author: PICKETT, Judge. GREMILLION, Judge,

text:
    Sharon SCHULTZ, et al. v. Janos GUOTH, M.D. and Khaled F. Rabie, M.D.
    No. 09-251.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 13, 2010.

      Joseph T. Dalrymple, Dalrymple & Le-det, Alexandria, LA, for Plaintiff-Respondent, Leanne Brow.
    Victor Herbert Sooter, Sooter & Associates, Alexandria, LA, for Defendant-Applicant, Khaled F. Rabie, M.D.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

17 The defendant, Khaled F. Rabie, M.D., seeks supervisory writs from the judgment of the trial court which denied his motion for summary judgment.

STATEMENT OF THE CASE

This is a medical malpractice case. Plaintiff Leanne Brow sued Dr. Khaled F. Rabie and Dr. Janos Guoth for the death of her stillborn child. The fifteen-year-old Ms. Brow had arrived at Oakdale Community Hospital in premature labor with a placenta tear. Dr. Guoth transferred her to Rapides Women’s and Children’s Hospital under the care of Dr. Rabie. Upon her arrival at 6:30 a.m. Dr. Rabie was notified, and he arrived at 6:55 a.m. After conflicting fetal heart rate reports, Dr. Rabie performed a C-section at 7:25 a.m. and delivered a stillborn child.

Ms. Brow alleged that Dr. Rabie was negligent in accepting an emergency referral at 4:50 a.m. and, after being apprised of Ms. Brow’s ruptured membrane, amniotic fluid, blood, contractions and cervical dilation, failing to arrive earlier to perform an emergency C-section.

The medical review panel unanimously found in favor of both doctors. Dr. Guoth has since been dismissed from this suit. In the course of these proceedings, Dr. Rabie filed a motion for summary judgment alleging that without an expert witness Ms. Brow would be unable to meet her burden of proof at trial. Following a hearing, the trial court denied Dr. Rabie’s motion for summary judgment. Dr. Rabie has filed a supervisory writ application in this court seeking a reversal of the trial court’s ruling.

¡.DISCUSSION

Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possibly useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact, and that he is entitled to a judgment as a matter of law. La.Code Civ.P. art. 966; see also Babin v. Winn-Dixie, Inc., 00-78 (La.6/30/00), 764 So.2d 37. Section (C) of La.Code Civ.P. art. 966 sets forth the burden of proof in a summary judgment proceeding:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 842 (La.1991).

|aIn this case, Ms. Brow bears the burden of proof at trial. Therefore, Dr. Rabie must show Ms. Brow is unable to produce factual support for any of the essential elements of her claim. Louisiana Revised Statute 9:2794(A) sets forth the required proof in a medical malpractice claim:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Dr. Rabie contends that in order for Ms. Brow to make a prima facie case against him she will have to prove he deviated below the standard of care and that the her injuries occurred as a result of that action. Dr. Rabie argues that expert testimony is necessary to prove a violation of the standard of care in this case. In support of his motion for summary judgment, Dr. Rabie submitted his favorable medical review panel opinion as well as the affidavit of one of the panelists who stated that Dr. Rabie |4did not breach the standard of care. The evidence submitted by Dr. Ra-bie suggested that Ms. Brow’s child was probably dead at the time Ms. Brow arrived at the hospital.

In its written reasons for denying summary judgment, the trial court stated that Ms. Brow did not need expert testimony in order to defeat the Dr. Rabie’s summary judgment. The trial court cited the case of Pfiffner v. Correa, 94-992, 84-924, 94-963 (La.10/17/94), 643 So.2d 1228, for the holding that expert testimony is not always required in a medical malpractice case. In that case, the supreme court noted that in most cases the plaintiff "will fail to prove his claim without expert testimony if there are complex medical issues involved. Pfiffner died after a late diagnosis and treatment of a severe brain injury. The supreme court found that plaintiff did not meet her burden of proving, either through her own experts or the testimony of the defendants or defense experts, that the doctors breached the standard of care with the lack of expeditious treatment and that this breach caused Pfiffner’s death or loss of chance of survival. The supreme court reversed the lower courts’ decision because there was no proof that Pfiffner would have fared any better had he received earlier treatment because his brain injury was inoperable. The Pfiffner court stated:

The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. See id. at 719-20. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, see, e.g., Riser v. American Medical Int’l Inc., 620 So.2d 372, 377 (La.Ct.App. 5th Cir.1993), or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, see, e.g., Hastings, 498 So.2d at 722 (violation of LSA-R.S. 40:2113.4 which imposes duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim.

Id. at 1233-34.

Dr. Rabie does not attempt to distinguish the Pfiffner case, but instead claims that of the ninety-three times Pfiffner was cited in later jurisprudence, none of those cases involved an obstetrical case. Dr. Rabie cites McCann v. ABC Ins. Co., 93-1789 (La.App. 4 Cir. 7/14/94), 640 So.2d 865, for authority for its position that expert testimony is necessary in order to show the delay in performing a C-section caused the death of the infant. In that case, the plaintiffs alleged that after attempting a forceps delivery, the doctor failed to timely perform the C-section and that he failed to monitor the plaintiff and the unborn infant. During the delivery, the infant suffered a severe hypoxic event which caused its brain to be deprived of oxygen, resulting in the infant’s later death. The cause of the event was not known. The plaintiffs did not present expert testimony to show that the doctor’s actions caused the hypoxic event. Next, the court looked at whether the doctor’s lack of monitoring the baby’s heart rate could be negligent. The court found that the evidence showed that it was the duty of the nurse to check the heartbeat and no evidence was submitted to show otherwise. Ultimately, the fourth circuit found that the trial court correctly granted the directed verdict in favor of the doctor.

|fiIn the instant case, the trial court found that there are genuine issues of material fact as to whether Dr. Rabie arrived timely at the hospital to respond to the emergency, whether he waited too long to perform the C-section, and whether his delay caused the death of the unborn child. The trial court found that Ms. Brow did not need an expert witness to defeat Dr. Rabie’s motion for summary judgment. The court stated that the jury could reasonably infer negligence in the doctor’s conduct from the medical and factual issues. However, Dr. Rabie claims that a layman cannot infer negligence from the facts of this case and cannot determine if the child would have survived delivery if he had acted sooner.

The hearing on the motion for summary judgment was not recorded, and we are unable to determine what evidence, if any, was submitted by Ms. Brow. However, it is possible that Ms. Brow will rely on the testimony of the defendant doctors themselves as to the standard of care and on Dr. Rabie’s testimony regarding his alleged breach of that standard of care. In addition, as noted in Pfiffner, 643 So.2d 1228, the facts of this case could demonstrate that Dr. Rabie’s failure to respond timely to the patient’s emergency is an example of obvious negligence that requires no expert testimony to show his fault.

After reviewing the evidence in this case and hearing arguments of counsel, the trial court determined that the jury could infer negligence from the facts of the case. The Louisiana Supreme Court noted in Pfiffner that a physician’s delay in responding to an emergency is an example of obvious negligence that would require no expert testimony. In addition, it is possible that Dr. Rabie’s testimony in his deposition 17could provide Ms. Brow with proof of a breach of the standard of care. Based on the information provided to this court, we deny Dr. Rabie’s writ application, finding that there are genuine issues of material fact that warrant trial on the merits. We find that pursuant to the Pfiffner case, expert testimony is not required in order for Ms. Brow to prove her malpractice claim.

WRIT DENIED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissenting.

|,The trial court erred in denying Relator’s motion for summary judgment. Given the complex medical issues involved in this case, without expert testimony the Plaintiff will be unable to sustain her burden of proving at trial that the Relator’s conduct constituted a breach in the applicable standard of care and that this breach resulted in the damages sustained.


source: Caselaw Access Project

author: PEATROSS, J. BROWN, Chief Judge,

license: Public Domain

text:
    Janice S. SULLIVAN, Plaintiff-Appellee v. Priscilla WALLACE, et al, Defendant-Appellant.
    No. 44,853-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 20, 2010.

      McMichael, Medito, D’Anna, Wedge-worth & Lafargue, L.L.C, by James C. McMichael, Jr., for Appellant, Bruce Sullivan.
    Jones & Hill, LLC, by J. Craig Jones, for Appellee, Janice S. Sullivan.
    Colvin, Weaver, Cerniglia, et al, by Charles Edward Weaver, for Appellee, Priscilla Wallace.

      Theus, Grisham, Davis & Leigh, by Paul D. Spillers, for Northeast Louisiana Forest Landowners Association & Louisiana Forestry Association.
    Before BROWN, STEWART, GASKINS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

|-, The parties herein have been before this court twice regarding community property partition issues. In the instant matter, Mr. Sullivan sold timber off of a 120-acre tract of land that he and Ms. Sullivan co-owned (“the community tract”). Ms. Sullivan was unaware of the cutting and sale of the timber and did not share in the proceeds. This suit followed. The trial court found that Mr. Sullivan cut 254,354 board feet of timber from the community tract and valued the timber at $413.57 per thousand board feet (MBF) for a total of $105,193.18. Finding that Ms. Sullivan was owed one-half of that amount, or $52,596.59, the trial court then applied La. R.S. 3:4278.1, the “timber trespass” or “timber piracy” statute, and tripled |2this amount for a total damage award of $157,789.77. The court then awarded Ms. Sullivan attorney fees of 40 percent of the treble damage award, or $63,115.91. Mr. Sullivan appeals. For the reasons stated herein, we vacate the award of attorney fees, amend the damage award and, as amended, we affirm.

FACTS

During the marriage, the Sullivans purchased a 120-acre tract of wooded land in Claiborne Parish. After the Sullivans divorced, they retained the community tract in co-ownership and it was listed as an asset in the contested community property partition proceeding. The divorce judgment prohibited the parties from alienating or encumbering any community property. In addition, for reasons not relevant herein, the community was not partitioned at the time of the events giving rise to this suit. The record reflects that, following the divorce, Mr. Sullivan purchased a tract of land adjacent to the community tract where he resided (“separate tract”).

In 1994 and 1995, Mr. Sullivan cut and stacked timber on the community tract. It is undisputed that, in February 1994, Mr. Sullivan contracted with Eddie Harmon of Harmon Wood Company, Inc. (“Harmon Wood”) to purchase the timber cut from the property and to haul the timber to the Willamette mill. Mr. Sullivan maintains that the first timber sold to Harmon Wood was cut from his separate tract; however, the record reflects 13that Mr. Harmon was unaware that he was purchasing timber from separate tracts or that there were different or additional owners of the property. Mr. Sullivan further maintains that the timber had been damaged by the ice storm of February 9, 1994, and was already felled and damaged when he sold the timber to Harmon Wood. The mill tickets, however, show that the first load of Sullivan timber was delivered to the Willamette mill by Harmon Wood on February 8, 1994, the day before the ice storm. The record further reveals that there were very few culled logs, ie., damaged timber from the Sullivan property. As stated, the cutting and sale of timber by Mr. Sullivan continued into 1995.

The checks for the timber sold by Mr. Sullivan to Harmon Wood in 1994 were made payable to Mr. Sullivan’s girlfriend (now wife), Priscilla Wallace, allegedly for tax purposes. The checks to Ms. Wallace totaled $29,901. The checks from Harmon Wood for the timber harvested in 1995 were made payable to Mr. Sullivan and totaled $33,364. Accompanying the checks from Harmon Wood to Ms. Wallace and Mr. Sullivan are the scale or mill tickets reflecting, inter alia, the number of board feet sold. The total of all of the mill tickets in evidence, covering the time period from February 8, 1994, to March 1, 1995, is 214,354 board feet.

In early 1995, Ms. Sullivan became aware that the timber had been cut from the community tract. She contacted Mr. Harmon in March 1995 and advised him that the property was involved in litigation. Harmon Wood immediately ceased hauling timber from the Sullivan property. Mr. Harmon testified in deposition that Mr. Sullivan then advised him that there was |4stacked timber remaining on the property which had not yet been hauled to the mill. Mr. Harmon refused, however, to remove any additional timber from the Sullivan property.

Ms. Sullivan filed this suit in December 1995, naming as defendants Harmon Wood, Mr. Harmon, individually, Priscilla Wallace and Bruce Sullivan. Harmon Wood filed a cross-claim against Mr. Sullivan. At the time suit was filed, the community property partition was pending under another docket number. Mr. Sullivan filed an Exception of No Right of Action and Alternative Motion for Summary Judgment in the current action arguing that Ms. Sullivan’s claims must be asserted in the partition action and not brought as a separate action. The trial court denied the exception and the case was ultimately tried some four years later, on May 22 and 23, 2006. In the meantime, Ms. Sullivan and Mr. Harmon, individually, and Harmon Wood reached a settlement and those defendants were dismissed from the suit.

The matter proceeded to trial against Mr. Sullivan and Ms. Wallace; and, ultimately, the court ruled in favor of Ms. Wallace, dismissing her from the suit. As previously stated, the court ruled against Mr. Sullivan, finding that 254,354 board feet of timber was harvested from the community tract. This figure represents the 214,354 board feet reflected on the mill tickets and an additional 40,000 board feet that was felled, but not hauled to the mill. The court then concluded that the market value of the timber as pine saw logs at the time of the harvesting was $413.57/MBF, or $105,198.18. Ms. Sullivan, therefore, was entitled to one-half of that amount, or | b$52,596.59. Applying La. R.S. 3:4278.1, the trial court then tripled that amount resulting in an award of $157,789.77. In addition, also under the timber trespass statute, the trial court awarded attorney fees in the amount of 40 percent of the treble damage award, or $63,115.91, resulting in a total judgment in favor of Ms. Sullivan of $220,805.88. This appeal ensued.

DISCUSSION

On appeal, Mr. Sullivan challenges the trial court’s denial of his Exception of No Right of Action and Motion for Summary Judgment. Alternatively, he argues that the factual findings of the trial court regarding the number of board feet cut and the market price of the timber were manifestly erroneous and further urges that the timber trespass statute does not apply to co-owners of property under Alexander v. Dunn, 44,272 (La.App.2d Cir.6/3/09), 15 So.3d 302, writ denied, 09-1487 (La.10/2/09), 18 So.3d 122.

Exception of No Right of Action and Motion for Summary Judgment

As a threshold issue, we first address the denial of Mr. Sullivan’s Exception of No Right of Action and Motion for Summary Judgment. The trial court recognized the nature of the current action to be in tort and we note that the petition also contained actions for trespass, negligence and conversion. We find no error in the trial court’s decision to allow these claims to proceed separate from the partition action. See, e.g., Schulingkamp v. Schulingkamp, 96-2680 (La.App. 1st Cir.12/29/97), 706 So.2d 1005, writ denied, 98-0279 (La.3/20/98), 715 So.2d 1219.

| /¡Factual Findings of the Trial Court

We now review the factual findings of the trial court regarding the amount of timber sold to Harmon Wood by Mr. Sullivan and the market value of the timber for purposes of computing the damage award.

The standard of review to be applied to factual findings in a civil matter is the manifest error standard. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under this standard, the reviewing court does not substitute its own judgment for that of the fact finder, but determines whether its findings were reasonable. Hubbard v. Allied Building Stores, Inc., 41,534 (La.App.2d Cir.11/1/06), 942 So.2d 639. Thus, where there are two permissible outcomes, neither choice can ever be manifestly erroneous. Id. The court of appeal, therefore, may not reverse the decision if the fact finder’s conclusions are reasonable in light of the record, even if the appellate court would have reached the opposite conclusion as fact finder. Id.

Number of Board Feet of Timber

Mr. Sullivan first challenges the factual determination of the trial judge pertaining to the number of board feet of timber cut and sold from the community tract. He argues that the conclusion that 254,354 board feet of timber was harvested from the community tract is inflated because the timber cut in 1994 was from his separate tract, not the community tract. Mr. Sullivan argues that it was manifestly erroneous for the judge to accept the total number of board feet from the mill tickets in light of his testimony about that the timber cut by him in 1994 was from his separate tract. 17Mr. Sullivan further argues that it was clearly wrong for the trial judge to add 40,000 board feet to the total board footage from the mill tickets.

We find ample evidence in the record to support the finding of the trial judge that the total board footage cut from the Sullivan property was 254,354. First, the trial judge did not find credible the testimony of Mr. Sullivan that all of the timber cut in 1994 was from his separate tract and, further, was damaged timber from the ice storm. Specifically, the trial judge noted that the first mill ticket was dated before the ice storm occurred and the mill tickets taken together show very little damaged timber. We -will not disturb this credibility call made by the trial judge. We find it to be entirely reasonable, therefore, to accept the total of the mill tickets as the starting point for a total board footage figure. We also find that the testimony of Mr. Harmon and others provides support for the trial judge’s addition of 40,000 board feet to the total footage from the mill tickets. Mr. Harmon testified that Mr. Sullivan advised him, after Mr. Harmon ceased removing timber from the property, that there was some timber felled and stacked that was yet to be hauled to the mill. This timber must be quantified and added to the total from the mill tickets. In order to quantify the remaining timber, the trial judge engaged in a thorough review and analysis of the testimony of several foresters who testified on behalf of both parties. Ultimately, the court relied upon the deposition testimony of Stephen E. Muslow, a forester testifying on behalf of Mr. Sullivan and Ms. Wallace. Mr. Muslow explained that the pulpwood differential between a cruise of the property in 1991 and a subsequent cruise of the | ^property by him was 567 cords of pulpwood. According to Mr. Muslow, these 567 cords of pulpwood would have been 40,000 board feet of timber. The trial judge found this testimony persuasive and we find no manifest error in that conclusion.

Market Value of Timber

Mr. Sullivan further challenges the trial judge’s determination of market value of the timber. Ms. Sullivan asserts, however, that there is ample evidence in the record to support the fair market value determination of the trial judge. She points out that the figure of $413.57/MBF was based on previous sales by Mr. Sullivan and was well below the estimate of fair stumpage value provided by two testifying foresters. We agree with Ms. Sullivan that the figure of $413.57/MBF has a rational basis in this record and that the trial judge was not manifestly erroneous in accepting this figure as the fair market value. Specifically, we note that there are variances in suggested market values ranging from as little as $300/MBF to more than $500/MBF. The amount Harmon Wood paid for the timber was $300/ MBF and $340/MBF. As the trial judge noted, two foresters testified that the average stumpage price paid in the area at that time was actually $500/MBF. Moreover, in April 1995, Mr. Sullivan sold timber from other property in the same area for $413.57/MBF. Based on this evidence, we find no manifest error in the trial court’s adopting the price paid to Mr. Sullivan in April 1995 as the fair market value of the timber.

In summary, we find a rational basis in the record to support the calculations of the trial judge regarding the value of the lost timber volume |9to be $105,193.18. Of that amount, Ms. Sullivan would be entitled to half, or $52,596.59.

Applicability of La. R.S. 3:4278, et seq.

Mr. Sullivan argues that this court has previously held that La. R.S. 3:4278, et seq., the tree piracy or trespass statute, does not apply to co-owners. Alexander v. Dunn, supra. The statute provides that it is unlawful to cut and remove timber without the consent of the “owner or legal possessor.” In Alexander v. Dunn, Dunn was a widower who owned one-half of the community property and the children of his deceased wife owned the other half of the property. Dunn sold the timber without the permission of the five children, who then filed suit against Dunn. This court expressly held that the “trespass” statute did not apply to co-owners, concluding that the co-ownership articles of the civil code provide adequate recourse among co-owners of property. We adhere, therefore, to our previous decision in Alexander v. Dunn, for the reasons set forth therein. We find, therefore, that the trial court erroneously applied the statute to the case sub judice and erroneously awarded treble damages and attorney fees under that statute.

CONCLUSION

For the foregoing reasons, the award of damages in favor of Janice Sullivan is amended by reducing the award to $52,596.59, which is one-half of the value of the lost timber in accordance with the trial court’s calculations. The portion of the judgment awarding attorney fees is vacated. Costs are assessed equally to the parties.

AMENDED IN PART, VACATED IN PART, AND, AS AMENDED, AFFIRMED.

BROWN, C.J., dissents with written reasons.

BROWN, Chief Judge,

dissenting.

| ¡Bruce and Janice Sullivan were divorced in Ouachita Parish in June of 1990. Their community property included 120 acres in Claiborne Parish. The divorce judgment prohibited the parties from alienating or encumbering any community property. A notice of Us pendens was filed in Claiborne Parish. In disregard of the court order, Mr. Sullivan, who is in the timber business, cut and stacked timber from this 120-acre tract in 1994 and 1995. He then had Harmon Wood Company haul it to the mill and had the mill pay Priscilla Wallace. Janice found out in 1995 and filed this action in December of 1995.

The trial court did a thorough job on factual findings. Clearly, there was no manifest error in the trial court’s findings. In particular, the trial court found that defendant clearly intended not to pay his former wife her share of the proceeds.

The issue in this case is a legal one which has drawn amicus briefing. Specifically, plaintiff, Janice Sullivan, and the amicus brief submitted by Northeast La. Forest Landowners Association ask that we overrule Alexander v. Dunn, 44,272 (La.App.2d Cir.06/06/09), 15 So.3d 302, writ denied, 09-1487 (La.10/02/09), 18 So.3d 122. In Alexander, Dunn owned one-half of the community property and his deceased wife’s five children owned the other half. Dunn sold the timber (through thinning) and was sued by the five children. This court ruled that the timber theft statute did not apply to co-owners. Instead, the co-ownership articles of the civil code applied.

|zLa. R.S. 3:4278.1 is entitled “Trees, cutting without consent; penalty.” It is often referred to as the “timber piracy,” “timber theft,” or “timber trespass” provision, and states that it is unlawful to cut and remove timber without the consent of the “owner or legal possessor.” The issue in the case sub judice differs from Alexander v. Dunn in that it concerns a co-owner who is also a contractor. Therefore, he is also subject to La. R.S. 3:4278-2.

In McConnico v. Red Oak, 36,985 (La.App.2d Cir.05/16/03), 847 So.2d 191, this court, applying La. R.S. 3:4278.2 (the 80% rule), held that the buyer, Red Oak, of the timber from a co-owner who only owned one half was liable for treble damages to the other co-owner. In footnote two, 847 So.2d at 195, this court stated that “our opinion relies heavily on the strong public policy reflected in La. R.S. 3:4278.2 which describes Red Oak’s failure to identify and consult all co-owners as presumptive timber theft.” In the instant case, Bruce Sullivan intentionally failed to consult all co-owners.

Further, the Third Circuit in Prewitt v. Rodrigues, 04-1195 (La.App. 3d Cir.02/02/05), 893 So.2d 927, found that a brother acted as a tree pirate in flagrant disregard of his sister’s ownership rights and had willfully and intentionally sold timber with no intention to pay his sister her share. The appellate court affirmed the trial court’s award of treble damages and attorney fees. This case is obviously in conflict with Alexander v. Dunn.

In the case sub judice, Mr. Sullivan cut and sold timber which he knew was 50% owned by his former wife. He had no intention of paying )3his former wife her share. I would affirm the trial court.

      . 4278.1. Trees, cutting without consent; penalty
      A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
      B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
      C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.
      D. If a good faith violator of Subsection A fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner or legal possessor, the violator shall also be responsible for the reasonable attorney fees of the owner or legal possessor.
      E. The provisions of this Section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God. The provisions of this Section shall not apply to land surveying by or under the direction of a registered professional land surveyor, duly registered under the laws of the state of Louisiana.
      F. Whoever violates the provisions of Subsection A as they relate to the cutting of standing cypress trees on water bottoms owned by the state of Louisiana shall, in addition to the penalties otherwise provided in this Section, be subject to a fine not to exceed five thousand dollars, imprisonment not to exceed six months, or both.

      . If the majority opinion is correct and the timber trespass statute does not apply to co-owners, then the accounting claim should have been dealt with in the pending partition/accounting lawsuit in Ouachita Parish. La. R.S. 9:2801. However, Mr. Sullivan did not seek writs from the denial of his exception of no right of action and the case proceeded to trial in Claiborne Parish. This litigation has been ongoing since 1995 and it would not make sense to now reverse and retry this matter in Ouachita Parish. So I agree with the majority's conclusion but find its reasoning flawed.


author: LAMAR, Justice,

text:
    TUNICA COUNTY, Mississippi and Calvin Hamp, Sr., Individually and in his Official Capacity as Sheriff of Tunica County v. The HAMPTON COMPANY NATIONAL SURETY, LLC, A Mississippi Limited Liability Company; James Dean, an Individual and James Hampton Gardner, an Individual.
    No. 2008-CA-00756-SCT.
    Supreme Court of Mississippi.
    May 7, 2009.

      John S. Hill, Tupelo, Stephen P. Spencer, attorneys for appellants.
    William B. Ryan, James D. Harper, Sou-thaven, attorneys for appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court.

¶ 1. This appeal involves a dispute between a bail-bonding company and its agent and the sheriff of Tunica County. The question presented is whether a county sheriff has the authority to refuse to accept bonds written by a professional bond agent, who is licensed as a limited surety agent with the Mississippi Department of Insurance. The trial court found that the sheriff did not have such discretion and granted both declaratory and in-junctive relief for the bondsman. Finding error, we reverse.

FACTUAL HISTORY

¶2. James Hampton Gardner is a professional bond agent, licensed and qualified as a limited surety agent with the Mississippi Department of Insurance. Gardner owns and operates a bail-bonding business under the name of The Hampton Company National Surety, LLC (hereinafter “Hampton Co.”), doing business in approximately one-third of Mississippi’s eighty-two counties, including Tunica County. James Dean is one of thirty-five agents employed on a contractual basis by Hampton Co. Dean, a resident of Tunica County, is licensed with the Mississippi Department of Insurance. Hampton Co. employed Dean as its only soliciting bail agent in Tunica County.

¶ 3. Calvin Hamp, Sr., was elected sheriff of Tunica County in 2004, after serving as a deputy with the Tunica County Sheriffs Department since 1994. On February 15, 2005, Hamp, acting in his capacity as sheriff, removed Hampton Co. and Dean from Tunica County’s bail-bonding roster, prohibiting both from writing bonds in Tu-nica County. Hamp testified that he took this action after receiving a report from the circuit court judge, which stated that Hampton Co. was in arrears on bonds because three bonded criminal defendants failed to appear for arraignment when scheduled. Hamp further testified that he suspended both Hampton Co.’s and Dean’s ability to write bonds in Tunica County, pending notice of either the appearance of the defendants or payment of the bonds.

¶ 4. Although the three defendants failed to appear for arraignment when scheduled, they subsequently appeared before the court; Sharry Perkins and Calvin Franklin were arraigned on February 17, 2005, and Valerie Johnson was arraigned on March 30, 2005. Hamp, however, testified that he was not notified of their appearance in court, and consequently, Hampton Co. and Dean were not returned to the bail-bonding roster. Gardner testified that he was unable to get in touch with the sheriff by phone, and he instructed Dean to ensure that Hampton Co. and Dean were returned to the bail-bonding roster. Dean testified that he had made several attempts to speak with Hamp, but Hamp had been unavailable each time.

¶ 5. After mediation of this action, Hamp returned Hampton Co. to the bail-bonding roster in Tunica County in 2006. According to Hamp, Dean was not returned to the roster due to a separate and unrelated incident. Hamp learned that, during February of 2005, Dean had loaned money to Wayne Gooden, a jailer employed by the Tunica County Sheriffs Department. Dean admitted in his deposition that he had made the loan and previously had made similar loans to Gooden, which would constitute violations of Mississippi Code Section 83-39-27. Hamp testified that because of this violation, he chose not to return Dean’s name to the bail-bonding roster for the county. Hamp testified that his predecessors as sheriff were jailed because of improper bonding procedures and exchanges of money between bonding agents and the sheriffs department. This history necessitated that Hamp formulate certain guidelines, including his policy of removing names from the bail-bonding roster.

PROCEDURAL HISTORY

¶ 6. Hampton Co. and Dean filed suit against Tunica County and Hamp, alleging that the sheriff unlawfully directed inmates away from their bonding company and unlawfully prohibited them from writing bonds in Tunica County. Hampton Co. and Dean sought compensatory and punitive damages, as well as declaratory and injunctive relief.

¶ 7. Tunica County and Hamp filed a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6). Hampton Co. and Dean responded to the motion and filed an amended complaint, adding Gardner as a plaintiff. The trial court granted the sheriffs motion to dismiss as it related to the claim for monetary damages. Subsequently, the trial court granted the claims for declaratory and in-junctive relief, holding that Hamp lacked authority under Mississippi law to prohibit Hampton Co. and Dean from writing bonds in Tunica County. Tunica County and Hamp now appeal, asserting that the trial court erred in granting declaratory and injunctive relief.

STANDARD OF REVIEW

¶ 8. This Court employs a de novo standard of review when reviewing questions of law, including motions for declaratory judgment. S.C. Ins. Co. v. Keymon, 974 So.2d 226, 229 (Miss.2008) (citing Pre-Paid Legal Servs. v. Battle, 873 So.2d 79, 82 (Miss.2004)).

ANALYSIS

¶ 9. This case presents, as a matter of first impression, the issue of whether a county sheriff has any discretion to accept or refuse a bail bond tendered by a duly licensed limited surety agent. ■

¶ 10. This Court has long recognized that the sheriff is the “chief law executive officer of his county.” Simmons v. State, 165 Miss. 732, 746, 141 So. 288 (1932). The sheriffs of this state traditionally have had broad and varied duties. Mississippi Code Section 19-25-67, originally enacted in 1822, sets forth some of those duties relative to the case sub judice:

It shall be the duty of every sheriff to keep the peace within his county, by causing all offenders in his view to enter into bonds, with sureties, for keeping the peace and for appearing at the next circuit court, and by committing such offenders in case of refusal. He shall certify and return said bonds to the court.... He shall pursue, apprehend, and commit to jail all persons charged ■with treason, felony, or other crimes. He may take bonds, with good and sufficient sureties, of any person whom he may arrest with or without a warrant for any felony that is bailable as a matter of law.

Miss.Code Ann. § 19-25-67 (Rev.2003) (emphasis added).

¶ 11. Sheriff Hamp argues that this statute mandates a sheriffs responsibility to keep the peace within his county, “by causing all offenders ... to enter into bonds, with sureties ... for appearing at the next circuit court.” Miss Code Ann. § 19-25-67 (Rev.2003). Hamp argues that the use of the permissive term “may” in this statute, i.e. “he may take bonds,” clearly indicates that the Mississippi Legislature intended to give the sheriff discretion in deciding whether to accept or reject a bond, as necessary, to maintain the peace and to control the administration of his jail.

¶ 12. On the other hand, Hampton Co. and Dean assert that the sheriff does not have authority to reject a bond tendered by a licensed professional bail-bonding agent, since Mississippi Code Section 83-39-15 expressly grants exclusive authority to the Mississippi Department of Insurance to deny, suspend, or revoke a license or to otherwise discipline a bail bondsman. Hampton Co. and Dean therefore contend that the sheriffs only recourse, when confronted with the misconduct of a limited surety agent, is to file a complaint with the Department of Insurance and await a hearing and action by the Department.

¶ 13. Hampton Co. and Dean also argue that Mississippi Code Section 99-5-15 mandates that the sheriff accept bonds tendered by an authorized fidelity and surety company. The statute provides:

It is the duty of the sheriff or other officer having custody of such defendant, upon his compliance with the order of the committing court or officer, to release him from custody; and he shall approve the sureties on the bond, except admitted and authorized fidelity and surety insurance companies acting as surety, and for that purpose may examine them on oath, or take their affidavit in writing, and may administer such oath.

Miss.Code Ann. § 99-5-15 (Rev.2007) (emphasis added). In furtherance of their position, Hampton Co. and Dean point out that a sheriff has no financial liability in the event of a default by a limited surety agent, citing Mississippi Code Section 99-5-19, which states:

If any person, except a properly authorized judge, authorized to release a criminal defendant neglects to take a bail bond, or if the bail bond from any cause is insufficient at the time he took and approved the same ... he shall stand as special bail, and judgment shall be rendered against him as such, except when bond is tendered by a fidelity or insurance company or professional bail agent or its bail agent authorized by Mississippi state license to act as bail surety. The person taking and approving a bail bond from a fidelity or insurance company or professional bail agent or its bail agent with a valid Mississippi state license shall bear no financial liability on the bail bond in the event of a bail bond forfeiture or default.

Miss.Code Ann. § 99-5-19 (Rev.2007) (emphasis added). Hampton Co. and Dean argue that this statute, as amended in 1997, was intended by the Mississippi Legislature to remove any discretion the sheriff had in accepting or rejecting bonds from a fidelity insurance company.

¶ 14. A search found no cases from this Court addressing this issue, and the statutes addressing the duties of a sheriff are few. Our law is clear that the purpose of bail is to secure the presence of an accused at trial, and that responsibility ultimately rests -with the sheriff. See Miss.Code Ann. § 19-25-67 (Rev.2003). Both sides rely on Mississippi statutes to support their arguments. Although all of the statutes cited by the parties relate to the relevant subjects of bail bonds, bonding agents, and sheriffs, they are found in different chapters of our Code, and although not in clear conflict, are surely ambiguous as to the intent of the Legislature. When statutes are ambiguous and potentially in conflict, as in the case sub judice, we look to the rules of statutory construction for guidance.

¶ 15. It is a well-settled rule of statutory construction that “when two statutes pertain to the same subject, they must be read together in light of legislative intent.” Lenoir v. Madison County, 641 So.2d 1124, 1129 (Miss.1994). “It is a general rule that in construing statutes this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law. The court will then give effect to the intent of the legislature.” State ex rel. Hood v. Madison County ex rel. Madison County Bd. of Supervisors, 873 So.2d 85, 88 (Miss.2004).

¶ 16. Following the rules of statutory construction, repeal of statutes by implication is not favored. Roberts v. Miss. Republican Party State Executive Comm., 465 So.2d 1050, 1051 (Miss.1985). “In order for a subsequent act to repeal a former one expressly, it must point out the statute repealed with sufficient certainty.... And where in a subsequent statute there is no express repeal of a former, the court will not hold the former to be repealed by implication, unless there is a plain and unavoidable repugnancy between them.” Id. (quoting Ex parte McInnis, 54 So. 260, 262 (Miss.1910) (citations omitted)). If the subsequent statute does not repeal the former, each statute cited must be given effect. We have said that “statutes on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each.” Miss. Gaming Comm’n v. Imperial Palace of Miss., 751 So.2d 1025, 1029 (Miss.1999) (quoting Roberts, 465 So.2d at 1050, 1052 (internal quotes omitted)). This Court has stated that “[i]n construing statutes, all statutes in pari materia are taken in consideration, and a legislative intent deduced from a consideration as a whole.” Miss. Gaming Comm’n, 751 So.2d at 1029 (quoting Roberts, 465 So.2d at 1052).

¶ 17. With these rules of statutory construction in mind, we address the specific statutes at issue in the case sub judice. Mississippi Code Section 19-25-67 states, in language dating back to 1892, that the sheriff “may take bonds, with good and sufficient sureties.” Miss.Code Ann. § 19-25-67 (Rev.2003) (emphasis added). Using the same language used since 1846, Mississippi Code Section 99-5-15 states that the sheriff “shall approve the sureties on the bond_” Miss.Code Ann. § 99-5-15 (Rev.2007) (emphasis added). Mississippi Code Section 99-5-19 requires that a person shall stand as special bail and judgment shall be rendered against him if the bond was insufficient “at the time he took and approved the same.” Miss.Code Ann. § 99-5-19 (Rev.2007) (emphasis added). The statute further states that “[t]he person taking and approving a bail bond” from a fidelity insurance company or professional bail agent shall bear no financial liability on the bond. Miss.Code Ann. § 99-5-19 (Rev.2003) (emphasis added).

¶ 18. Section 19-25-67 clearly vests discretion in the sheriff “to enter into bonds, with sureties,” providing that “he may take bonds with good and sufficient sureties.” Miss.Code Ann. § 19-25-67 (Rev.2003). There is nothing in the later amendments to this or the other related statutes which can be read as an “express repeal” of this grant of discretion.

¶ 19. Further, in considering all statutes in pari materia, and in order to give effect to each, we find that the Legislature intended that the sheriff first approve the sureties, according to Mississippi Code Sections 19-25-67 and 99-5-15. Miss. Code Ann. § 19-25-67 (Rev.2003); Miss. Code Ann. § 99-5-15 (Rev.2007). However, if an admitted and authorized fidelity and surety insurance company is acting as surety, then the sheriff need not inquire further as to the sufficiency of the surety. Secondly, the statutes provide that once sureties are approved, the sheriff “may take bonds.” Miss.Code Ann. § 19-25-67 (Rev.2003). We find that this language confers limited discretion to the sheriff, as he may take bonds. Further, the language of section 99-5-19 supports this finding, in that it twice mentions the person taking and approving a bail bond, with the first instance being the original language of the statute passed in 1846, and the second reference to “taking and approving” being added by the 1997 amendment.

¶ 20. While Mississippi Code Section 19-25-67 authorizes a sheriff to take bonds, so long as they are accompanied by good and sufficient sureties, the plain language does not require the sheriff to accept every bond offered with sufficient sureties. Miss.Code Ann. § 19-25-67 (Rev.2003). In statutory interpretation, the term “may” indicates a permissive term, not a mandatory term, such as the term “shall” would indicate. Weiner v. Meredith, 943 So.2d 692, 694 (Miss.2006). Had the Legislature intended to require the sheriff to accept every bond tendered by a professional bail agent, whether a limited or personal surety agent, that intent certainly could have been clearly stated. The statutes stop short of requiring a sheriff to accept every bond tendered by a limited surety agent, and we decline to read such a mandate into the statute.

CONCLUSION

¶ 21. We find that the Mississippi Legislature intended to confer upon the sheriff, as the “chief law executive officer of his eounty[,]” limited discretion as to whether to accept or reject a bond tendered for the release of an accused. Simmons, 165 Miss. at 736, 141 So. 288. Of course, the sheriffs discretion is not unfettered, and a sheriff must not act in an arbitrary or capricious manner. Because we find that the sheriff does have limited discretion to determine whether to accept or reject bonds tendered within his county, we find that the court’s grant of declaratory and injunctive relief was erroneous and must therefore be reversed. We make no finding as to whether the sheriff in the case sub judice acted in an arbitrary or capricious manner, as this was not the issue presented to the trial court or this Court.

¶ 22. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ, CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . " 'Professional bail agent' means any individual who shall furnish bail, acting as a licensed personal surety agent or as a licensed limited surety agent representing an insurer as defined by this chapter!,]” not including an individual who acts as a personal surety where no compensation is charged or received. Miss.Code Ann. § 83 — 39—1(d) (Rev. 1999).

      . " 'Limited surety agent' means any individual who is appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings, and who is duly licensed by the commissioner to represent such insurer for the restricted lines of bail, fidelity and surety, after successfully completing a limited examination by the department for the restricted lines of business.” Miss.Code Ann. § 83 — 39—1(g) (Rev.1999).

      . Gardner is the general partner and sole member of the LLC, whose office is located in Decatur, MS.

      . “Soliciting bail agent’ means any person who, as an agent or employee of a professional bail agent, or as an independent contractor, for compensation or otherwise, shall solicit, advertise or actively seek bail bond business for or on behalf of a professional bail agent.” Miss.Code Ann. § 83-39-l(e) (Rev.1999).

      . During the same time, Hamp removed several other bond agents and bonding companies from the bail-bonding roster for similar reasons. Those companies were returned to the roster after their defendants appeared in court and the circuit clerk of Tunica County provided notice of such to the sheriff’s office.

      . Mississippi Code Section 83-39-27(b) makes it unlawful for a licensed bail bondsman to ”[p]ay a fee or rebate or give or promise to give anything of value to a jailer, policeman, peace officer, clerk, deputy clerk, any other employee of any court, district attorney or any of his employees or any person who has power to arrest or to hold any person in custody.”

      .The trial court found that the issue of whether Hamp or his staff directed inmates to other bonding companies was a question of fact. Noting that there was no evidentiary hearing and no proof was presented that would substantiate the claim, the trial court denied the relief requested. This issue was not raised on appeal to this Court.

      . Noting that neither the motion to dismiss nor the hearing addressed the claims for in-junctive and declaratory relief, the trial court allowed the parties ten days (after the order granting the motion to dismiss monetary damages) to "make their wishes known to the court” regarding those issues. Each party subsequently submitted three letters to the trial court on the issues. No hearing was requested by either party prior to the trial court's ruling.

      . Hampton Co., Dean, and Gardner also filed suit against the defendants in the U.S. District Court for the Northern District of Mississippi, claiming violations of due process, equal protection, and the First Amendment. On appeal, the Fifth Circuit affirmed summary judgment as to Hamp's qualified immunity and reversed and remanded summary judgment on the equal protection and First Amendment claims. The Fifth Circuit based its decision to reverse on the state court’s finding that Hamp did not have the authority to prohibit Hampton Co., Dean, and Gardner from writing and soliciting bonds in Tunica County, while noting that this Court's impending conclusion would ultimately control in the future. Hampton Co. Nat’l Surety LLC v. Tunica County Mississippi, 543 F.3d 221 (5th Cir.2008).

        .See Hutchinson’s Mississippi Code, 1848, ch. 28, art. 3(13). Originally passed in 1822, the statute has been amended several times, including 1880, 1892, and most recently, 1995.

      . Mississippi Code Section 83-39-15 is part of the Professional Bail Bond Act, enacted in 1968 and codified at Section 83-39-1 et seq., and provides, in pertinent part: "(1) The department may deny, suspend, revoke or refuse to renew, as may be appropriate, the license of any person engaged in the business of professional bail agent, soliciting bail agent, or bail enforcement agent....” Miss.Code Ann. § 83-39-15 (Rev.1999).

      . The first portion of Mississippi Code Section 95-5-15, which states "It is the duty of the sheriff or other officer having custody of such defendant, upon his compliance with the order of the committing court or officer, to release him from custody” dates back to the original language of the statute, enacted in 1846. See Codes, Hutchinson’s 1848, Ch. 65, art. 12(2).
      The statute was amended in 1857 to include the following language: "and he shall approve the sureties on the bond, and for that purpose may examine them on oath, or take their affidavit in writing, and may administer such oath.” See Codes, 1857, ch. 64, art. 288.
      In 1960, in order "to provide and permit authorized fidelity and surety insurance companies to act through their agent as surety on bail bonds,” the statute was amended to include the phrase "except admitted and authorized fidelity and surety insurance companies acting as surety.” Laws, 1960, ch. 267.

      . Mississippi Code Section 99-5-19 was amended in 1997 to add the following language:
      ... except when bond is tendered by a fidelity or insurance company or professional bail agent or its bail agent authorized by Mississippi state license to act as bail surety. The sheriff taking and approving a bail bond from a fidelity or insurance company or professional bail agent or its bail agent with a valid Mississippi state license shall bear no financial liability on the bail bond in the event of a bail bond forfeiture or default.
      Miss.Code Ann. § 99-5-19 (Rev.2007).

      . A 2004 amendment to Mississippi Code Section 99-5-19 substituted the word “person” for "sheriff.” Miss.Code Ann. § 99-5-19 (Rev.2007).

      . Hampton Co. and Dean rely on an opinion of a federal district court in Arkansas, which found that Arkansas sheriffs have no statutory authority to disqualify bail bondsmen or bail-bonding companies. Holt Bonding Co., Inc., v. Nichols, 988 F.Supp. 1232, 1235 (W.D.Ark.1997). However, their reliance on the Arkansas case is misplaced, as the governing Arkansas statute specifically provides that ”[p]roof that the surety is a licensed professional bail bondsman shall be deemed sufficient proof of the sufficiency of the surety, and the surety shall be accepted by all courts in this state or by any individual authorized to take bail under the provisions of § 16-84-102.” Ark.Code Ann. § 16 — 84—103(b)(2) (Rev.2003) (emphasis added). The relevant Mississippi statutes contain no such mandate.


author: LAMAR, Justice, KITCHENS, Justice,

text:
    John DEEDS v. STATE of Mississippi.
    No. 2008-KA-00146-SCT.
    Supreme Court of Mississippi.
    Dec. 3, 2009.
    Rehearing Denied March 4, 2010.

      T. Swayze Alford, Hollie M. Miller, Oxford, attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
   LAMAR, Justice,

for the Court.

¶ 1. John Deeds was convicted in the Circuit Court of DeSoto County of driving under the influence with resulting injury. From that conviction, Deeds now appeals to this Court, asserting that the trial court erred by failing to dismiss the charges on the grounds of double jeopardy and by admitting the results of his blood alcohol test into evidence. Finding no merit in these assignments of error, we affirm.

¶ 2. On the morning of November 6, 2004, an automobile collision involving three vehicles occurred on Goodman Road in Olive Branch, Mississippi. Faye Bridges was traveling westbound, alone in her GMC van. Deeds was traveling eastbound in his Pontiac Grand Prix, with passenger Jason Raggett. The collision occurred in the inside westbound lane of Goodman Road, a four-lane roadway. Bridges testified that Deeds’s vehicle “came across and hit me nearly head on.”

¶ 3. Officer Michael Gibbs of the Olive Branch Police Department was dispatched to the scene. Officer Gibbs testified that Deeds was pinned behind the steering wheel, semiconscious. Officer Gibbs further testified that he noticed “a real strong smell of intoxicating beverage” on Deeds’s breath when he checked to see if Deeds was breathing. Officer Gibbs also observed a half-empty, half-gallon bottle of whiskey in the vehicle, which he testified had a “strong smell of alcohol or intoxicating beverage.”

¶ 4. After they were removed from their respective vehicles, Deeds and Bridges were taken to the MED in Memphis, Tennessee. Officer Gibbs was instructed by his supervisor to go to the hospital and retrieve a blood sample from Deeds. When Officer Gibbs arrived at the hospital, he was informed by a nurse that Deeds was still semiconscious and could not respond to verbal cues. Officer Gibbs observed as a nurse drew Deeds’s blood in his presence. The nurse sealed the blood sample and handed it to Officer Gibbs. Officer Gibbs then transported the blood sample to the Olive Branch Police Department, where it was kept in a locked refrigerator. The blood was then transported by Sergeant Rod Stuard of the Olive Branch Police Department to the Mississippi Crime Laboratory for testing. J.C. Smiley, forensic toxicologist and associate director of the Mississippi Crime Laboratory, testified at trial that the blood test revealed that Deeds’s blood contained .13 percent ethyl alcohol.

¶ 5. Deeds was issued citations for (1) driving under the influence (DUI) first offense, and (2) no proof of insurance. A trial date was set for June 23, 2005, in Olive Branch Municipal Court. Upon arrest, Deeds posted bond. On the date of trial, Deeds pleaded guilty to the charge of no proof of insurance. The court dismissed the charge of DUI first offense. The municipal judge, in his order dismissing the DUI charge and accepting Deeds’s guilty plea to no proof of insurance, noted the following:

This cause came on to be heard on the charge of DUI-lst and no proof of insurance. The City was unable to proceed on the prosecution of the DUI-lst charge due to the factual circumstances of the case. The Defendant was in an accident and was air-lifted to the Med in Memphis, TN. The officers on the scene could not conduct any field sobriety tests due to the Defendant’s injury and trapped in vehicle. Defendant was immediately air-lifted — unconscious. Blood was taken at Med. Defendant asserts and objects to admissibility under Section 63-11-7 MCA. City cannot prove anything by extrinsic facts. The Defendant plead guilty to no insurance, but obtained prior to court.

¶ 6. On August 19, 2005, Deeds was indicted by a DeSoto County grand jury, under Mississippi Code Section 63-11-30(5) — driving under the influence causing injury. Deeds was arrested and posted bond. After a bench trial before Judge Robert P. Chamberlin in DeSoto County Circuit Court, Deeds was found guilty and sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections, with seven years to serve followed by eight years post-release supervision.

I. Double Jeopardy

¶ 7. This Court applies a de novo standard of review to claims of double jeopardy. Boyd v. State, 977 So.2d 329, 334 (Miss.2008) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

¶ 8. Deeds argues that the trial court erred in denying his motion to dismiss on the grounds of double jeopardy. Deeds asserts that jeopardy “attached” on June 23, 2005 — the original trial date — when the municipal court dismissed the charge of DUI first offense, barring the subsequent prosecution in circuit court. The State contends that the municipal court did not adjudicate the merits of the case, and thus jeopardy did not attach when the trial court dismissed the original charge.

¶ 9. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Similarly, Section 22 of the Mississippi Constitution of 1890 provides that “[n]o person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another 'prosecution.” Miss. Const, art. 3, § 22 (emphasis added).

¶ 10. The purposes underlying the protections of the Double Jeopardy Clause have been clearly articulated by our courts. The Supreme Court of the United States has held that the guarantee against double jeopardy protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3)multiple punishments for the same offense. U.S. v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The first step of this analysis is to defíne the point at which jeopardy attaches for purposes of invoking the protections of the Double Jeopardy Clause. The U.S. Supreme Court has held that the “protections afforded by the [Double Jeopardy] Clause are implicated only when the accused has actually been placed in jeopardy. This state of jeopardy attaches when a jury is empaneled or sworn, or, in a bench trial, when the judge begins to receive evidence.” U.S. v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (emphasis added). The United States Supreme Court has consistently adhered to the view that jeopardy does not attach until “the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge.” U.S. v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Citing Martin Linen Supply, this Court has likewise pronounced that jeopardy does not attach in the case of a bench trial until the first witness is sworn. King v. State, 527 So.2d 641, 643 (Miss.1988).

¶ 11. With the teachings of Jom, Martin, and King in mind, we find that jeopardy had not attached when the municipal court dismissed Deeds’s DUI charge in the Olive Branch Municipal Court. It is undisputed that the municipal judge received no evidence and heard no witnesses before dismissing the DUI charge. Stated otherwise, Deeds was never “put to trial before the trier of facts” before the charge was dismissed. The judge’s comments on the order relative to the DUI charge do not contain any findings of the court; rather, the court merely recorded the reasons that the prosecutor gave for not proceeding to trial on the DUI charge. We find that these notations in the order do not constitute either an acquittal or an adjudication, such that the subsequent indictment or trial of Deeds would be barred by the Double Jeopardy Clause.

1112. The dissent argues that the municipal court’s order was a final adjudication on the merits which would bar subsequent prosecution. However, the authorities cited by the dissent are clearly distinguishable from the case before us. In Sanabria v. U.S., 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), a mid-trial ruling erroneously excluded certain evidence and resulted in a subsequent entry of judgment of acquittal. Id. at 57-60, 98 S.Ct. 2170. Unlike the case sub judice, Sanabria had clearly been placed “in jeopardy” before the trial court entered its judgment, as the judgment of acquittal was issued at the close of the defense’s case. Id. at 59, 98 S.Ct. 2170. In Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), at the close of the prosecution’s case, the trial court dismissed the charges on the grounds that the evidence presented was legally insufficient to support a conviction. Id. at 141, 106 S.Ct. 1745. In dismissing the charges, the trial court considered evidence that was presented during the prosecution’s case-in-chief, clearly after the defendant had been placed “in jeopardy” before the trier of fact. Id. Conversely, in the case sub judice, there was no trial on the DUI charge and no evidence presented to the trier of fact.

¶ 13. In Serfass v. U.S., 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), the Supreme Court considered a trial court’s pretrial grant of a defendant’s motion to dismiss an indictment. Id. at 379, 95 S.Ct. 1055. The Court considered and rejected the defendant’s argument that the trial court’s ruling was “the functional equivalent of an acquittal on the merits and constructively jeopardy had attached.” Id. at 390, 95 S.Ct. 1055. In its analysis, the Court discussed its reasons for finding that jeopardy had not attached when the trial court dismissed the indictment pretrial:

When a criminal prosecution is terminated prior to trial, an accused is often spared much of the expense, delay, strain, and embarrassment which attend a trial. Although an accused may raise defenses or objections before trial which are “capable of determination without the trial of the general issue,” and although he must raise certain other defenses or objections before trial, in neither case is he “subjected to the hazards of trial and possible conviction”.... Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier “having jurisdiction to try the question of the guilt or innocence of the accused.” Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.

Id. at 391-92, 95 S.Ct. 1055 (citations omitted).

¶ 14. It is fundamental “that an accused must suffer jeopardy before he can suffer double jeopardy.” Id. at 393, 95 S.Ct. 1055. Implicit in all of our cases reviewing claims of double jeopardy is the premise that the “constitutional policies underpinning the Fifth Amendment’s guarantee” are not implicated before that point in the proceedings at which “jeopardy attaches.” Jorn, 400 U.S. at 480, 91 S.Ct. 547. That point was not reached in the Olive Branch Municipal Court. Deeds’s claim of double jeopardy is without merit.

II. Admissibility of blood alcohol test results

¶ 15. “This Court reviews the trial court’s decision to admit or exclude evidence under an abuse of discretion standard of review.” Smith v. State, 986 So.2d 290, 295 (Miss.2008). Furthermore, this Court will affirm the trial court’s ruling “ ‘[ujnless we can safely say that the trial court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a party in a civil case, or the accused in a criminal case.’ ” Id. (quoting Jones v. State, 918 So.2d 1220, 1223 (Miss.2005)). The standard of review this Court employs for constitutional issues is de novo. Thoms v. Thoms, 928 So.2d 852, 855 (Miss.2006).

¶ 16. Deeds argues that the trial court erred in admitting into evidence the results of the blood alcohol test. Deeds claims that the results of the blood alcohol test were inadmissible because the State failed to establish the first link in the chain of custody when it failed to identify the individual who took his blood sample, failed to establish that the individual who took the blood sample was qualified to perform the procedure, and failed to establish the specific procedure utilized to take the blood sample. Deeds further claims that he was deprived of his Sixth Amendment right to confront witnesses against him by not having the nurse, who drew his blood, identified and presented to testify at trial. Finally, Deeds claims that taking his blood without his consent amounted to an improper seizure in violation of his Fourth Amendment rights.

A. Failure to comply with Section 63-11-9 of the Mississippi Code

¶ 17. Deeds claims that the State failed to preserve the chain of custody of the blood sample because it failed to identify the individual who drew his blood. Deeds asserts that because the nurse who drew his blood was not identified, he was denied the safeguard afforded by Mississippi Code Section 63-11-9, which specifies that “any qualified person acting at the request of a law enforcement officer may withdraw blood” pursuant to Section 63-11-7. Deeds relies exclusively on the language of the statute and contends that because the State did not prove that the individual was “qualified” to perform the procedure, the results of the blood alcohol content test were inadmissible.

¶ 18. Deeds’s argument that the blood test results were inadmissible due to failure to comply with Section 63-11-9 is simply misplaced. Admissibility of evidence is governed by the Mississippi Rules of Evidence, not by statutory enactment. This Court has held that the Mississippi Rules of Evidence supercede statutory provisions which would render inadmissible evidence that otherwise would be admissible under the Rules of Evidence. Whitehurst v. State, 540 So.2d 1319, 1323 (Miss.1989). Since the enactment of the Mississippi Rules of Evidence on January 1, 1986, this Court has consistently held that matters regarding admission of evidence are to be decided through judicial pronouncement rather than through the legislative process. Mississippi Rule of Evidence 1108 provides that “all evidentia-ry rules, whether provided by statute, court decision, or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.” Stated otherwise, the Legislature cannot dictate through statutory enactment what is, or is not, reliable or relevant evidence. These are judicial determinations, and at the core of the judicial function is our responsibility to establish the judicial process which tests both the relevance and the reliability of evidence. See Hall v. State, 539 So.2d 1338 (Miss.1989). Further, “[t]his Court’s rule-making power is a function of our constitution’s command that the three great governmental powers be separate.” Id. at 1345.

¶ 19. Thus, having found that the admissibility of the blood test results is not governed by compliance with statutory requirements, we shift our analysis to whether the results of Deeds’s blood test were admissible under the Mississippi Rules of Evidence. Deeds’s argument that the State failed to prove “chain of custody” is a challenge to the authenticity of the evidence. However, Deeds never substantively questioned the genuineness of the blood sample. Rather, Deeds merely suggests that because the prosecution could not provide the name of the individual who drew Deeds’s blood, tampering or contamination could have taken place. Officer Gibbs testified that he witnessed the attending nurse draw the blood and that the nurse signed her name on the blood sample before she gave it to him. Officer Gibbs, however, did not otherwise note the nurse’s name in his report, and the Mississippi Crime Laboratory disposed of the blood sample as a biological hazard six months after analysis, pursuant to standard procedures.

¶ 20. Rule 901 of the Mississippi Rules of Evidence provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Miss. R. Evid. 901(a). Our precedent is clear that “Mississippi law has never required a proponent of evidence to produce every handler of evidence.” Ellis v. State, 934 So.2d 1000, 1005 (Miss.2006). In order for the defendant to show a break in the chain of custody, there must be an “indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Spann v. State, 771 So.2d 883, 894 (Miss.2000). The defendant has the burden of proving tampering or substitution of the evidence, and “[a] mere suggestion that substitution could possibly have occurred does not meet the burden of showing probable substitution.” Ellis, 934 So.2d at 1005. Deeds has not attempted to prove that such tampering or substitution occurred.

¶ 21. The trial judge found no indication or reasonable inference of tampering with evidence or substitution of evidence. In examining the record, we find sufficient evidence, under an abuse of discretion standard, to support the judge’s finding that the blood sample was what it was claimed to be. For the reasons stated, we find this argument to be without merit.

B. Sixth Amendment Right of Confrontation

¶ 22. Deeds also claims that, because the State never identified the person who drew his blood, and because he was consequently unable to cross-examine that individual, his Sixth Amendment right to confront witnesses was violated.

¶ 23. The Sixth Amendment of the U.S. Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Officer Gibbs testified that he personally observed the attending nurse draw blood from Deeds and label the sample and that he then took the sample from the nurse. Subsequently, the blood sample was delivered to the Mississippi Crime Laboratory and tested by J.C. Smiley. Both Officer Gibbs and Smiley testified at trial and were subject to cross-examination. Neither the procedure used to draw Deeds’s blood, nor the physical blood specimen itself, are statements, nor do they constitute nonverbal conduct intended as an assertion. Contrary to the defendant’s claims, the unidentified nurse was not a witness against Deeds.

¶ 24. The United States Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, 557 U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), found “certificates of analysis” of drug evidence introduced in lieu of live witnesses to be inadmissible. However, in addressing the concerns of the dissent, the Melendez-Diaz Court was clear that it does not require “that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person or as part of the prosecution’s case.” 129 S.Ct. at 2532 n. 1. Rather, “ ‘gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’ ” Id. (quoting U.S. v. Lott, 854 F.2d 244, 250 (7th Cir.1988)). “It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.” Id. (emphasis in original).

¶ 25. We find that the admission of the results of the blood test did not violate Deeds’s Sixth Amendment right to confront witnesses testifying against him.

C. Fourth Amendment right to be free from improper search and seizure.

¶ 26. Finally, Deeds claims that taking his blood sample constituted an unlawful search and seizure in violation of his Fourth Amendment rights, alleging that Officer Gibbs had no probable cause to take his blood, nor were exigent circumstances present to necessitate taking the blood sample without a warrant. Deeds was not arrested at the time of the accident but was transported to the hospital for medical treatment. Accordingly, the taking of his blood sample was not a search incident to arrest.

¶ 27. This Court has ruled that “[a] search made without a warrant and not incident to a lawful arrest is not illegal per se, but if the fruits of the search are to withstand the exclusionary rule, the search must have been predicated on probable cause.” Hailes v. State, 268 So.2d 345, 346 (Miss.1972). In Wilkerson v. State, we held that drawing blood evidence from a defendant at the hospital without a warrant following an accident was not a violation of the defendant’s Fourth Amendment rights because the law enforcement officer had probable cause. Wilkerson v. State, 731 So.2d 1173 (Miss.1999). This Court held that:

Probable cause for a search is a common sense determination that the facts and circumstances known to the police officer, either through his own direct knowledge or gained second-hand from reliable sources, are such that contraband or evidence material to a criminal investigation will be found in a particular place. It must be more than mere or reasonable suspicion, but it need not meet the requirements of proof beyond a reasonable doubt....

Id. at 1177-78.

¶28. The facts of Wilkerson are substantially similar to those in the present case. Id. at 1176. The officer in Wilkerson knew that (1) the defendant had been involved in a head-on collision; (2) the collision had occurred in the other vehicle’s lane of travel; (3) the defendant had been driving recklessly; and (4) the defendant had a strong odor of intoxicating substances on his person. Id. Similarly, Deeds’s head-on collision with Bridges occurred in Bridges’s lane of travel. Bridges testified that when she saw Deeds crossing into her westbound lane of Goodman Road, he “[l]ooked like to me he was flying.” More importantly, Officer Gibbs testified that he detected the scent of intoxicating beverage emanating from both the vehicle and from Deeds’s breath when he checked to see if Deeds was breathing. Officer Gibbs also observed a half-empty, half-gallon bottle of whisky sitting on the floorboard of Deeds’s vehicle. These facts and circumstances evince more than a mere or reasonable suspicion that evidence material to the criminal investigation, an illegal blood alcohol level, would be found. We find, as the trial court did, that Officer Gibbs had probable cause to obtain a blood sample from Deeds.

¶29. Further, “[a] warrantless search is permissible in certain exigent circumstances if it can be shown that grounds existed to conduct the search that, had time permitted, would have reasonably satisfied a disinterested magistrate that a warrant should properly issue.” Holloman v. State, 820 So.2d 52, 55 (Miss.Ct.App.2002) citing Sanders v. State, 678 So.2d 663, 667 (Miss.1996). In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the U.S. Supreme Court noted that search warrants are normally required for searches of homes, and held that “absent an emergency, no less could be required where intrusions into the human body are concerned.” Id. at 770, 86 S.Ct. 1826. The Court found that exigent circumstances existed to justify the warrantless seizure of blood samples:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence,” Preston v. U.S., 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.

Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826.

¶ 30. During the suppression hearing, Officer Gibbs testified that exigent circumstances existed:

Q: Now, the question remains: Why didn’t you get a warrant? How long would it have taken you to— describe to the Court what procedures you would have had to undertake at that point in time to retrieve a warrant?
A: If I did, I would have to go back to the police department, sit down, type up an affidavit at that point as well as the warrant, and then go — I would have to drive out to Judge— typically, we have our warrants signed by Judge McGarrh, who lives quite a bit out in the country so to speak, and then after I get it signed, come back and head down to the MED.
Q: Now, based off of your previous experiences, how long would that entire process have taken?
A: It’s tough to say, but I mean, it could be anywhere from an hour and a half to two and a half hours.
Q: Now, based off your experience as a law enforcement officer and having been a DUI officer, as you stated earlier, what affect [sic] does time have on the level of blood alcohol in the human system?
A: As time goes on, it decreases.

¶ 31. Based on this testimony, and the facts and circumstances of this case, this Court is satisfied that exigent circumstances existed that justified taking a blood sample without first seeking a warrant. These circumstances include not only the undisputed fact that alcohol rates begin to dissipate after drinking ceases, but also the fact that the officers were involved in the investigation of a major vehicle accident involving serious injuries to multiple people, requiring their transportation to nearby hospitals, as well as the time that would have been required to obtain a warrant before traveling to the hospital to obtain the samples. Accordingly, we find this assignment of error to be without merit.

¶ 32. For the reasons stated, the judgment of the Circuit Court of DeSoto County is affirmed.

¶ 33. CONVICTION OF DRIVING UNDER THE INFLUENCE CAUSING INJURY AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT (8) YEARS OF POST-RELEASE SUPERVISION, AND FIVE (5) OF THOSE YEARS REPORTING TO A PROBATION OFFICER PURSUANT TO MISS. CODE ANN. § 47-7-34, WITH CONDITIONS, AND PAY A FINE OF $1000.00, AND $100.00 TO THE MISSISSIPPI CRIME VICTIM’S COMPENSATION FUND, AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH AND PIERCE, JJ„ CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., AND CHANDLER, J.

KITCHENS, Justice,

Dissenting.

¶34. I respectfully disagree with today’s decision that the municipal court order dismissing the misdemeanor DUI charge did not constitute former jeopardy. The majority holds that jeopardy could not have attached because the municipal court judge did not formally receive evidence, but the focus of this analysis is misplaced. The question here is whether the municipal court’s order was a final adjudication on the merits. Because the municipal court order was a final adjudication of the misdemeanor DUI charge, dismissing the charge for lack of evidence, the State was prohibited from prosecuting Deeds for another DUI charge based on the same alleged conduct.

¶ 35. “[W]hat constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action. Rather we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” U.S. v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (citations omitted). “[A] judgment that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause.” Smalis v. Pennsylvania, 476 U.S. 140, 142, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) (citations omitted).

¶ 36. The majority finds that the municipal order dismissing the DUI charge “do[es] not contain any findings of the court; rather, the court merely records the reasons that the prosecutor gave for not proceeding to trial on the DUI charge.” Maj. Op. at 11 (footnote omitted). I respectfully disagree: the clear and unambiguous language of the order, to which the prosecution and defense unequivocally agreed, indicates that the DUI charge was dismissed because the State could not produce any evidence to support the charge:

This cause came on to be heard on the charge of DUI-lst and no proof of insurance. The City was unable to proceed on the prosecution of the DUI-lst charge due to the factual circumstances of the case. The Defendant was in an accident and was air-lifted to the Med in Memphis, TN. The officers on the scene could not conduct any field sobriety tests due to the Defendant’s injury and trapped in vehicle. Defendant was immediately air-lifted — unconscious. Blood was taken at Med. Defendant asserts and objects to admissibility under Section 63-11-7 MCA. City cannot prove anything by extrinsic facts.

(Emphasis added.) The foregoing was handwritten in the body of the order of dismissal. From this language in the court’s order, we know: (1) the only evidence the city had to prove the DUI charge was the result of the blood alcohol test; (2) the defendant objected to the admissibility of the test result based on Mississippi Code Section 63-11-7; (3) the prosecution did not oppose this objection; and (4) when the blood test result was ruled inadmissible, the city had insufficient evidence to support a conviction for the misdemeanor DUI charge. With the prosecution’s in-court acknowledgment that it was unable to prove its case, the trial judge entered a final judgment of dismissal. This is abundantly clear from the plain language of the municipal court judge’s order.

¶ 37. This judgment was entered on a standard form with blanks provided for sentencing details such as fines, court costs, fees, and jail time. The defendant was fined $100 for his conviction of the offense of no proof of insurance, but the number zero is entered in the blank provided for the fine on the DUI charge. The form also lists eight options for disposition of the charges: (1) accepts a plea of guilty to the charge(s); (2) found the Defendant guilty of the charge(s); (3) found the defendant not guilty of the charge(s); (4) accepted a recommendation of the City Prosecutor for_; (5) accepted no contest plea; (6) remanded to file; (7) other; and (8) non adjudicated. The space beside “other” is clearly marked, and next to it is a handwritten notation, “Dismiss DUI.” Had the prosecution simply chosen not to proceed with its case, as the majority asserts, the order could have stated that the charge was “remanded to file” or “non adjudicated.” However, “other” is marked, and the order is clear that the charge was dismissed for insufficient evidence. The prosecution did not nolle pro-sequi this charge. It dismissed it.

¶ 88. The majority says that the handwritten comments on the form were from the municipal court judge, but the defendant asserted in a hearing before the circuit court that the city prosecutor filled out the form and wrote the comments. Regardless, the trial judge signed the order and the prosecutor, the defendant and the defendant’s attorney all signed the form as “approved.” In other words, all parties and the judge agreed that the prosecution was unable to prove its DUI case on the day that it was set for trial. When the judge signed and filed the order, the case was over.

¶ 39. Of course, despite the unanimous understanding of the parties and the municipal court judge, we know that, following this Court’s reasoning from two decades ago, the prosecutor and the municipal judge were mistaken. The blood alcohol test result actually would have been admissible. Although Mississippi Code Section 63-11-7 plainly provides that the result of a blood alcohol test of blood drawn from an unconscious person cannot be used as evidence against that person without his or her consent, this Court has held that such evidence is admissible. Whitehurst v. State, 540 So.2d 1319 (Miss.1989). Yet, even when a dismissal is based on an erroneous legal conclusion, the acquittal will bar subsequent prosecutions. Sanabria v. U.S., 437 U.S. 54, 63-64, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (“[Wjhen a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.”)

¶ 40. Despite the majority’s attempts to equate the municipal court order with the dismissal of an indictment, the order is undoubtedly a final and valid judgment that the available evidence was insufficient to support a conviction, and the dismissal of the charge constitutes an acquittal for double jeopardy purposes. Smalis, 476 U.S. at 142, 106 S.Ct. 1745. That the prosecutor agreed that the evidence was insufficient before formally presenting any evidences does not matter for double jeopardy purposes. It cannot seriously be argued that Deeds was not placed in jeopardy when he appeared before the municipal judge for trial. Deeds’s DUI case was set for trial in the court in which the charge was pending. He appeared in that court, at the appointed time, with his attorney, to answer to that charge. When the case was called, the prosecutor informed the court that the city was unable to proceed because of insufficient evidence, and, along with defense counsel and the defendant, he acknowledged that he did not believe he had a viable case by signing a detailed court order to that effect. That agreed order was presented to the presiding judge, who signed it. It was duly filed with the court clerk. One can readily glean from that order that the DUI charge against Deeds was, then and there, fully and finally dismissed; Deeds was acquitted of DUI. Neither the State of Mississippi nor this Court can constitutionally resuscitate that DUI charge. Accordingly, I respectfully dissent.

GRAVES, P.J., AND CHANDLER, J„ JOIN THIS OPINION.

      . A third vehicle involved in the collision was a Dodge truck, driven by Murray Duran with passenger Nancy Duran. Duran was behind Bridges, also traveling westbound, but in the outside lane. According to the expert accident reconstructionist, Duran was unable to avoid contact with the right rear of Bridges's vehicle after the initial collision between the vehicles driven by Deeds and Bridges. The expert further testified that Duran's vehicle had nothing to do with the cause of the collision.

      . The Regional Medical Center at Memphis.

      . Smiley testified that the Mississippi Crime Laboratory's standard procedure is to dispose of blood samples six months after their analysis is complete, at which point the submitting authorities have an opportunity to retrieve the blood sample or request that the sample be held for a longer period of time. The Mississippi Crime Laboratory disposed of Deeds's blood sample according to this procedure.

      .Deeds waived his right to a jury trial and requested a bench trial.

      . Contrary to the findings of the dissent, there is nothing in the record to show that the municipal judge ruled on the admissibility of the blood test results.

      . Section 63-11-9 of the Mississippi Code provides:
      Under Section 63-11-7, any qualified person acting at the request of a law enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein....
      Miss.Code Ann. § 63-11-9 (Rev.2004) (emphasis added).

      . Section 63-11-7 of the Mississippi Code provides:
      If any person be unconscious or dead as a result of an accident, or unconscious at the time of arrest or apprehension or when the test is to be administered, or is otherwise in a condition rendering him incapable of refusal, such person shall be subjected to a blood test for the purpose of determining the alcoholic content of his blood ... if the arresting officer has reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways, public roads and streets of this state while under the influence of intoxicating liquor. ...
      Miss.Code Ann. § 63-11-7 (Rev.2004).

      . Similarly, the Mississippi Constitution of 1890 provides that "[i]n all criminal prosecutions the accused shall have a right ... to be confronted by the witnesses against him.'' Miss. Const, art. 3, § 26.

      . The majority says that "there is nothing in the record to show that the municipal judge ruled on the admissibility of the blood test results.” But, when the municipal court’s order is considered as a whole, it is clear that the judge concluded that the blood test result was inadmissible.