Ticket timeliness.
A DUI in Mississippi is a misdemeanor driving offense. It is a harsh driving offense, with severe consequences, but DUI(1st) and (2nd) are misdemeanor driving offenses nonetheless. As such, the laws regarding traffic citations are applicable to the offense of driving under the influence as well, even though a DUI ticket is required by law to be different than a regular traffic ticket.
Section 63-9-21, paragraph (6) of the Mississippi Code Annotated states that the original traffic ticket issued to someone SHALL be delivered by the officer to the clerk of the court. In other words, the statute requires that the officer turn the ticket in to the court so that it may be processed, you can be notified of your court date, etc. In fact, you are not even charged with a crime until the officer turns in the ticket to the court. Op.Atty.Gen. No. 94-0497, Ford, Aug. 31, 1994, 1994 WL 498740.
Last year (2009), paragraph (6) was amended, and the statute now states that if you are incarcerated based on the conduct for which the ticket was issued (which is practically always the case with a DUI), the officer SHALL file the ticket with the clerk of the court no later than 5:00 p.m. on the next day, excluding weekends and holidays, after the date of the incarceration. This section of the law went into effect on May 13, 2009.
In the good old days officers might hold tickets for days, or a week, and turn them all in in a stack when they got the opportunity. They can’t do this any more. The ticket must be turned in within the prescribed time, or it is defective. And guess what? The failure of an officer to comply with this provision is a crime itself! The officer can be convicted of a misdemeanor and fined not less than $10.00 nor more than $100.00.
This amendment to the statute is still new, and courts are not applying it in a uniform manner. The argument your lawyer should be making is that a failure to comply with this provision renders the citation defective, and it should be dismissed.
{ 6 comments… read them below or add one }
Is there case law that requires dismissal of the case for failure to file the ticket? Sounds like more of a problem for the cop that he is committing a misdemeanor, which would unlikely be prosecuted.
West Virginia has something similar. In a DUI case, the officer has to notify the DMV within 48 hours of the arrest. Failure to notify is a misdemeanor, BUT there is nothing that can be used to dismiss the criminal case or DMV license revocation hearing.
Thank you for your comment. No, there is no case law on this new provision of the statute yet. As the post mentions, courts are not applying it in a uniform manner. I have seen some dismissals, but I have also seen some that have not been dismissed. Based on the new amendment to the statute, with its mandatory language, the point should be argued if it is applicable, in my opinion.
And no, I have never witnessed nor heard of an officer being prosecuted for the misdemeanor, either.
How do you go about checking the time and date of said ticket submission to clerk?
Good question. The statute quoted above (which is Mississippi’s Uniform Traffic Ticket Law) states that “The officer issuing the traffic ticket shall also give the accused a copy of the traffic ticket.” This is the one you get during your arrest, and of course it won’t have the time the officer turned it in to the court, because he hasn’t turned it in yet.
When he – I’m saying he, but it could be she as well – turns the ticket in, there is a space for the officer to sign, and the clerk’s office to acknowledge receipt, right on the original ticket. The ticket is then kept in the court’s file. Although discovery of the evidence in the state’s case in misdemeanor cases is limited in scope in Mississippi, and every court does it differently, I have never had any trouble looking at the ticket after I have served a discovery request on the court and the prosecutor.
So the short answer is to ask the court clerk to see it, and then if they direct you to the prosecutor then go through them.
I am an attorney who practices in TN and does not do criminal law. I am trying to help my niece. She subpoenaed the videotape and it is only partial. She says that she never refused the field sobriety test and the officer got mad and arrested her for asking too many questions. The videotape they produced cuts off at the point where she gives her answer to the breathalyzer question and there is no audio for the traffic stop. She said she was never given the chance to respond because they we’re frustrated by her. What can we do?
Thank you for calling my firm. What can you do? You can hire an attorney to help you with it. If you would like to schedule an appointment please call my office.