MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A

By: Representative Wallace

AN ACT TO AMEND SECTION 63-11-5, MISSISSIPPI CODE OF 1972, TO AUTHORIZE ADMINISTRATION OF A PRELIMINARY CHEMICAL BREATH TEST; TO AUTHORIZE AN ARREST BASED ON THE RESULTS OF SUCH TEST; TO PROVIDE THAT SUCH RESULTS SHALL BE ADMISSIBLE IN DEFENSE TO A CHALLENGE TO THE VALIDITY OF AN ARREST; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 63-11-5, Mississippi Code of 1972, is amended as follows:

63-11-5. (1) Any person who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or tests of his breath for the purpose of determining alcohol concentration. A person shall give his consent to a chemical test or tests of his breath, blood or urine for the purpose of determining the presence in his body of any other substance which would impair a person's ability to operate a motor vehicle. The test or tests shall be administered at the direction of any highway patrol officer, any sheriff or his duly commissioned deputies, any police officer in any incorporated municipality, any national park ranger, any officer of a state-supported institution of higher learning campus police force if such officer is exercising this authority in regard to a violation that occurred on campus property, or any security officer appointed and commissioned pursuant to the Pearl River Valley Water Supply District Security Officer Law of 1978 if such officer is exercising this authority in regard to a violation that occurred within the limits of the Pearl River Valley Water Supply District, when such officer has reasonable grounds and probable cause to believe that the person was driving or had under his actual physical control a motor vehicle upon the public streets or highways of this state while under the influence of intoxicating liquor or any other substance which had impaired such person's ability to operate a motor vehicle. No such test shall be administered by any person who has not met all the educational and training requirements of the appropriate course of study prescribed by the Board on Law Enforcement Officers Standards and Training; provided, however, that sheriffs and elected chiefs of police shall be exempt from such educational and training requirement. No such tests shall be given by any officer or any agency to any person within fifteen (15) minutes of consumption of any substance by mouth.

(2) If the officer has reasonable grounds and probable cause to believe such person to have been driving a motor vehicle upon the public highways, public roads, and streets of this state while under the influence of intoxicating liquor, such officer shall inform such person that his failure to submit to such chemical test or tests of his breath shall result in the suspension of his privilege to operate a motor vehicle upon the public streets and highways of this state for a period of ninety (90) days in the event such person has not previously been convicted of a violation of Section 63-11-30, or, for a period of one (1) year in the event of any previous conviction of such person under Section 63-11-30. The officer may also require the person to submit to a preliminary chemical breath analysis by means of a portable breath tester at the site of the incident.

(a) The officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis.

(b) The results of a preliminary chemical breath analysis shall be admissible into evidence solely to assist the court or hearing officer in determining a challenge to the validity of an arrest. This paragraph (b) does not limit the introduction of other competent evidence offered to establish the validity of an arrest. Failure to give a preliminary test shall in no way affect the prosecution of an offense under this chapter.

(c) A person who submits to a preliminary chemical breath analysis shall remain subject to the requirement to submit to a chemical test as defined in Section 63-11-3.

(d) Refusal to submit to a preliminary chemical breath analysis upon an officer's lawful request shall result in the suspension of the person's privilege to operate a motor vehicle upon the public streets and highways of this state for a period of forty-five (45) days, such suspension to run consecutively to and not concurrently with any other driver's license suspension arising out of the same or another incident.

(3) The traffic ticket, citation or affidavit issued to a person arrested for a violation of this chapter shall conform to the requirements of Section 63-9-21(3)(b).

(4) Any person arrested under the provisions of this chapter shall be informed that he has the right to telephone for the purpose of requesting legal or medical assistance immediately after being booked for a violation under this chapter.

(5) The Commissioner of Public Safety and the State Crime Laboratory created pursuant to Section 45-1-17 are hereby authorized from and after the passage of this section to adopt procedures, rules and regulations, applicable to the Implied Consent Law.

SECTION 2. This act shall take effect and be in force from and after July 1, 1999.