You may be able to keep out the evidence, but that will depend on what evidence you have to attack the tests. You might want to get that evidence excluded first and then see if you can file a motion to dismiss. You should have an attorney in this case. Are you self-represented?
If you have counsel PLEASE discuss it with them. If you do not, get an attorney NOW. Your attorney, if you have one, can point to the case law on remand versus reduction that is statutorily eliminated
The law office of Anders Ferrington 601-316-8428 practices state wide. In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but instead need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice.
the answer depends on wheather you can keep the intoxilizer results our (or lowered within the range of error).
Here is the Miss Code you need to look at:
(g) The court shall have the discretion to rule that a first offense of this subsection by a person under the age of twenty-one (21) years shall be nonadjudicated. Such person shall be eligible for nonadjudication only once. The Department of Public Safety shall maintain a confidential registry of all cases which are nonadjudicated as provided in this paragraph. A judge who rules that a case is nonadjudicated shall forward such ruling to the Department of Public Safety. Judges and prosecutors involved in implied consent violations shall have access to the confidential registry for the purpose of determining nonadjudication eligibility. A record of a person who has been nonadjudicated shall be maintained for five (5) years or until such person reaches the age of twenty-one (21) years. Any person whose confidential record has been disclosed in violation of this paragraph shall have a civil cause of action against the person and/or agency responsible for such disclosure.
However, SEC. 63-11-30(3)(a) prvided as follows:
This subsection shall be known and may be cited as Zero Tolerance for Minors. The provisions of this subsection shall apply only when a person under the age of twenty-one (21) years has a blood alcohol concentration two one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If such person's blood alcohol concentration is eight one-hundredths percent (.08%) or more, the provisions of subsection (2) shall apply.
^^ the last sentense is going to put your charges back under Miss Code SEC. 63-11-30(2) because you are over the .08 upper limit, and under section 2 - nonadjudication is not an option.
So in short, if you can keep the intoxilizer results out (or lowered) then yes the Judge can nonadjudicate, but you are doing to need a good DUI lawyer to help you on this.
My firm handles DUI's statewide, and this comes up often.
Attorney Stacy E. Pepper is licensed in all State and Federal Courts in Mississippi. He is a founding Partner in the law firm of Pepper & Odom, P.C. Nothing posted here constitutes any attorney client relationship and is meant for educational purposes only. Office hours are 8:00 a.m till 5:00 p.m. Monday through Friday.