                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CT-00443-SCT

MARY REED EVANS

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          02/20/2007
TRIAL JUDGE:                               HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                 MONROE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JOSEPH JOSHUA STEVENS, JR.
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                         JOHN RICHARD YOUNG
NATURE OF THE CASE:                        CRIMINAL - MISDEMEANOR
DISPOSITION:                               THE JUDGMENT OF THE COURT OF
                                           APPEALS IS AFFIRMED. THE JUDGMENT
                                           OF THE MONROE COUNTY CIRCUIT
                                           COURT IS REVERSED AND THIS CASE IS
                                           REMANDED FOR A NEW TRIAL -
                                           01/21/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    The Justice Court of Monroe County convicted Mary Reed Evans of driving under the

influence (DUI), first offense. Evans appealed to the Circuit Court of Monroe County. After

a trial de novo without a jury, the circuit court came to the same result. Evans appealed, and

the Court of Appeals, in a six-to-three decision, reversed the conviction and remanded the
matter for a new trial. The Court of Appeals found that the circuit court had erred in its

application of Porter v. State, 749 So. 2d 250 (Miss. Ct. App. 1999), and also found that Dr.

A. K. Rosenhan was qualified to give his expert opinion. The matter is now before this Court

on writ of certiorari, and we find error in part of the Court of Appeals’ analysis. We therefore

reverse the judgment of the Monroe County Circuit Court and remand this matter for a new

trial, although for different reasons than those of the Court of Appeals, which also reversed

and remanded.

                SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2.    Late in the afternoon of July 19, 2006, Evans, who lives in Prairie, Mississippi, drove

to pick up her friend, Julann Callender, who lives in Aberdeen, Mississippi.1 The two

women traveled to Tupelo to shop at Sam’s Club. Once they finished shopping, they went

to Woody’s, a restaurant and lounge in Tupelo, where they stayed from approximately 6:00

p.m. until 11:00 p.m. During this time, they had dinner, and Evans said she drank four Bud

Lights. Both women claim the only alcohol they consumed that evening was at Woody’s.

They left the restaurant and drove back to Aberdeen. At approximately midnight, Evans

dropped off Callender at her home. Callender testified that she offered Evans a beer as she

was leaving, which Evans accepted. Callender claimed that Evans did not appear to be

intoxicated.

¶3.    Evans then proceeded home to Prairie along Highway 382. A severe storm that

evening had left trees and power lines down in the area. Approximately two miles from




       1
           The facts are taken in large part from the Court of Appeals decision.

                                               2
Evans’s home, Mississippi Highway Patrolman Andrew Sisk had the eastbound lane of

Highway 382 partially blocked as emergency vehicles were cleaning the debris from the

highway. Officer Sisk was inside his patrol car with his headlights and blue lights on. He

testified he was attempting to redirect traffic to a county road. When Evans came upon this

area in the westbound lane, she proceeded slowly, but she did not stop her vehicle. Officer

Sisk, wanting her to stop, tried to get Evans’s attention by shining his spotlight on her and

in her car, but to no avail. Feeling she should have known to stop, Officer Sisk pulled Evans

over approximately one-half mile from the area. When he approached her vehicle, he noticed

the smell of alcohol emanating from Evans’s vehicle. He saw an open beer can on the

console (the one Callender had given Evans); however, Evans testified she had not consumed

any of it. Officer Sisk also saw three or four unopened cans of beer in Evans’s back seat.

When asked whether she had had any alcohol to drink that evening, Evans admitted to

Officer Sisk she had been drinking beer at Woody’s that evening.           He proceeded to

administer an alcohol test with a portable intoxilyzer device, which detected the presence of

alcohol on her breath, but he did not conduct any field sobriety tests. Evans was then

arrested and taken to the Monroe County Sheriff’s Office, where she agreed to have a blood

alcohol concentration (BAC) test on the Intoxilyzer 8000 machine.

¶4.    However, before Evans and Officer Sisk departed for the sheriff’s office, they had to

wait for a wrecker from Aberdeen to tow Evans’s car, as this was standard operating

procedure. Evans’s DUI ticket showed the time of the stop as 12:50 a.m. By the time Evans

had completed the paperwork at the sheriff’s office and the second BAC test was




                                             3
administered,2 it was 1:58 a.m. After a delay of one hour and eight minutes from the time

she was pulled over until the time of the test, Evans’s BAC was determined to be .09%, or

.01% over the legal limit of .08%, pursuant to Mississippi Code Section 63-11-30(1)(c) (Rev.

2004). Therefore, she was charged with DUI, first offense.

¶5.    The Justice Court of Monroe County convicted Evans of DUI, first offense. She

appealed the conviction to the Circuit Court of Monroe County, which held a trial de novo

without a jury, again finding Evans guilty. Prior to the trial, the State moved in limine to

exclude the testimony of the defense’s expert witness, Dr. A. K. Rosenhan, who was to

testify regarding the absorption rate of alcohol. The State argued that since this case was a

DUI-per-se violation,3 the defense was prohibited from introducing evidence of alcohol

consumption. The State continued that, in order for the expert to formulate an opinion about

Evans’s absorption rate, evidence would have to be introduced about her consumption of

alcohol, which the State claimed is prohibited by Porter v. State, 749 So. 2d 250 (Miss. Ct.

App. 1999). Therefore, the State moved to prohibit the introduction of any evidence from

either expert or lay witnesses who would testify as to the manner or timing of her

consumption of alcohol. After the defense argued Porter was inapplicable to the present

       2
        Officer Sisk testified that he administered two BAC tests to Evans on the Intoxilyzer
8000 machine: one at 1:56 a.m. registering .104% and the second one at 1:58 a.m. registering
.099%. According to Sisk, Evans’s ticket was based on the second test, since it was the
lowest reading.
       3
          A “DUI-per-se” violation means a violation that should be charged as an offense
under Section 63-11-30(1)(c), “when test results are available and are sufficient to give the
officer probable cause” to believe that the person is operating a vehicle with a BAC of .08%
or more. Leuer v. City of Flowood, 744 So. 2d 266, 268 (¶7) (Miss. 1999) (quoting Young
v. City of Brookhaven, 693 So. 2d 1355, 1363-64 (Miss. 1997) (citation omitted)). See Miss.
Code Ann. § 63-11-30(1)(c) (Rev. 2004).

                                             4
case, the circuit court judge granted the State’s oral motion in limine. However, Dr.

Rosenhan was allowed to proffer his testimony for the sole purpose of creating a record.

Evans appealed, and the Court of Appeals, in a six-three decision, reversed the conviction

and remanded the matter for a new trial based on the perceived misapplication of the Porter

case and the qualifications of Dr. Rosenhan as an expert witness. This Court granted the

State’s petition for a writ of certiorari.

                    ANALYSIS AND DISCUSSION OF THE ISSUES

¶6.    The standard of review for the admission or exclusion of evidence is an abuse of

discretion. Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 34 (¶ 4) (Miss. 2003).

Further, “the admission of expert testimony is within the sound discretion of the trial judge.

Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion was

arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id. (internal citations

omitted). Moreover, a motion in limine should be granted only if “(1) the material or

evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the

mere offer, reference, or statements made during trial concerning the material will tend to

prejudice the jury.” Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss. 1988).

Additionally, “[t]he discretion of the trial judge must be exercised within the boundaries of

the Mississippi Rules of Evidence.” Beech v. Leaf River Forest Prods., Inc., 691 So. 2d 446,

448 (Miss. 1997) (citing Johnston v. State, 567 So. 2d 237, 238 (Miss. 1990)). See Miss. R.

Evid. 103(a).

       I.       WHETHER THE COURT OF APPEALS ERRED IN THE
                APPLICATION OF THE PORTER CASE.



                                               5
¶7.    The issue here pertains to Evans’s desire to introduce testimony concerning the

precise measurement of alcohol in her bloodstream at the time she was driving and arrested.

The State argued at trial that Porter v. State, 749 So. 2d 250 (Miss. Ct. App. 1999), bars any

attempt to introduce evidence that precludes a finding that Evans was guilty under Section

63-11-30(1)(c) of the Mississippi Code, which is the DUI-per-se portion of the statute

governing blood-alcohol levels. See Miss. Code Ann. § 63-11-30(1)(c) (Rev. 2004). The

defense counters that Porter is distinguishable and inapplicable to the matter at hand. Evans

argues that the holding in Porter bars only the admission of evidence in an attempt to prove

that alcohol consumption did not impair the driver. Evans claims that she is attempting to

introduce evidence that her BAC was below the legal limit at the time she was driving, and

she is not attempting to prove that her alcohol consumption failed to impair her driving. This

Court agrees with Evans’s assertion and with the Court of Appeals opinion 4 regarding the

inapplicability of the Porter decision.

¶8.    The circuit court judge accepted the interpretation of Porter offered by the State

whereby the defense is prohibited from introducing evidence from either expert or lay

witnesses regarding alcohol consumption because this is a “DUI-per-se case,” and an

admissible Intoxilyzer test result showed Evans’s BAC to be over the legal limit. The State

explained, and the circuit court agreed, that if this evidence on alcohol consumption was

inadmissible, Dr. Rosenhan’s expert testimony then became irrelevant. This is because, in

order for the expert to formulate his opinion about Evans’s BAC at the time she was pulled


       4
        Portions of the analysis concerning issue number one are taken in whole or in part
from the Court of Appeals’ majority decision.

                                              6
over, evidence on consumption would have to be admitted to apply his retrograde-

extrapolation formula 5 to the facts of the case. The Court of Appeals reversed the circuit

court and held that Porter was inapplicable to this case because Evans was attempting to

introduce evidence to prove her blood-alcohol content was below the legal limit, rather than

attempting to prove she was not intoxicated.

¶9.    We agree with the Court of Appeals and Evans that Porter is distinguishable and not

controlling in the instant case. In Porter, after being arrested, the defendant submitted to an

Intoxilyzer analysis of his BAC at the police station. Porter, 749 So. 2d at 253. His BAC was

determined to be .164%. Id. at 253 (¶5). Porter sought to present evidence that would rebut

what he termed “the ‘presumption’ that his blood alcohol content of .164% impaired his

ability to operate his vehicle.” Id. at 254-55 (¶13). There was no issue regarding a lapse of

time between Porter’s arrest and the test. At trial, the circuit court granted the State’s motion

in limine, and the Court of Appeals found no error. Id. at 255 (¶15).

¶10.   To properly understand Porter’s holding in light of our current DUI laws, we must

analyze the history of the DUI statute. As the Porter court explained, since an amendment

to the DUI statutes in 1983, it is a “per se” violation to operate a vehicle when the

defendant’s BAC, as shown through a chemical analysis, is over the legal limit, which at that

time was .10%.6 Id. at 255 (¶14) (citing Fisher v. City of Eupora, 587 So. 2d 878, 888



       5
       Although the Court of Appeals has addressed the issue and application of retrograde
extrapolation, this Court has not yet ruled on the admissibility of such testimony.
       6
        In 2002, this standard was changed to .08%. See Miss. Code Ann. § 63-11-30 (1)(c)
(Rev. 2004).


                                               7
(Miss. 1991)). This Court explained in Fisher that since 1983, there is no longer a statutory

“presumption” that a person is intoxicated if he is over the legal limit for BAC, but instead,

it is a “per se” violation under Section 63-11-30. Id. This is the “presumption” that Porter

was attempting to rebut. Further, in 1991, Section 63-11-39(2), a statute allowing the

introduction of evidence on whether or not a person was under the influence of intoxicating

liquor which impaired a person’s ability to operate a motor vehicle, was repealed. Id. at 255

(¶15). Because of this repeal, the Court of Appeals found Porter’s argument nullified, as he

could not enter evidence that he was not impaired, because he was prosecuted for a DUI-per-

se violation, and not impairment. Id.7

¶11.   Currently, the pertinent Mississippi DUI statute provides in part that it is unlawful for

any person to drive or operate a vehicle in Mississippi if he is: (a) under the influence of

intoxicating liquor; . . . or (c) has an alcohol concentration of eight one-hundredths percent

(.08%) or more for persons at or above the legal age to purchase alcoholic beverages in

Mississippi. Miss. Code Ann. § 63-11-30(1)(a) and (c) (Rev. 2004). Section 63-11-30(1)(a)

is referred to as “common-law DUI,” and it is distinguishable from Section 63-11-30(1)(c),

which is referred to as “per-se DUI.” “Common-law DUI” is often used to prosecute

defendants when BAC test results are unavailable, or the defendant’s BAC tests are under



       7
        In his separate opinion, Justice Kitchens correctly points out that the admissibility
of evidence is to be governed by the Mississippi Rules of Evidence. See Whitehurst v. State,
540 So. 2d 1319, 1323 (Miss. 1989). Nonetheless, this Court has followed statutory
provisions regarding evidentiary matters that are not in conflict with the Mississippi Rules
of Evidence. Miss. R. Evid. 1103 (“[a]ll evidentiary rules, whether provided by statute, court
decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are
hereby repealed.”) (emphasis added).


                                               8
the legal limit, but there is sufficient evidence to prove the defendant’s ability to operate a

vehicle was impaired by the consumption of alcohol. Leuer, 744 So. 2d at 268 (¶¶6-7). This

evidence of impairment may include slurred speech, bloodshot eyes, or erratic driving.

However, in Evans’s case, we do not have any such “impairment” evidence, only her BAC

level. Thus, Evans was not prosecuted under the common-law DUI statute, but for a per-se

violation under Section 63-11-30(1)(c).

¶12.   We read Porter to stand for the proposition that in a DUI-per-se case, the defendant

cannot offer evidence regarding whether or not he was under the influence which would

impair his ability to drive a vehicle.8 However, we do not read Porter as holding that in a

DUI-per-se case, evidence regarding the consumption of alcohol cannot be introduced to

prove whether or not the defendant was at a certain BAC when she was driving a motor

vehicle. In the instant case, Evans was not offering Dr. Rosenhan’s testimony on retrograde

extrapolation to prove she was not impaired when she was pulled over. Instead, she offered

it to prove that she did not have a BAC of .08% or more when she was pulled over; thus, she

did not violate Section 63-11-30(1)(c).

¶13.   The State interprets Evans’s argument to be that, although her BAC was over the legal

limit when she was tested, she was not impaired an hour earlier when she was driving; thus,

Evans is really trying to prove, through Dr. Rosenhan’s testimony and other evidence, that

her alcohol consumption did not impair her ability to drive. We find the State misinterprets

Evans’s argument and her immediate purpose for introducing the evidence. Evans offered



       8
        However, this type of evidence properly could be offered for a violation of Section
63-11-30(1)(a).

                                              9
the evidence to prove her BAC was not above the legal limit when she was pulled over. Thus,

we agree with the analysis and decision of the Court of Appeals finding that Porter is

inapplicable in this matter, because Evans was not offering evidence to prove she was not

impaired.

       II.    WHETHER THIS COURT MAY UNDERTAKE THE ISSUE OF THE
              QUALIFICATIONS OF THE EXPERT WITNESS.

¶14.   The issue here centers around whether the trial court made a proper determination on

the qualifications of Dr. Rosenhan as an expert witness. The Court of Appeals undertook the

issue and found Dr. Rosenhan to be a qualified expert witness. However, this Court finds that

the trial judge never made a determination of the qualifications of Dr. Rosenhan as an expert

witness. He also made no finding on the reliability of his testimony. The trial judge is the

gatekeeper who assesses the value of the testimony. Tunica County v. Matthews, 926 So. 2d

209, 213 (Miss. 2006).

¶15.   The trial judge ruled that the testimony of Dr. Rosenhan was not admissible due to the

holding in the Porter case. However, as the Court of Appeals correctly found, Porter is

inapplicable to the facts of this case. In light of this, we must determine whether the trial

judge ruled on the qualifications of Dr. Rosenhan as an expert witness and the admissibility

of his testimony. In reviewing the record, it is apparent that the trial judge never made a

finding on the qualifications of Dr. Rosenhan as an expert witness. Neither did he review the

reliability of the testimony consistent with the Mississippi Rules of Evidence. The trial judge

stated that he was allowing a record to be made and that was “the only purpose for hearing”

the evidence. Since the trial judge is vested with gatekeeping responsibility, it is his duty to



                                              10
determine whether or not a witness is qualified and whether the testimony is reliable,

consistent with the standard set out in the Rules of Evidence. See Tunica County, 926 So. 2d

at 213. The decision by the Court of Appeals on the qualifications of Dr. Rosenhan as an

expert was inappropriate, because the circuit court had not made a determination on Dr.

Rosenhan’s qualifications to testify. Since the trial court is vested with the responsibility of

making an initial determination, and this was not done, we must disagree with the Court of

Appeals on this issue. Therefore, this Court finds that the Court of Appeals erred in making

a determination of the qualifications of Dr. Rosenhan, because the issue was not properly

before it.

¶16.   We affirm the judgment of the Court of Appeals, although for different reasons, and

we reverse the conviction and sentence of the circuit court. We remand this matter to the

circuit court for a new trial consistent with this opinion.

¶17. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED AND
THIS CASE IS REMANDED FOR A NEW TRIAL.

     WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, AND CHANDLER, JJ.,
CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, P.J. AND DICKINSON, J.


       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶18.   With respect to the majority, I disagree that the question that must be answered by this

Court is whether the Court of Appeals erred in its application of Porter v. State, 749 So. 2d

250 (Miss. Ct. App. 1999), a Court of Appeals opinion that this Court has never addressed.

The only question to be addressed by this Court is whether the trial court erred in not



                                              11
allowing Evans to present evidence that her blood alcohol level was below the legal limit of

0.08% at the time she was driving an automobile.

¶19.   While I agree with the majority opinion that Porter “is inapplicable to the facts of this

case,” and that Porter is not controlling of any issue in the case at hand, I am puzzled by the

majority’s utilization of Porter as the foundation of its analysis and its apparent eagerness

to embrace Porter’s reasoning. That said, I do concur with the majority’s conclusion that

Evans is entitled to present evidence in an effort to disprove the State’s contention that her

blood alcohol level was over the legal limit at the time she was driving an automobile.

¶20.   Accordingly, I concur with the majority in result only.

       GRAVES, P.J., AND DICKINSON, J., JOIN THIS OPINION.




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