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IN THE COURT OF APPEALS 05/07/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00128 COA EARL LUTER APPELLANT v. CITY OF COLUMBIA APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. MICHAEL EUBANKS COURT FROM WHICH APPEALED: CIRCUIT COURT OF MARION COUNTY ATTORNEY FOR APPELLANT: A. RANDALL HARRIS ATTORNEY FOR APPELLEE: SCOTT PHILLIPS DISTRICT ATTORNEY: SCOTT PHILLIPS, CITY PROSECUTOR NATURE OF THE CASE: CRIMINAL - SECOND OFFENSE MISDEMEANOR DRUNK DRIVING TRIAL COURT DISPOSITION: PAYMENT OF A FINE, COSTS AND ASSESSMENTS TOTALING $1220.00 WITHIN ONE YEAR FROM DATE OF JUDGMENT

BEFORE THOMAS, P.J., BARBER, AND SOUTHWICK, JJ. BARBER, J., FOR THE COURT:

Earl Luter appeals from his conviction in the Circuit Court of Marion County for second offense misdemeanor drunk driving. Finding no merit to this appeal, we affirm. I. FACTS Joe Van Parkman was the Assistant Chief of Police for the City of Columbia. On March 13, 1993, at approximately 11:45 A.M., Parkman received a call over his police radio. He was alerted that a small white Toyota bearing the license plate number NCB 960 was proceeding toward Columbia on Highway 13. Parkman was advised that this vehicle had run several cars off the road. As Parkman patrolled Highway 13, he observed a white Toyota bearing the same tag number at the drive-through teller's window of the local Trustmark National Bank. The Toyota fit the description of the offending vehicle. Parkman drove up to the Toyota, exited his car, and then walked up to the window of the Toyota. The Toyota's motor was running. Parkman observed the male driver sitting "under the wheel" of the vehicle. The driver was Luter. Parkman detected the heavy odor of alcohol, and he observed that Luter's eyes were dilated and that his speech was slurred. Parkman opened the door of the Toyota, switched off the ignition and told Luter to exit the vehicle. Luter could not do so without help from Parkman. Luter then failed the field sobriety test that Parkman administered to him. At that point, Parkman advised Luter that he was going to take him into custody and that he would be transported to the Marion County Sheriff's Department for a breath intoxylizer examination. Luter then offered to give Parkman his payroll check in exchange for not taking him to jail. After Parkman had handcuffed Luter and placed him in his police car, Officer Greg Elkins of the Columbia Police Department arrived at the scene. Parkman secured the Toyota and then transported Luter to the jail. At the jail, Elkins offered Luter the opportunity to take a breath intoxylizer examination. Luter refused. At that point, Elkins charged Luter with refusal to submit to a chemical intoxication examination and with driving while intoxicated. In view of a previous conviction for drunk driving, Luter was tried before a municipal court judge for the misdemeanor of second offense drunk driving. After being found guilty, Luter took advantage of his right to a de novo trial before the Circuit Court of Marion County. At the conclusion of his circuit court jury trial, Luter was again found guilty. The circuit judge imposed fines and assessments upon Luter totaling $1,220.00. Luter filed a motion for a new trial, which was subsequently denied. Luter now appeals. II. DISCUSSION a) Was Luter Subjected to An Illegal Arrest? Luter argues that the trial court erred in not granting him a directed verdict at the conclusion of the prosecution's case because his initial arrest, which was conducted without a warrant, was conducted in violation of section 99-3-7(1) of the Mississippi Code. We disagree. Section 99-3-7(1) of the Mississippi Code states in pertinent part:

(1) An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. . . . Miss. Code Ann.

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