By Philip Moulden

Daily Journal

Northeast Mississippi courts have halted prosecution of scores of drunken driving cases.

The reason? The state Supreme Court recently ruled some suspects are facing prosecution twice.

Pretrial suspension of a driver's license followed by a court trial can constitute double jeopardy, the court ruled.

Area court officials hope to revive the cases if the Supreme Court acts on a recent petition for rehearing.

"We're really in a pickle," said Lee County prosecutor Charles Brett, who said cases against 20 to 25 DUI suspects were dropped, at least temporarily, in Justice Court last month. "I anticipate the number is going to keep going up."

The Keyes quandary

In a little publicized decision, the Supreme Court Sept. 4 overturned a Harrison County ruling that Ronnie Keyes should be prosecuted for driving under the influence. In 1993, Keyes was arrested on a DUI charge with a blood alcohol level of more than 0.10, the state's legal limit.

A day after the arrest, but months before his indictment, Keyes' license was suspended under the state's implied consent law. The law provided automatic suspension for up to 90 days on a first offense and a year on subsequent offenses. It was Keyes' third offense.

Keyes argued that further prosecution of the DUI charge would involve double jeopardy because he had already been punished for the offense when his driver's license was suspended.

The Supreme Court agreed, with all justices concurring in the decision except Justice Chuck McRae, who did not participate in the case. McRae was convicted last year of drunken driving.

At the same time, justices ruled suspension of a license is punishment and not merely an administrative remedy to effect an outcome - getting drunk drivers off the road.

"In construing (the implied consent law previously) as 'penal', we noted that a driver's license is no longer a luxury, but a necessity for most Mississippians in their ability to make a living to protect, raise and maintain a family," wrote presiding Justice Michael Sullivan said.

Constitutional protections ban multiple punishments for the same offense. Under the state's implied consent law, licenses of those who fail blood-alcohol tests are often suspended before trial, and may be suspended again if drivers are convicted.

Suspensions before trial are almost automatic for people who refuse to take blood-alcohol tests - usually given on breath analysis machines.

"It puts us judges in a precarious position. It's a real problem and I don't know the answer to it," Lee County Justice Court Judge Mayo Grubbs said of the ruling. "When the defense attorneys and prosecutors are both telling me this (case) needs to be dismissed, we've got due process problems.

"It's not a question of guilt, it's a question of the constitution."

MADD is mad

The opinion has confused legal officials who are split over whether the ruling affects only cases where suspects fail blood-alcohol tests or also those where suspects refuse to take tests. Some suggest the decision will have virtually no effect.

The eight justices agreed that the opinion should not be published or cited in other court cases, basically saying the opinion didn't establish new precedent or have important public impact.

"There is an argument to be made that the case is of no effect on anybody in the state other than the (case involved)," Aberdeen prosecutor Robert Faulks said.

Rodger Moore, state executive director of Mothers Against Drunk Drivers, is more upset with defense lawyers who are citing the court's decision than he is about the decision itself which he called a Pandora's box.

"This decision É applies only to the Keyes case," Rodgers said. "We have a lot of unethical attorneys (who are citing the case in court). It should not be happening."

But other attorneys and court officials contend the ruling has fostered an about face in DUI prosecutions and supplanted previous Supreme Court decisions.

Though the ruling can't be cited in other cases, the precedents on which the latest ruling was made can be, and it would be absurd for lower courts to draw a different conclusion, they said.

Faulks also argued that suspensions for refusing to take tests "are separate and apart from driving down the road under the influence" and are not subject to double jeopardy interpretations.

Some officials contend that license suspensions based on test refusals are akin to breaches of contract whereby one party fails to conform to a previous agreement - a consent when the license is issued that they will take tests requested by law officers.

"We will continue to prosecute those cases all the way," Faulks said.

On cases where a suspect took and failed the test, Faulks said he will await possible reconsideration by the high court.

But Tupelo defense attorney Mark Nickels argued that the high court's decision includes suspects who don't take the test.

"Of course it affects refusals," Nickels said. "If you refuse, your license is suspended. You can call it anything you want to call it, it's penal. It was always a fiction (of a privilege contract). Obviously, they're punishing you for not taking the test."

Law officers respond

Law officers appear to be caught in a box.

The law requires them to seize licenses and seek suspensions when arresting suspected drunken drivers, and in cases of those who fail blood tests suspension is mandated.

As a practical matter, licenses of those who refuse to take blood-alcohol tests are suspended within days of an alleged offense, Nickels said.

Lee County Sheriff Harold Ray Presley said he plans to stick with current procedures because those arrested on drunken driving charges get a 30-day special permit to drive automatically.

However, Tupelo prosecutor T.K. Moffett said he had instructed police to no longer seize driver's licenses upon arrest pending final resolution of the Keyes case. The instruction applied to both those who take tests and those who don't, he said.

In any case, failure to suspend eliminates the double jeopardy argument, Moffett said. He said he is delaying prosecution of previous cases "until the dust settles."

"I don't want to lose any DUI cases," said Moffett, who believes the Legislature will amend the law next year. "Until the case becomes a final case, we're not going to concede all these DUIs."

State Sen. Alan Nunnelee, R-Tupelo, said the Legislature should revisit the drunken driving laws when the session begins in January.

"It's important that we look at this issue," he said. "We need to take whatever steps are necessary to keep drunk drivers off the road."

Meanwhile, the Department of Public Safety has asked the state attorney general for an opinion on how to handle license suspensions. Public Safety Commissioner Jim Ingram said he hopes to have an opinion within two weeks to guide the actions of highway patrol officers and his office.

Professor, court concur

Oxford attorney and former University of Mississippi law professor Dwight Ball, who concedes having "serious input" in writing the implied consent law, said the Supreme Court decision was correct.

"It is clearly double jeopardy. ... It reeks of double jeopardy," he said of pretrial suspensions, and he included suspensions of those who refuse to take a test.

Ball, who said he has argued that point for more than 20 years, contended that "an implied consent law in and of itself is flawed, in that it creates double jeopardy."

"I don't think there's a breach of contract. ... You can't create a statute where someone implies consent when that's going to create double jeopardy."

Lee County's Brett said he treats both instances alike. His decision on whether to continue prosecution is based on whether a defendant can produce conclusive evidence his license has already been suspended.

Ball argued the only current remedy for the double jeopardy problem is for law officers to quit asking suspects to take blood-alcohol tests. DUIs should be prosecuted based on standard procedures involving observations of suspects' actions, he said.

Justice Sullivan would not discuss the opinion, a standard response for Supreme Court members.

"The justices basically speak through their opinions. That's as far as they go as far as articulating what they did or didn't do," Supreme Court administrator Steve Kirchmayr said Friday. "The opinion speaks for itself."

Staff writer Michaela Gibson Morris also contributed to this report.

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