## Facts

- After 10:00 p.m. on March 19, 2000, a Gulfport police officer found a Jeep Wrangler stopped/parked in the left lane of eastbound Highway 90.
- Norman Arnell Lewis was seated in the driver’s seat and was the only person in the vehicle.
- Lewis told the officer the Jeep was out of gas.
- The officer asked Lewis to put the Jeep in neutral so the officer could try to push it out of the lane of traffic, but the Jeep would not move.
- The engine was off, but the keys were in the ignition.
- When the officer approached closer, he smelled alcohol and observed signs of intoxication (including glassy eyes and slurred speech).
- The officer administered field sobriety testing and arrested Lewis for driving under the influence (DUI).
- Lewis initially identified himself as “Cedrick Lewis,” claiming to be his twin brother; during an inventory of the impounded Jeep, officers found Norman Lewis’s wallet and identification.
- Officers obtained a search warrant for a blood draw; testing showed Lewis’s blood alcohol content was 0.30%.
- At trial, Lewis testified that his friend, Willie Brooks, had been driving and left to find gasoline after the Jeep ran out, leaving Lewis in the driver’s seat.
- The trial court instructed the jury that a person may “operate” a vehicle without driving if the person is behind the wheel and “in full control of the motor vehicle.”
- The jury convicted Lewis of felony DUI, and he appealed.

## Issues

1. Whether the trial court committed reversible error by instructing the jury that Lewis could “operate” a vehicle without driving if he was behind the wheel and “in full control,” even though the engine was off and operation was disputed.
2. Whether submitting both impairment-based DUI and per se BAC DUI theories to the jury violated double jeopardy.
3. Whether Lewis was entitled to a circumstantial-evidence instruction.
4. Whether documentary proof of a prior DUI conviction was properly admitted for felony enhancement.

## Decision

- The Mississippi Court of Appeals reversed the felony DUI conviction and remanded for a new trial.
- The court held the “operate” instruction misstated Mississippi law by expanding the element of operation so broadly that the jury could convict without finding that Lewis actually operated the vehicle as required by the statute.
- The court rejected the double-jeopardy claim because the impairment and per se BAC provisions are alternative methods of proving a single DUI offense, and Lewis received only one conviction and sentence.
- The court found no reversible error in the refusal of a circumstantial-evidence instruction and did not reverse based on the prior-conviction documentation issue, addressing those matters largely for guidance on remand.

## Legal Principles

- A DUI conviction under Mississippi Code Annotated § 63-11-30 requires proof that the defendant “operated” a vehicle; jury instructions must define that element consistently with Mississippi law.
- An instruction that broadens a statutory element can improperly reduce the State’s burden and requires reversal when the element is genuinely disputed and the error may have affected the verdict.
- Mississippi’s DUI statute provides alternative ways to prove the same offense (impairment-based and per se BAC); submitting both alternatives to the jury does not create double jeopardy when there is only one conviction and punishment.
- A circumstantial-evidence instruction is required only when the State’s case is wholly circumstantial; the presence of direct evidence on material points can make the special instruction unnecessary.
- Prior convictions used for felony enhancement may be proven through properly admitted records, but evidentiary limits remain relevant to prevent unfair prejudice.

## Conclusion

Lewis’s felony DUI conviction was reversed because the jury was instructed that he could “operate” the Jeep merely by being behind the wheel and “in full control,” a definition that could permit conviction even if jurors believed Lewis had not driven the vehicle to the highway lane; the case was remanded for a new trial, with the court also holding that presenting both impairment and per se BAC theories did not violate double jeopardy and finding no separate reversible error on the circumstantial-evidence and prior-conviction issues.


Lewis v. State, 831 So. 2d 553 (2002)