Fox, 013080 MSAGO, 19800130

• Case Date: January 30, 1980
• Court: South Carolina

Honorable George N. Fox No. 19800130 Mississippi Attorney General Opinions January 30, 1980          Honorable George N. Fox          Justice Court Judge          P. O. Box 217          Crenshaw, Mississippi 38621          Dear Judge Fox:          Attorney General Bill Allain has received your letter of request dated January 11, 1980, and has assigned it to me for research and reply.          Succinctly stated, you seek “a formal opinion on the question of whether or not a constable can legally write a ticket charging” driving a motor vehicle under the influence of intoxicating liquor or driving while intoxicated.           Mississippi Code Annotated, section 63-11-5 (1972), provides, among other things, that:

Any 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, subject to the provisions of this chapter to a chemical test or tests of his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways, public roads and streets of this state while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of any highway patrolman, sheriff or his duly commissioned deputies or any police officer in any incorporated municipality when such officer is the arresting officer and has reasonable grounds and probable cause to believe that the person was driving or having under his actual physical control a motor vehicle upon the public streets or highways of this state while under the influence of intoxicating liquor . No such tests shall be given by any officer or any agency to any person within fifteen minutes after the actual arrest. [Emphasis added]

         This statute lists those officers who can direct that chemical breath tests be administered. It also enumerates the circumstances under which those officers can direct that a test be given. Constables are conspicuously absent from the list in section 63-11-5 . Moreover, because under the statute the officer directing the test must be “the arresting officer and [have] reasonable grounds and probable cause to believe” that the test is warranted, a constable cannot have a breath test run on those he arrests for DUI.          On the other hand, Mississippi Code Annotated, section 67-1-91(3) (1972), appears...