MS 2023-06-M-Wilson-June-26-2020-DUI-Offenses June 26, 2020

In Mississippi DUI cases, does law enforcement have to certify a defendant's prior record before the judge can take a guilty plea on a first offense?

Short answer: Section 63-11-30(8)(b) requires law enforcement to submit certification (driving record, confidential registry, NCIC search) before a defendant pleads guilty to a second or subsequent DUI offense. There is no certification requirement for a first DUI. Which box on the Uniform Traffic Ticket to mark is a fact question the AG cannot answer by official opinion. For non-adjudication of a 'true' first DUI, separate registry checks are needed.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Subject

Law Enforcement Certification Requirements in DUI Cases

Recipient

The Honorable Mike Wilson, Panola County Justice Court Judge

Plain-English summary

A Panola County justice court judge asked the AG two questions about the certification requirement in Section 63-11-30(8)(b) of the Mississippi Code, which controls how DUI guilty pleas are processed. The first question: does the law enforcement certification requirement apply to first-time DUI offenses, or only to second and subsequent ones? The AG concluded the certification is only required for second or subsequent DUI offenses. Section 63-11-30 does not require law enforcement to submit a certification for a true first-time DUI. The certification's purpose is to give the judge full information about previous convictions, non-adjudications, and pretrial diversions before accepting a plea on a higher-tier offense.

The second question asked whether boxes (a), (b), and (c) on the Uniform Traffic Ticket should be marked together or one at a time. The AG said it could not answer because that determination depends on the facts of each traffic stop, and Section 7-5-25 limits the AG to questions of law. The opinion ended with a list of relevant case law for the judge's reference.

The opinion also noted, in a footnote, that for non-adjudication of a "true" first DUI offense, Sections 63-11-30(2)(a)(iii) and 63-11-30(14) require checking the Department of Public Safety's confidential registry, the driver's license history, and the NCIC record to confirm the defendant qualifies (no prior or pending DUI charges).

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework as it stood in 2020

Section 63-11-30 was Mississippi's primary DUI statute. Subsection (8)(a) controlled how subsequent DUI offenses were charged: the affidavit or indictment did not need to enumerate previous convictions, only state the number within the relevant lookback period. Subsection (8)(b) imposed a procedural requirement on law enforcement to submit, before a defendant entered a guilty plea, a certification that the defendant's driving record, the confidential registry, and the National Crime Information Center had been searched for prior convictions, non-adjudications, pretrial diversions, and arrests for DUI or driving under impairment from any other substance. The certification had to include the search results.

The AG read this requirement strictly. The text "before a defendant enters a plea of guilty to an offense under this section" plus the substantive purpose of identifying repeat offenders pointed to its application only when the question of "is this a second or subsequent offense" was on the table. For a defendant pleading guilty to a true first DUI, the certification's content (the prior-record search) is irrelevant; there are no priors to verify.

The non-adjudication path ran through Subsection (2)(a)(iii) and Subsection (14) and required confirming the defendant truly had no prior or pending DUI charges, which in turn meant checking the confidential registry, license history, and NCIC.

The AG declined the second question (which boxes on the ticket form to mark) on Section 7-5-25 grounds. That section restricts the AG to legal questions and prohibits factual determinations. The AG did supply a non-exhaustive case-law list for the judge's reference, including Ross (2019), Pryor (2018), Koch (2017), Campbell (2015), Kramm (2007), Wright v. City of Water Valley (2002), Lewis (2002), and Young v. City of Brookhaven (1997).

Common questions

What was the certification under Section 63-11-30(8)(b) for?
The certification was a written record from law enforcement confirming that the defendant's driving record, the Department of Public Safety's confidential registry, and the NCIC had all been searched for prior DUI-related entries, with the results included.

Did first-time DUI defendants face any registry checks?
The opinion's footnote noted that, for a defendant seeking non-adjudication of a "true" first DUI offense, Sections 63-11-30(2)(a)(iii) and 63-11-30(14) required the confidential registry plus driver's license history and NCIC to be checked, even though those checks were not framed as a Section 63-11-30(8)(b) certification.

Why did the AG cite Section 7-5-25?
That section limits the AG's official opinion authority to questions of law, not facts. The AG used it to decline the question about which traffic-ticket box to mark.

What was the practical effect for Mississippi judges in 2020?
A judge taking a guilty plea on a true first-offense DUI did not need to wait for a Section 63-11-30(8)(b) certification before accepting the plea. A judge taking a plea on a second or subsequent DUI was barred from accepting the plea until the certification was filed.

Could a defendant force the certification check on a first offense as a defense tactic?
The opinion did not address that question. The certification existed for the judge's information, and the AG read its applicability narrowly to second-and-subsequent offenses.

Citations

Miss. Code Ann. § 7-5-25 (AG official opinion authority limited to questions of law)
Miss. Code Ann. § 63-11-30 (Mississippi DUI statute)
Miss. Code Ann. § 63-11-30(8) (charging of subsequent DUI offenses)
Miss. Code Ann. § 63-11-30(8)(b) (law enforcement certification requirement before guilty plea on subsequent offense)
Miss. Code Ann. § 63-11-30(2)(a)(iii) (non-adjudication eligibility check)
Miss. Code Ann. § 63-11-30(14) (non-adjudication procedure and registry checks)
Ross v. State, 275 So. 3d 1090 (Miss. 2019)
Pryor v. State, 265 So. 3d 1233 (Miss. Ct. App. 2018)
Koch v. State, 222 So. 3d 1088 (Miss. Ct. App. 2017)
Campbell v. State, 164 So. 3d 519 (Miss. Ct. App. 2015)
Kramm v. State, 949 So. 2d 18 (Miss. 2007)
Wright v. City of Water Valley, 832 So. 2d 1241 (Miss. 2002)
Lewis v. State, 831 So. 2d 553 (Miss. 2002)
Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997)

Source

Original opinion text

June 26, 2020

The Honorable Mike Wilson
Panola County Justice Court Judge
111 East Hospital Street
Sardis, Mississippi 38666
Re:

DUI Offenses

Dear Judge Wilson:
The Office of the Attorney General is in receipt of your request for the issuance of an official
opinion.
Question Presented
Does Miss. Code Ann. Section 63-11-30(8)(b) require certification by law enforcement for first
DUI offenses in addition to second and subsequent DUI offenses?
Must boxes (a), (b), and (c) on the Uniform Traffic Ticket for Driving Under the Influence be
marked by law enforcement collectively or singularly alleging the offense of impairment?
Brief Response
There is no requirement in Section 63-11-30 that a law enforcement officer submit a certification
on a first time DUI. Section 63-11-30(8)(b) requires a law enforcement officer to submit a
certification on second or subsequent DUI offenses prior to the judge accepting a guilty plea.
Pursuant to Miss. Code Ann. Section 7-5-25, this office may not make any factual determinations
in the issuance of an official opinion. Which box is appropriate to mark is a factual determination,
driven by the specific circumstances surrounding the issuance of the Uniform Traffic Ticket. We
cannot, therefore, issue an official opinion in answer to your second question.

Applicable Law and Discussion
Miss. Code Ann. Section 63-11-30(8) states as follows:
(8) Charging of subsequent offenses. (a) For the purposes of determining how to
impose the sentence for a second, third, fourth or subsequent conviction under this
section, the affidavit or indictment shall not be required to enumerate previous
convictions. It shall only be necessary that the affidavit or indictment states the
number of times that the defendant has been convicted and sentenced within the
past five (5) years for a second or third offense, or without a time limitation for a
fourth or subsequent offense, under this section to determine if an enhanced penalty
shall be imposed. The amount of fine and imprisonment imposed in previous
convictions shall not be considered in calculating offenses to determine a second,
third, fourth or subsequent offense of this section.
(b) Before a defendant enters a plea of guilty to an offense under this section, law
enforcement must submit certification to the prosecutor that the defendant's driving
record, the confidential registry and National Crime Information Center record
have been searched for all prior convictions, nonadjudications, pretrial diversions
and arrests for driving or operating a vehicle while under the influence of an
intoxicating liquor or while under the influence of any other substance that has
impaired the person's ability to operate a motor vehicle. The results of the search
must be included in the certification.
(Emphasis added). Section 63-11-30 does not require a law enforcement officer to submit a
certification for a first-time DUI. The certification required by Section 63-11-30(8)(b) serves to
make the judge aware of all previous convictions as well as non-adjudications and pretrial
diversions prior to entering a guilty plea and sentencing.
While this office cannot issue an official opinion in answer to your second question, we refer you
to the following cases for future guidance: Ross v. State, 275 So. 3d 1090 (Miss. 2019); Pryor v.
State, 265 So. 3d 1233 (Miss. Ct. App. 2018); Koch v. State, 222 So. 3d 1088 (Miss. Ct. App.
2017); Campbell v. State, 164 So. 3d 519 (Miss. Ct. App. 2015); Kramm v. State, 949 So. 2d 18
(Miss. 2007); Wright v. City of Water Valley, 832 So. 2d 1241 (Miss. 2002); Lewis v. State, 831
So. 2d 553 (Miss. 2002); Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997).

We note that, if a defendant is seeking the non-adjudication of a "true" first (1st) time DUI offense,
Sections 63-11-30(2)(a)(iii) and 63-11-30(14) may require the confidential registry of the
Department of Public Safety to be checked as well as the person's driver's license history and/or
NCIC record to ensure the defendant qualifies for non-adjudication of the 1st time DUI offense,
meaning the defendant has "not previously been convicted of and does not have pending any
former or subsequent charges. . . ".

If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Kim P. Turner
Kim P. Turner
Assistant Attorney General