Monday, November 07, 2011

DWI Law - Proving Venue as an Element of the DUI Offense in Mississippi

In most states, a defendant has a right to a trial in the county where the offense occurred under their state's constitution (venue). Often, this right extends into an obligation for the prosecution to prove (as an element) venue for the offense beyond a reasonable doubt. Such is true in Mississippi. In Bonds v. State of Mississippi, the defendant appealed his conviction, alleging that the prosecution failed to prove venue. --- So.3d ----, 2011 WL 5027166 (Miss.App.). The defendant in Bonds relied on the Mississippi Supreme Court case Kitchens v. State, 186 Miss. 443, 191 So. 116 (1939) where the supreme court reversed a driver's conviction of driving a car while in a state of intoxication because the State failed to prove where the incident occurred and did not establish venue because “the only proof offered by the State was that the appellant was drunk when he drove his automobile up to the home of the chief prosecuting witness, and that this witness lived ‘about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road, in District No. 1 of Rankin County.”

Distinguishing the Kitchens ruling, the appeals court in the instant case held that the State affirmatively established venue by stating that all five driving citations, including DUI citation, listed a certain county as the county in which offense occurred, the trooper testified that he worked in that county and that he took defendant to jail in that county, and the consent form for the breath test machine listed the county where the violation allegedly occurred as that certain county.

Editors Note: I am particular troubled by the fact that the charging documents were used as evidence to prove venue, when the opinion does not explain how that became admissible as evidence against the defendant. Nevertheless, remember to hold the State to their proof when the issue of venue is necessary.

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