                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2014-KM-01801-SCT

GRAHAM WARWICK a/k/a GRAHAM ROBINSON
WARWICK a/k/a GRAHAM R. WARWICK

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          11/25/2014
TRIAL JUDGE:                               HON. JOHN HUEY EMFINGER
TRIAL COURT ATTORNEYS:                     KEVIN DALE CAMP
                                           JARED KEITH TOMLINSON
                                           JOHN G. (TRAE) SIMS, III
COURT FROM WHICH APPEALED                  MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   KEVIN D. CAMP
                                           JARED K. TOMLINSON
ATTORNEY FOR APPELLEE:                     JOHN G. SIMS, III
DISTRICT ATTORNEY:                         MADISON CITY PROSECUTOR
                                           JOHN G. SIMS, III
NATURE OF THE CASE:                        CRIMINAL - MISDEMEANOR
DISPOSITION:                               AFFIRMED - 12/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Graham Warwick appeals his conviction for driving under the influence of marijuana,

arguing that his conviction is against the weight and sufficiency of the evidence. Finding no

error, we affirm.
                          FACTS & PROCEDURAL HISTORY

¶2.    On July 16, 2012, at around 6:20 p.m., Officer Tyler Burnell of the Madison Police

Department had just completed a traffic stop at the intersection of Highway 463 and Stribling

Road and was preparing to drive back to the City of Madison when he observed a four-door

car with dark-tinted windows driving by. Officer Burnell pulled out behind the vehicle and

continued to observe it. At one point, the vehicle weaved over the double yellow line in the

center of the road. The vehicle continued to drive eastbound on Highway 463 toward the

City of Madison, with Officer Burnell following behind. As the vehicle approached the

entrance to the Annandale neighborhood, it weaved again within its lane of traffic. After a

short time, Officer Burnell noticed that the driver had rolled the vehicle’s front windows

down after he had begun following it. When the vehicle made a right turn onto Ingleside

Drive, within the Madison city limits, Officer Burnell was able to conclude that the vehicle’s

side windows were illegally tinted. At that point, Officer Burnell initiated a traffic stop of

the vehicle.

¶3.    Officer Burnell approached the vehicle and identified the driver by his license as

Graham Warwick. Officer Burnell issued Warwick a citation for his illegally tinted windows

and then asked him to step out of the vehicle so he could show him how to correct the

violation. While discussing the window tint with Warwick, Officer Burnell noticed that

Warwick’s eyes were bloodshot. Officer Burnell asked Warwick if he was taking any

medications, and Warwick responded that he currently was taking medication for attention

deficit disorder and anxiety. He stated that he carried both medications in his vehicle. Officer



                                               2
Burnell searched the vehicle after receiving Warwick’s consent and located those

medications.

¶4.    Officer Burnell asked Warwick if he would be willing to undergo a field sobriety test,

and Warwick consented. On the date in question, Officer Burnell was certified in

Standardized Field Sobriety Testing and Instruction, Advanced Roadside Impaired Driving

Enforcement, and Intoxilyzer 8000 Operation, and was in the process of completing his field

evaluations for Drug Recognition Expert (DRE) certification. Before performing any of the

tests, Warwick affirmed that he had no physical impairments that would hinder his ability to

complete the tests. First, Officer Burnell conducted the Romberg Balance Test, which judges

the subject’s ability to estimate the passage of time. Warwick was three seconds slow in

estimating the passage of thirty seconds, and he exhibited eyelid tremors while performing

the test. Next, Officer Burnell conducted the horizontal-gaze nystagmus test. Warwick

presented no indicators of intoxication during this test. Officer Burnell also conducted the

lack-of-convergence test. Warwick’s eyes failed to converge during this test, and Officer

Burnell noted that lack of convergence is associated with impairment by depressants,

inhalants, dissociative anesthetics, or cannabis. Finally, Officer Burnell conducted the walk-

and-turn test. During this test, Warwick failed to walk heel-to-toe at one point and stepped

off the line once. Based on the results of these tests, Officer Burnell concluded that Warwick

had been driving under the influence and placed him under arrest.




                                              3
¶5.    Officer Burnell transported Warwick to the Madison Police Department, where he

underwent a DRE evaluation.1 Before undergoing the evaluation, Warwick waived his

Miranda rights. During the evaluation, Officer Burnell was supervised by Lieutenant Mark

Sandridge, a DRE instructor. Warwick initially performed a preliminary breath test, which

was negative for alcohol. Officer Burnell then asked Warwick what he had eaten and drunk

earlier that day. Warwick responded that he had consumed two energy drinks. Officer

Burnell checked Warwick’s pulse and pupil size, noting that Warwick’s pulse was slightly

elevated and that his pupil size was normal. Warwick then underwent another series of field

sobriety tests. Warwick’s eyes failed to converge again, and his perception of time was

slightly slow during the Romberg Balance Test. He performed the finger-to-nose test

incorrectly three out of six times, and he missed a heel-to-toe step twice during the walk-and-

turn test. Officer Burnell then checked Warwick’s pupil size a second time with a “dark

room” test. Warwick’s pupils tested within the normal range under normal light and in the

dark, but they “rebounded” after constricting under direct light. Officer Burnell noted that

this “rebound dilation” is an indicator of marijuana use. Officer Burnell checked Warwick’s

oral and nasal cavities, as well as his pulse and muscle tone. Warwick’s nasal cavities were

clear, but his taste buds were raised on the back of his tongue, which, according to Officer

Burnell, is another indicator of marijuana use. Warwick’s muscle tone was normal, and his

pulse remained slightly elevated.



       1
         A DRE evaluation is a standardized method of DUI examination that uses twelve
distinct criteria to determine whether the subject is impaired, whether the impairment was
caused by drugs, and what category or combination of drugs caused the impairment.

                                              4
¶6.    Based on the results of the DRE evaluation, Officer Burrell reached the conclusion

that Warwick was under the influence of marijuana. Warwick refused to submit a urine

sample for testing, so Officer Burrell obtained a search warrant and transported Warwick to

Crossgates River Oaks Hospital for blood testing. At the hospital, a registered nurse drew

two vials of blood from Warwick using the DUI evidence kit provided by the police. Blood

tests conducted by the Mississippi Crime Laboratory concluded that Warwick’s blood

contained the active metabolite of marijuana in the amount of 2.3 nanograms per milliliter.

Warwick’s blood also tested positive for a normal amount of caffeine.

¶7.    Warwick was charged with driving under the influence, first offense, in violation of

Section 63-11-30(1)(d) of the Mississippi Code. In addition, Warwick was charged with

having illegally tinted or darkened windows, second offense. He was found guilty of these

charges on March 7, 2013, in Madison Municipal Court. Warwick timely appealed his case

to the Madison County Court, where he received a bench trial.

¶8.    At trial, Officer Burnell and Lieutenant Sandridge testified concerning their

observations of Warwick on the night of his arrest. They both offered the opinion that

Warwick had been driving under the influence of marijuana. Emily Harper, the forensic

toxicologist who conducted Warwick’s blood testing, testified as an expert witness for the

State. Harper testified that the euphoric feeling caused by marijuana usually lasts about two

hours for a typical user, while the pharmacological effects – impairment to reaction time,

memory, hand-eye coordination, and muscular control – usually last between five and six




                                             5
hours. Harper opined that Warwick’s blood-test results generally would be indicative of

marijuana use three to five hours prior to the sample being taken.

¶9.    Warwick did not testify in his own defense. The defense called Tony Corrotto as an

expert witness in the areas of field sobriety testing and DRE protocols.2 Corroto is a retired

police officer who currently works as an expert witness and legal consultant in the areas of

drug recognition and sobriety testing. Corroto reviewed the footage from Officer Burnell’s

dashboard camera which documented his traffic stop of Warwick. He opined that Warwick

did not present any indicators of impaired driving when he was pulled over or during his

initial contact with Officer Burnell. Corroto attributed Warwick’s eyelid tremors to the

energy drinks he had consumed earlier in the day, and he claimed that Warwick had exhibited

eyelid tremors after drinking coffee on the morning of trial. Corroto then performed a lack-

of-convergence test on Warwick in the courtroom, and Warwick’s eyes failed to converge.

Corroto also testified that the walk-and-turn test could not be used to test for marijuana

impairment. Finally, Corroto explained that he believed that Warwick did not have dilated

pupils during his DRE evaluation. Based on these factors, Corroto opined that Officer

Burnell should have ended his DUI evaluation of Warwick during the traffic stop because

he exhibited no signs of impairment.

¶10.   At the conclusion of the trial, the court found Warwick guilty of driving under the

influence of marijuana and driving a vehicle with illegally tinted or darkened windows. For

the DUI charge, Warwick was sentenced to forty-eight hours’ imprisonment, with the entirety

       2
        The trial court declined to accept Corroto as an expert on the effects of alcohol and
drugs on the human body.

                                              6
of that period suspended on the condition that he successfully complete two years of

probation. He also was ordered to pay a $900 fine, along with court costs, fees and

assesssments, and was required to attend the Mississippi Alcohol Safety Education Program.

For the window-tinting charge, Warwick was ordered to pay a fine of $200, as well as costs,

fees, and assessments.

¶11.   On appeal, the Madison County Circuit Court affirmed Warwick’s convictions and

sentences in all respects. Warwick now appeals to this Court, arguing that his DUI

conviction3 is against the weight and sufficiency of the evidence.

                                STANDARD OF REVIEW

¶12.   This Court reviews challenges to the legal sufficiency of evidence in the light most

favorable to the verdict. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). This Court “ must

accept as true all of the evidence that is favorable to the State, including all reasonable

inferences that may be drawn therefrom, and must disregard evidence favorable to the

defendant.” Anderson v. State, 904 So. 2d 973, 977 (Miss. 2004). If any reasonable trier of

fact could have found the essential elements of the crime beyond a reasonable doubt, this

Court will not disturb the verdict. Bush, 895 So. 2d at 843.

¶13.   In reviewing a challenge to the weight of the evidence, this Court will overturn a

verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow

it to stand would sanction an unconscionable injustice.” Id. at 844. As with a review of the

sufficiency of the evidence, this Court must view the evidence in the light most favorable to



       3
           Warwick does not appeal his window-tinting conviction.

                                             7
the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper

remedy is to grant a new trial, but this remedy should be used only in exceptional cases where

the evidence “preponderates heavily against the verdict.” Id.

                                       DISCUSSION

¶14.   Warwick was convicted of violating Section 63-11-30(1)(d) of the Mississippi Code,

which provides, “It is unlawful for any person to drive or otherwise operate a vehicle within

this state who . . . is under the influence of any drug or controlled substance, the possession

of which is unlawful under the Mississippi Controlled Substances Law[.]” Miss. Code Ann.

§ 63-11-30(1)(d) (Rev. 2013). The phrase “under the influence” commonly is understood to

mean “driving in a state of intoxication that lessens a person’s normal ability for clarity and

control.” Leuer v. City of Flowood, 744 So. 2d 266, 269 (Miss. 1999) (citing Gov’t of

Virgin Islands v. Steven, 134 F.3d 526, 528 (3d Cir. 1998)). Warwick’s primary argument

on appeal is that the mere presence of marijuana in his bloodstream, where there are no

physical manifestations of influence, is insufficient evidence to support a conviction for

driving under the influence. Thus, he argues that the trial court erred in denying his motion

for a direct verdict. Alternatively, Warwick claims that his conviction is against the

overwhelming weight of the evidence.

¶15.   We find that the State presented sufficient evidence to prove that Warwick was

driving under the influence of marijuana. While Warwick alleges that the State offered no

evidence of “physical manifestations of influence,” this argument is without merit. Officer

Burnell observed Warwick’s vehicle weave twice before pulling him over. Warwick’s eyes



                                              8
were bloodshot when he exited his vehicle, he failed the lack-of-convergence test, he

exhibited eyelid tremors during the Romberg test, and he did not successfully complete the

walk-and-turn test or finger-to-nose test. The Court of Appeals has found similar evidence

sufficient to support a finding that the defendant was driving under the influence of

marijuana. See Weil v. State, 936 So. 2d 400, 402 (Miss. Ct. App. 2006) (defendant

exhibited bloodshot eyes, dilated pupils, slurred speech, and poor balance); Beal v. State, 958

So. 2d 254, 255 (Miss. Ct. App. 2007) (defendant was driving roughly thirty miles per hour

over the speed limit and exhibited bloodshot eyes). Further, Officer Burnell, who was trained

in various field sobriety testing techniques, and Lieutenant Sandridge, a certified DRE

instructor, offered the opinion that he had been driving under the influence of marijuana.

Lieutenant Sandridge testified that Warwick exhibited twelve indicators that he was under

the influence of marijuana while undergoing the DRE evaluation. Finally, Harper testified

that Warwick’s blood tested positive for the acitive metabolite of marijuana, meaning that

the drug would have had an impairing effect on Warwick when he was pulled over. This

evidence, viewed in the light most favorable to the State, is sufficient for “any reasonable

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt[.]” Bush, 895 So. 2d at 843.

¶16.   We also find that Warwick’s conviction was not against the weight of the evidence.

Warwick argues that the State’s evidence was substantially contradicted by Corroto’s opinion

that his bloodshot eyes, eyelid tremors, and lack of convergence could have been caused by

his prescription medication or the energy drinks he had consumed, rather than marijuana. He



                                              9
argues that this opinion was more credible than those offered by the State, because the State

failed to present any evidence that he recently had possessed or consumed marijuana. These

arguments are without merit, as the fact-finder – in this case, the trial court – is the sole judge

of witness credibility. Harris v. State, 970 So. 2d 151, 157 (Miss. 2007). Where the trial

court resolves conflicting evidence in making a finding of fact, this Court generally must

affirm. Stokes v. State, 548 So. 2d 118, 122 (Miss. 1989). Officer Burnell and Lieutenant

Sandridge presented detailed testimony supporting their opinions that Warwick had been

driving under the influence of marijuana, and these opinions ultimately were corroborated

by Warwick’s blood tests. We find that allowing Warwick’s conviction to stand would not

“sanction an inconscionable injustice.” Bush, 895 So. 2d at 843.

                                        CONCLUSION

¶17.   For the foregoing reasons, we affirm Warwick’s convictions and sentences.

¶18. CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE,
IN CAUSE NUMBER CO-2013-0006, AND CONVICTION OF TINTED WINDOWS,
SECOND OFFENSE, IN CAUSE NUMBER CO-2013-0007 AND SENTENCE OF
FORTY-EIGHT (48) HOURS IN THE CUSTODY OF THE SHERIFF OF MADISON
COUNTY, WITH SENTENCE STAYED AND SUSPENDED FOR A PERIOD OF
TWO (2) YEARS UNLESS SOONER INVOKED, WITH CONDITIONS, AFFIRMED.
APPELLANT SHALL PAY A FINE IN THE AMOUNT OF $900 AND A FINE IN
THE AMOUNT OF $200 TO BE PAID ON OR BEFORE OCTOBER 24, 2013.
APPELLANT SHALL PAY COURT COSTS, FEES AND ASSESSMENTS ON OR
BEFORE OCTOBER 24, 2013. ALL PAYMENT OF FINES, COURT COSTS, FEES
AND ASSESSMENTS ARE TO BE MADE A SPECIAL CONDITION OF
PROBATION.

    DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIERCE, KING AND
COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.




                                                10
       KITCHENS, JUSTICE, DISSENTING:

¶19.   Because the evidence at trial was insufficient to prove that Graham Warwick was

“under the influence” of marihuana, I respectfully dissent.

¶20.   In cases in which this Court considers the sufficiency of the evidence, “the critical

inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed

the act charged, and that he did so under such circumstances that every element of the offense

existed; and where the evidence fails to meet this test it is insufficient to support a

conviction.’” Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Carr v. State, 208

So. 2d 886, 889 (Miss. 1968)). We must consider whether, “‘after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Bush, 895 So. 2d at 843

(quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).

       Should the facts and inferences considered in a challenge to the sufficiency of
       the evidence “point in favor of the defendant on any element of the offense
       with sufficient force that reasonable men could not have found beyond a
       reasonable doubt that the defendant was guilty,” the proper remedy is for the
       appellate court to reverse and render.

Bush, 895 So. 2d at 843 (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).

¶21.   Warwick was charged under Mississippi Code Section 63-11-30(1)(d) with having

driven “or otherwise operate[d] a motor vehicle within this state” while “under the influence

of any drug or controlled substance, the possession of which is unlawful under the

Mississippi Controlled Substances Act . . . .” Miss. Code Ann. § 63-11-30(1)(d) (2004).4 The

       4
      Under the 2015 revisions to this statutory section, the legislature altered the
placement of “under the influence of any drug or controlled substance” to subsection (c) of

                                             11
State bore the burden of proving, beyond a reasonable doubt, the following elements: (1) that

Warwick drove or otherwise operated a motor vehicle, (2) within the State of Mississippi,5

(3) while “under the influence of any drug or controlled substance, the possession of which

is unlawful under the Mississippi Controlled Substances Act . . . .” Id.

¶22.   Here, it is undisputed that Warwick was driving a vehicle and that he was driving

within Madison County, Mississippi. The State further adduced proof that Warwick’s blood

tested positive for marihuana, a controlled substance the possession of which is prohibited

under the Mississippi Controlled Substances Act. See Miss. Code Ann. § 41-29-

113(c)(23)(A) (Supp. 2015); Miss. Code Ann. § 41-29-139(c) (Supp. 2015). But, as Warwick

argues on appeal, the mere presence of marihuana in his body, without more, is insufficient

to prove that he was “under the influence” of marihuana.

¶23.   This Court has considered the meaning of “under the influence” in the context of

Mississippi Code Section 63-11-30(1)(a), which proscribes “driv[ing] or otherwise

operat[ing] a vehicle . . . under the influence of intoxicating liquor.” Leuer v. City of

Flowood, 744 So. 2d 266, 268 (Miss. 1999). We found that “‘under the influence’ is


Section 63-11-30(1). I have therefore cited the version of Section 63-11-30(1) in effect at
the time of Warwick’s trial.
       5
          Mississippi Code Section 63-11-5(1) (Rev. 2013), the Mississippi Implied Consent
Law, provides that “[a]ny 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” to breath
tests for alcohol concentration and to “chemical . . . 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.” Miss. Code Ann. § 63-11-5(1) (Rev. 2013).
Though not raised as an issue in this appeal, the State must prove that the person operating
the motor vehicle within the State of Mississippi was doing so “upon the public highways,
public roads and streets” thereof.

                                               12
commonly understood to mean driving in a state of intoxication that lessens a person’s

normal ability for clarity and control.” Leuer, 744 So. 2d at 269 (citing Gov’t of Virgin

Islands v. Stevens, 134 F.3d 526, 528 (3d Cir. 1998)). Moreover, “‘[t]his common

understanding is consistent with the obvious purpose of drunk driving statutes; i.e., to prevent

people from driving unsafely due to an alcohol-induced diminished capacity.’” Leuer, 744

So. 2d at 269 (quoting Stevens, 134 F.3d at 528)).

¶24.   In the present case, the State bore the burden of proving, beyond a reasonable doubt,

that Warwick was driving “under the influence” of marihuana. This required that the State

not only adduce proof that Warwick had consumed the drug, but also that he was “driving

in a state of intoxication” such that his “normal ability for clarity and control” was lessened.

Leuer, 744 So. 2d at 269 (quoting Stevens, 134 F.3d at 528)).

¶25.   The State called Officer Tyler Burnell of the Madison Police Department as its first

witness. While Officer Burnell did indicate that he saw Warwick’s vehicle “weave” once

“over the double yellow center line” and once more “within its lane of travel,” he testified

that, when the vehicle made a left turn, he observed that the side windows were tinted, in

violation of Mississippi Code Section 63-7-59(2) (Rev. 2004), which prohibits persons from

driving vehicles, any window of which is “so tinted or darkened, by tinted film or otherwise,

that the interior of the vehicle is so obscured that a viewer with vision sufficient to qualify

for a Mississippi driver’s license cannot readily see into the interior of the vehicle by looking

into it from outside the vehicle.” The majority finds that “Officer Burnell observed

Warwick’s vehicle weave twice before pulling him over.” (Maj. Op. ¶ 15). The alleged



                                               13
“weaving” is not relevant to our analysis. According to Officer Burnell’s testimony, it was

not that Warwick’s vehicle was weaving which gave rise to the stop, but that the windows

on Warwick’s vehicle were tinted in violation of Section 63-7-59(2).

¶26.   The majority further finds sufficient evidence to support Warwick’s conviction

because his “eyes were bloodshot when he exited his vehicle, he failed the lack-of-

convergence test, he exhibited eyelid tremors during the Romberg test, and he did not

successfully complete the walk-and-turn test or finger-to-nose test.” (Maj. Op. ¶ 15). Officer

Burnell first testified regarding the several tests which led to Warwick’s arrest. Without

explaining its significance, Burnell testified that he conducted the “Romberg balance” test.

Burnell stated that Warwick “exhibited eyelid tremors” and “estimated 30 seconds in 33

seconds,” again without explaining the significance of those observations. Officer Burnell

then performed a horizontal gaze nystagmus (HGN) test and “observed no indicators.”

Burnell then checked “for lack of convergence,” through which he observed that Warwick’s

“left eye came in and then fish hooked down and out, meaning that it came in and looped in

and out back toward the outside of his eye.” Burnell testified that such an observation “is

associated with . . . cannabis.” Burnell then administered a walk-and-turn test: “I just had

[Warwick] imagine a straight line.” According to Burnell, Warwick “missed heel-to-toe” and

“after he performed a correct turn, he stepped off the line and began a second series of nine

steps without further incident.” Concluding that Warwick was under the influence, Officer

Burnell placed him under arrest.




                                             14
¶27.   Warwick then was taken, in custody, to the Madison Police Department. Officer

Burnell, a “drug recognition expert” (DRE) in training who had yet to achieve his

certification, was under the supervision of Lieutenant Mark Sandridge, a DRE instructor.

Officer Burnell and Lieutenant Sandridge6 conducted further sobriety tests at the police

department. Officer Burnell testified that Warwick’s pulse was taken for the first time and

registered at 110 beats per minute. The normal range, according to Officer Burnell, “would

have been 60 to 90, meaning it was above.” Officer Burnell continued:

       For the lack of convergence, we found it present, but the divided attention tests
       we observed for the Romberg balance, we observed eyelid tremors and then
       left leg tremors for the walk-and-turn. He missed heel-to-toe on step two for
       the first series and then he completed his turn as corrected—as instructed and
       demonstrated and then missed heel-to-toe on step two for the second series of
       nine.

       For the one-leg stand, he completed the test as instructed. There was a slow
       internal clock. He counted to 21 in 30 seconds and then 23 in 30 seconds. They
       basically have to stand on the right—stand on the left, raise the right the first
       time, and then we do the opposite side; they stand on the right and raise the
       left, so you basically would do that test twice.




       6
         It is noteworthy that neither Officer Burnell nor Lieutenant Sandridge was tendered
or accepted as an expert in the field of drug recognition. Officer Burnell testified that he was
a “drug recognition expert in training.” Lieutenant Sandridge purported to have been
certified as a drug recognition expert. In county court, defense counsel made objections to
specific parts of Officer Burnell’s testimony because Officer Burnell had not been qualified
as a medical expert. In the post-trial motion for judgment notwithstanding the verdict
(JNOV), defense counsel argued that Officer Burnell and Lieutenant Sandridge “were not
accepted as expert witnesses, but they still testified to the effects that they believe this
cannabis was having on our client.” On appeal, defense counsel makes no argument
concerning the testimony of Burnell and Sandridge regarding the purported physical
manifestations of marihuana use. Such testimony is solely within the province of a qualified
expert who has been accepted as such by the trial court.

                                              15
The next test was a “modified finger-to-nose” test, which Warwick completed “three out of

six times correctly.” The next test, a “vital signs” test, indicated that Warwick’s pulse was

110 beats per minute, that his blood pressure was 135 over 90, and that his temperature was

98.4. The second pulse reading, according to Burnell, was “above the normal range of what

we would consider average.”

¶28.   Officer Burnell and Lieutenant Sandridge then conducted a “dark room” examination

in which they checked pupil size in normal room light, in near total darkness, and in direct

light. According to Officer Burnell:

       [S]omebody may have a normal pupil size in room light, and then, like Mr.
       Warwick’s case, he had a normal room light and a normal dark size, and then
       for direct light, you—the pupil will constrict down. And then . . . as is common
       with cannabis, it rebounds out or pulsates back out to a larger degree meaning
       that it constricted down to 3.5 millimeters and then pulsated out to 5
       millimeters.

Burnell testified that such phenomena indicated “cannabis use.” (Emphasis added.) Next,

Warwick’s oral and nasal cavities were checked, because an “inflamed and runny nose,”

along with the absence of hair in the nasal cavity, indicates cocaine use, according to Officer

Burnell. Warwick’s nasal cavity was clear. His oral cavity revealed “raised taste buds on the

back of [Warwick’s] tongue,” which “is associated with cannabis use . . . .” (Emphasis

added.) According to Officer Burnell, “Warwick’s muscle tone was normal.” A third pulse

check indicated that Warwick’s pulse was 112 beats per minute.

¶29.   The State next called Lieutenant Mark Sandridge, the “drug recognition expert”

(DRE) instructor who had supervised Officer Burnell’s examination of Warwick. He testified

that he “just kind of took a backseat and observed to make sure that the integrity of the

                                              16
evaluation and the program was upheld.” He testified that “12 indicators out of 19 in the

category of cannabis” were apparent from the evaluation of Warwick. He testified that “some

indicators seen during the Romberg . . . . are indicators that we can see sometimes with

cannabis use.” (Emphasis added.)

¶30.   Mississippi Crime Laboratory forensic toxicologist Emily Harper was tendered as an

expert in forensic toxicology by the State and was accepted by the trial court. She confirmed

that 2.3 nanograms per milliliter of tetrahydrocannabinol were present in Warwick’s blood

and “a different metabolite of the marijuana . . . was confirmed at 21 nanograms” per

milliliter. Harper could not testify regarding “specifically what this level would have on a

specific individual.”

¶31.   The State amply proved that Warwick had a precise amount of marihuana in his blood.

But the evidence adduced by the State at trial is woefully insufficient to prove, beyond a

reasonable doubt, that Warwick had been driving “under the influence” of marihuana. This

Court’s jurisprudence requires the State to adduce evidence that Warwick had been “driving

in a state of intoxication that lessen[ed] [his] . . . normal ability for clarity and control.”

Leuer, 744 So. 2d at 269 (quoting Stevens, 134 F.3d at 528)). Officer Burnell’s opinion

testimony that the “totality of the circumstances” supported his conclusion that Warwick

“was under the influence of cannabis” does not suffice. While some of the tests conducted

by both Officer Burnell and Lieutenant Sandridge may have suggested that Warwick had

used marihuana, proof of cannabis use alone is insufficient to prove that the usage had

produced impairment.



                                              17
¶32.   Because the State failed to adduce evidence proving each and every element of the

crime of driving under the influence of marihuana, this Court should reverse and render. I

therefore respectfully dissent.




                                           18
