Gene Arnold Scott v. City of Booneville, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KM-02094-COA
GENE ARNOLD SCOTT
APPELLANT
v.
CITY OF BOONEVILLE, MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/7/2005
HON. SHARION R. AYCOCK
PRENTISS COUNTY CIRCUIT COURT
TOMMY DEXTER CADLE
KENNETH EUGENE FLOYD
WILLIAM WAYNE SMITH
CRIMINAL - MISDEMEANOR
CONVICTED OF DUI FIRST OFFENSE,
IMPROPER EQUIPMENT, MAKING AN
IMPROPER TURN, POSSESSION OF BEER IN
A DRY COUNTY AND POSSESSION OF
WHISKEY IN A DRY COUNTY AND
SENTENCED TO TWENTY-FOUR HOURS
WITH TWENTY-FOUR HOURS BEING
SUSPENDED CONDITIONED ON THE
DEFENDANT PAYING HIS FINES.
AFFIRMED – 03/27/2007
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
On December 9, 2004, the Municipal Court of Booneville, Mississippi convicted Gene
Arnold Scott of the following charges: driving under the influence, improper equipment, making an
improper turn, possession of whiskey in a dry county, and possession of beer in a dry county. Scott
then appealed his conviction to the Prentiss County Circuit Court. A trial de novo was held on
October 7, 2005, and Scott was found guilty of all charges. Aggrieved, Scott appeals and asserts
the following issues:
I.
Whether the lower court committed reversible error in adjudging Appellant
guilty of driving under the influence on June 15, 2004, notwithstanding the
fact that the affidavit charging Appellant with driving under the influence
charged Appellant with committing said offense on June 16, 2004.
II.
Whether a two year old outdated DUI citation, which is not a Uniform
Traffic Ticket, citation, or affidavit in accordance with section 63-9-21(3)(b)
constitutes a legal/valid affidavit and/or is a Defendant not entitled to a
dismissal when a charge of driving under the influence is lodged on such a
citation.
III.
Whether a DUI citation with an erroneous address of the court in which the
cause is to be heard constitutes a sworn complaint.
IV.
Whether the trial court erred in finding there was probable cause to make the
relevant stop.
Finding no error, we affirm.
FACTS
¶2.
Shortly before midnight on June 15, 2004, Sergeant Eddie Greene of the Booneville Police
Department pulled over a red eighteen-wheeler driven by the Gene Arnold Scott. Greene testified
that he had received a call from dispatch to be on the lookout for a vehicle matching the description
of that driven by Scott. In addition, Greene stated he pulled Scott over for making an improper turn
and because a headlight was out on the truck.
¶3.
During the ensuing conversation with Scott, Sergeant Greene noticed the smell of alcohol
on or about Scott’s breath. Greene then performed a field sobriety test that included a horizontal
gaze nystagmus, a walk and turn, and a one leg stand. Based on these tests Greene believed Scott
to be under the influence and decided to take him to the justice center. During an inventory of
Scott’s vehicle, Greene found three twelve-ounce cans of Coors Light beer and a bottle of Canadian
Mist whiskey.
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¶4.
Shortly after midnight on June 16, 2004, and upon arrival at the justice center, Greene
administered a breathalyzer test to Scott using the CMI Intoxilyzer 5000. The Department of Public
Safety had certified the machine, and Sergeant Greene was also certified to operate it. The results
indicated that Scott had an alcohol concentration of 0.089%, in excess of the 0.04% allowed for
operators of a commercial vehicle.
¶5.
Based on Sergeant Greene’s observations and the breathalyzer test, Scott was charged with
the following crimes: improper equipment for having only one headlight, making an improper turn,
driving under the influence, possession of beer in a dry county, and possession of whiskey in a dry
county. The City of Booneville Municipal Court tried Greene and found him guilty of all the
charges. On appeal, the Prentiss County Circuit Court conducted a trial de novo and again found
Scott guilty of all charges.
¶6.
In the courts below, Greene filed motions challenging the sufficiency of the affidavit that
charged him with DUI and argued there was no probable cause for Sergeant Greene to make the
stop. The DUI ticket issued to Scott by Greene was a two-year old version; however, it did contain
the relevant provision that stated it was a crime for anyone with an alcohol concentration of 0.04%
or above to operate a commercial motor vehicle.1 The same ticket also incorrectly stated the address
of the Booneville Municipal Court, which the city had moved some years ago. Lastly, the DUI
ticket included the incorrect date of the incident. Greene had written on the ticket that he pulled
over Scott on June 16, 2004, when in fact he had done so on June 15. Greene testified that it was
a scrivener’s error based on the fact that he stopped Scott shortly before midnight and administered
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The ticket issued to Scott contained an older provision that made it a crime to operate a
noncommercial motor vehicle with an alcohol concentration of 0.10% or above, while the new
tickets incorporated the amendment to the law that made it a crime to operate a noncommercial
motor vehicle with an alcohol concentration of 0.08% or above. Scott’s charges were for operation
of a commercial vehicle; therefore, the portion relevant to him was correct.
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the breathalyzer test shortly after midnight. The tickets given to Scott for improper equipment and
making an improper turn were current and contained the correct date and address for the courthouse.
¶7.
The courts below dismissed the above motions. Aggrieved, Scott appeals to this Court.
ISSUES AND ANALYSIS
I.
¶8.
Whether the lower court committed reversible error in adjudging
Appellant guilty of driving under the influence on June 15, 2004,
notwithstanding the fact that the affidavit charging Appellant with
driving under the influence charged Appellant with committing said
offense on June 16, 2004.
Rule 7.06 of the Uniform Rules of Circuit and County Court states that an indictment shall
contain the date and time of the alleged offense. Nevertheless, “Failure to state the correct date shall
not render the indictment insufficient.” Id. Furthermore, an indictment is not insufficient “for
stating the offense to have been committed on day subsequent to the finding of the indictment.”
Miss. Code Ann. § 99-7-5 (Rev. 2000). An incorrect date will not render an indictment defective.
See Corley v. State, 536 So. 2d 1314, 1316 (Miss. 1988); Wofford v. State, 875 So. 2d 251, 253 (¶8)
(Miss. Ct. App. 2004). A Uniform Traffic Ticket serves as an indictment in this case, putting the
defendant on notice of the charges against him. The requirements for a traffic ticket are as follows:
Every traffic ticket shall show, among other necessary information, the name of the
issuing officer, the name of the court in which the case is to be heard, and the date
and time such person is to appear to answer the charge. The ticket shall include
information which will constitute a complaint charging the offense for which the
ticket was issued, and when duly sworn to and filed with a court of competent
jurisdiction, prosecution may proceed thereunder.
Miss. Code Ann. § 63-9-21(c) (Rev. 2004). Such a traffic ticket constitutes a sworn affidavit
sufficient to charge a defendant in municipal court. Wheeler v. Stewart, 798 So. 2d 386, 390 (¶8)
(Miss. 2001).
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¶9.
Scott does not cite any authority to support his argument that the discrepancy in dates meant
there was insufficient proof to convict him. While the prosecution did not submit any proof at trial
that Scott was driving under the influence on June 16, 2004, it did point out that the date on the
Uniform Traffic Ticket was a scrivener’s error. The error happened because Sergeant Greene
stopped Scott shortly before midnight and conducted a breathalyzer test shortly after midnight. The
trial court agreed that it was a scrivener’s error, and the prosecution amended the ticket to state the
correct date, June 15, 2004. If an indictment with an incorrect date of the incident is not defective,
we do not find such a traffic ticket to be defective either.
¶10.
The other two citations issued to Scott for the simultaneous offenses stated the correct date
and time. Also, the time on the DUI citation matched times written on the other two citations. Scott
was, therefore, aware of the actual date of the offense for which he was charged. The trial court
found the date to be a scrivener’s error, and we agree. Accordingly, the traffic ticket was sufficient
to put Scott on notice that the DUI charge was for the night of June 15, 2004. The prosecution did
put on proof that Scott was driving under the influence on June 15, 2004, and he was convicted of
that offense. This issue is without merit.
II.
¶11.
Whether a two year old outdated DUI citation, which is not a Uniform
Traffic Ticket, citation, or affidavit in accordance with section 63-921(3)(b) constitutes a legal/valid affidavit and/or is a Defendant not
entitled to a dismissal when a charge of driving under the influence is
lodged on such a citation.
Scott relies on an attorney general opinion to support his argument that the outdated tickets
deprive the trial court of jurisdiction. The opinion states that municipalities may not delay in
purchasing new DUI tickets. Miss. Att’y Gen. Op. No. 1994-0197 (Apr. 6, 1994). The State cites
another such opinion, which says that officers may revise existing DUI citations while also
reminding the municipalities they may not delay in purchasing new tickets. Miss. Att’y Gen. Op.
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No. 2002-0572 (Oct. 18, 2002). Attorney general opinions, while not binding on this Court, may
be considered by it. Madison County v. Hopkins, 857 So. 2d 43, 50 (¶19) (Miss. 2003).
¶12.
This is not a case of the city purposefully continuing to use outdated Uniform Traffic
Tickets. The testimony revealed the City of Booneville had come into compliance with the new law,
and it had been using the new tickets long before Greene issued the ticket in question. The City
could not explain how the old ticket had gotten into circulation. The difference in the tickets is that
the newer Uniform Traffic Tickets reflect the decrease in the allowable alcohol concentration for
operators of noncommercial vehicles. However, this change is irrelevant to Scott’s ticket.
¶13.
The portion of the Uniform Traffic Ticket that applies to Scott’s situation is the part that
indicates it is a crime to operate a commercial vehicle with an alcohol concentration of 0.04% or
more. Since the legislature did not alter the allowable alcohol concentration for operating a
commercial vehicle, this portion remains the same on the new tickets as on the old tickets. Miss.
Code Ann. § 63-11-30(1) (Rev. 2004). Issuing one of the new tickets to Scott would have made no
difference since, concerning the operation of a commercial vehicle, it would state the same charge
found on the old ticket. As in Wheeler, the ticket in question contained all the statutorily required
information; therefore, it constituted a sworn affidavit. This issue is without merit.
III.
¶14.
Whether a DUI citation with an erroneous address of the court in which
the cause is to be heard constitutes a sworn complaint.
Scott next argues that the DUI citation, which contained the incorrect address for the
municipal court, did not constitute a sworn affidavit. His argument is that, because the citation
lacked the court’s correct address, it failed to state “the name of the court in which the cause was
to be heard,” as required by section 63-9-21(3)(c) of the Mississippi Code.
¶15.
The supreme court has held that a discrepancy will not render a traffic ticket ineffective when
the defendant was made aware of the violation for which he was charged. Palmer v. City of Oxford,
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860 So. 2d 1203, 1212-13 (¶24) (Miss. 2003). In Palmer, the supreme court held the ticket valid
even though the defendant’s copy did not contain his alcohol concentration. Id. Furthermore, as
stated in Wheeler, a traffic ticket that contains the statutory requirements constitutes a sworn
affidavit. Wheeler, 798 So. 2d at 390 (¶8).
¶16.
While the DUI ticket contained the wrong address, it did, however, state that Scott’s
arraignment was to take place before the Municipal Court of Booneville, Mississippi. We first note
that this is the name of the court in which Scott’s arraignment did take place. While the address of
the court was outdated, the citation did contain the proper name of the court. Nowhere does the
statute state that the citation must contain the address of the court, only the name. Furthermore, the
ticket did contain the name of the officer and the date and time of the hearing. Under Wheeler, this
constitutes a sworn affidavit.
¶17.
Scott does not argue that he lacked notice of the arraignment. Again, the other two citations
issued to Scott for simultaneous offenses were current versions and contained the correct address
for the Booneville Municipal Court. Not only did the citations put him on notice of the correct
address of the court, but he also appeared at the correct courthouse for the arraignment. The traffic
ticket contained sufficient information to constitute a sworn affidavit charging Scott with DUI. This
issue is without merit.
IV.
¶18.
Whether the trial court erred in finding there was probable cause to
make the relevant stop.
In determining whether probable cause existed to make a stop, an appellate court should
review the decision de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). The Mississippi
Supreme Court has stated that this review is a de novo review under the applicable substantial
evidence/clearly erroneous standard. Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (¶11)
(Miss. 1999).
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¶19.
A police officer may stop an automobile when he has probable cause to suspect a traffic
violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996). “This is an objective test
based on the facts known to the officer at the time of the stop.” United States v. Escalante, 239 F.3d
678, 681 (5th Cir. 2001). Regarding the improper turn, section 63-3-703(c) of the Mississippi Code
provides that local authorities may place markers designating how drivers must turn at intersections.
When an intersection is so marked, drivers are required to follow the designated instructions. Id.
Also, a motor vehicle must have two headlights, and one must be located on each side of the front
of the vehicle. Miss. Code Ann. § 63-7-13(1) (Rev. 2004). From sunset until sunrise those
headlights must be lighted. Miss. Code Ann. § 63-7-11 (Rev. 2004).
¶20.
Scott specifically takes issue with the fact that making an improper turn was insufficient
probable cause to pull over Scott. He fails to address whether Sergeant Greene had probable cause
to pull him over because he was missing a headlight or based on the call from dispatch.
¶21.
The trial court found that Sergeant Greene had ample probable cause. First of all, he
received a call from dispatch telling him to look out for a truck with a description matching that of
Scott’s truck. In addition, he testified that he first noticed Scott’s truck was missing a headlight,
and he also watched him execute an improper turn. The testimony that Greene observed Scott enter
an improper turning lane was itself probable cause to stop Scott. Greene observed a traffic violation
occur; therefore, he had the authority under Whren to stop Scott’s automobile.
¶22.
At the time, Sergeant Greene had probable cause to stop Scott when he observed Scott make
an improper turn. He also had probable cause to make the stop because Scott was driving at night
with only one headlight. Either of these alone would be sufficient to make the stop, so it is not
necessary for this Court to address whether the call from dispatch created probable cause to make
the stop. This issue is without merit.
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¶23. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT OF
CONVICTION OF DUI FIRST OFFENSE AND SENTENCE OF TWENTY-FOUR HOURS
IN JAIL WITH TWENTY-FOUR HOURS SUSPENDED AND PAYMENT OF $959.50 IN
FINES; OPERATING A MOTOR VEHICLE WITH IMPROPER EQUIPMENT AND
PAYMENT OF $157.50 IN FINES; MAKING AN IMPROPER TURN AND PAYMENT OF
$157.50 IN FINES; POSSESSION OF BEER IN A DRY COUNTY AND PAYMENT OF $178
IN FINES; POSSESSION OF WHISKEY IN A DRY COUNTY AND PAYMENT OF $228 IN
FINES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
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