

inding t hat the State had presented suf f icient evidence to secure a conviction. Sim ilarly , in Beal v. S

tate , 958 So. 2d 254, 255 (Miss. C t. App. 2 007), the def e ndant was pulled over f

or d riving eighty -seven m iles per hour in a f if ty -f ive-m iles-per-hour zone and adm itted to sm oking m arijuna e arlier in the day

. The of f icer o bserved that the def endant’s ey es were “bloodshot, r ed and very glazy .” Id. at 255-56. The o f f icer did not perf

orm any f ield sobriety tests on the def endant, nor did he procure a sam p l e o f t h e def

endant’s blood

or urine f or testing. I

d. at 256. The Court of Appeals af f irm e d the def

endant’s conviction, f inding that “ [ t]he evidence i s such that a reasonable f act-f inder c ould have f

o und Beal guilty of f irst-of f ense D.U.I.” I

d. at 256. ¶16. Viewing the e vidence in the instant case in the light m ost f avorable to the prosecution, and af t er r eviewing the ev i d ence presented in Weil and Beal , we f ind that the prosecution presented suf

f icient evidence that Parish was driving under the inf luenc e o f m a r i

juana.

8Of

f icer King t estif

ied that Parish approached the checkpoint a t a “crawl.” Upon approaching Parish’s vehicle, Of

f icer King also observed that P arish had dilated pupils, reddened ey es, and slurred spe e c h

. I n a d d ition, P arish exhibited ey e l id and leg trem ors while p erf orm ing the Rom berg test. Parish’s blood tests revealed the presence of activ e me t a b o lites f or

m arijuana, m eaning he was s till experiencing the pharm acological ef f ects of the drug even af ter he was arrested. Finally , Parish adm itted to sm oking m arijuana twenty m i nutes prior to encountering Of

f icer King. This evidence, viewed in the l ight m ost f avorable to the verdict, was suf

f icient t o prove n o t only that Parish had ingested m arijuana bef ore driving, but that he was driving “in a state of intoxication that lessens a person’s norm al ability f or clarity and control.” Leuer , 744 So. 2d at 268 (Miss. 1999)). ¶17. Parish m akes m

uch of the f

act that his expert witness’s opinions conf licted with the testim o ny of

f ered by the State’s witnesses. However, in reviewing the legal suf f iciency of the evidence, we are b ound to “ accept as true all of the evidence that i s f avorable to the State, including all reasonable inf erences that m ay be drawn theref rom , a n d m

ust disregard evidence f

avora b l e t o ” Parish. Anderson v . State , 904 So. 2d 973, 977 ( Miss. 2004). Moreover, “[ i]t is not this Court’s duty to determ ine the credibility of the witnesses nor the weigh t of the evidence.” Dye v. State , 498 So. 2d 343, 344 (Miss. 1986). This issue is without m erit. CONCLUSION ¶18. For the f

oregoing reasons, we af

f irm Parish’s convictions and sentences. ¶19. COUNT I: CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF F O R TY-EIGHT (48) HOURS IN THE RANKIN

9COU N T Y J AIL, A ND A F I NE IN THE AMOUNT OF $ 1,000 P L US COSTS AND

ASSESSMENTS, AFFIRMED. COUNT I I : CONVICTION OF POSSESSION OF PARAPHERNALIA AND SENTENCE OF SIX (6) MONTHS IN THE RANKIN COUNTY JAIL, WITH F IVE (5) MONTHS A N D TWENTY-FIVE (25) DAYS SUSPENDED, A ND A FINE IN THE AMOUNT OF $500, WITH $250 S USPENDED, AFFIRMED. SENTENCE I N COUNT II SHALL RUN CONSECUTIVE L Y WITH THE SENTENCE IN C OUNT I. THE FINES, COSTS AND ASSESSMENTS ARE TO BE PAID TO THE M UNICIPAL C OURT OF BRANDON, MISSISSIPPI, WITHIN NINETY (90) DAYS. DICKINSON AND RANDOLPH, P.JJ., LAMAR, C HANDLER, P IERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. KITCHENS, JUSTICE, DISSENTING: ¶20. Because the evidence presented at trial was insuf f icient to prove t h a t D a n i e l Parish was “driving under the inf luence” of

m a rijuana, I respectf

ully dissent. ¶21. In Carr v. State , 208 S o. 2 d 886 (Miss. 1968), we held that w h en c onsidering whether the State’s evidence i s suf f i c i e n t t o sustain a c onviction, the c ritical i nquiry i s whether the

e v i d e n ce establishes “bey ond a reasonable d oubt that [ the] accused c omm itted the act charged, a nd that he did so under such circum stances that every el e me n t of the of f ense existed.” Id. at 889. ¶22. Here, P arish was convicted of vio l a t i n g S e ction 63-11-30(1)(d) of the Mississippi Code, which p rovides: “ It is unlawf ul f or any person to drive or otherwise operate a vehicle within t h i s state who

. . . is under the inf luence of any drug o r controlled substance, the possession o f which i s unlawf ul under the Mississippi C ontrolled Substances Law.” Miss. Code Ann. § 63-11-30(1)(d) (Rev. 2013). T hus, the elem ents of this o f f ense are: (1) driving

or o therwise operating a v ehicle, (2) within this state, (3) under the inf luence of any drug or

1 0controlled substance, and (4) the possession of this drug or controlled substance is unlawf ul under the Mississippi Unif orm Controlled Substances Law. ¶23. In the present c ase there is s uf f icient evidence f

or the jury to have f

o und that the State had p roven three e lem ents of this crim e: (1) P arish was d riving a vehicle; (2) h e was driving within the conf

ines of Rankin County , Mississippi; and (3) he had c onsum ed m arijuana, the possession of which is prohibited by the Mississippi Unif orm ed Controlled Substances Law. See Miss. Code Ann. §§ 41-29-113(c)(23)(A), 41-29-139(c) (Rev. 2013). T hus, o ur analy sis

m ust turn to whether Parish was “driving under the inf l uence” of

m a rijuana. ¶24. In L euer v. City of F lowood , 744 So. 2d 266 (Miss. 1999), this C ourt interpreted the term “ under the inf

l uence,” a s it relates to Section 63-11-30(1)(a) o f the M ississippi Code, which provides: “It is unlawf ul f or any person t o drive or o therwise o perate a vehicle within this s tate w ho (a) is under the inf luence of intoxicating liquor

. . . . ” M i s s . C o d e. Ann. § 63-1 1

- 3 0 ( 1 ) ( a ) ( R e v . 2013). This Court determ ined that the statute was not unconstitutionally vague, because we def

ined “ under the inf

luence” as “ driving in a s tate of intoxication that lessens a p e r s o n ’s norm al ability f or clarity and c ontrol.” Leuer , 744 So. 2d at 269 (citing Gov’t of V

irgin Islands v. Steven , 134 F. 3 d 526, 258 (3d Cir. 1 998)). This Court e xplained
t h a t t h i s interpretation of “driving under the inf luence” w as “ c onsistent with the obviou s purpose of drunk driving statutes; i.e., to prevent people f rom driving uns a f

e ly due to an alcohol-induced d im i nished capacity

. Because driving ‘under the i n f l u e nce’ is com m only understood, it theref

ore puts citizens on f

air notice of

proscribed conduct.” Leuer , 744 So. 2d at 269 (quoting Steven , 134 F. 3 d 526 at 258). Sim ilarly , Black’s Law Dictionary def ines

1 1“under the i nf luence” a s being “deprived of clearness of mi nd and self

- control b ecause of drugs or alcohol.” Under the influence, Black’s Law Dictionary (10th ed. 2014). ¶25. Thus, in this case, to m eet its burden o f proof , the State h ad to prove that Parish was driving “under the i nf

lu e n c e ” o f m arijuana. To m eet this burden, the State had t o adduce

e vidence that P arish n ot only had consum ed the drug but also that the drug pu t P a r i s h i n a state o f intoxication that lessened h is ability to d rive his vehicle with clarity and control. The State’s prim ary witness at trial, J am es King, an of f icer w ith the Brandon Police Departm ent, testif i ed without objection that a person under the inf luence of m ari

j u a n a h as dif

f iculty discerning the passage of tim e and has im paired depth p erc e p t i o n . He also testif ied that another sign of m a rijuana intoxication is a d river’s inability to perf

o rm tasks w hich require divided attention, or, stated dif f erently , the inability to per f o r m m ultiple sm all tasks at the

sam e tim e. ¶26. The m ajority relies upon the f ollowing inf

orm a tion to s uggest that P arish was under the inf luence of m arijuana: that P arish approached the checkpoint slowly

. However, Of f icer King testif

ied that this is norm al f

or both intoxicated and nonintoxicated d rivers. Moreover, Of f icer King stopped Parish a t a m andatory driver’s license saf ety checkpoint, not because he was o perating his vehicle a ty pically , incom

petently , or d a n g e r o u sly

. The m ajority also

avers that Of

f icer King noticed that P arish had dilated pupils, reddened ey e s , and slurred speech. These f

a ctors, however, do not indicate that Parish’s ability t o drive was im paired. The m ajority also relies on the allegation that Parish exhibited ey elid and leg trem ors while perf orm ing the Rom

berg test. The record c o ntains n o support t h a t e i t h e r of these i s an

1 2indicator of m a rijuana consum ption, let alone m arijuana intoxication. The m ajority f urther points to Parish’s b l ood s am ple’s c ontaining active cannabinoid m etabolites. However, this too m erely proves consum ption of som e am ount of m arijua n a , n o t intoxication f rom

m arijuana. Finally , the m ajority relies on Parish’s conf ession to having sm oked m arijuana twenty m inutes bef

ore he entered the checkpoint. Ultim ately , the S t a t e h as produced no evidence that Parish’s ability t o operate his m otor v ehicle was i m p aired in any way f

rom his

consum ption of m arijuana. ¶27. Indeed, the totality of the evidenc e i n d i c a t e s that Parish’s ability to drive was not im p aired by his consum

ption o f m arijuana. Evidence adduced at trial w as to the ef f ect that

m arijuana consum

ption af f ects a p erson’s gross m o tor skills bef ore it af f ects his or her f

ine

m otor s k ills. Of

f icer King of

f ered n o testim ony , and his arrest report did n ot indicate, any thing unusual about Parish’s g r oss m otor skills during the course of the stop. O f f icer King testif i ed that Parish w as able t o give the of f icer h i s d r i v e r’s license without f um bling, that Parish got out o f the car w ithout stum bling, and that Parish’s b alance was norm a l throughout the course of the stop. Additionally , Of f icer King testif

ied that one of the signs of m arijuana intoxication is an incapacity to perf orm tasks requiring divided attention. The of f icer gave Parish two roadside sob r i e t y t e s ts to determ ine whether he was capable of p erf orm ing

m ultiple sm all tasks at the sam e tim e. Parish passed both tests and displa y ed no signs of

ma r i j u a na intoxication in their com pletion. Of

f icer King also testif

ied that t h e

m isapprehension o f the passage of tim e is a characteristic o f m arijuana intoxication. Of f icer King said that he gave Parish the Rom berg testest. The Rom

berg t est is the only standardized

1 3roadside exam ination in which a driver is t e s t e d f o r m arijuana intoxication. By having the driver t ilt his head back and estim ate when thirty seconds has e l a p s e d , t h e Rom berg test assesses a driver’s perception of the passage of

tim e and a driver’s ability to perf orm tasks requiring d ivided attention. According to the arresting of f icer, Parish passed this test without is s u e . In every roadside test that the arresting of f icer a dm inistered t o Parish to determ ine whether his ability

to drive was im

paired by m arijuana consum

ption, Parish passed. ¶28. Here, the State p r oved that Par i s h h a d c o n s u me d s o me u n k n o w n q uantity of

m arijuana. However, this C ourt has held that m ere consum p tion is insuf

f i cient to prove that

a crim inal def

endant w a s d r i ving “under the inf luence” of a n intoxicant. The sam e is true of alcohol consum

ption. L euer , 744 So. 2 d at 269. To prove driving under the inf l uence, the State m ust prove the d

r ug i nhibited the person’s capacity t o operate his vehicle with clarity and control. The totality of the evidence a dduced at trial establish e s that P arish had no dim inished ability to drive his car w ith clarity and control and that, alth o u g h he had

consum ed m arijuana at som e tim e and in som e am ount, he was n ot intoxicated when he was observed by the arresting of f icer. Because Parish’s conviction is not supported by suf f icient evidence, I respectf

ully dissent. KING, J., JOINS THIS OPINION.

1 4