Volume 9, Issue 1

DRIV
DRIVEN
EN to successfully prosecute DUI cases in Mississippi
Spring 2012

An y reconstructionist
will acknowledge
that the drag factor, a
C R A SH R E CO N ST RU C T IO N:
THE DR AG FACT O R
measure of road friction, is
an integral part of most re- By John Kwasnos k i, Pr ofes sor Em er it us
construction analyses, and
that changing the drag fac-
tor value may result in significant changes in the Clearly, the value
resulting calculations. It is certainly not uncom- measured by the
mon for the police at the scene to measure the drag sled is slightly
drag factor, and for a defense expert to later less than the accel-
make a measurement with a different instru- erometer measure-
ment or device and report a smaller drag factor ment, and if at all,
that lowers the speed estimate for the defend- would lower speed
ant’s vehicle. Frequently, the expert may use an estimates and favor
electronic device called an accelerometer, the defendant if
sold under the trade names Vericom VC-2000 the police had
or G-Analyst, and claim it to be more accurate used the drag sled
than the drag sled used by police investigators. at the scene. In ref-
In one case in which the Iowa State Patrol erence to this same
measured road friction with a drag sled there Iowa case, Jerry Hall, a retired engineering pro-
was testimony at trial by two engineers that fessor from Iowa State University said, “A drag
“measuring pavement friction with a drag sled sled is a very common, acceptable way to do it
has not been accepted by the engineering (measure drag factor).”
community.” Such a declaration can be chal-
lenged by published field testing in which the In another evaluation of the accuracy of drag
two devices are compared by making meas- sleds, fifty tests were performed at the World Re-
urements on the same road surface. In one construction Exposition 2000 meeting with an
such test on three different roads the results
1 average drag factor measurement of .807. This
were: value was then compared to a measurement
of the same road surface made with a sophisti-
ROAD DRAG SLED
ACCELEROMETER cated ASTM (American Society of Testing and
SURFACE -20 LB
Materials) skid trailer that developed .81 - .82 on
dry asphalt .809, .801 .800 the same surface. Still another drag sled evalua-
tion was made in Maryland as part of a 1998
dry asphalt .850, .851 .800
reconstruction conference with a D.O.T. skid
crossgroov
.839, .859, .825, .825 trailer developing a drag factor of .83 and the
ed con- average of measurements made with 20 drag
.826, .889
crete
sleds equal to .805. In skid tests done by the au-
Volume 9, Issue 1 DRIVEN Spring 2012
thor as part of a senior engineering project, the drag factor value

Additional Resources:
National Highway Traffic Safety
Administration
http://www.nhtsa.gov
Sobriety Trained Officers
Representing
Mississippi—STORM
http://www.msstorm.net
MS Department of Public Safety
http://www.dps.state.ms.us
measured with a sled used in conjunction with the longest skid
mark still underestimated vehicle speed in every test. The bottom
line is that when used correctly the drag factor value measured
with a drag sled is as accurate as that measured with the more
sophisticated accelerometer. The measurement can be
strengthened by making multiple measurements at each location
on the road, making measurements at multiple locations in the
tire mark pattern, including a drawing showing the locations of
drag sled measurements:
A. Being certain that scale readings are
made only when any initial “jerking” has
ceased having the calibration of the
drag sled scale checked regularly;
B. Having someone witness the tests to ver-
ify the scale readings;
C. Videotaping or photographing the
measurement;
D. Using the lowest measured value to give
every benefit to the defendant;
E. Conducting periodic training on the
proper use of the sled.
Of course the prosecutor should be aware of potential misuse of
an accelerometer in such a way as to produce an intentionally
lower drag factor measurement. This will be addressed in a future
article, so that prosecutors can attack any such misuse that
would introduce misleading information into the reconstruction
calculations.
1 Wakefield, Cothern, Sellers, and Carver,

“Roadway Drag Factor Determination, Dy-

i n t h is i s s u e … namic v. Static”, N.A.T.A.R.I., Fourth Quarter,

1995
C r as h R ec o ns t r u ct i on: The Drag Factor—1
By Jo hn B. Kw as nos ki
A ddi t i o nal Res our ces — 2
D i s t r act ed D r i vi n g A w ar e nes s M o nt h — 3
D U I C as e La w U pd a t e — 4 & 5
20 1 2 L egi s l at i ve Upd at e — 6 & 7
C al e nd ar & C o nt ac t In for mat i on — 8
2Badger, “Drag Sleds and Drag Factors”,
SOARce, Summer 2001
3 Kwasnoski, “Drag Sled Measurements Yield
Valid Minimum Speed Estimates”, N.A.T.A.R.I.,
Third Quarter, 1998
John B. Kwasnoski is Professor Emeritus of Fo-
rensic Physics at Western New England Col-
lege, Springfield, MA after 31 years on the fac-
ulty. He is a certified police trainer in more
than 20 states. He is the crash reconstructionist
on the “Lethal Weapon - DUI Homicide” team
formed by the National Traffic Law Center to
teach prosecutors how to utilize expert witness
testimony and cross examine adverse expert
witnesses. He is the author of “Investigation
and Prosecution of DWI and Vehicular Homi-
cide.” Prof. Kwasnoski has reconstructed over
650 crashes.

2
Volume 9, Issue 1 DRIVEN Spring 2012

D i s tr a c te d D r i vi ng
AWARENESS What is distracted driving? There are three main types of distraction:

Visual -– taking your eyes off the road

Manual – taking your hands of the wheel Fre
Cognitive – taking your mind off what you’re doing aske quentl
d qu y
esti
Distracted driving is any non-driving activity a person engages in while operat-
ing a motor vehicle. Such activities have the potential to distract the person
ons
from the primary task of driving and increase the risk of crashing.

Is talking on a cell phone any worse than having a conversation with someone in the car?

Some research findings show both activities to be equally risky, while others show cell phone use to
be more risky. A significant difference between the two is the fact that a passenger can monitor
the driving situation along with the driver and pause for, or alert the driver to, potential hazards,
whereas a person on the other end of the phone line is unaware of the roadway situation. Howev-
er, when two or more teens are in the vehicle, crash risk is increased. And while we can’t say for
sure this is attributable to distraction, we are confident that distraction plays a role.
Is it safe to use hands
hands--free (headset, speakerphone, or other device) cell phones while driving?

The available research indicates that cell phone use while driving, whether it is a hands-free or
hand-held device, degrades a driver’s performance. The driver is more likely to miss key visual
and audio cues needed to avoid a crash. Hand-held devices may be slightly worse, but hands-
free devices are not risk-free.

What do the studies say about the relative risk of cell phone use when compared to other tasks like
drinking or eating?

Most crashes involve a relatively unique set of circumstances that make precise calculations of risk for
engaging in different behaviors very difficult. Thus, the available research does not provide a definitive
answer as to which behavior is riskier. Different studies and analyses have arrived at different relative
risk estimates for different tasks. However, they
all show elevated risk (or poorer driving perfor-
mance) when the driver is distracted. It is also
important to keep in mind that some activities are
carried out more frequently and for longer periods
of time and may result in greater risk.

3
A P R I L 2 0 12
Volume 9, Issue 1
C A S E L AW U P D AT E
__________________________
Bonds v. State
72 So. 3d 533 (Miss. Ct. App. 2011)
D
efendant encountered Officer
White and failed to dim his
headlights early on New Year’s Day
2009. Officer followed him and wit-
nessed him weaving and initiated a
traffic stop. Officer noted the de-
fendant was unsteady, had slurred
speech, red bloodshot eyes, and
his breath smelled of an alcoholic
beverage. When the officer asked
defendant where he had been
and if he had been drinking, he
stated he had been at Bush-
wacker’s and had approx. 5-6
drinks. PBT showed positive pres-
ence of alcohol. Defendant was
cited for a seatbelt violation, care-
less driving, failure to dim head-
lights, improper tag, and DUI 1st of-
fense. Defendant agreed to a
breath test, which revealed a BAC
of .12%. Defendant was released
on bond at approximately 7:30 am
on January 1, 2010.
Defendant was convicted of DUI 1st
offense in Prentiss County Justice
Court. He appealed to circuit
court, where he moved to have his
DUI dismissed based on an invalid
affidavit because the citation was
not timely filed. Circuit judge de-
nied the motion and found him
guilty. Defendant appealed his
conviction.
Defendant argued on appeal (1)
whether the State proved that the
alleged offense occurred in Prentiss
County, and (2) whether the cita-
tion conformed to the requirements
of the Uniform Traffic Ticket Law in
order to be a sworn affidavit.
DRIVEN Spring 2012
All citations listed alcohol. Defend-
Prentiss County ant’s demeanor
as the county in changed and
which the of- he became
fense occurred. “extremely nerv-
Other evidence, ous and fidgety”
including testi- upon seeing the
mony of the of- Mississippi Supreme Court officer. Defend-
ficer—who had ant made sever-
been transferred to Prentiss County al phone calls, left his truck parked
to work and the fact that the hear- at the gas pump, and got into the
ing that day was held in Prentiss passenger side of a friend’s car.
County also showed Prentiss Coun- After the two left, the officer con-
ty to be the proper venue. The ducted a traffic stop in a nearby
night of the arrest defendant trav- parking lot. The officer then ob-
eled southbound on US Hwy. 45 in served the same car drop defend-
Prentiss County and was taken to ant off at his truck, and defendant
the Prentiss County Jail. The Court pulled away from the store. As de-
held this was sufficient to prove fendant drove away, he missed the
venue in Prentiss County. entrance and drove into a ditch.
The officer pursued the defendant.
Officer lost site of him, but then
As to the officer’s failure to timely
found defendant’s truck in the
file the DUI citation, the Court held
friend’s driveway. As the officer ap-
that did not warrant reversal of the
proached the home, defendant
case. Miss. Code Ann. § 63-9-21(6)
ran into the house. Defendant stat-
requires the ticket be filed no later
ed he was home and was not leav-
than 5:00 pm the next business day.
ing. The officer tried to grab him
Here, the filing occurred on Janu-
and the defendant jerked away.
ary 4, 2010; however, the defend-
The defendant was eventually sub-
ant bonded out of jail approx. 3
dued and placed in handcuffs. De-
hours after his arrest. Thus, the
fendant refused to submit to a
Court found he was not prejudiced
breath test.
by the late filing. Furthermore, the
Court held there was no authority
Defendant was convicted of DUI
for the proposition that a timely fil-
1st offense in justice court. He ap-
ing was jurisdictional.
pealed to circuit court, which af-
Affirmed. firmed the conviction. On appeal,
defendant argued the officer did
not have probable cause to arrest
Bondegard v. State him. Defendant claimed the arrest
No. 2010-KM-01727-COA was illegal because there was no
(Miss. Ct. App. Nov. 22, 2011) evidence that he was operating his
O
truck on a public road, and that
n October 14, 2009, an officer the officer may have had probable
was inside a store and saw the cause for an arrest by the smell of
defendant enter the store and pur- alcohol at the gas station, or even
chase a 12 pack of beer. The of- when the officer observed his er-
ficer noticed defendant smelled of ratic driving, but lacked probable
4
Volume 9, Issue 1
cause to arrest him at his friend’s sight.”
house.
The Court found that since the de-
fendant failed to raise the
“operating” issue at trial, it was pro-
cedurally barred. Further, the Court
remarked that the defendant’s se-
lective recitation of the facts in-
volved a complete omission of eve-
DRIVEN
Affirmed. fendant’s motions for both a di-
Reynolds v.
City of Water Valley
No. 2010-KM-00900-COA
(Miss. Ct. App. Dec. 6, 2011)
Spring 2012
and appealed to circuit court. De-
rected verdict and a motion to dis-
miss on the ground that there were
insufficient probable cause for a
traffic stop were denied, and the
defendant was convicted again.
On appeal, defendant argued the
officer lacked probable cause to
initiate a traffic stop, stating the of-

O
rything that happened after the ficer failed to articulate any illegal
defendant’s friend drove the de- fficer Blair was patrolling activity or traffic violation that gave
fendant back to the store. It was around 4:30 am when he no- sufficient probable cause or rea-
then that the officer saw the de- ticed the defendant’s car stopped sonable suspicion to initiate a traffic
fendant drive erratically while leav- approx. six car lengths behind him stop.
ing the store. A at a red light. After
warrantless ar- making a routine
rest is lawful if security check, The Court held that the investigato-
“at the moment the officer again ry stop was not based on specific
the arrest was noticed the same and articulable facts that a crime
made, the offic- car traveling well had occurred or was imminent.
ers had proba- below the speed Mere hunches or looking suspicious
ble cause to limit of 25 mph. are insufficient to establish reasona-
make it—if at Mississippi Court of Appeals The officer ob- ble suspicion for an investigatory
the moment the served two males stop. Qualls v. State, 947 So.2d 365,
facts and circumstances within in the car, and the passenger was 371 (Miss. Ct. App. 2007). The Court
their knowledge and of which they drinking from a white cup. The pas- held there was simply no evidence
had reasonably trustworthy infor- senger pointed at the officer and the defendant had committed any
mation were sufficient to warrant a the defendant slowed to approxi- criminal offense or was about to
prudent man in believing that the mately 5-8 mph. The officer fol- engage in criminal activity. Since
petitioner had committed or was lowed the defendant and called in the officer lacked the proper rea-
committing an offense.” United the license plate which came back sonable suspicion to initiate a Terry
States v. Johnson, 445 F.3d 793, 796 negative for a stolen vehicle. The stop, any evidence found as a re-
(5th Cir. 2006)(quoting Beck v. officer observed the defendant’s sult of the stop was considered fruit
Ohio, 379 U.S. 89,91 (1964). vehicle turn and head towards the of the poisonous tree and should
have been suppressed.
Here, the officer clearly articulated elementary school. The officer de-
facts (smell, nervous, fumbled with cided to stop the vehicle because Reversed and Rendered.
credit card, impaired speech, he believed it was suspicious since
bloodshot eyes, erratic driving) that it was going towards the school at NOTE: Judge Carlton dissented,
would cause a reasonably prudent 4:30 am and he was concerned finding the proper standard of re-
person to believe that the defend- about previous break-ins. view when a suppression motion is
ant was DUI. The Court held that not filed is abuse of discretion, not
just because the officer did not ar- Once stopped, defendant was ob- a de novo review. “...I find no
rest the defendant after the 1st en- served to have slurred speech, un- abuse of discretion in the circuit
counter did not mean the officer steady on his feet, glazed and judge’s finding to introduce evi-
forfeited the right to arrest the de- bloodshot eyes, and smelled of an dence of the stop and finding that
fendant for additional events that alcoholic beverage. Defendant sufficient reasonable suspicion exist-
occurred 15 minutes later. The of- was arrested and transported to ed in this case supporting Officer
ficer did not lose probable cause to jail, where the officer attempted to Blair’s investigatory Terry stop of
arrest the defendant simply be- administer the Intoxilyzer. Defend- Reynolds.” She believed Officer
cause the officer had to find him. ant blew into the machine, but Blair’s testimony provided sufficient
The Court reasoned that if that stopped before an accurate sam- reasonable suspicion that Reynolds
were the case. “an offender could ple could be gathered. The Intoxi- was suspected of engaging or sus-
escape prosecution simply by leav- lyzer printed a refusal. Defendant pected of about to be engaged in
ing a law-enforcement officer’s was convicted in municipal court, criminal activity.

5
Volume 9, Issue 1 DRIVEN Spring 2012

MI SS I S S I P P I L E G I S L AT I V E U P D ATE
Le
demeanor resulting in a fine of not less than
gislative season has been in full swing $1,000 fine and not more than $5,000, impris-
at the Capital. This legislative session, oned for 1 year or both. A third conviction that
both the House of Representatives and the does not result in death or serious injury of a
Senate introduced numerous bills to combat child is a felony resulting in a fine of not less
driving under the influence of alcohol. Several than $10,000, not less than 1 year nor more
of the bills are discussed below. than 5 years imprisonment or both. If a person
in violation of this section results in the death or
Each house has presented a bill on DUI Child serious injury of a child without regard to wheth-
Endangerment. The House’s provision (HB 681), er the offense was a first, second, or third, it will
introduced by constitute a
Andy Gipson (R – felony result-
District 77, Rankin, ing in not less
Simpson, Smith than a $10,000
Counties), would fine, not less
amend §63-11-30 than 5 years
of the Mississippi imprisonment
Code to create nor more than
the offense of dui 25 years im-
child endanger- prisonment.
ment for transport-
ing a child under Another hot
the age of 16 while topic this ses-
under the influ- sion was igni-
ence of alcohol or tion interlocks.
other substance. House Bill 586,
Senate Bill 2590, introduced by
introduced by Speaker of the
Chris McDaniel (R – House Phillip
District 42, Jones Gunn, (R – Dis-
County), is very trict 56 – Hinds,
close to the House bill; however, it applies and Madison, Warren, Yazoo Counties), is an act to
protects children under the age of 14 and cre- amend §63-11-30, to provide that persons con-
ates a charge for persons who transport chil- victed of DUI will only be allowed to operate a
dren under this age while under the influence vehicle equipped with an ignition interlock de-
of alcohol or other substance. vice. The ignition interlock device will not allow
a motor vehicle to start when the user registers
The penalties also closely mirror each other. A an alcohol concentration of a certain amount.
first conviction that does not result in death or Regrettably, at the time of publication, this bill
serious injury of a child will constitute a misde- had died on the calendar.
meanor, a fine of not more than $1,000 fine or
imprisonment for not more than 12 months or Intoxilyzer calibration has been a requirement
both. A second conviction that does not result of Miss. Code Ann. § 63-11-19. This statute was
in death or serious injury of a child is also a mis- put in place when older models of the Intoxilyz-
6
Volume 9, Issue 1 DRIVEN Spring 2012

er machine required a person to actually per- allow electronic filing of DUI tickets and House
form the calibration. However, the most recent Bill 929, introduced by Andy Gipson (R – District
model, the Intoxilyzer 8000, self-calibrates two 77, Rankin, Simpson, Smith Counties), is the
times every time a breath test is given; thus, House version to allow the electronic submission
making the statute no longer necessary. As of citations for violation of the Mississippi Implied
such, both the house and senate have intro- Consent Law. These bills amend Miss. Code
duced bills to remove the crime lab’s responsi- Ann. §63-9-21 to allow for such submission.
bility to calibrate Intoxilyzers and other such de-
vices. Senate Bill 2257, House Bill 1156, intro-
introduced by Gray Tolli- duced by Lester Car-
son (R – District 9 – Lafa- penter (R – District 1 –
yette, Tallahatchie, Yalo- Alcorn, Tishomingo
busha Counties), is an Counties), provides a
act to amend §63-11-19, procedure regarding
to remove the crime misdemeanor appear-
lab’s responsibility to cal- ance for crime lab per-
ibrate the methods, ma- sonnel. The bill states
chines, or devices used that an accused per-
in making chemical son or the accused
analysis of a person’s person's attorney may
breath. The State Crime request, by notifying
Lab and Commissioner the prosecuting attor-
of Public Safety are au- ney, in writing, at least
thorized to approve five (5) days before the
techniques or methods, trial of a misdemeanor
to ascertain the qualifi- criminal offense, that
cation and competence the person who per-
of individuals to conduct formed the laboratory
a breath or blood anal- analysis and/or pre-
yses and will issue per- pared a blood sample
mits which shall be sub- report testify in person
ject to termination or at the trial on behalf of
revocation. House Bill the state. If notification
767, introduced by was not given, the de-
Charles Jim Beckett (R – fendant would have
District 23 – Calhoun, waived his right to ob-
Clay, Oktibbeha, Web- ject to the introduction
ster), is an act to amend of the certificate of
§63-11-19, to delete the analysis. If notification is
requirement that methods, machines or devices given to require the testimony, and if the person
used in chemical analysis be tested and certi- is convicted or pleads guilty, the accused shall
fied periodically. Regrettably, the House bill be assessed the full costs of the attendance of
died early on and the Senate bill died in com- the witness, including but not limited to the
mittee in early April. costs of transportation. This bill was drafted in
response to the recent US Supreme Court cases
Senate Bill 2802, introduced by Senator Chris of Melendez-Diaz and Bullcoming. Unfortunate-
McDaniel (R – District 42 – Jones County), would ly, this bill also died on the House calendar.
7
Volume 9, Issue 1 DRIVEN Spring 2012

Upcoming Training & Conferences

April 2012 May 2012

Sun Mon Tue Wed Thu Fri Sat Sun Mon Tue Wed Thu Fri Sat

1 2 3 4 5 6 7 1 2 3 4 5

8 9 10 11 12 13 14 6 7 8 9 10 11 12

STORM Conference

15 16 17 18 19 20 21 13 14 15 16 17 18 19
Gulfport, SFST Class

22 23 24 25 26 27 28 20 21 22 23 24 25 26
Spring Prosecutor’s
McComb, SFST Class
Conference, Biloxi MS

29 30 27 28 29 30 31
Oxford, SFST Class

__________________________________________________________________
Future Dates:
SFST = Standardized Field Sobriety Testing Week of June 25th, 2012:
STORM = Sobriety Trained Officers Representing Mississippi
MS Municipal League Conference

Jim Hood, Attorney General

Molly Miller
Special Assistant Attorney General
Traffic Safety Resource Prosecutor
550 High Street
P.O. Box 220
Jackson, Mississippi 39205
Phone 601.359.4265 · Fax 601.359.4254
mmill@ago.state.ms.us
www.ago.state.ms.us/divisions/prosecutors