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Johnson County DUI/DWI Lawyers

Can you "win" your Johnson County driving under the influence (DUI/DWI) case or driver's license suspension administrative hearing with the Kansas Department of Revenue?

Our Johnson County law office's experienced drunk driving (DUI/DWI) defense attorneys will fight for your rights and may be able to secure an acquittal in municipal court or Johnson County District Court. Our knowledgable DUI/DWI lawyers may also be able to "win" the administrative hearing regarding a proposed driver's license suspension dismissed. 

If you have been charged with driving under the influence (DUI/DWI) in Johnson County or elsewhere in Kansas, the "winnability" of your drunk driving case is undoubtedly one of the questions on your mind.  Our law office's attorneys can help answer that question for you by evaluating your case in a no-cost initial consulation. 

Johnson County drunk driving cases are unique among criminal charges because DUI is a "status crime" - in most cases the defendant has not done anything inherently wrong, they are being charged because of their "status" as people who registered a certain number on a machine or a person who a police officer believed was too intoxicated to safely operate a car.  Normally there must usually be an injury (physically, emotionally, or financially) or an intent to cause an injury for a person to be charged with and convicted of a crime.  Johnson County DUI/DWI cases are another different, however.  Many Johnson County DUI arrests start with a burnt out lamp or a speeding violation, neither of which offers any indication that the driver is impaired to a degree that they cannot safely operate a motor vehicle!  It takes more control to operate a vehicle that is speeding than one that is driving at the speed limit.  A tag light being burnt out also says absolutely nothing about a driver's ability to operate their car, but these violations are often used as pretexts by police officers in Johnson County to make a stop and start a DUI investigation, especially at night.  

No one, including the DUI lawyers in this law office, believes that drunk driving is OK, but all too often the attorney's and staff in our law office see the prosecution trying to essentially hang a client who has done nothing more than have a few beers before going home.  If you were falling-down-drunk, then we will probably be forced to focus on limiting the damage from the charge.  If however, you were OK to drive, but arrested anyway, then we may be able to find many ways to prevail in your case. 

Cases that appear to be impossible may be won at trial or even before trial through the utilization of a Motion to Suppress, aggressive trial strategies, or clever cross-examination.  Our Johnson County law office's attorneys focus their criminal practice on DUI defense and we work hard on every one of our DUI clients' cases

More about administrative hearings for proposed Johnson County DUI/DWI driver's license suspensions:  

Some in Johnson County do not believe that the administrative hearing with the Kansas Departmetn of Revenue can be won and will either make a half hearted defense at the hearing, or none at all.  In fact, there are some lawyers in Johnson County who recommend that driver's do not fight the license suspension at all!  There are no plea bargains at the administrative hearing - you will either get the proposed suspension or you won't.  As we see it, this means that there is no reason not to fight the license suspension - you have nothing to lose by doing so!

The staff and attorneys at our Johnson County DUI/DWI law office beleive in challenging EVERY proposed license suspension because there is no incentive not to.  There are no plea bargains with the Kansas Department of Revenue - you're either going to beat the proposed suspension or they're going to take your license.  It is truly that simple.  Do not anyone tell you that your administrative hearing cannot be won! 

Potential methods of winning a Johnson County driving under the influence (DUI/DWI) case or driver's license suspension hearing:

1.  Our law office's attorneys can file a Motion to Suppress based upon an illegal stop in many Johnson County DUI cases:

Constitutional case law is clear that if a traffic stop violated the Constitution, then the proper remedy for the Court is to suppress all evidence gathered from the stop, meaning that the Court orders the evidence may not be presented by the State.  When applied to a DUI case in Johnson County, Kansas, a successful Motion to Suppress based on an illegal stop almost always results in an acquittal. 

The DUI attorneys in our Olathe law office enjoy filing and arguing such motions because they are a "no-lose" proposition for our clients - if the Court agrees with us, the case goes away, if the Court does not agree with us, we have still gained another opportunity to get the police officers' and witnesses' sworn testimony which can later be used for impeachment purposes at trial. 

A copy of just such a Motion successfully argued by this office is available here:  Click to see a Motion to Suppress filed in Johnson County District Court. 

However, recent case law (specifically Martin v. Kansas Department of Revenue) has all but eliminated the use of this tactic in administrative hearings.  What this means is that our DUI lawyers could fight to have all of the evidence suppressed in court, resulting in an acquittal, and a driver would still be facing a proposed driver's license suspension where the illegal stop would be allowed into evidence.

2.  Our Johnson County DUI lawyers can file a Motion to Suppress based on an arrest made without probable cause:

To arrest a driver, Johnson County law enforcement officers must have more than a mere hunch that they've done something wrong or that they are under the influence- they must have observed sufficient facts to convince a court that the driver may have committed the crime.  If our DUI lawyers believe that an arrest was made without probable cause, then we will file the Motion to Suppress and prepare to argue it to the Court.

We enjoy filing Motions to Suppress for lack of probable cause, for many of the same reasons we like to file them on illegal stops. These are also a "no-lose" proposition for our clients - if the Court agrees with us, our client usually walks out of court completely free. If the Court does not agree with us, we have still gained another opportunity to get the police officers' and witnesses' sworn testimony which can later be used for impeachment purposes at trial.  The value of this can be huge, especially when the State of Kansas is relying on the officer's observations to support their effort to convict you.

A copy of a winning Motion to Suppress is available here:  Click here to see a Motion to Suppress filed in Overland Park Municipal Court. r

3.  Our law office can file a Motion to Suppress breath, blood, or urine results taken by Johnson County law enforcement officers:  

The breath test machines used in Kansas (called an "Intoxilyzer 8000") are unreliable instruments even on their best days, are run by officers who occasionally make mistakes, and are based on junk science.  The DUI lawyers in this office evaluate every case for flaws in the testing process that may cause the Intoxilyzer 8000 results to be ruled inadmissible.  

The Kansas Department of Health and Environment is tasked with certifying these machines and their operators.  If these requirements are not fulfilled, the DUI lawyers in our office may be able to file a Motion to Suppress the results.  If successful the Court would rule that such tests were inadmissible and the prosecution could either dismiss the case or proceed only on the officer's testimony as well as the in-car video and/or audio recordings.

For instance, the machines must be recalibrated at certain times.  If they're not done so according to schedule, then your DUI attorney may be able to suppress the results.  If the officer conducting the test is not properly certified, then the tests should not be admitted, either.  There are many more requirements that your Johnson County DUI lawyer should examine thoroughly before advising you on your case.  Such an examination can only be performed once the in-car video, station video, audio tapes, police reports, and intoxilyzer records have been examined by a diligent DUI attorney.

A copy of a winning Motion to Suppress is available here:  Click here to see a successful Motion to Suppress filed in Johnson County District Court.

4. Our DUI attorneys can point out improper and unfair field side sobriety testing to the Court and/or jury:  

The standardized field side sobriety tests performed by Johnson County police officers are a crock, pure and simple.  One of the first series of questions I ask prospective jurors at a DUI trial is "who here had to take a written test to get their license?" followed by "who here had to get in car and drive around with an instructor to get their license?"  then the point of the questions - "who here had to stand on 1 leg to get thier license?  No one?  Well who here had to walk 9 steps make a specific turn, and then walk 9 steps back?"   The point is immediately clear  to the jurors - the tests that law enforcement rely upon to make an arrest aren't even requirements to drive in the first place.  Since the officer doesn't know how the person would do sober, then how do they come to their conclusions?

Furthermore, many officers don't even give the test instructions correctly and many others grade them incorrectly.  The National Highway Transportation Safety Administration (NHTSA) specifies that to be useful clues of impairment, the tests must be instructed in a certain manner and graded in a specific manner.  Our experience has shown that some of Johnson County's leading DUI enforcement officers routinely give incorrect instructions or grade the tests incorrectly.  For instance Officer Lee Kibbee of the Olathe Police Department makes a habit of leaving the patrol car's lights on which NHTSA prohibits.  Officer Kibbee also routinely gives the instructions incorrectly and pauses at specific points during the instructions for what we beleive is an attempt to make it more difficult to process the instructions and cause a test failure.  Click here to see an example of Officer Kibbee's instructions compared to those in the NHTSA manual. 

If you can remember back to high school, you will probably remember that the most important tests were announced well before they were given, the teacher informed the test-takers what they would be graded on, and the the teacher allowed students to ask questions before they took the test.  None of those elements of fairness are available withthe SFSTs. 

For instance, the walk-and-turn test grading starts as soon as the Johnson County police officer says "place your right foot in front of your left, put your arms down by your side, and stay that way until I tell you to begin."  If your nose itches and you scratch it, that is a point off.  If your feet get tired standing in such an unnatrual position and you move them, that is a point off.  Here is the kicker - if you get two points off, you fail the test and you are likely going to be arrested.  Yes, you can fail the walk-and-turn test before you even start.

5.   Explaining health and medical problems that affected our DUI client's ability to perform field sobriety tests:

Medical conditions can not only affect a person's actions on the side of the road, but their performance on the Intoxilyzer as well.  Most people can agree that a poorly healed injury, old age, or general lack of coordination can explain one's performance on field side sobriety tests.  however most people don't know that medical conditions can drastically affect the readings on the breath test machine (intoxilyzer 8000).  Some studies have shown that diabetics can blow over the legal limit without having ever taken a drink.  To learn why, see the next section:  Pointing out the severe deficiencies of the Intoxilyzer 8000 breath test machine.

Police officers in Johnson County are also fond of saying "the eyes don't lie," when referring to the horizontal gaze nystagmus (HGN) test and the presence of bloodshot eyes.  With respect to the HGN test, it is absolutely junk science.  The science is so bad, we have never gone to trial without insuring that the results of this test are not presented to the judge or jury.  An example of such a motion is available by clicking here:  Motion to Suppress HGN tests.  With respect to the testimony of "bloodshot eyes," we first find it curious that the officers never bother to take a picture to demonstrate this, even though it almost always cited as a reason to make an arrest.  At trial, we usually point out that NHTSA itself has cast doubt on the use of bloodshot eyes to suggest intoxication because they are most often factors of other conditions, such as being awake for an extended period of time, allergies, a reaction to irritants such as cigarette smoke, and numerous other factors.  

6.  Noting the positive aspects of our client's driving (when appropriate).  

If you were pulled over for an offense that is not a possible indicator of intoxication, you can bet we'll make a point of emphasizing that to the jury.  The State often likes to point to the SFSTs because they know that everyone fails them.  We, however, like to point to our client's driving.  After all, the prosecution is trying to prove that you couldn't safely drive your vehicle. 

7.  Trial strategy

An effective trial strategy is a combination of all of the above, preparation on the part of your DUI attorney, and the ability to quickly adjust during trial.  Cross examination of the officers involved in your arrest can yeild excellent facts in your defense or make the officer seem unreasonable - both of which can help you tremendously with a jury. 

We love taking cases to trial - to us it is what being an attorney is all about.  If you're looking for an attorney to take your case to trial, call us today at 913 764-5010 to schedule a free initial consultation.   

 

Standardized Field Sobriety Testing

The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help law enforcement officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through the International Association of Chiefs of Police (IACP). The three tests of the SFST are:

  • Horizontal Gaze Nystagmus (HGN), 
  • Walk-and-Turn (WAT), 
  • and One-Leg Stand (OLS).

These tests are administered systematically and are evaluated according to measured responses of the suspect.

HGN Testing

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater. NHTSA research found that this test allows proper classification of approximately 88 percent of suspects (Stuster and Burns, 1998). HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Walk and Turn

The Walk-and-Turn test and One-Leg Stand test are "divided attention" tests that are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps. NHTSA research indicates that 79 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.08 or greater (Stuster and Burns, 1998).

One Leg Stand

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998).

Combined Measures

When the component tests of the SFST battery are combined, officers are accurate in 91 percent of cases, overall, and in 94 percent of cases if explanations for some of the false positives are accepted (Stuster and Burns, 1998).

The original NHTSA research found different accuracies for the SFST Battery than reported in the more recent study. Tharp, Burns, and Moskowitz (1981) reported accuracies of 77 percent for the HGN, 68 percent for the Walk and Turn, and 65 percent for the One Leg Stand components; 81 percent of officers' arrest decisions at 0.10 BAC were correct when all three measures were combined. In contrast, Stuster and Burns (1998) found greater accuracies in making arrest decisions on the basis of SFST results in their study at 0.08 percent BAC, as described previously and summarized in the following table.

Comparison of SFST Accuracies 1981 vs. 1998

Study:  Combined Tharp, Burns, & Moskowitz (1981)

  • BAC:  0.10

  • HGN:  77%

  • WAT: 8% 

  • OLS: 65% 

  • Combined: 81% 

Study: Stuster & Burns (1998) 

  • BAC: 0.08

  • HGN:   88%

  • WAT:  79%

  • OLS:  83%

  • Combined:  91%

The greater component and overall accuracies found during the 1998 study are attributable to 17 years of law enforcement experience with the SFSTs since the original study and a lower criterion BAC than in the original study (i.e., 0.08 vs. 0.10 percent).

 

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I suspect the reason you waited so long to produce any literature is because none of it supports your position.  I further question whether your failure to produce such literature was purposely done to avoid having Dr. Karlin cross-examined with the materials at his deposition.  With that in mind, I am considering motioning the court for leave to re-depose Dr. Karlin on these materials, and asking for the costs of doing so being assessed against defendant. 

 

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1) Vehicle in Motion
A. Checkpoints
***PUBLISHED CASES***
PRESERVATION OF BREATH SAMPLE-TEMPERATURE-FIELD NOTES
State v. Johnson 233P.3d 290 (5/28/10)
Prior to trial, the defendant Johnson filed a motion to suppress the evidence of the warrantless search, a motion to dismiss based on the destruction of Officer‘s field notes, and the failure to save the breath sample contained in the tox trap in the Intoxilyzer. He also filed a motion in limine to exclude evidence of the breath test based on improper calibration of the Intoxilyzer. CHECKLANE: Sobriety checkpoints have been found to be constitutional under the Fourth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights § 15. See Davis v. KDOR, 252 Kan. 224, Syl. 1, 843 P.2d 260 (1992). DESTRUCTION OF FIELD NOTES: The officer testified he accurately and completely transcribed his field notes onto his final report. There was a finding of no bad faith. The court agreed with the State: the only thing that can be said was the field notes may have contained something that may have exonerated Johnson, however, that does not translate into evidence that was exculpatory. SAVE BREATH SAMPLE: Defendant proffered his right to confront witnesses was violated because a portion of his breath sample was not ―preserved‖ for further testing. The court previously held the results from a single breath test are scientifically reliable and, therefore, should be admitted into evidence. See Meehan v. KDOR, 25 Kan. App. 2d 183, 192-94, 959 P.2d 940, rev. denied 365 Kan. 885 (1998). Court also noted the defendant could have requested a separate independent test and did not do so. PROTOCOL NOT FOLLOWED: The Intoxilyzer 5000 required a reading of the external standard temperature to be within the acceptable range of 33.8 degrees and 34.2 degrees Celsius. Officer testified the temperature was 34. The defendant argued there was no indication the thermometer that measured this was accurate. The trial court indicated this goes to the weight not the admissibility and the appellate court agreed. They indicated: At some point the foundation is sufficient. Should we follow Johnson's argument, we might then be asked a third thermometer also be certified. This could go on forever.
CHECK LANE—CAR CHASE—ILLEGAL U-TURN
State v. Kotas 35 Kan. App. 2d 769, 134 P.3d 677 (2006)
Deputy Sims was assigned to drive a ―chase car‖ stationed near a DUI checkpoint in order to chase vehicles which eluded the DUI checkpoint and to stop them if they committed a traffic violation. Sims noticed a vehicle, driven by Kotas, approaching the checkpoint, slow down, make a U-turn across solid double yellow lines, and head back the other direction. Kotas‘ U-turn caused several vehicles to slow behind him. Sims chased after Kotas and issued citations for making a U-turn when not safe and clear and DUI. At trial, Kotas filed a motion to suppress evidence obtained as a result of the traffic stop. In overruling the motion, the district court stated under Larson it need not decide whether Kotas‘s U-turn was illegal because it was reasonable for Sims to think so. Kotas later filed a motion to reconsider based on Knight. The district court held Knight requires law enforcement employ a common sense interpretation of the statutes and the deputy‘s application was not objectively reasonable. On appeal, the court reversed and
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remanded the case, holding the deputy had a particularized and objective basis for suspecting defendant had executed an illegal U-turn, and thus was justified in conducting traffic stop. As a result, the car stop was valid and seizure of the evidence did not violate the Fourth Amendment.
CHECKPOINT—CONSTITUTIONALITY- AVOIDANCE
State v. Jackson 24 Kan.App.2d 38, 942 P.2d 640 (1997)
The Court of Appeals reversed the district court‘s suppression of marijuana obtainedthrough a checklane. The Court held the checklane established in this case was constitutional as a matter of law. Motorists were advised of the checklane by five signs stating either "check lane ahead" or "narcotics check lane ahead." Four of the signs were placed on either side of the roadway. The fourth sign was placed before the "Exit 210" sign, but beyond where cars would turn off to exit on exit 210. None of the first four signs gave any indication the checklane was on the exit ramp. The fifth sign was on the exit itself as motorists were approaching the checklane. Highway patrol officers spotted large bag of marijuana in defendant‘s pickup truck, and defendant was arrested. The district court suppressed the bag of marijuana. On appeal, the Court of Appeals noted absence of advance warning to the public at large does not by itself invalidate a checklane operation, the presence of a drug-sniffing dog at a sobriety checklane does not constitute an illegal search, and police officers are not required to close their eyes to all offenses observed at a checklane operation which are not purely traffic related. The State is also under no obligation to give drivers an opportunity to avoid a checklane operation. See Michigan Department of State Police v. Sitz 496 U.S. 444 (1990). The Court concluded under the peculiar facts of this case, the checklane operation was constitutional as a matter of law, in that it was established with safety in mind, limited discretion in highway patrol officers on site, and met standards established by case law, such as by providing notice to public at large, notifying approaching motorists of checklane by placing signs along highway, and detaining vehicles for average of 25 seconds. Reversed.
SEARCH—CHECKLANE—DOG SNIFF—FOUNDATION—PROBABLE CAUSE
State v. Barker 252 Kan. 949, 850 P.2d 885 (1993)
The Supreme Court holds while a drug dog‘s sniffing the exterior of a vehicle is not a search; there must be some foundation evidence as to the dog‘s training and behavior in order for its ―alert‖ to establish probable cause to search the vehicle. The Court specifically holds the Frye test is inapplicable, as it applies to scientific tests admitted in legal proceeding. The Court remands to allow the State to establish such a foundation. In other rulings, the Court upholds the validity of sobriety checkpoints, and applies the ruling in Davis v. Department of Revenue, that no specific legislative authorization is required, to a criminal case. The Court also holds a DUI checklane stop does not interfere with the constitutional right to travel. (Saline, 67953, 4/16/93)
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DUI—CHECKPOINTS—LEGISLATIVE AUTHORITY
Davis v. Ks. Dept. of Revenue 252 Kan. 224, 843 P.2d 260 (1992)
The Supreme Court reverses the trial court‘s vacation of suspension of a driver‘s licenses for a BAT refusal. The trial court had held even though checkpoints are constitutional, law enforcement officers still require specific legislative authority before stopping motorists without probable cause. The Court notes the legislature has had ample opportunity to impose legislative restrictions since Deskins, and has not chosen to do so; while it has taken specific action for mechanical inspections, 8-1759, and 8-1759a. (Johnson, 67793, 12/11/92)
UNDER CERTAIN STRICT GUIDELINES AND CIRCUMSTANCES, A DUI ROADBLOCK MAY BE ESTABLISHED FOR CATCHING DRUNK DRIVER
State v. Deskins 234 Kan. 529, 673 P.2d 1174 (1983).
The use of a roadblock to investigate possible drunk drivers does not violate the Fourth Amendment prohibition against unreasonable search and seizure provided certain criteria are met.
1. The degree of discretion, if any, left to the officer in the field
2. The location designated for the roadblock
3. The time and duration of the roadblock
4. Standards set by superior officers
5. Advance notice to the public at large
6. Advance warning to the individual approaching motorist
7. Maintenance of safety conditions
8. Degree of fear or anxiety generated by mode of operation
9. Average length of time each motorist is detained
10. Physical factors surrounding the location, type and method operation
11. The availability of less intrusive methods for combating the problem
12. The degree of effectiveness of the procedure
13. Any other relevant circumstances which might bear upon the test
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***UNPUBLISHED CASES***
VOLUNTARY ENCOUNTER-ROADBLOCK
State v. Loveland 225 P.3d 1211, 2010 WL 921102 (03/05/10)
***UNPUBLISHED***
A number of Officers had blocked the roadway with their patrol cars so a piece of equipment could be moved on the highway. Defendant drove up and parked behind the patrol cars. Other vehicles had turned around. An officer approached the vehicle to ask if the driver lived on the road and other information on how the driver could continue to travel. While speaking with the defendant the officer observed indications of impairment. After investigation and arrest the defendant tested 0.135. Defendant claimed the officers had set up an illegal roadblock i.e., Deskins and the evidence obtained should be suppressed. The judge suppressed the evidence. The Court of Appeals stated this was not a roadblock it was not set up to stop and detain motorists. The encounter by the officer was a voluntary encounter. The defendant pulled up behind the officers and stopped. The officer inquiry to him was only concerning the defendant‘s efforts to get home. The encounter changed when the officer then saw impairment and that is permissible.
SUFFICIENCY-FINES
State v. Fletcher 183 P.3d 15, 2008 WL 2081022 (2008)
***UNPUBLISHED***
Fletcher almost rear-ended a vehicle as he proceeded through a checkpoint. Officer approached his car and noted Fletcher had bloodshot, watery eyes, slurred speech and a strong odor of alcohol. The officer also observed a cup of cold, foamy liquid the officer believe to be a mixture of alcohol in the center console. Fletcher refused field sobriety test, P.B.T. and an evidentiary breath test. Fletcher then became verbally disruptive, loud, and
rude. The district court as well as the appellate court found sufficient evidence to believe he was DUI. At sentencing there was a challenge to criminal history. There were a number of convictions for DUI; Fletcher contended the state presented contradictory evidence of his priors. There were clearly three prior convictions and Fletcher was correctly sentenced as a Fourth offender. Lastly, Fletcher argues the trial court was wrong in assessing the $2,500 fine without first considering his financial resources. It is only when a court imposes more than the minimum fine that the trial court is required to consider the defendants financial resources. In this case the minimum fine for a fourth is $2,500 and therefore no inquiry was required. However Fletcher was also convicted of open container. The maximum fine is $200. Fletcher was assessed the maximum fine without the review of his finances. The fine for TOC was vacated and remanded.
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AGG ASSAULT ON LAW OFFICER-FAILED TO STOP
State v. McCoy 151 P.3d 864, 2007 WL 518985 (2007)
***UNPUBLISHED***
McCoy appeals his conviction of aggravated assault of a law enforcement officer. The appeal is based on erroneous admission of evidence and insufficiency of the evidence. McCoy was driving a vehicle and approached a DUI checkpoint. McCoy stopped at the checkpoint and spoke with a Detective. The Detective noticed an odor of alcohol and marijuana coming from the vehicle, and asked McCoy and his passenger to exit the vehicle. The Detective also noticed McCoy‘s eyes were watery and bloodshot. McCoy‘s passenger exited the vehicle, but McCoy accelerated his vehicle forward. Another Officer stepped in front of McCoy‘s vehicle and attempted to stop it, but McCoy drove right at him without slowing down. McCoy argued all evidence speaking to what may have happened had he hit the Officer, not be allowed as it would be speculative. The Court stated the testimony of the Detective is speculation, but because it mirrors the testimony of the Officer who was put in fear, the error was harmless.
ODOR OF ALCOHOL
State v. White 150 P.3d 335, 2007 WL 220002 (2007)
***UNPUBLISHED***
White was stopped by a police officer as part of a routine DUI checklane. Upon approaching the vehicle, the officer twice asked White if he had been drinking, to which he twice refused. The officer, however, noticed an odor of alcohol on White‘s breath and, based on the late hour, became suspicious. The officer ordered White to step out of the vehicle and asked him to perform several field sobriety tests. After completing those tests, the officer asked White to submit to a PBT, to which he agreed, and test indicated White was above the presumptive level for intoxication. White was then transported to the law enforcement center where a breath test indicated White‘s BAC was .188. White was arrested, charged and convicted of DUI. On appeal, White argued the arresting officer lacked reasonable suspicion to detain him and administer field sobriety testing. White conceded the initial stop was lawful but argued the continued detention was not supported by particularized, objective facts sufficient to establish a ―reasonable suspicion.‖ The Court of Appeals noted while the odor of alcohol on a defendant‘s breath does not alone provide reasonable suspicion to support a stop, the observation of an odor of alcohol after a legal stop may provide reasonable suspicion to support further detention. The court pointed out the officer noticed the odor of alcohol on White‘s breath after legally stopping him. White denied using alcohol, which the Court, noted was odd behavior. Given the totality of the circumstances, the court found the officer had reasonable suspicion to investigate the source of the odor and to determine whether White had committed a crime. Affirmed.
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CHECKPOINT—KSA 8-1001
State v. Davenport 78 P.3d 1202, 2003 WL 22697579 (2003)
***UNPUBLISHED***
The Court of Appeals reversed a district court‘s suppression of blood alcohol test results and remanded. The Court held defendant had been "in custody," as statutory element for requiring blood alcohol test. Davenport initially came into contact with law enforcement officers at a DUI checkpoint established by the Sedgwick County Sheriff's Department. Two officers approached Davenport's vehicle in the checklane, made contact with Davenport, and noticed an odor of alcohol. They also ascertained Davenport had consumed "a few drinks", accepted Davenport's voluntarily proffered driver's license, and ordered Davenport to exit the vehicle for field sobriety tests. One detective escorted Davenport to a separate area being used to conduct and videotape field sobriety tests, while the other officer drove Davenport's vehicle to a separate parking lot. The other officer delivered Davenport's car keys to the detective. The detective directed Davenport to a store-front area where the Breathalyzer equipment was located. After receiving the implied consent warnings, Davenport agreed to take the breath test, which he failed, resulting in his DUI arrest. Davenport moved to suppress the breath test results, claiming an illegal stop and arrest. At the hearing, Davenport was permitted to raise the additional argument that, at the time the test was performed, he was not under arrest or in custody for the purpose of KSA 8-1001(b). The district court eventually ruled the DUI checkpoint was lawfully conducted and Davenport's initial stop was valid. However, the district court suppressed the breath test results based upon its finding Davenport had not been arrested or otherwise taken into custody when the detective requested the test. The State appealed the ruling on the basis Davenport was in custody, albeit he was not arrested, when the detective requested the test. The Court of Appeals held defendant had been "in custody," as statutory element for requiring blood alcohol test. Reversed and remanded.
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B. Anonymous Tips/Informant
***PUBLISHED CASES***
PUBLIC SAFETY STOP-―HOT SHEET‖
City of Salina v. Ragnoni 213 P.3d 441, 2009 WL 2408419 (08/07/09)
The defendant‘s ex-wife reported to authorities the defendant had called and told her to ―say goodbye to the kids‖. Officers went to defendant‘s home and did not locate anyone. Officials then made an entry on a department ―hot sheet‖. This hot sheet was to inform all officers to attempt to locate the defendant and determine if he was suicidal. Three days later an officer did locate the defendant and found him not to be suicidal but operating a vehicle while impaired. The defendant was convicted in municipal court but appealed the case on a motion to suppress the stop. The district court found the officer was not justified to stop the vehicle based on a public safety stop. City of Salina perfects the appeal. The court notes under the public safety concept, a police officer may stop a vehicle to ensure the safety of the occupant without a reasonable suspicion of criminal activity. Sometimes these stops are based on observations while others are on tips by known and unknown sources. The defendant suggests there must be some immediate danger and in this case –the information was 3 days old. The court noted it is unnecessary to observe an emergency or to perceive an immediate need for assistance in order to justify a stop citing State v. Schuff 41 Kan.App.2d 469 (2009) Community caretaking is an important aspect of law enforcement and citizens expect law enforcement officers to take reasonable steps to follow through on genuine reports of concern or danger to protect interest and safety. The officer did just that. The case is reversed and remanded.
DOMESTIC DISTURBANCE—WELFARE CHECK
State v. McCaddon 39 Kan. App 2d 839,186 P. 3d309 (2008)
Police received a report of a disturbance between a man and a woman at a certain location and the caller heard the man say he was going to the hospital. There was no information the caller heard or saw the disturbance. The officers stopped a car matching the description of the caller. McCaddon was the driver. He smelled of alcohol and admitted drinking much of the day. The results of the SFSTs indicated impairment and he was arrested. A BAC test was done and it showed 0.144. The officer had no specific articulable facts about public safety or the safety of the driver. The officer did not observe any traffic infractions. The only reason for the stop was to check on the disturbance and to check on the driver‘s welfare. The court noted public safety stops are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Public safety stops are not to be used for investigative purposes. Public safety stops must be for community caretaking purposes. There was no immediate danger to the motoring public, the tip here raised no concern for other motorists and little concern for the driver of the vehicle stopped. The officer first reason for stopping the vehicle was to investigate the disturbance call. In order to justify an investigatory stop there must be reasonable suspicion that a crime had been or was about to be committed. There were no
10
such facts available to the officer. The court found the motion to suppress valid. A dissenting opinion was filed by Judge Pierron. He states: There were two reasons to stop the vehicle for a quick check, to see if the person driving the car was involved in the disturbance and to check on his possible need for assistance, since he may have needed hospitalization. Taken together, it would seem they justify a quick investigatory stop. Right ON…Judge Pierron
SFST AT STATION—FURTHER INVESTIGATION
City of Norton v. Wonderly 38 Kan. App.2d 797, 172 P.3d 1205, (2007) rev. den. (5/28/08)
In this case a motorist and his passenger called law enforcement on their cell phone reporting a white pickup truck driving northbound was driving erratically. The callers told the dispatcher their names reported the truck's license plate number and stated the pickup truck was traveling behind two semi-trailer trucks. An officer within 35 minutes observed this white truck traveling with two semi-trucks. The officer determined the license plate did match. The officer followed the truck for approximately three minutes and did not observe any traffic infractions. The officer stopped the vehicle. The officer could detect an odor of alcoholic beverage coming from Wonderly. Wonderly provided his license to the officer without any difficulty, exited his vehicle without incident and had no problems walking back to the officer's patrol car. Wonderly did state he had been drinking at a bar earlier and his speech was fair and not particularly slurred. The officer requested Wonderly to take a PBT; it indicated his BAC was greater than .08. The officer failed to wait the 15 minutes before administrating the PBT. The officer noted it had been raining and misting and the roads were slick. The officer decided Wonderly should perform the SFSTs at the Sheriff's department. The officer did not place him under arrest; however he did place him in handcuffs and transported him two blocks away to the Sheriff's office, which took approximately two minutes. The officer testified based on everything he had observed at the traffic stop and the sheriff's office he believed he was impaired to the extent he could not safely drive. The Intoxilyzer test indicated a BAC of .174. Wonderly first objects to the traffic stop being justified. The Appellate Court stated based on the two identified callers giving first hand information to law enforcement and the fact the officer saw the truck coming and it matched all the descriptions, he had reasonable suspicion to stop the vehicle, even without observing any traffic infractions. Wonderly next contends his arrest was without probable cause. Due to the totality of the circumstances the Appellate Court stated a reasonable person in Wonderly's position would have believed they were under arrest. Therefore the court must look to determine whether or not there was probable cause to believe he should have been in that position. The Court of Appeals concluded the officer had reasonable suspicion for the stop. The limited evidence the officer had gathered at the scene of the traffic stop was insufficient to support probable cause for an arrest. The fact the officer felt it was necessary to continue his investigation at the Sheriff's office before formally arresting Wonderly supports that conclusion. Reversed.
ANONYMOUS TIP—REASONABLE SUSPICION
State v. Crawford 275 Kan. 492, 67 P.3d 115 (2003)
The Supreme Court reversed a district court suppression of evidence in a DUI case. The Court held that investigatory stop of defendant's vehicle was based upon sufficiently reliable
11
information, creating reasonable suspicion of criminal activity under the totality of circumstances. A Johnson County officer was informed by sheriff's dispatch a black pickup truck, of specific make and model, with Oklahoma plates, was being driven recklessly and heading northbound on highway. The officer parked on the shoulder of the highway and corroborated all details of the tip except reckless driving allegation. The officer made a stop of the vehicle. When the officer approached the truck, he noticed a faint odor of alcohol and Crawford's eyes were bloodshot and his clothes were disheveled as if he had been sleeping. After Crawford failed three different field sobriety tests and the preliminary breath test, the officer arrested him. Crawford‘s BAC was .174. Crawford was charged with felony DUI, and he filed a motion to suppress based on an illegal stop. The district court suppressed the evidence, finding the officer lacked the requisite reasonable suspicion to conduct the detention without having further corroborated the details of the anonymous tip. The State appealed. After analyzing the officer's actions as not only a possible investigatory stop under Terry but also a public safety stop under Vistuba, a divided Court of Appeals rejected both bases for the stop and affirmed the district court's decision. The state appealed to the Supreme Court. The Court stated when they examine the reliability of an anonymous informant's tip and its place in the totality of circumstances in a Terry stop, the Court applies the three-part test established in State v. Slater, which considers: (1) the type of tip or informant involved, (2) the detail given about the observed criminal activity, and (3) whether the police officer's personal observations corroborate the information supplied in the tip. The Court held the police officer's investigatory stop of Crawford‘s vehicle was based upon sufficiently reliable information, creating a reasonable suspicion of criminal activity under the totality of circumstances. The fact the tip included a conclusory, uncorroborated allegation that the driver was reckless, was not fatal to the stop. Thus, the case was reversed and remanded.
TELEPHONE TIP
City of Pratt v. Stover 272 Kan. 279, 32 P.3d 1143 (2001)
The Supreme Court affirmed a DUI conviction. The Court held a telephone tip from a caller was sufficiently reliable to justify the investigatory stop of defendant's vehicle. The caller gave her name and address and therefore exposed herself to criminal prosecution if her report was false, she described motorist's car in detail while observing and describing motorist's driving behavior, she reported the motorist was behaving in manner indicative of drunk driving, and officer saw the accurately-described car driving toward caller's predicted location and saw the broken taillight described by caller. The Court held an anonymous tip case was distinguishable on its facts and thus not applicable here. The telephone tip from the caller was sufficiently reliable to justify investigatory stop of defendant's vehicle. Affirmed.
ANONYMOUS TIP—ARTICULABLE SUSPICION—PUBLIC SAFETY
State v. Ludes 27 Kan.App.2d 1030, 11 P.3d 72 (2000)
The Court of Appeals reversed a DUI conviction. The Court held neither a Terry stop nor a public safety stop of the defendant's motorcycle was justified. Police learned through an anonymous tip there was a person on a motorcycle who "appeared to be injecting something into his arm with a needle.‖ An officer observed the motorcyclist operating the motorcycle, but did not observe any erratic or reckless driving. The officer stopped the
12
motorcyclist (Ludes) anyway. The officer testified the rationale for stopping Ludes was possible drug use or the potential Ludes was diabetic and having a reaction. The Court held there were not specific and articulable facts to justify a Terry stop, in there was insufficient corroboration of the information provided in the tip. The Court also held a public safety stop was not warranted.
VEHICLE STOP—ANONYMOUS TIP—PUBLIC SAFETY—AUTOMOBILE EXCEPTION
State v. Tucker 19 Kan.App.2d 920, 878 P.2d 855 (1994)
Defendant‘s vehicle was stopped after the dispatcher had received an anonymous tip, a vehicle similar to defendant‘s, was running other vehicles off the road and the driver appeared to be drunk. He appeals his DUI conviction on the grounds the stop was illegal under the fourth amendment. The Court of Appeals applies the automobile exception to non-search warrant cases, and holds the public safety grounds in Vistuba, 251 Kan. 821, 840 P.2d 511 (1992), were sufficient for the stop. In reaching its conclusion, the Court applies the balancing test in Deskins, and in this case finds that an anonymous tip may provide the basis for a safety stop.
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***UNPUBLISHED CASES***
RELIABLE TIP TO ESTABLISH REASONABLE SUSPICION-―NO ERRATIC DRIVING SHOWS INTOX FAULTY‖
State v. Hinton Slip copy, 2010 WL 2545644 (6/11/10)
***UNPUBLISHED***
Dispatch advised an Officer the defendant had left a person‘s house who had been drinking. The Officer who was aware of the caller and knew that person to be reliable acted on the information and observed the defendant‘s vehicle. The vehicle was stopped without observation of any traffic infractions. The Officer detected odor of alcohol and the defendant admitted to drinking. SFSTs were done which indicated impairment as well as a PBT. BAC indicated 0.094. Again the court looked at State v. Slater to determine if the call was reliable to establish reasonable suspicion. This was not an ANONYMOUS tip. The Officer had dealt with the caller in the past and found them reliable. The observations of the defendant by the officer corroborated the information relayed to him. The Officer had sufficient information and basis for stopping the defendant‘s vehicle. The State filed a motion in limine to exclude defense counsel from mentioning in closing the officer did not observe any erratic driving. The court‘s ruling was broad in not allowing defense to mention there was no erratic driving so he‘s‘ not guilty. The Court of Appeals indicated this was error because the defense should have been able to impeach the breath result by arguing he was not observed driving erratically. Also there was an argument about the fine imposed and the court‘s duty to determine feasibility. The Court of Appeals noted minimum mandatory fines do not require ―ability to pay‖ discussion however with K.S.A. 8-1567(j) there creates an alternative method of payment, ie. Monetary or community service and therefore there must be an inquiry as to the METHOD of payment. State v. Copes 224 P.3d 571 (2010).
911 CALL-NO TRAFFIC INFRACTIONS
City of Overland Park v. Williams 230 P.3d 461 2010 WL 2044921(05/14/10)
***UNPUBLISHED***
Officer responded to a 911 distress call for assistance from a QuikTrip store regarding a disturbance between the store clerk and two customers, one white and one black, who had parked a red car in front of the store. Upon approach the officer observed two men, one white and one black, leaving the store and getting into the red car. The red car drove around to the back of the store with its headlights off. The officer briefly lost sight of the car, but she then saw the car in the parking lot of a hotel near the store. The officer stopped behind the red car and activated her patrol car's overhead lights. When Greene approached the defendant, she smelled the odor of alcohol eventually the defendant was arrested for DUI. The defendant tested 0.18. Defendant claimed the officer had no reasonable suspicion. It is important to remember that this is all that is necessary-the law enforcement officer does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.‖ State v. Finley 17 Kan App.2d 246 (1992)
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DENIED DRIVING-KEYS IN THE IGNITION-CAR RUNNING
State v. Starbird 225 P.3d 780, 2010 WL 744803 (02/26/10)
***UNPUBLISHED***
An identified citizen called in a drunk driver with description of vehicle and license number. An officer found the vehicle 3 to 4 minutes later parked in a driveway of a residence, which was the defendant‘s. The vehicle‘s lights were on and the engine was running. The defendant was seated in the driver‘s seat and when he noticed the officer he took the keys from the ignition and threw them on the floor. Defendant was unable to remove his DL from his wallet and could not maintain his balance. The defendant noted many times he was not driving. Later the officer went to the door to give the occupants the keys to the vehicle. Defendant‘s wife and daughter came to the door appearing in bed clothes and looking like they had been sleeping. The defendant was charged in the alternative operating or attempting to operate. Jury instructions mirrored this charge. Defendant claimed the instruction was erroneous because it provided alternative means even though the State presented very little evidence the defendant was ―attempting to operate‖. The Court of appeals cites State v Stevens 285 Kan. 307 (2007) and stated there was sufficient evidence to show the defendant operated and attempted to operate. They noted in Stevens placement of keys in ignition constituted overt act necessary to convict defendant of DUI. There was also an argument concerning 60-455 evidence where defendant slapped the implied consent out of officer‘s hand constituting a battery on LEO and an Allen instruction.
PBT INDICATED UNDER 0.08-―LEGAL TO DRIVE‖-CONTINUED WITH THE INVESTIGATION
State v. Barner 223 P.3d 837, 2010 WL 597019 (02/12/10)
***UNPUBLISHED***
Officer received a report of a reckless and possibly impaired driver. Officer located the vehicle and observed it cross over the center line once and fog line twice. The vehicle was stopped and the driver indicated he had not been drinking. The Officer could NOT detect an odor of alcohol. Defendant had slurred speech and trouble retrieving his DL. The officer asked the driver to submit to a PBT. The PBT indicated 0.07. Defendant then stated he did have one beer. The Officer informed Defendant he was ―legal to drive‖ but told him to wait while he contacted his Sergeant. SFSTs were then administered and based on all information Defendant was arrested. A subsequent BAC indicated 0.279. A motion to suppress was filed on two grounds-once the officer had completed the check of his DL and registration he should have been free to go OR after requesting the PBT and he was ―legal to drive‖ the stop should have concluded. Court indicates ‗totality of the circumstances‘ is the guide and clearly the officer had enough information to request a PBT even though he could not smell an odor of alcohol. Also the court noted although the officer indicated he was ―legal to drive‖ a blood alcohol content below 0.08 does not immunize a driver from a DUI. The result of the PBT did not mandate a course of action for the officer to follow—Officers are afforded the latitude to broaden their inquiry based on newly acquired information citing State v. Morlock 289 Kan. 218 (2009)
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TAG NUMBER-COLOR/TYPE OF CAR ONLY-NO FURTHER INFORMATION
State v. Parish 216 P.3d 191, 2009 WL 3082531 (09/25/09)
***UNPUBLISHED***
Officer was directing traffic at a WSU game. As a vehicle passed him it yelled out a tag number and color and type of vehicle and stated ―guy‘s in the lot driving drunk‖. The officer continued to direct traffic and noticed the type and color of vehicle was in the line to come out of theparking lot. The officer checked the license tag and it matched what the anonymous tip had indicated. The officer approached the vehicle and immediately smelled an odor of alcohol. He recognized the persons in the vehicle as individuals he saw earlier going into the game as being boisterous and obnoxious. He did not think they were intoxicated upon his first encounter at that time. The officer because he was directing traffic could not deal with the person while they were in line to exit so requested the driver‘s keys so he could not drive away. Approximately 10 minutes later he continued his investigation. The driver was arrested for DUI. The defendant requested a motion to suppress which was denied and he was convicted. The appellate court noted reasonable suspicion is required to justify the stop. When dealing with anonymous tips the court refers to State v. Slater 267 Kan. 694 (1999). This case appears to be a true anonymous tip. The information given by the tipster was sufficient to identify the vehicle. The officer observed a vehicle coming out of the parking lot that was the same color and type with the corresponding license number. Although the officer did not observe any erratic driving or driving to indicate possible impairment the minimal intrusion is balanced against the substantial harm caused by intoxicated drivers. The stop was justified.
FALLACY OF NEGATIVE PROOF
City of Great Bend v. Rowlands 203 P.3d 1281, 2009 WL 929131 (4/03/09)
***UNPUBLISHED***
Officer received an anonymous tip a black car was being driven recklessly without its headlights. The officer, upon reaching the area described, observed a black car without its‘ headlights on. The officer upon approach of the vehicle notice the car had its lights on but one was not illuminated. The car made an illegal J-turn and parked in a stall. The officer approached the car and smelled a strong odor of alcohol. The defendant fumbled for his license, was unable to provide insurance. The defendant had difficulty getting out of his car had a sluggish composure eyes were bloodshot and speech slurred. He admitted to having one beer. The defendant failed the finger dexterity test (twice); on the walk and turn did not touch heel to toe, did not pivot correctly, was unable to follow the straight line on the sidewalk while performing the test and used his arms for balance. The defendant on the one leg stand again was unable to count past three, used his arms touched the ground with his foot and was unable to complete the test. On the finger to nose test-rather than touch his nose he grabbed and squeezed it. The defendant claimed the officer did not have PC to arrest him. The court denied the motion and the defendant was found guilty. The case was appealed to the district court. The case was submitted on stipulated facts and again the defendant was found guilty. Again the appellate court mentioned the fallacy of negative proof-as they did in State v. Scott unpublished 2009 WL 929102. The defendant wants the court to focus on other known signs of legal impairment he did not exhibit while glossing over or trying to discount those signs of impairment he did exhibit. To do so ignores this court‘s standard of review in determining probable cause. The facts and circumstances observed by the officer prior to his arrest of the defendant taken in their totality and viewed from the perspective of a reasonable prudent police officer-are supported by substantial competent
16
evidence and demonstrates more than a mere possibility that the defendant was DUI.
JURISDICTION-AGREEMENT BETWEEN TWO AGENCIES
State v. Atkins 203 P.3d 739, 2009 WL 793109 (03/20/09)
***UNPUBLISHED***
Dispatch requested a City of Inman police officer to investigate a report of a vehicle driving without headlights and crossing the center line. This vehicle was outside the city limits of Inman in the county of McPherson. The city officer located the vehicle outside the city and stopped the vehicle inside the city limits. The defendant wishes to suppress the stop and all evidence seized. It was determined the county had a verbal agreement with municipalities within the county which allows for city officers to operate outside of their jurisdiction in emergency situations. The district court denied the motion and found defendant guilty. The appellate court reviewed K.S.A. 22-2401(a) and (b) noting city officers may exercise their powers anywhere within the city limits and ―any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person‖. Although there was no fresh pursuit nor a valid request from a law enforcement officer in McPherson County the court found the agreement between the law agencies was a valid ―request for assistance‖ under K.S.A. 22-2401(a). There was also another Apprendi challenge which was without merit. Affirmed.
OFFICER CONFIRMED INFO WITH KNOWN INFORMANT-NO TRAFFIC INFRACTIONS
State v. Hankerson 196 P.3d 1232, 2008 WL 5234535 (12/12/08)
***UNPUBLISHED***
A Trooper received a dispatch report regarding a possible intoxicated driver. The information was from a Kansas Turnpike tollbooth operator. The trooper spoke with the toll collector about what they had observed. The trooper located the truck and followed it and eventually stopped it. The trooper did not see any traffic infractions. The defendant performed SFST‘s which indicated impairment and was arrested. The court after review of the tape of the car stop claimed due to the fact the trooper did not see any traffic infraction there was nothing to justify the stop. The state filed a motion to reconsider and the court reluctantly changed its decision. The defendant preserved its objection and stipulated to the evidence the state would present and was found guilty. The appellate court looked to the statements of the toll collector as to whether they were sufficiently reliable to establish reasonable suspicion the defendant was driving under the influence. The appellate court looked to the Slater 267 Kan. 694 case in which it adopted three factors a court should consider in assessing the reliability of information provided by an informant (1) identity of the informant is known ascertainable, or anonymous; (2) the level of detail the informant provided about the observed criminal activity and (3) the amount of independent corroboration the law enforcement officer obtained before executing the stop. Here the court notes this was a known informant and therefore the tip had a higher indicia of reliability. The trooper actually spoke with the tollbooth person and received details as well as actually pointing out the truck to the trooper. Affirmed.
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QUESTION—UNLESS/UNTIL
State v. Weaver 172 P.3d 1221, 2007 WL 4577852 (2007) ***UNPUBLISHED***
Weaver was charged with felony DUI. Weaver's first argument is the sufficiency of the evidence. The Court noted there was ample evidence to convict Weaver. There is a discussion concerning actual driving and attempting to drive. The Court also noted viewing all evidence in light most favorable to the State the fact finder could find Weaver guilty beyond a reasonable doubt. The next challenge to the conviction was a jury question and response. After deliberating for an hour the jury sent a question to the Trial Court "is there a difference between attempting and contemplating an action?" The District Court responded, "an attempt to any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or intercepted in executing such crime. Contemplation is a mental process only." Weaver suggests by omitting the second portion of the pattern instruction "mere preparation is insufficient to constitute an overt act" was essential forthe jury to understand what an overt act must entail. At trial, however, Weaver did not object to the response to the jury question. In this case there was more than ample evidence to demonstrate an overt act beyond "mere preparation". The jury either believed or disbelieved his defense and could not have been mislead by not being informed that mere preparation was insufficient. The Trial Court's omission of the second part of the attempt definition did nothing to prejudice Weaver's defense. This case involved a tipster at a bar who gave an excellent description of Weaver and his vehicle. The officer found the vehicle running with the lights on in the driveway of the address of the tag that had been reported. There was confirmation by the officer to the tipster of what exactly the defendant looked like and it did match the description of the person sitting behind the wheel. Last argument by Weaver contends instruction to the jury concerning presumption of innocence. The wording you must presume he is not guilty ―until‖ you are convinced from the evidence he is guilty was given to the jury. Weaver argues reversible error is required because by using the word ―until‖ instead of ―unless‖ the instruction improperly expressed a belief the jury would find him guilty. Weaver did not object to the instruction at trial level thus review is limited. The Court followed the opinion of the Supreme Court in State v. Wilkerson 278Kan 158 (2004) the use of the word "until" even if erroneous did not warrant reversal because the instructions when read together accurately stated the law and could not have misled the jury.
EXTENDED SCOPE OF STOP-CRIMINAL HISTORY
Kruser v. Ks. Dept. of Revenue, 155 P.3d 744, 2007 WL 1109585 (2007)
***UNPUBLISHED***
Officer Lancaster observed a vehicle driven by Kruser veer from side to side within its lane two or three times, and then changes lanes without signaling. An anonymous motorist who had been driving behind Kruser‘s vehicle pulled up beside Officer Lancaster, described Kruser vehicle and advised the officer he had observed the vehicle weaving within its lane. Kruser was eventually stopped. Lancaster determined Kruser had four prior DUI convictions and two prior ―habitual offender‖ revocations. During Lancaster‘s encounter Kruser had a rather blank look on his face. Lancaster returned to the vehicle after his initial approached and asked Kruser if he had taken any medications, which may have prevented him from driving in a safe manner. Kruser stated he had. Lancaster then asked Kruser to perform field sobriety tests, which indicated impairment. Lancaster also noticed an odor of alcohol. Kruser refused to submit to a breath test. The hearing officer of KDOR suspended his
18
license and Kruser filed a petition for review. The district court reversed the administrative suspension claiming the initial stop was based upon reasonable suspicion but claimed when Lancaster returned to the vehicle he had no reasonable belief Kruser was DUI and found Kruser was unreasonably detained. KDOR argues correctly the district court was not permitted to consider if the initial stop was valid or whether the officer exceeded the scope of the stop. The appellate court concluded the legislature intended to limit the scope of an administrative driver‘s license suspension hearing on the basis the law enforcement officer had no reasonable grounds to believe the driver was under the influence of alcohol. The officer does not have to have that belief prior to the stop. The appellate court found Lancaster‘s questioning of Kruser about his taking medication did not impermissibly extend the scope of the stop. Kruser‘s prior criminal history although alone cannot give rise to articulable suspicion—the court found criminal history combined with other factors, can support a finding of reasonable suspicion or probable cause. The anonymous tipster based on the factors in Slater did rise to the level of ―reliable‖ The court found Lancaster had reasonable grounds to believe Kruser was operating a vehicle while DUI and reversed the district courts ruling.
TERRY STOP WITHOUT TRAFFIC INFRACTIONS
State v. Swander 151 P.3d 864, 2007 WL 519018 (2007)
***UNPUBLISHED***
The police department received a tip about a possible drunk driver from an employee a local bank. The bank employee stated the driver first attempted to enter the drive-through from the wrong direction and attempted to use his ATM card by giving it directly to the employee rather than by using the ATM. While talking with the driver, she noticed his slurred speech and apparent intoxication. As a former cocktail waitress, the bank clerk had first-hand experience recognizing drunken behavior. A police officer responded to the call from the dispatcher. Dispatch told him to look for a possible drunk driver in a gold pickup truck and directed him to bank. Swander was driving a silver pickup truck. The officer arrived at the bank and saw a scene that ―matched the description he was provided by dispatch.‖ He then blocked Swander‘s exit with his patrol car. Upon making contact with Swander, the officer detected the odor of alcohol and Swander admitted to having a couple of beers. The officer noticed Swander had difficulty keeping his balance and could not properly spell the name of his employer. Swander refused the officer‘s request he take field sobriety tests or a PBT. The officer then conferred with a police investigator regarding the information from the bank employee. The officer placed then placed Swander under arrest. At the county jail, Swander consented to a breath test, which yielded a result of .230 BAC. Swander was charged and subsequently convicted of felony DUI. On appeal, Swander argues the officer lacked reasonable suspicion to stop his vehicle because dispatch had him looking for a different colored truck. The Kansas Court of Appeals disagreed, reviewing the stop as a Terry stop, the court found the officer had reasonable suspicion based on the information from the non-anonymous informant and his own personal observations of Swander. Swander also argues the officer did not have probable cause to arrest him since he never received all of the information detailing Swander‘s actions at the bank. Therefore, he argues the officer could only use his personal observations while conducting the stop to justify the arrest, and those were not enough to form probable cause. Again, the court disagreed. The court noted the officer had numerous personal observations, which could lead him to determine Swander was DUI. In addition, the court noted the officer spoke with an investigator prior to the arrest regarding what the investigator learned from the bank employee.
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FACTORS FOR TIPS
State v. Ranger 139 P. 3d 787, 2006 WL 2337247 (2006)
***UNPUBLISHED***
The Buchanan County Sheriff‘s Department (MO) informed the Atchison Police Department (KS) of a reported ―reckless, unsafe vehicle coming to Atchison from Missouri.‖ An officer was dispatched and waited at the intersection of 59 Highway and Fourth Street for the vehicle to cross the bridge into Kansas. Dispatch advised the officer of the vehicle location, make and model and the officer located the same at the given location. The officer stopped the vehicle to ensure the driver was not drunk or suffering from a medical condition. When the officer made contact with Ranger (the driver), he noticed a strong odor of cereal malt beverage and when asked how much he had to drink Ranger informed him ―seven beers.‖ The officer had Ranger perform field sobriety tests, which he failed, and then placed Ranger under arrest for DUI. Ranger refused to submit to a blood test. Ranger filed a motion to suppress prior to trial, which was denied, and Ranger was subsequently convicted of DUI. Ranger appeals his conviction alleging the anonymous tip, which informed police of his reckless driving, rendered the officer‘s stop of his vehicle illegal. Although Ranger failed to raise the issue of the ―anonymous tip‖ at trial, the court considered the merits of the claim, even though they were not required to. Relying on the factors outlined in Slater, the court found the tip was reliable and sufficiently detailed: (1) the informant clearly identified himself; (2) the informant advised the dispatcher of many details; (3) the officer was able to verify all the details the informant provided. On appeal, Ranger also challenged the trial court‘s denial of his motion for change of venue. Ranger provided no evidence to establish the effect media publicity may have had on prospective jurors and therefore failed to meet his burden to show his rights to a fair trial were substantially prejudiced by the pretrial publicity. Finally, Ranger contends there was insufficient evidence presented at trial to prove his DUI conviction. The court found a rational jury could have found beyond a reasonable doubt Ranger operated a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. Affirmed.
LEFT OF CENTER—SUPPRESSION
State v. Smith 136 P.3d 964, 2006 WL 1816315 (2006)
***UNPUBLISHED***
An identifiable tipster called the police to report Smith as a possible drunk driver. The tipster gave his name, cell phone number and an accurate description of the car and its movements. Officers responded to the tip and located Smith‘s car weaving within its lane and crossing over the centerline twice. Smith was stopped for the traffic infraction and subsequently arrested for DUI. Smith improperly blew into the Intoxilyzer 5000, resulting in a ―.134 deficient sample,‖ which was treated as a test refusal. Smith was charged and convicted of DUI to a degree that rendered him incapable of safely driving a vehicle. On appeal, Smith argued there was insufficient evidence to support his conviction. The court found based upon the evidence presented at trial, a rational factfinder could determine Smith was unable to safely operate his vehicle. Smith also challenged the court‘s ruling on his motion to suppress evidence obtained from his traffic stop, claiming there was no reasonable suspicion because crossing the centerline is not a traffic infraction. The court rejected Smith‘s claim finding driving partially on the left side of the roadway twice is supported by the evidence and constitutes a violation of K.S.A. 8-1514. The court further noted a reliable informant provided the
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information that led law enforcement to investigate Smith, which on its own would have given the police grounds to stop Smith.
ADMISSIBILITY OF CALLER‘S REPORT
State v. Dirks 121 P.3d 1003, 2005 WL 2840007 (2005)
***UNPUBLISHED***
Officers received an anonymous call of impaired driver in blue extended cab truck just leaving Doctor‘s Office Bar. Officer was in the area and noticed vehicle matching description and followed it for a short distance. After vehicle almost hit a curb and then driver over-corrected to straighten vehicle out, officer stopped vehicle. Officer noticed glassy eyes, heavy eyelids, and odor of alcohol. Dirks filed motion to suppress anonymous caller‘s report. Court granted motion, but allowed officer to testify what dispatch told him, which supported his being in the area and what he was looking for. Dirks objected to this as hearsay and the Court overruled. He was found guilty and Dirks objected to the admission of hearsay. Court of Appeals ruled the information was only given to explain the officer‘s course of action, not to prove the truth of the matter asserted. The court did not abuse its discretion in allowing the evidence.
ANONYMOUS TIP—REVIEW OF FACTORS FOR LAWFUL STOP
State v. Maxwell 121 P.3d 1003, 2005 WL 2839985 (2005)
***UNPUBLISHED***
Newton police received anonymous call concerning disturbance at apartment complex. Officer arrived finding seven or eight men standing outside; no one was causing a disturbance. Upon approach of officers, the group walked to their vehicles despite orders from officer to stop. Officers stopped Maxwell‘s truck as he was attempting to back out of parking stall. Officer spoke with Maxwell and detected alcohol, saw glassy eyes, and notice slurred speech. Maxwell was arrested and submitted to an Intoxilyzer which revealed .119 BAC. Maxwell filed motion to suppress all evidence as a result of an illegal stop. Motion was denied and he was convicted. Under K.S.A. 22-2402(1), an officer may stop a person, without making an arrest, if the officer reasonably believes a crime is being committed, about to be committed, or has been committed. Here, the officer ordered him to stop the truck. A reasonable person would not have felt free to leave. In order to order such a stop, there must be reasonable suspicion, which is dependant on the information possessed by the police and its degree of reliability. Slater listed three factors to determine whether a stop based on an anonymous tip is lawful: the type of informant, the detail given about criminal activity, and whether the officer‘s observations corroborate the information given. The only information given about a crime was an unidentified number of people standing outside causing a disturbance. Finally, the only thing the officers saw to corroborate the information was a group of seven or eight people standing outside. The evidence should have been suppressed. Reversed.
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OFF DUTY POLICE OFFICER
City of Derby v. Jones 113 P.3d 834, 2005 WL 1500968 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed the trial court‘s denial of the defendant‘s motion to suppress arguing law enforcement lacked reasonable suspicion for a stop. A Derby police department officer overheard an off-duty colleague radio to dispatch there was a possibly intoxicated drive leaving a bowling alley. The radio transmission included a description of the vehicle, its license plate number and the road and direction it was traveling. Shortly thereafter the officer observed a vehicle matching the description provided and verified a match of the vehicle tag. When the vehicle pulled into the parking lot of a local business, the officer activated his lights and contacted the driver. The Court of Appeals concluded there was reliable information to provide reasonable suspicion of criminal activity to support the stop of Jones' vehicle. The Court followed State v. Crawford, 275 Kan. 492, 67 P.3d 115 (2003); State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999) and held an automobile stop may be based upon an anonymous tip of suspicion of criminal activity involving a clear and immediate danger together with a specific vehicle description, license number, and direction of travel. The Court found the tip was more reliable because it came from an off duty police officer.
OFF DUTY OFFICER
State v. Hicks 96 P.3d 695, 2004 WL 1965332 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a DUI conviction, holding an anonymous tip provided sufficient basis for an investigatory stop of the motor vehicle by police. Master Trooper Tate stopped the defendant‘s vehicle after receiving a call from dispatch. Dispatch informed Tate a person identifying himself only as an off-duty police officer reported a maroon Town Car with Kansas tag OQM114 had just entered the eastern terminal of the Turnpike, traveling westbound, and the vehicle was "all over the road." Tate then proceeded eastbound in his marked patrol vehicle toward the east Lawrence exit. Approximately 10 to 13 minutes later, Tate arrived at the east Lawrence exit. As Tate approached the exit, he saw a vehicle matching the description given to him by dispatch and confirmed that the license tag matched the number provided by dispatch. As the Town Car pulled away from the tollbooth, Tate activated his emergency equipment, and the vehicle pulled to the side of the road. At no time did Tate personally observe any traffic infractions or behavior to indicate the driver of the vehicle was operating in an impaired manner. The Court affirmed its holding from State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). When evaluating whether an anonymous tip has provided sufficient basis for an investigatory stop of a motor vehicle by police, the court should focus on three factors: (1) the type of tip or informant involved, (2) the detail given about the observed criminal activity, and (3) whether the police officer's personal observations corroborate the information supplied in the tip. The Court upheld the validity of the stop.
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C. Reasonable Suspicion
1) Vehicle in Motion
***PUBLISHED CASES***
LEFT OF CENTER-ABSOLUTE LIABILITY OFFENSE
State v. Chavez-Zbarra 42 Kan. App 2d 1074, 221 P.3d 606 (12/11/09)
Officer saw the defendant traveling northbound on a two-lane road cross the center line traveling southbound and then return to the northbound lane. An investigation took place in which the defendant was arrested for DUI. The defense challenged the stop based on State v. Marx and State v. Ross in which K.S.A. 8-1522, failing to maintain a single lane was deemed not enough to stop a vehicle. The district court suppressed all evidence and the state appeals. The appellate court noted there is a difference between K.S.A. 8-1514, left of center and K.S.A. 8-1522. K.S.A. 8-1522 has no application in this case. There is no dispute the defendant crossed into the southbound lanes of traffic. Failing to comply with K.S.A. 8-1514 is an absolute liability offense. Reversed and Remanded.
WEAVING WITHIN LANE-MARX DECISION
State v. Knight 218 P.3d 1177, 2009 WL 3678259 (11/06/09)
This case is not a DUI case however the officer noticed the defendant‘s vehicle unable to keep his car within its proper lane of travel. The car crossed approximately 3 feet over the line separating the left lane of the highway from the shoulder. The officer also observed the car weave within his proper lane of travel two or three more times. And lastly the officer noted the vehicle cross approximately 1 foot over the dotted line on the right side of the lane. The officer followed the defendant for one half miles and stopped the vehicle for failing to maintain a single lane. The officer suspected the defendant ―was either intoxicated or a sleepy driver‖. The State argued State v. Field 252 Kan. at 664 (1993) ―There is no requirement the officer actually observe a traffic violation being committed. As indicated by the other cases cited herein, the repeated weaving of a vehicle within its own lane may constitute reasonable suspicion for an officer to stop and investigate the driver of the vehicle. The appellate court noted the officer‘s observations of the defendant‘s car weaving in and out of lanes without signaling and his car‘s weaving within its proper lane of travel, standing alone created sufficient reasonable suspicion for the officer to believe the defendant was DUI or sleepy and it justified a temporary investigative stop.
―AS NEAR AS PRACTICABLE‖-NOT A STRICT LIABILITY STANDARD
State v. Marx 289 Kan. 657, 215 P.3d 601 (09/18/09)
The saga continues and is resolved? The defendant crossed the fog line with his motor home. He then overcorrected and crossed the dotted while line separating the two
24
northbound lanes. The officer stopped it. The court reviewed the statute which reads as follows:
a. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
The Supreme Court concluded there are two separate rules of the road in the statute:
1. Keep entirely within a single lane
2. However when it is impractical to do so (due to weather or other conditions of the road) the driver may changes lanes if he or she can do so safely.
Because of this language this is not a strict liability infraction as are most traffic infractions. Therefore the officer is required to present evidence there were no conditions that made it impractical to stay in a single lane- requiring or compelling the driver to change lanes.
Editor’s note: It would appear from the cases an officer if he wishes to stop a vehicle from failing to maintain a single lane they should note in their report such things as: no weather conditions caused the deviation, no obstruction was in the way of travel, the officer did not have any problems maintaining the same roadway in the same area, there were no animals that caused the deviation, no turn signal was used to make any type of lane change or indication the vehicle was passing, if known, no other vehicle you observed made the same deviation. Clearly if there are other indications of traffic violations they should also be noted.
VOLUNTARY ENCOUNTER
State v. McGinnis 40 Kan.App.2d 620, 194 P.3d 46 (10/24/08)
Officers received report of a submerged vehicle in a river with Missouri plates. The officer went to the area and observed a vehicle, with Missouri plates, driving and pulling into an area for parking. The officer did not turn on his lights and parked two or three car lengths behind the other vehicle. By the time the officer got out of his vehicle the driver of the car was standing at the bank of the creek. As the officer walked past the defendant‘s vehicle he observed a 12 pack of beer. He approached the defendant said hello and asked what he was doing. As the officer spoke to the defendant he noticed evidence of intoxication and eventually the defendant was arrested for DUI. The defendant suggested all evidence should be suppressed because the officer did not have probable cause or reasonable and articulable suspicion to question him. The court found the encounter was voluntary and the fourth amendment was not implicated. The court reviewed the four types of police encounters: voluntary, investigatory, public safety, and arrest. The appellate court reviewed many cases and determined based on the totality of the circumstances there was nothing to suggest the officer ―stopped‖ the defendant or seized him. Affirmed.
ROAD CONDITION—ERRATIC DRIVING
State v. Moore 181 P.3d 1258, 2008 WL 1830166 (2008)
The majority of this case deals with possession of drug paraphernalia with intent to manufacture and sentencing based on that type of conviction, however a portion of it is the actual stop of the vehicle. The deputy had reasonable suspicion to believe Moore
25
was DUI. He observed her driving 20 miles per hour in a 30 mph zone weaving within her lane and making jerking corrections on five occasions. Prior to the stop Moore's passenger side tires briefly touched the grass on the right side of the road. The deputy testified those actions caused him to believe Moore may have been DUI. Moore pointed out the road was dark, unlit and lacked a centerline stripe or white fog line. The Trial Court cited State v. Field 252 Kan.657. In that case the officer observed the defendant weaving within his lane on four occasions over the course of eleven blocks. Moore in this case attempts to distinguish this case based upon the road conditions. The Field Court made no such distinctions. The Appellate Court agreed with theTrial Court the deputy had reasonable suspicion to believe Moore was DUI and lawfully stopped Moore's vehicle based on that suspicion.
BRAKE LIGHTS—NO RELEVANCE
Martin v. Ks. Dept. of Revenue 285 Kan. 625, 176 P.3d 938 (2008)
The driver was stopped by a law enforcement officer for a traffic offense. As a result of that stop, Martin was found to be intoxicated and his driver's license was suspended by the KDR. In the district court, Martin contended the vehicle stop which resulted in obtaining incriminating evidence of intoxication violated his Fourth Amendment right to be free from unreasonable searches and seizures. As a result, Martin sought exclusion of the incriminating evidence and reversal of the order suspending his driver's license. The district court agreed with Martin, finding the law enforcement officer misinterpreted the traffic law and, consequently, did not have reasonable suspicion to stop Martin's vehicle. On appeal, our court focused on the differences between a criminal proceeding and an administrative proceeding and ultimately held the legality of the vehicle stop was not relevant in a driver's license suspension proceeding. Our court reversed the district court and reaffirmed Martin's suspension. Martin appealed to our Supreme Court. The Supreme Court declined to apply the exclusionary rule and suppress the incriminating evidence obtained during the illegal stop. The exclusionary rule does not apply in appeals from administrative license suspensions even though petitioners may raise Fourth Amendment questions during administrative appeals and the Fourth Amendment applies in such contexts. A petitioner may raise Fourth Amendment claims, but such claims have no practical effect (meaning such claims do not trigger the exclusion of resultant evidence) in the administrative context.
FAIL TO MAINTAIN LANE-ONE TIME
State v. Ross 37 Kan.App.2d 126, 149 P.3d 876 (01/19/07)
Ross was driving when his vehicle crossed the fog line a little. The officer assured Ross he would not receive a ticket because it was a little windy however when asked for his driver‘s license Ross did not have one. While being arrested Ross had cocaine in his pockets. Ross appeals his conviction claiming the stop was not justified and lacked reasonable suspicion. The state argued Ross violated K.S.A. 8-1522(a). The appellate court found the officer did not have any concern for the driver, i.e., falling asleep/intoxicated. Although he crossed the fog line only briefly for only a short distance and only once, there was no reasonable suspicion that Ross was engaged in conduct at the heart of the statute. The district court erred in not suppressing the evidence. SEE State v. Marx 38 Kan.App.2d 598(2007)
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KNOWLEDGE OF OFFICER—NO TRAFFIC INFRACTIONS—NO PUBLIC SAFETY
State v. Hamic 35 KanApp2d 202, 129 P.3d 114 (2006)
While on patrol in the City of Pratt, officer Cline saw a green Jeep Cherokee he believed was owned by Jena Hamic-Deutsch, a person he knew had been stopped in a green Jeep Cherokee twice in the previous two months and cited both times for driving on a suspended license and not having liability insurance. Officer Cline also knew of an active warrant for Hamic-Deutsch. Officer Cline followed the jeep and checked the license tag through dispatch, confirming it was registered to Hamic-Deutsch, so he initiated a stop. The vehicle was being driven by Judith Hamic, the mother of Hamic-Deutsch, who also had no license. Hamic-Deutsch was a passenger in the jeep. Officer Cline detected a strong odor of alcohol and conducted further investigation. Both occupants were arrested and charged with drug crimes. Hamic filed a motion to suppress, which was granted by the court. The court found there was no observance of a traffic violation and no public safety grounds for the stop. The State appealed, claiming knowledge of previous DWS and no insurance charges created reasonable suspicion, and also the outstanding warrant justified an investigatory stop. The Court of Appeals reversed. Reasonable suspicion and probable cause are dependant on the information possessed by police and its degree of reliability, both factors are considered in the totality of circumstances. Even though the officer did not see who was driving the vehicle, he had knowledge of recent stops and charges of no insurance and DWS, and the owner had an active warrant. It was reasonable to believe the registered owner was driving, committing the crime of DWS, or that the registered owner was an occupant and a fugitive. Under the totality of the circumstances, there was reasonable suspicion to conduct an investigatory stop. Reversed.
WITHIN 14 MINUTES—REASONABLE GROUNDS
Butcher v. Ks. Dept. of Revenue 34 KanApp2d 826, 124 P.3d 1078 (2005)
Officer witnessed Alan Butcher driving a vehicle during a period his license was known to be suspended. Officer ran license plate and then confirmed license was suspended. Officer found vehicle 14 minutes later with a different driver and Butcher in the passenger seat. Butcher appeared intoxicated, refused all tests. Butcher‘s license was suspended based on his refusal, and he appealed based on the fact he was not driving when the officer stopped his vehicle. District Court reversed his suspension. The Court of Appeals reinstated the suspension, reasoning the officer had probable cause for the stop because he witnessed Butcher driving and knew he was suspended, and found the vehicle within a 14 minute window.
JURISDICTION—FRESH PURSUIT
City of Overland Park v. Zabel 32 Kan. App. 2d 1136, 95 P.3d 124 (2004)
The Court of Appeals upheld a DUI conviction in which an Overland Park officer arrested the defendant in Merriam for DUI. The Court noted the officer had jurisdiction based on fresh pursuit of the defendant from Overland Park. The officer observed Zabel traveling 74 mph in 60 mph zone along I-35, within the Overland Park city limits. The officer followed Zabel with the intent to stop him for speeding. Zabel traveled into the city of Merriam as he exited I-35, and the officer pulled him over on the exit ramp. At the stop, Zabel showed signs of being intoxicated. Specifically, he had difficulty producing his driver's license,
27
staggered as he exited the vehicle and held onto the car door for support, and eventually failed several field sobriety tests. Zabel was then placed under arrest. The Court held the city police officer's arrest of motorist, in neighboring city, for DUI was based on fresh pursuit, and thus, officer had jurisdiction to make the arrest. The officer had observed motorist speeding on interstate freeway within city limits and immediately began pursuing motorist's vehicle, which exited freeway via off-ramp outside of city limits, and officer first observed signs of motorist's intoxication during traffic stop on off-ramp.
REASONABLE SUSPICION—SCOPE OF DETENTION
City of Norton v. Stewart 31 Kan.App.2d 645, 70 P.3d 707 (2003)
The Court of Appeals affirmed convictions for DUI and open container. The Court held the total length of time the defendant was detained prior to police officer's initial request for a PBT was not beyond permissible time of detention for routine traffic stop of defendant's vehicle for an inoperable headlight, and the officer, in conducting traffic stop of defendant's vehicle for inoperable headlight, was permitted to concurrently investigate source of odor of alcohol and other observable indicia of intoxication. Originally, Stewart was stopped for an inoperable headlight. Upon making contact with Stewart, the officer noticed a strong odor of alcohol emanating from inside the vehicle, which also contained a passenger. The officer then asked Stewart to step out of the vehicle and accompany him to the patrol car. Inside the patrol car, the officer detected a strong odor of alcohol coming from Stewart. During a brief conversation in the patrol car, Stewart admitted that he had consumed beer at a rodeo in Nebraska, as well as drinking a few on the drive home. This led the officer to request a PBT and FST‘s, later resulting in Stewart‘s arrest. Stewart claimed when he was required to exit his vehicle, his detention was expanded beyond which is permissible for a routine traffic stop. The Court of Appeals noted after a vehicle is lawfully stopped for a traffic violation, the police officer, even without any suspicion of an additional crime, can order the motorist to get out of the vehicle; such an order is reasonable and does not violate the Fourth Amendment. They stated the officer was permitted to concurrently investigate the source of the odor of alcohol and other observable indicia of intoxication, so long as he was diligently pursuing the traffic stop investigation. The Court held at the time the officer obtained reasonable suspicion to commence a DUI investigatory detention; he was diligently pursuing the permissible traffic stop investigation.
REASONABLE SUSPICION—ALCOHOL ON BREATH
City of Hutchinson v. Davenport 30 Kan.App.2d 1097, 54 P.3d 532 (2002)
The Court of Appeals affirmed the district court‘s exclusion of evidence in a DUI trial. The Court held the stop of the defendant was not proper under K.S.A. 22-2402 and the trial court properly suppressed the evidence. Specifically, the Court held alcohol on one's breath alone does not provide a reasonable suspicion to support a stop. Davenport had gone to the police station to check on his daughter whom the police had picked up and to locate her vehicle. While at the station, an officer detected the odor of alcohol on Davenport's breath. He mentioned the odor to Davenport and told him not to drive a vehicle. Davenport replied he was walking, not driving, home. The officer found this strange because Davenport had mentioned he lived out of town. Davenport had neither slurred his words nor had an unsteady gait. His eyes, however, were bloodshot. The officer asked a patrol officer to check out and
28
determine whether Davenport could safely operate a vehicle. Davenport did not commit any traffic infractions or drive in an unusual manner in any way. The patrol officer activated his lights, and Davenport pulled over. Davenport provided Miller with his driver's license and insurance "[a]fter a short period of time" and some fumbling. Davenport won a motion to suppress based on a lack of reasonable suspicion for a stop. On interlocutory appeal, the Court of Appeals held there were no articulable facts which created a suspicion Davenport was driving while under the influence or was involved in any other criminal activity. Even combining the knowledge of the two officers, the only facts suggestive of unusual conduct are Davenport had alcohol on his breath and he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication he was intoxicated and too impaired to drive.
INVESTIGATORY STOP—JURISDICTION—PUBLIC SAFETY STOP
State v. Hamman 273 Kan. 89, 41 P.3d 809 (2002)
A Coffey County deputy was called to assist a Lyon County deputy. There were juveniles with alcohol at the boat ramp on the east side of Hartford. The boat ramp is on the line between Coffey and Lyon Counties. The juveniles were on the Coffey County side. In order to get to the boat ramp, the deputy had to drive into Lyon County and back again into Coffey County. While in Lyon County, the Coffey County deputy observed defendant's vehicle going from side to side its lane two or three times, and, upon stopping defendant, observed she moved sluggishly and smelled of alcoholic beverage. A Lyon County deputy placed the defendant under arrest. The Supreme Court held a law enforcement officer who makes a warrantless arrest outside the territorial limits of the officer's jurisdiction must be treated as a private person. A private person may make an arrest when any crime, other than a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the arrested person in the view of the person making the arrest. K.S.A. 2001 Supp. 22-2403. Safety reasons alone may also justify the stop if the safety reasons are based upon specific and articulable facts. Affirmed.
EXPIRED TAG-GRACE PERIOD
City of Manhattan v. Larson 26 Kan.App.2d 851, 994 P.2d 1087 (2000)
The Court of Appeals affirmed a DUI conviction. The Court held the statutory grace period for renewing an expired license tag did not invalidate officer's reasonable suspicion defendant had violated statute. An officer stopped Larson for expired tags, immediately smelled alcohol, and observed Larson's glossy and bloodshot eyes and slurred speech. Larson could not adequately complete the field sobriety tests and failed the PBT. The officer was not aware owners of certain trucks had until a statutory grace period to renew their license plates. Larson filed a motion to suppress evidence from the stop, arguing the officer lacked reasonable suspicion to make the stop. The district court denied the motion and Larson was convicted of DUI. Affirmed.
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BAC—ERRATIC DRIVING
State v. Blair 26 Kan.App.2d 7, 974 P.2d 121 (1999)
The Court of Appeals affirmed a DUI conviction. The Court held a DUI conviction can be supported by sobriety tests and other means and does not require observed erratic driving. Blair contended on appeal the State must produce evidence of erratic driving or impaired driving when the charges are not a per se blood alcohol concentration violation of the DUI statute. The Court rejected this argument and held evidence of erratic driving is not necessary even without a per se BAC violation.
PROBABLE CAUSE—RECKLESSNESS—DUI AS EVIDENCE—DOUBLE JEOPARDY
State v. Huser 265 Kan. 228, 959 P.2d 908 (1998)
The Supreme Court affirmed the district court‘s dismissal of two counts of reckless aggravated battery at conclusion of preliminary hearing. The Court held there was no probable cause to bind the defendant over on the reckless aggravated battery charges. The defendant was bound over on two counts of DUI, but the district court dismissed two counts of reckless aggravated battery. The State subsequently dismissed the DUI charges and appealed the district court‘s dismissal of the aggravated reckless battery charges. On appeal, the Court held additional evidence, beyond evidence accused was driving under the influence of alcohol, is necessary to create probable cause for reckless aggravated battery charges; simply driving under the influence of alcohol does not, standing alone, amount to reckless behavior. The Court also noted the offense of reckless driving is a distinct offense and is established by different evidence than crime of DUI of intoxicating liquor, so that conviction or acquittal of one offense will not bar prosecution for the other. The Court affirmed the district court, holding there was no probable cause defendant committed reckless aggravated battery.
REASONABLE SUSPICION—WHEN INVESTIGATORY STOP BEGINS
State v. Neuman 266 Kan.319, 970 P.2d 988 (1998)
The Supreme Court reversed a trial court‘s suppression of evidence and dismissal of a DUI charge. The Court held police officer's investigative stop of defendant's vehicle for possible intoxication occurred when he actually stopped the vehicle and not when he activated his squad car's flashing lights. After the police officer activated his lights to stop the defendant, the defendant threw a beer can out of his vehicle, drove across the centerline, and veered onto the white line on the road. The trial court granted defendant‘s motion to dismiss, ruling the officer did not have reasonable suspicion to stop the vehicle when the officer activated his lights. On appeal from the state, the Supreme Court reversed the trial court, holding the officer had reasonable suspicion at the time of the actual stop and did not need reasonable suspicion at the time of activating the squad car‘s lights. The trial court was reversed.
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COMPLAINT—AMENDMENT—SPEEDY TRIAL—REASONABLE SUSPICION
State v. Brown 22 Kan.App.2d 560, 920 P.2d 460 (1996)
The Court of Appeals affirmed a DUI conviction. The Court held officer had ample grounds for stopping defendant's vehicle; trial court properly allowed state to amend its complaint; and defendant's right to speedy trial was not violated. The Court of Appeals noted officer observing defendant's vehicle committing four left of center violations was ample reason to stop defendant‘s car. Prior to trial, the trial court allowed prosecutor to amend complaint. The Court held there was not an abuse of discretion in allowing prosecutor‘s amendment to complaint prior to trial. Defendant was initially charged with driving with blood alcohol concentration of .10 or above. To conform to change in the law, amendment to complaint reduced standard to .08 or above. The Court noted defendant‘s BAC was well above .10, and defendant was convicted under provision which did not contain any blood alcohol requirement. On the issue of speedy trial, the Court of Appeals held no violation occurred. The trial was brought with 170 days of arraignment; however three months passed between first and second days of trial, and approximately one month passed between second and third days of trial. The Court noted KSA 22-3402, which requires defendant be brought to trial within 180 days, does not require trial be concluded within that time frame. Thus, there was no speedy trial violation.
REASONABLE SUSPICION—ROAD CONDITIONS
State v. Hopper 260 Kan.66, 917 P.2d 872 (1996)
The Supreme Court reversed a district court order (and Court of Appeals ruling) which granted a defendant‘s motion to dismiss in a case involving charges of driving left of center, driving with suspended license, DUI, and transporting open container. The Supreme Court held (1) driving left of center statute created absolute liability offense and did not contain implied exception for road and weather conditions; (2) weather and road conditions were not material facts in determining whether police officer had reasonable suspicion to stop vehicle for crossing center line; and (3) police officer's observation of defendant's vehicle cross center line in icy weather conditions gave him reasonable suspicion defendant had committed traffic infraction, as required to support traffic stop. The district court originally stated the arresting officer lacked reasonable suspicion to stop defendant for driving left of center because weather and road conditions were material facts on the issue. The Court of Appeals affirmed. The Supreme Court reversed, holding driving left of center is an absolute liability offense and no consideration should be given to weather conditions, unless one of the statutory exceptions has been satisfied (ie obstruction of road). See KSA 8-1514(a)(2). The Court also held the officer had reasonable suspicion to justify a stop. Thus, the district court and Court of Appeals was reversed, and the case remanded for trial.
VEHICLE STOP—REASONABLE SUSPICION—PUBLIC SAFETY—WEAVING
State v. Field 252 Kan. 657, 847 P.2d 1280 (1993)
The Supreme Court reverses dismissal of a DUI complaint, holding a law enforcement officer is not required to have a reasonable suspicion a crime has
31
occurred before stopping a vehicle. Public safety or assisting persons in distress are also valid grounds, if the officer had specific and articulable facts to believe that such public safety reasons exist. The facts show the officer observed defendant‘s vehicle in the early morning hours weaving within its lane several times and testified she had no reason to believe defendant was committing a crime, but was worried he was falling asleep. (Ellis, 68005, 3/5/93)
VEHICLE STOP—REASONABLE GROUNDS—SAFETY
State v. Vistuba 251 Kan. 821, 840 P.2d 511 (1992)
The State appeals dismissal of a complaint. The Supreme Court reverses and reinstates, DUI holding although 22-2402 allows a stop and frisk only for suspicion of a crime, neither the Fourth Amendment of Sec. 15 are violated if a vehicle is stopped because the driver is suspected of falling asleep. The Court seems to rely on the emergency exception of the warrant requirement, but does not refer to prior case law, i.e. State v. Jones,2 K.A.2d 38,(1978) State v. Harrington, 2 K.A. 2d 592,(1978) State v. Boyle, 207 K. 833 (1971). In reaching its conclusion, the Court dismisses the argument the vehicle was also failing to maintain a single lane, since that was not the officer‘s intent in stopping the vehicle. While the State wins, the opinion seems to indicate a departure from State v. Guy & Stone, 242 K. 840,(1988) in which the Court upheld a pretextual stop if based on a valid traffic violation. (Ellis, 67267, 10/30/92)
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***UNPUBLISHED CASES***
65 YEARS OLD-REFUSED
Ritter v. Ks. Dept. of Revenue Slip opinion, 2010 WL 3324436 (08/20/10)
***UNPUBLISHED***
An off-duty officer informed an on-duty officer Ritter‘s car had went left of center. The on-duty Officer stopped the vehicle. He detected: strong odor of alcohol, no bloodshot eyes, speech normal. However, based on the traffic infraction and odor of alcohol, the officer requested Ritter to take field sobriety tests. The officer asked another officer should he have a 65 year old perform SFSTs. He was instructed to do so but he should ―take that into consideration when he witnessed the tests‖. Ritter indicated she had good balance and she was in good health. Walk and turn indicated: did not stand correctly, started test before instructed, took 10 instead of 9 steps, missed heal to toe and stepped off the line. On the one leg stand: put her foot down several times. Ritter was asked to recite the alphabet: got to P then started again at H went to P again then she said O,N,M and stopped. The officer said there appeared to be something other than age that was affecting the tests. She was arrested and read the implied consent-she refused claiming she ―didn‘t trust any officer‖. Ritter appeals her license suspension claiming no reason to stop the vehicle and officer did not have reasonable grounds to request the test. Appellate court concluded constitutionality of the stop was not an issue a driver could raise in a DL hearing citing K.S.A. 8-1020(h). Based on the driving cue and all the SFSTs the court found the officer had reasonable grounds to request the test.
PRIOR ENCOUNTER WITH DEFENDANT-NO TRAFFIC INFRACTIONS
State v. Sanders 230 P.3d 461 2010 WL 2044949 (05/14/10)
***UNPUBLISHED***
Officers were called to investigate a battery. They encountered the defendant who had been beaten. During that time the officers noted the defendant was highly intoxicated. Officers called an ambulance and the defendant was taken to the hospital within a very short distance from the battery location. Within the hour officers received another call stating a person who was intoxicated was leaving the area around the hospital. Upon arrival officers observed the defendant backing out of a parking stall. The vehicle was stopped and the defendant again met with officers. The defendant was arrested for DUI and tested 0.234. The defendants‘ motion to suppress based on his argument the officer could not use any prior information to make the stop in the second encounter. Due to the fact the officers saw no traffic infractions there was no reason for the stop. This argument was denied and was found guilty. The appellate court noted: People do not sober up in less than an hour. The officer returned to the same location as his first encounter with Sanders in response to a radio dispatch about an intoxicated person trying to get into a car. This traffic stop appears reasonable to us. In fact it would be unreasonable for us to hold the officer, for some reason, had to ignore his first encounter with Sanders.
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WEAVING IN LANE-MARX-VIDEO
State v. Rudolph 222 P.3d 564, 2010 WL 348274 (01/22/10)
***UNPUBLISHED***
Trooper observed vehicle failing to keep within its lane of traffic. Following the vehicle for approximately one mile and caught on video swerving a number of times within the lane. The trooper indicated there was a light rain falling that evening but the weather conditions would not have affected the driver‘s driving pattern. There was nothing on the video showing it was impracticable for the defendant to maintain his single lane of travel. The defendant filed a motion to suppress. The appellate court cited State v. Field, 252 Kan. 657 (1993) a driver‘s actions of repeatedly weaving within the lane of traffic may constitute reasonable suspicion for an officer to stop and investigate even when the driver did not commit a clear violation of any law. Trooper indicated he believed the driver was intoxicated. He indicated he was concerned about the safety of the other drivers on the road and he either needed to stop the defendant or he was going to end up working an accident. The court reviewed Marx and found there was more than just the failure of K.S.A. 8-1522(a) that the defendant may have committed. Conviction affirmed.
UNDER 21-ADMITTED TO DRINKING
Christensen v. Ks. Dept. of Revenue 219 P.3d 491, 2009 WL 4035522 (11/20/09)
***UNPUBLISHED***
Officer stopped vehicle for a broken taillight. Upon approach the officer observed the following: bloodshot eyes, slurred speech, difficulty communicating, and admitted to five or six beers. The officer also determined the driver was under 21. A PBT was administered and registered 0.11. After the PBT field sobriety tests were given. The hearing officer suspended the license. The defendant sought review of the district court which affirmed and it was appealed stating the officer did not have reasonable grounds to request testing. The State argued because the defendant was under the age of 21 the officer only had to have reasonable grounds the defendant had operated or attempted to operate a vehicle for the implied consent to even apply. The officer need not show he was under the influence of alcohol or drugs. The appellate court noted based on the observations of the officer (not taking into account the SFSTs) there was substantial competent evidence to support the findings. Affirmed.
PUBLIC SAFETY STOP-MOTORCYCLE-MARX
State v. Jimeson 218 P3.3d 1197, 2009 WL 3837664 (11/13/09)
***UNPUBLISHED***
The officer observed a motorcycle drift off the pavement and onto the gravel shoulder. The officer later indicated ―the back end of the motorcycle kicked out‖ and then returned back to the paved road. The officer indicated he stopped him to find out if everything was okay with him. After the stop the officer immediately asked the defendant if he was ―drunk‖. After conducting some SFST‘s the defendant was arrested for DUI. The court noted although the officer indicated the traffic stop was for public safety reasons the officer‘s conduct did not correlate with that motive. He never asked the defendant if he was having mechanical trouble with his motorcycle but focused immediately on whether the defendant was drunk. There was also a short review of Ross and Marx
35
which the court also found the State‘s argument lacking. The district court sustained the motion to suppress because of the illegal traffic stop and the court of appeals agreed.
ESTIMATION OF SPEED-NO RADAR USED-SFSTS REFUSED
State v. Steele 217 P.3d 1018, 2009 WL 3428624 (10/23/09)
***UNPUBLISHED***
An officer observed the defendant traveling at a high rate of speed, in his estimation 40 mph in a 20 mph, approaching an intersection. The driver slammed on his brakes and the vehicle ―dipped down‖ and came to a stop past the crosswalk. Officer activated his lights. The driver stopped approximately 5 feet from the curb. The driver was ―very curt‖ in his answers, produced an ID card but was adamant he had a license. After the officer pointed out he had given him an ID card the defendant produced a license but dropped it in the process. The officer smelled a strong odor coming from the defendant and asked if he had been drinking. The defendant denied drinking. He was asked to step from the car but refused. Eventually he did step from the car but refused to take the SFSTs. The officer attempted to place him under arrest. There was a brief scuffle and the defendant was arrested. He did take the breath test which indicated a BAC of 0.181. The defendant claimed there was no reasonable suspicion to stop him for the traffic infraction-the court indicated the estimation of speed alone might not have been enough to convict him of speeding but it certainly established a reasonable suspicion he was speeding not to mention pulling past the crosswalk. The defendant also claimed no probable cause for the arrest. The defendant focuses on his refusal to take the SFSTs and cites Wonderly. The appellate court noted the defendant‘s refusal to perform the SFST‘s is but just one factor that caused the officer to have PC to arrest. The court noted it is justified in considering a defendant‘s refusal to submit to field sobriety tests citing State v. Bradford 27 Kan.App.2d 597 (2000).
WEAVING WITH LANE-MARX-DECISION
State v. Sullivan 217 P.3d 1018, 2009 WL 3378215 (10/16/09)
***UNPUBLISHED***
The officer observed the defendant drive at 1 am. The car weaved within its lane the entire time and the car crossed the lane dividing line and nearly struck a curb. The officer was trained in DUI detection and taught to look for indicators of impairment. The officer believed the defendant‘s weaving and failure to maintain a lane were indicators of alcohol impairment. The vehicle was stopped. The defendant challenged the stop based on State v. Ross 37 Kan.App.2d 126 (2007). The State indicated U.S. v. Jones 501 F.Supp.2d 1284 (D.Kan. 2007) and Marx. The Kansas Supreme Court has overruled the Marx panel in State v. Marx 289 Kan. 657, 215 P.3d 601 (2009) stating the State must present more information than an observation of a lane breach in order to use that violation to justify a car stop. The district court found, and the appellate court agreed, the defendant was in a single lane and there was one movement across the line with no showing there was any traffic violation or infraction in that regard. With this sparse record the suppression is affirmed.
36
HEADLIGHT OUT-MISTAKEN BELIEF
State v. Young 216 P.3d 731, 2009 WL 3172773 (10/02/09)
***UNPUBLISHED***
Officer stopped the defendant‘s vehicle for a headlight out. The driver smelled of alcohol, had slurred speech, failed SFST‘s and was arrested. During trial two witnesses testified the defendant‘s headlights were operable after the traffic stop. The defendant argued his headlights were working and the officer lacked reasonable suspicion to conduct the traffic stop. The court cited City of Manhattan v. Larson 26 Kan.App.2d 851 (2000) reasoning if the officer was under a mistaken belief the headlight was inoperable he still could have had a reasonable suspicion to conduct the traffic stop based on that mistaken believe. The defendant also failed to maintain a continuous objection to the entire line of questioning. Because of the failure to object appeal was not preserved.
SEIZURE IS NOT WHEN LIGHTS ARE ACTIVATED
State v. English 218 P.3d 60, 2009 WL 3630925 (10/02/09)
***UNPUBLISHED***
Officer observed a vehicle failing to maintain its lane of travel by swerving noticeably. The vehicle also went left of center before stopping at a stop sign. The officer activated his emergency lights but the defendant did not immediately pull over. The defendant did pull over to the curb however the vehicle‘s passenger side tires went up and over the top of the curb and then she drove back into the traffic lane continuing to drive. The officer used his siren and horn-the defendant eventually pulled into a parking lot. A video was presented corroborating the officer‘s testimony. The court suppressed all evidence stating the officer activating his lights was a ―seizure‖ of the vehicle and there were no articulable facts or reasonable inferences to justifying that action. Critical to the decision by the appellate court was noting the following: ―in determining the legality of a motor vehicle stop, the critical time when a law enforcement officer must have knowledge of facts giving rise to a reasonable and articulable suspicion the defendant had committed, was committing, or was about to commit a crime is at the time of the actual stop not when the law enforcement officer activates the police car‘s emergency lights‖ citing State v. Newman 266 Kan. 319 (1998). Remanded.
SWERVED-AS NEARLY AS PRACTICABLE-PRECEDENT
State v. Tinoco 208 P.3d 361, 2009 WL 1591644 (06/05/09)
***UNPUBLISHED***
Trooper observed defendant swerve approximately two tire widths into the left lane (a little less than 2 feet) on one occasion. There were no conditions observed by the trooper that would have caused the defendant to swerve. The vehicle was stopped and after further investigation the defendant was arrested for DUI. The defendant was convicted and appeals the case due to the fact the officer did not have reasonable suspicion to execute a traffic stop. The trial court reviewed K.S.A. §8-1522(a) and found there was reasonable suspicion. The defendant argued on appeal State v. Ross, 37 Kan.App.2d 126,(2007)specifically the wording ―as nearly as practicable‖. It requires something less than absolute restriction to a single lane. After Ross was decided, the Tenth Circuit Court of Appeals decided U.S. v. Jones, 501 F.Supp.2d 1284 (D.
37
Kan. 2007), in which the Court was critical of the Ross decision and found Ross contradicted the plain terms of the statute, failed to promote the Kansas Legislature‘s goal of multistate uniformity, and conflicted with Tenth Circuit precedent as well as precedent from other jurisdictions with similar statutes. Also the COA had failed to follow State v. Marx, 38 Kan.App.2d 598 (2007). The COA in this case reviewed these prior cases and found the trooper had reasonable suspicion to make a traffic stop for violation of K.S.A. §8-1522(a). Affirmed.
TRAFFIC INFRACTION-APPEALING TO THE PASSION OF THE JURY
State v. Perez 207 P.3d 1091, 2009 WL 1530728 (05/29/09)
***UNPUBLISHED***
The defendant failed to turn on his vehicle‘s headlights immediately on turning his vehicle out of a parking lot. The court indicated committing a traffic infraction is a justification for a traffic stop, therefore the stop was lawful. During closing arguments the prosecutor stated ―Thank God no Kid comes out after any balls here.‖ The appellate court reviewed State v. Albright 283 Kan. 418 (2007) where the three prongs of misconduct are laid out. It was determined the statement was not gross and flagrant, nor did it show ill will. The court indicated it was improper but as a whole did not constitute plain error and did not unduly prejudice the defendant. There was also a review of the sufficiency of the evidence-there was enough evidence to receive a guilty verdict. Bids argument was also made. Affirmed.
INCONSISTENCY IN OFFICER'S REPORT AND VIDEO-WEAVING WITHIN A LANE OF TRAFFIC-PUBLIC SAFETY STOP
State v. Hawk 203 P.3d 89, 2009 WL 744362 (03/13/09)
***UNPUBLISHED***
Officer testified he observed the vehicle weaving and drifting within his lane and braking erratically. The defendant‘s vehicle also navigated a large curve in the road and the vehicle drifted wide right across the white fog line. Defendant alleges the video does not show some of the officer‘s testimony. The court noted the video is grainy and taken at night. Thus, while the video recording does not conclusively confirm it definitively does not rule it out. The defendant claimed the officer did not have reasonable suspicion to stop because nothing established he had driven unsafely. The appellate court reviewed a number of cases in which ―weaving within your lane‖ is sufficient to stop a vehicle. The defendant cited Ross 37 Kan.App.2d 126 (2007) but the appellate court cited Marx 38 Kan.App.2d 598 (2007). The court noted this stop could be considered a public safety stop but also as argued by the State would be justified as an investigative purpose.
38
CROSSED/DRIFTED OVER FOG LINE-OPENING MISSTATEMENT-WRONG ANSWER TO JURY QUESTION
State v. Stieben 201 P.3d 1, 2009 WL 398983 (02/13/09)
***UNPUBLISHED***
The officer observed a vehicle drift toward the fog line as it came towards his patrol car; his radar indicated 51 mph in a 65mph zone. The officer turned around and observed the vehicle cross the fog line three different times and get on the fog line a fourth time. The vehicle was stopped. ARTICULABLE SUSPICION: Appellate court concluded there was enough information to warrant the officer stopping the vehicle. The court reviewed a number of cases Moore 383 Kan. 344,(2007) Field 252 Kan. 657,(1993) Moore 39 Kan.App.2d 568,(2008) Fitzpatrick case no. 96,702 unpublished, Leffel v. KDOR 36 Kan.App.2d 244 and City of Dodge City v. Hadley 262 Kan. 234 (1997) ATTORNEY‘S CONDUCT: The State during opening statement commented the defendant crossed the fog line on its‘ approach on the officer‘s vehicle. The defendant only drifted on its approach. The court stated the misstatement was on opening statement and this is only to assist the jury in understanding what each side expects the evidence at trial to prove. Such misstatements generally have no prejudicial effect. Also these statements indeed were inconsequential because there were numerous additional ―crossings‖ of the fog line after the officer began to follow the defendant. JURY QUESTION: ―Did the defendant cross the fog line before the officer turned around?‖ The court answered ―yes‖; which was not correct. The appellate court noted the defendant was not charged with any lane violation. The misinformation about the event that initially provoked the officer‘s later arrest of the defendant and the jury‘s finding of guilt was not imagined by the COA. The court‘s misstatement was harmless. There was also a discussion about the judge‘s bias and failure to recuse himself. Affirmed.
VIOLATION OF ORDINANCE
State v. Anderson 201 P.3d 1, 2009 WL 398982 (02/13/09)
***UNPUBLISHED***
Officer observed Anderson approach an intersection brake suddenly causing her tires to skid about 50 feet. Toward the end of the skid Andersons‘ vehicle left the alleyway and came to rest on private property a short distancefrom the intersection. Officer did not activate his emergency equipment but turned on his rear flashers to alert approaching traffic he was stopped. Eventually Anderson was arrest for DUI and blew a 0.163. Anderson challenges the initial encounter. The Court indicates traffic infractions provide reasonable suspicion for a law enforcement officer to conduct an investigatory detention. Here it is clear Anderson violated careless or inattentive driving ordinance.
NO TRAFFIC INFRACTIONS-OFFICERS DID NOT CHARGE DUI
State v. Buster 199 P.3d 188, 2009 WL 196203 (01/23/09)
***UNPUBLISHED***
The police received a call of a disturbance at a business. When the police arrived the defendant had left. The defendant‘s vehicle was stopped two blocks from the business. The officers did not observe any traffic infractions prior to the stop. The officers observed several signs of impairment and placed the defendant under arrest for DUI, disorderly conduct and trespassing. However neither officer included DUI in their arrest reports
39
and the defendant was never charged with DUI. A motion to suppress was filed based on the officers made an unlawful stop and unlawful detained and arrested the defendant. The trial court concluded the officers did not have reasonable suspicion to stop the defendant because they could not arrest him without a warrant. The appellate court found the stop was good because witnesses had indicated the defendant had committed the crimes of disorderly conduct and trespassing. Pursuant to K.S.A. 22-2402(1) an officer may stop a person if the officer reasonably suspects the person has committed a crime. Based on the information provided by the persons at the business it could be inferred the defendant did commit a crime. The next step was to determine if there was probable cause for the arrest. There was discussion about warrantless arrest for officer observing a crime. The district court and appellate court noted the officer testified he did not see any crime being committed by the defendant before the stop. There was information concerning some indication of DUI impairment on the part of the defendant. The case was remanded back with directions to determine if there was sufficient information to allow the officers to arrest for DUI and if that is found to be true then the district court would have to decide whether the search exceeded the scope of that lawful search incident to arrest under K.S.A. 22-2501.
FAILING TO MAINTAIN-VIDEO EVIDENCE-DESTROYED
State v. Reeves 195 P.3d 291, 2008 WL 4849740 (11/07/08)
***UNPUBLISHED***
The defendant was stopped in Hutchinson, Kansas based on his failure to maintain a single lane. The officer observed the defendant cross the center line. The officer activated his in car camera to note the traffic infractions however the in car video did not record any of the traffic infractions. The officer testified at trial of the infractions. The defendant filed a motion to suppress based on the fact the best evidence was the video which did not indicate any traffic infractions. The trial court denied the motion citing the officer was ―totally credible‖ and the video was not of good quality. The defendant appeals. The defendant claims the court should have relied on the video and not the testimony of the officer. The appellate court stated the testimony of the officer was sufficient to provide a justification for the stop was sufficient and therefore the court would not reweigh the evidence or the credibility of witnesses. Affirmed.
TOTALITY OF CIRCUMSTANCES-MERE POSSIBILITY
State v. Glynn 192 P.3d 1130, 2008 WL 4472258 (10/03/08)
***UNPUBLISHED***
The defendant‘s vehicle was observed driving without headlights or taillights at 2am. Upon stopping the vehicle the defendant had a strong odor of alcohol and admitted to having 5 beers. Field sobriety tests indicated impairment. The defendant had slurred speech, her eyes were glassy, bloodshot and glazed. The officer placed the defendant under arrest. On appeal the defendant claimed the officer lacked probable cause to arrest her. The court indicated Probable cause for an arrest is higher standard than reasonable suspicion for a stop. Probable cause to arrest is that quantum of evidence that would lead a reasonably prudent law enforcement officer to believe that guilt is more than a mere possibility. In this case the appellate court found sufficient
40
evidence to lead a law enforcement officer to believe the defendant ‗s guilt was more than a mere possibility. Totality of the evidence indicates probable cause to arrest. Affirmed.
JURISDICTION-AGREEMENT BETWEEN AGENCIES
State v. Davidson 192 P.3d 184, 2008 WL 4291617 (09/19/08)
***UNPUBLISHED***
The defendant was followed by a Hiawatha police officer. The officer observed odd driving behavior. While following him the Hiawatha officer left the city limits of Hiawatha and went into Brown County. The Hiawatha officer radioed assistance from the Brown County Sheriff. At that time a sheriff deputy indicated he was over 20 minutes away and told the Hiawatha officer to stop the vehicle if necessary. The vehicle was stopped 4 miles outside the city limits. There the Hiawatha officer smelled alcohol determined the defendant was impaired through field sobriety tests and arrested him. The defendant argues he was illegal arrested and all evidence gathered should be suppressed. In review the two departments have long standing agreement either department (Hiawatha Police Dept or Brown County Sheriff) may request and receive assistance from the other outside their own jurisdictions. The appellate court determined the Hiawatha officer had initiated the call for assistance and had the necessary authority to follow, stop, and then arrest the defendant both under K.S.A. 22-2401(a)(2)(b) and the longstanding oral agreement. The district court‗s findings are affirmed.
INNOCENT USES
State v. Dunn 188 P.3d 977, 2008 WL 3004804 (2008)
***UNPUBLISHED***
Off-duty officer observed a vehicle swerving all over the road. The driver, Dunn, was making erratic motions as he drove, slapping himself on the head, and wildly waving his arms. The car pulled into a driveway. An on-duty deputy responded within seconds. Upon approach Dunn appeared to be unconscious though he cars engine was still running and it was in gear. Dunn‘s foot was resting on the brake pedal. The officer opened the door and Dunn awakened. Dunn was asked to step from the vehicle. As he did so an officer observed what he believed was a Brillo pad the officer knew was commonly used for smoking cocaine. Dunn was extremely jittery and had very poor balance and coordination. His movements were erratic, his eyes were dilated, and he was extremely sweaty. The officer concluded Dunn was under the influence of a narcotic or some other substance. Dunn was charged only with possession of cocaine which was found in a search of his vehicle. Dunn at trial moved to suppress the evidence. The appellate court found an officer had a reasonable suspicion Dunn was DUI and can order a driver out of his vehicle without any suspicion of an additional crime. The court also found there was sufficient information to establish Probable cause to believe Dunn committed a crime, evidence of which was found in the vehicle. While Brillo pads have an obviously innocent use, any possible innocent use recedes into the distant background when considering the totality of the circumstances that confronted the officer. Affirmed.
41
URINATION—BROKEN TAIL LAMP
State v. Jepson 187 P.3d 608, 2008 WL 2796460 (2008)
***UNPUBLISHED***
Officer observed the following: broken tail lamp emitting white, instead of red; the driver stopped at a residence andthe officer witnessed the individual urinating on the front driveway; this occurred at 4 a.m.; the driver then after urinating went and knocked on the front door of the residence, no answer; the registration on the vehicle did not come back to the address of the residence. The court concluded, as the officer did, based on the totality of the circumstances, the officer could stop, approach and speak with the driver. The court also review information gained after the stop; odor of alcohol, driver admitted to drinking; failed PBT and could not complete SFSTs—and concluded the officer had PC to arrest the driver.
OUTSIDE JURISDICTION—PRIVATE CITIZEN ARREST—SAFETY STOP
State v. Willett 186 P.3d 1227, 2008 WL 2717772 (2008)
***UNPUBLISHED***
Dispatch requested an officer with Dickinson sheriff‘s office to go to the residence in Dickinson County to determine if a car stolen out of Clay County was there. The deputy did not locate the vehicle but started looking for the vehicle. The deputy crossed over into Clay County and did observe a vehicle matching the description. After checking with dispatch the license plate was not the subject of his search. Nevertheless, the deputy continued to follow the vehicle because he had seen it swerve within its lane several times and cross the centerline twice. The deputy described the driving as ―all over the road‖. The vehicle pulled into a driveway in Clay County. The deputy pulled in behind the vehicle and called for a Clay County deputy. The defendant got out of his car and met the deputy from Dickinson County. The defendant walked unsteady, had slurred speech and smelled strongly of alcohol. The deputy had ―casual conversation‖ until the Clay County deputy arrived (approx. 10 minutes) He was eventually arrested by Clay County and blew a 0.188. The court determined the Dickinson deputy could stop the vehicle for two reasons: although he had no jurisdiction in Clay County he could stop the vehicle as a ―private citizen‘s arrest‖ (i.e., had pc to believe the offense of DUI was being committed) and the stop was valid also as a public safety stop. There was also a discussion about fines for DUI are not allowed to be waived therefore unless the court is imposing more than the mandatory minimum fine, the court is NOT required to consider financial resources of the defendant.
PUBLIC SAFETY
State v. Muller 184 P.3d 993, 2008 WL 2370161 (2008)
***UNPUBLISHED***
Trooper observed a Jeep traveling 20 to 25 mph below the speed limit and drove onto the white fog line, drifted across the lane and drove onto the yellow centerline at least two times. The Jeep never crossed the centerline. When the Jeep met another car, it drifted over and drove onto the white fog line again. At one point the Jeep braked so hard the front end dipped down and the back end came up, although the Jeep did not come to a complete stop. The Trooper stated he did not observe any violations of the law, however, it was a combination of factors ―the speed, the drifting in the lane, the
42
driving on the lane markers, the moving against the white line when meeting other vehicles and braking for no apparent reason. He believed the driver might be impaired with alcohol, but he was also concerned the driver might be falling asleep or afflicted with a diabetic emergency or some other medical condition. The district court found this to be a safety stop and denied the defendant‘s motion to suppress. Muller was found guilty of DUI, transporting an open container, and possession of alcohol by a minor. The defendant appeals. The appellate court stated a civil or criminal infraction is not essential to justify a vehicle stop and safety reasons alone may justify the stop if based upon specific and articulable facts. Affirmed.
ORDINARY TRAFFIC STOPS—KNOWLEDGE OF OFFICERS
State v. Shade 172 P.3d 1222, 2007 WL 4578022 (2007) ***UNPUBLISHED***
Shade was charged with DUI second offense. A motion to suppress was filed. Shade was stopped for driving across a field in a ditch from one roadway to another roadway. The officer testified he had grown up around Americus and was not aware of any road ever going through the field between Sixth and Seventh Streets. He also admitted he was not aware of any City Ordinance making it illegal to drive across the field. Despite that the officer pulled the truck over and spoke with Shade. During this conversation Shade told the officer he had drank. The officer could smell an odor of alcoholic beverage. Another officer at the scene spoke with the first officer and told him Shade could be under the influence of alcoholic beverage and it was up to him to decide whether to arrest Shade for DUI. The officers decided to take Shade into custody in order to have him take a breath test. The officer admitted the only evidence he had personally gathered of Shade's intoxication before deciding to arrest him was his observation of Shade driving across the field, the smell of alcohol from Shade, and Shade's acknowledgement he had been drinking. The officer read the implied consent advisory and performed the breath test, the result indicated Shade was over the legal limit. Shade argues Miranda warnings should have been given before asking questions at the traffic stop. The State argues the questioning did not constitute custodial interrogation. The Court relied again on Berkamer v. McCardy 468 US 420(1984). The Court concluded ordinary traffic stops do not involve custody for the purposes of Miranda. The Court noted other cases came to the same conclusion, State v. Price 233Kan706 (1983) State v. Stephens 36Kan App 2nd 323(2006), City of Manhattan v. Ferrell 35 Kan App 2nd 740 (2006), State v. Maze 16 Kan App 2nd 527(1992), and State v. Almond 15Kan App 2nd 585 (1991). The officer was not required to Mirandize Shade and therefore the Court erred in suppressing Shade's statements. Since the District Court suppressed Shade's statements it determined because the statements were the primary basis for administering the test, test results had to be suppressed as fruit of the poisonous tree. Shade argued we should still suppress the Intoxilyzer results because officers failed to satisfy the requirements of K.S.A. 8-1001(b) before administering the test to Shade. The officer lacked both reasonable grounds to believe Shade was operating his truck under the influence and lacked probable cause to arrest him at the scene for the traffic stop. The Court noted the knowledge of one police officer may be imputed to a fellow officer for purpose of establishing probable cause. The Court reviewed all the information officers had and determined probable cause existed to arrest Shade and therefore reasonable grounds existed for the officer to request Shade submit to a breath test. Reversed and remanded.
43
ANALYSIS OF SEIZURE-VOLUNTARY ENCOUNTER
State v. Bluma 161 P.3d 815, 2007 WL 2043581 (7/13/07) ***UNPUBLISHED***
In the early morning an officer observed a vehicle driven by Bluma pull up and stop in the adjoining lane about two lengths behind his vehicle at a red stop light. When the light turned green officer waited for the vehicle to pull forward. It did not move. Officer testified he was not sure the guy had had a heart attack, passed out, diabetic reaction. Although the officer did not observe any traffic infractions being committed, he noted at suppression hearing the NHTSA manual indicated failure to stop or stop on time and failure to react to a traffic signal suggested a driver may be under the influence of alcohol or drugs. Bluma then turned into a parking lot. Officer Campbell did not activate his vehicle's emergency lights or equipment but stopped his vehicle a short distance from the Jeep and walked towards it. Officer Campbell testified as he walked toward the vehicle Bluma was shaking his keys and said in a condescending tone of voice the keys aren't in the ignition. The officer obtained from Bluma an expired Kansas Drivers License. Officer Campbell noted an odor of alcoholic beverage, Bluma admitted he had been drinking and he knew he shouldn't have been driving. Bluma also told the officer, I'm not okay to drive so I stopped. These facts absent physical force or a show of authority however do not constitute a seizure. Once the officer walked up to the vehicle he identified the driver from the expired Drivers License, that violation of the traffic laws provided an objective valid reason to effectuate a lawful seizure of Bluma. The voluntary encounter evolved into a brief investigatory detention, which developed incriminating evidence Bluma was driving while intoxicated. The Court also noted Bluma's driving behavior, while not illegal was unusual erratic and noteworthy because he operated his car in a furtive manner, which suggested to the officer an attempt to get off the road to evade law enforcement. The District Court suppressed the evidence. The State filed an appeal. The State contended the officer did not initiate a vehicle stop, but merely a consensual encounter, which turned into an investigatory detention based on Bluma's statements and actions. The Appellate Court first reviewed whether or not there was a "show of authority". Factors to be considered: one, presence of more than one officer, two the display of weapons, three, physical contact by the officer or use of commanding tone or voice. They also looked at the fact of the activation of police vehicle sirens or flashers command a halt or attempt to control the ability to flee. In the present case the record was devoid of any evidence the officer did a show of authority. Reversed and remanded.
DETAINED TOO LONG-SFSTS SHOULD BE IN THE FIELD
City of Norton v. Schoenthaler 165 P.3d 320, 2007 WL 2410122 (2007) ***UNPUBLISHED***
Defendant Schoenthaler appealed his conviction of DUI based on the Norton District Court‘s refusal to suppress evidence procured by police officers at the police station. Schoenthaler was clocked by police radar going 13 miles per hour over the posted limit in a construction zone. The officers did not indicate any other erratic driving, or any other moving violations. After pulling the vehicle over, the officers saw that Schoenthaler had two open twelve-packs of beer, placed an object behind the passenger seat of the vehicle, and had two empty beer cans, and a half-empty beer can in the car. Additionally, Schoenthaler had a distinct smell of alcohol. The officers asked Schoenthaler to step outside of the vehicle after taking his drivers license from him. Approximately 20 minutes of questioning ensued, and Schoenthaler admitted to having had a couple of beers about 30 minutes prior to
44
the stop. Schoenthaler was placed in the back of the patrol car, and was asked to take a PBT. While the PBT was suppressed, the result was greater than .08. Due to the conditions of the road that night, the officers felt it would be a safety issue to have Schoenthaler perform field sobriety tests on the road. The officers asked Schoenthaler to accompany them to the station, where they performed three field sobriety tests, all of which Schoenthaler failed. Finally, Schoenthaler took a breath test, which indicated .177. The court reversed and remanded the case, basing its decision on the fact Schoenthaler was not made aware he was free to leave, in conjunction with the fact a car being pulled over is a seizure, and the period for an investigatory detention based on reasonable suspicion was well surpassed when Schoenthaler was taken to the police station to perform field sobriety tests. The court stated field sobriety tests are meant to be used in the field, and even if the conditions did not allow for physical field sobriety tests, mental field sobriety tests, such as counting and alphabet recitation could have been used.
DRINKING IN VEHICLE
City of Overland Park v. Hersh 159 P.3d 1061, 2007 WL 1667120 (2007) ***UNPUBLISHED***
Hersh appealed her conviction of DUI and transporting an open container based on a lack of reasonable suspicion. Hersh was observed by two police officers drinking from a brown beer bottle while driving northbound in a lane in a parking lot that is typically used for southbound traffic. Further, the officers saw her pull into a driving lane, and stop her vehicle in front of a drinking establishment at night. The Court of Appeals stated the police officers were correct in stopping the driver and beginning an investigation into DUI.
TRAFFIC INFRACTIONS
State v. Blakely 166 P.3d 450, 2007 WL 2580602 (2007)
***UNPUBLISHED***
Defendant Blakely appealed this case based on her belief there was insufficient evidence to convict her at trial, and evidence found after the stop should have been suppressed. Because the Court of Appeals does not reweigh evidence, the court looked at the evidence only to determine if there was enough to sustain the conviction. The trial record shows the officer in this case testified Blakely failed two field sobriety tests, and blew a 0.135. These facts were enough for the instant court to believe there was sufficient evidence for the conviction. In regards to the suppression issue, the officer observed Blakely‘s vehicle commit three traffic violations. First, she had a large crack in her windshield, second, she failed to signal when making a turn, and third, her license plate registration had expired. The instant court ruled these violations were adequate to provide reasonable suspicion to pull the vehicle over. Blakely‘s conviction - upheld.
45
REASONABLE SUSPICION NOT A DEFENSE FOR ADMIN HEARING
Bray v. Ks. Dept. of Revenue 152 P.3d 688, 2007 WL 656401 (2007)
***UNPUBLISHED***
Police officers were dispatched to a local motel, where the night auditor reported a disturbance and possible damage to a window. The officers were informed a black Chevy Blazer with a specific Kansas license plate number caused the damage. While en route to the Days Inn, an officer located the Blazer, which was driven by Bray, and after detecting the Blazer‘s license tag matched the one reported, the officer initiated a traffic stop of the Blazer. At the stop, the officer noticed Bray‘s eyes were watery, Bray was wearing colored wristbands commonly used by local bars for age identification, and Bray‘s vehicle emanated an alcoholic odor. Based on these observations, the officer requested Bray performed two field coordination tests and a PBT, which Bray failed. Bray was arrested for DUI and transported to the police station. Bray‘s consented to a breath test and her BAC was found to be .145. Bray subsequently entered into a diversion agreement, stipulating she had operated a motor vehicle while under the influence of alcohol or drugs. Bray requested an administrative hearing before the KDOR. During the hearing, Bray raised the issue the officer lacked reasonable suspicion to make the stop. The hearing officer did not consider whether the officer had reasonable suspicion to make the stop and affirmed the administrative suspension. Bray then filed a petition for judicial review, maintaining the certifying officer lacked reasonable suspicion to stop Bray. The district court found the officer had reasonable suspicion to conduct the stop and upheld the administrative suspension. On appeal, the court considered whether the lack of reasonable suspicion to stop a driver can be a defense at an administrative hearing to determine if a driver‘s license should be suspended. The court noted an administrative hearing for the purpose of challenging a suspension of a driver‘s license is limited in scope to eight areas of inquiry by KSA 8-1020. The court held because reasonable suspicion to stop is not within the eight areas of inquirypermitted by the statute authorizing administrative hearings reviewing driver‘s license suspensions for DUI. Accordingly, the court found it is not a defense at an administrative hearing the officer lacked reasonable suspicion to conduct the traffic stop. Affirmed.
BACK OFFICERS-DELAY-FOURTH AMENDMENT
State v. Pywell 152 P.3d 689, 2007 WL 656421 (2007)
***UNPUBLISHED***
Pywell is challenging his conviction for DUI. Pywell was pulled over by Trooper Schoenberger for towing a trailer with inoperable brake lights. Once Schoenberger pulled the vehicle over, and approached the driver, he noticed an odor of alcohol coming from his breath, and noted a cooler filled with beer in the back seat. The Defendant had a difficult finding his license, even though Schoenberger could clearly see it in his wallet. At that point, Schoenberger returned to his vehicle to call for a back officer. The back officer did not arrive after approximately 15 minutes, so Schoenberger continued his investigation without one, and found several empty beer cans in the vehicle. As he was looking into the vehicle to search for open containers, the back officer arrived. Pywell‘s chief complaint is there was not reasonable suspicion to investigate the DUI. Pywell asserts there were no issues with his driving, and the sole reason for his stop was the brake light infraction. The Court of Appeals stated once the officer smelled alcohol, saw the Defendant fumble for his license, and observed the cooler filled with beer, the stop turned from a Terry stop, and reasonable suspicion existed for DUI. The second complaint
46
was the delay forced upon him by the officer waiting for his back officer was excessive, and thus violated his Fourth Amendment rights. The Court found for officer safety reasons, a 10 to 15 minute wait for a back officer in a DUI case is not unreasonable, and further noted when the back officer did not arrive within 15 minutes, Schoenberger started the investigation without the back officer. Affirmed.
ODOR OF ALCOHOL
State v. White 150 P.3d 335, 2007 WL 220002 (2007)
***UNPUBLISHED***
White was stopped by a police officer as part of a routine DUI checklane. Upon approaching the vehicle, the officer twice asked White if he had been drinking, to which he twice refused. The officer, however, noticed an odor of alcohol on White‘s breath and, based on the late hour, became suspicious. The officer ordered White to step out of the vehicle and asked him to perform several field sobriety tests. After completing those tests, the officer asked White to submit to a PBT, to which he agreed, and test indicated White was above the presumptive level for intoxication. White was then transported to the law enforcement center where a breath test indicated White‘s BAC was .188. White was arrested, charged and convicted of DUI. On appeal, White argued the arresting officer lacked reasonable suspicion to detain him and administer field sobriety testing. White conceded the initial stop was lawful but argued the continued detention was not supported by particularized, objective facts sufficient to establish a ―reasonable suspicion.‖ The Court of Appeals noted while the odor of alcohol on a defendant‘s breath does not alone provide reasonable suspicion to support a stop, the observation of an odor of alcohol after a legal stop may provide reasonable suspicion to support further detention. The court pointed out the officer noticed the odor of alcohol on White‘s breath after legally stopping him. White denied using alcohol, which was the Court, noted was odd behavior. Given the totality of the circumstances, the court found the officer had reasonable suspicion to investigate the source of the odor and to determine whether White had committed a crime. Affirmed.
GROSS OR FLAGRANT-HGN
State v. Ogden 150 P.3d 335, 2007 WL 219965 (2007)
***UNPUBLISHED***
A State Trooper observed Ogden ―drifting‖ between the yellow and white lines of his lane, but remaining in his lane. The trooper followed Ogden for about 1 mile and after Ogden pulled over onto the shoulder, the trooper activated his emergency equipment and initiated a traffic stop. While speaking with Ogden, the trooper noticed his eyes were bloodshot and there was an alcohol odor coming from the vehicle. The trooper then asked Ogden to step out of the vehicle. The trooper asked Ogden if he had been drinking, and Ogden said yes. The trooper then noticed a strong odor of alcohol from Ogden‘s breath. The trooper requested Ogden perform field sobriety tests, which he failed. Ogden then refused to perform the one-leg stand test. The trooper arrested Ogden based on the alcohol odor, his bloodshot eyes, and his failure of the walk and turn test. At the police station, the trooper read Ogden the DC-70 implied consent form and provided Ogden with a copy; Ogden refused to submit to a breath test ―because he would fail.‖ Ogden was charged with felony DUI. Prior to trial, Ogden filed a motion in limine, asking the district court to prohibit the State from presenting or eliciting evidence of his prior criminal history and arrest record, and of the HGN test results. The State stipulated to
47
and the court sustained the motion in limine. At a bench trial, the trooper testified about the HGN test and the State failed to redact that portion of the video that discussed Ogden‘s prior criminal history. The court found Ogden guilty of felony DUI and sentenced him accordingly. On appeal, Ogden first argues there was no reasonable suspicion to justify the stop. The court found while the trooper‘s emergency lights were a show of authority, Ogden had pulled over on his own volition prior to the activation of the emergency lights. The court noted the facts support the trooper conducted a safety stop. As the court pointed out, public safety stops are permitted so long as the ―safety reasons are based upon specific and articulable facts.‖ The court found the trooper had specific and articulable facts to justify the safety stop. Ogden also argues the State violated the motion in limine by not redacting the video and by adducing testimony about the HGN test. The court found no error, noting Ogden‘s trial was a bench trial. Accordingly, the district court had knowledge of Ogden's criminal history by way of the complaint. In addition, the court found Ogden failed to show the State‘s actions were gross and flagrant and were done intentionally with ill will. The court admitted the video should have been redacted, but the trial court offered remedial measures by having the State fast forward through prohibited portions and allowing the court to see admissible portions. Furthermore, the trial court did not give any weight to neither the HGN test testimony nor Ogden‘s statement made on the video. The court found other evidence was sufficient in itself to uphold Ogden's conviction. Ogden further argues his refusal to take the breath test was inadmissible to prove guilt of DUI. The court found even though Ogden failed to object to the introduction of the breath test and evidence regarding his refusal to take it at trial, the breath test was statutorily admissible to prove guilt. Affirmed.
PRIVATE PROPERTY-FAIL TO SIGNAL
State v. Agron 149 P.3d 547, 2007 WL 92680 (2007)
***UNPUBLISHED***
Officer Carl observed patrons leaving a bar at closing time. Officer Carl noticed Agron failed to signal as he turned from Birch Street onto Johnson Drive. The vehicle was stopped for failing to signal while turning. Officer Carl noted an odor of alcohol, glazed eyes and slurred speech. Agron admitted to consuming alcohol, did not have proof of insurance and his Ddirver‘s lines was suspended. Field sobriety tests were conducted which indicated impairment. Agron tested 0.107. Argon filed a motion to suppress evidence arguing Officer Carl lacked reasonable suspicion to stop his car. Weeks, director of public works for the City of Mission testified the City vacated the portion of Birch Street between Johnson Drive and Martway in 1981. Weeks testified the City remained in charge of replacing stop signs but the City was not in charge of replacing street signs on Birch Street because ―it‘s no longer a city street.‖ It was private property. It was pointed out to Weeks there still was a street sign at the location and Weeks concluded the City should probably remove the existing street sign to avoid confusion since it may make the property look like a street. Officer Carl testified there was no sign indicating Birch Street was private and he believed it to be a public street. Argon argued since it was not a public street Argon had no duty to use his turn signal and therefore had not committed a traffic infraction. The judge found State v. Knight, 33 KanApp.2d 325, 104 p.3D 403 (2004) did not apply and the officer was permitted to stop the vehicle. The appellate court affirmed the trial courts ruling claiming Officer Carl had an objectively reasonable good faith belief that Agron‘s conduct violated the law and the stop was permissible.
48
ODOR OF ALCOHOL
City of Lawrence v. Bush 143 P.3d 421, 2006 WL 2864792 (2006)
***UNPUBLISHED***
An officer observed Bush run a red light. The officer initiated a traffic stop and approached Bush. Upon making contact with Bush, the officer noticed an odor of alcoholic beverage coming from the vehicle and observed Bush‘s eyes were glassy, thick, watery, and slightly dingy and bloodshot. The officer asked Bush to exit the vehicle and Bush admitted to drinking a couple beers. At that point, the officer believed he was dealing with more than a traffic infraction, so he called a backup unit to perform a DUI investigation. Upon his arrival, the second officer observed Bush‘s eyes were ―extremely bloodshot,‖ and he smelled of an alcoholic beverage. Bush agreed to perform field sobriety tests and PBT. After failing these tests, Bush was arrested. He was tested and his BAC was .153. Bush was charged and convicted of DUI as a second offense. On appeal, Bush argued the smell of alcohol alone is insufficient to provide a reasonable suspicion of DUI, so the officers‘ continued detention of Bush to investigate whether he was intoxicated was illegal. The court held while the odor of alcohol on a driver‘s breath alone does not provide reasonable suspicion to support a traffic stop, the detection of the odor of alcohol justifies further investigation after an officer has already stopped a vehicle for a legitimate reasonable. Affirmed.
REFUSAL-BURDEN OF PROOF
Spencer v. Ks. Dept. of Revenue 138 P.3d 417, 2006 WL 2043016 (2006)
***UNPUBLISHED***
A Topeka police officer was part of a DUI patrol when he pulled up behind Spencer at an intersection. When the light turned green, Spencer turned left onto the eastbound two lanes of traffic with his passenger tires crossing into the right lane enough to straddle the lanes with half of his car. The officer followed Spencer and initiated a traffic stop for the infraction. Upon making contact, the officer noted Spencer‘s movements were slow and his eyes were both glassy and bloodshot. The officer also noted given his training and experience, making a wide turn is an indicator in DUI apprehension, and he suspected Spencer was DUI. The officer issued a traffic citation and then had Spencer step out of the car to perform field sobriety tests. When Spencer exited his car, he swayed and grabbed the door. Once Spencer was outside the car, the officer detected a strong odor of alcohol. Spencer refused to undergo a filed sobriety test and later refused a Breathalyzer test, telling the officer he had pneumonia. Spencer appealed the suspension of his driver‘s license arguing the officer did not have reasonable grounds to stop and detain him. The court rejected Spencer‘s argument finding there was substantial competent evidence upon which the stop was justified and reasonable grounds to believe Spencer was operating a vehicle under the influence.
CRIMINAL ACTIVITY—CONTINUED DETENTION
Green v. Ks. Dept. of Revenue 127 P. 3d 349, 2006 WL 265238 (2006) ***UNPUBLISHED***
A Hays Police officer observed Green make an improper turn and initiated a traffic stop. When the officer first approached Green, she noticed Green‘s eyes were bloodshot. The officer asked Green for his driver‘s license and proof of insurance and returned to her
49
vehicle to write Green a citation for the improper turn. When she returned to give Green the citation, she noticed an odor of alcohol coming from Green. About 6-7 minutes after the stop, she asked Green to step out of the vehicle and perform a field sobriety test. Green advised he had been drinking earlier. Based on his poor performance in the field sobriety test, the officer had Green submit to a PBT, which showed Green‘s blood alcohol level was above .08. At that point, about 22 minutes after the stop, Green was arrested for DUI. After an administrative hearing, KDR suspended Green‘s driver‘s license and the district court affirmed the suspension. Green appealed the suspension of his driver‘s license following his arrest for DUI arguing the officer did not have reasonable suspicion to detain him for a DUI investigation after the purpose of the traffic stop had been accomplished. The court noted an officer is not required to turn a blind eye to indicia of criminal activity unrelated to the traffic offense that are observed during the course of the stop. Based on the officer‘s reasonable suspicion Green was intoxicated, she investigated the matter further as she was entitled and obligated to do so. The court held Green‘s continued detention following the issuance of the traffic citation was justified under the circumstances.
IMMEDIATE PRESENCE—NO HEADLIGHTS
Martin v. Ks. Dept. of Revenue 139 P.3d 787, 2006 WL 2337235 (2006)
***UNPUBLISHED***
A Deputy observed Martin leave a bar and drive without using his headlights. The Deputy activated his emergency lights and attempted to pull Martin over for the traffic infraction. As the Deputy followed Martin, he turned into an alleyway without using his signal, parked behind his place of business, and walked quickly toward the business‘ back door. The Deputy made contact with Martin as he entered his business and followed him into the store. Martin was swaying, stumbling, and staggering, said he had been drinking, and the Deputy detected a strong odor of alcohol on Martin‘s breath as well as bloodshot eyes. The Deputy had Martin perform field sobriety tests, and then placed him under arrest for DUI. Martin‘s BAC was .235. After an administrative hearing, KDR suspended Martin‘s license for one year. Martin appeals the district court‘s judgment affirming KDR‘s suspension of his driver‘s license. Martin argued the officer lacked reasonable suspicion for the traffic stop, lacked probable cause to arrest Martin for DUI, and failed to comply with the KDHE protocol requiring officers to keep test subjects within their ―immediate presence‖ during the depravation period. The court found the traffic infraction provided reasonable suspicion for the traffic stop. The court also found Martin‘s actions, his admissions, and the strong odor of alcohol emanating from his breath provided probable cause to arrest Martin for DUI. Finally, the court found while the officer stepped out of the testing room several times for only a few seconds at a time during the deprivation period, there was no evidence from the videotape Martin belched, burped, vomited, regurgitated,or otherwise introduced substance into his mouth from his stomach during the testing period. Therefore, the testing procedures substantially complied with the KDHE‘s ―immediate presence‖ requirement.
50
BRAKE LIGHTS-TERRY STOP
State v. Larrison 135 P. 3d 219, 2006 WL 1520563 (2006)
***UNPUBLISHED***
Deputy Clark observed a vehicle with the driver‘s side brake light stuck in the ―on‖ position. Clark initiated a traffic stop and identified he driver as Larrison. After noticing an odor of alcohol and further investigating, Larrison was arrested for DUI and improper stop lamps and subsequently convicted. Larrison appeals his conviction for DUI and improper stop lamps, claiming the trial court improperly denied his motion to suppress because the stop was not based upon reasonable suspicion. Larrison argued Clark testified Larrison had two illuminated lamps that were visible from 200 feet and, therefore, Clark did not have reasonable suspicion for the traffic stop. The court noted while Clark did testify both brake lights were illuminated, he testified Larrison‘s passenger‘s side brake light illuminated only when Larrison pressed on the brake, but his driver‘s side brake light stayed illuminated continuously. The court found Clark had reasonable suspicion to stop Larrison based on a single malfunctioning brake light. Affirmed.
DRAG RACING
State v. Giger 130 P.3d 149, 2006 WL 619327 (2006)
***UNPUBLISHED***
Trooper was stopped at an intersection behind four other vehicles, when three vehicles passed at a high rate of speed. Hearing tire squeals, believing they were mostly from a red SUV, the trooper waited for traffic to clear, turned around and pursued. The trooper stopped a white car involved in the drag racing, and then proceeded to stop the red SUV. Giger was charged with DUI in the alternative. The district court held there was insufficient evidence to support a reasonable suspicion Giger, the driver of the red SUV, was involved in a drag race and suppressed the evidence of DUI. The State appealed the ruling. On appeal, the court ruled it would not reverse absent a lower court‘s arbitrary disregard of undisputed evidence. However, the trooper said he could not be for sure which vehicle had squealed its tires. At trial, the defendant offered evidence he swerved out of the way of the white car, which quickly overtook him from behind. Therefore, the evidence did not support a reasonable suspicion there was a race, and the acquittal must stand. Affirmed.
NO IMPAIRMENT—FURTHER TESTING
State v. Anderson 127 P.3d 349, 2006 WL 265227 (2006)
***UNPUBLISHED***
Officer stopped Anderson at 10:12am for failure to signal a turn and erratic driving. The Officer immediately detected alcohol and bloodshot and watery eyes, although his speech was coherent and not slurred. Anderson asked the officer for directions, so the officer called dispatch. He then had Anderson perform field sobriety tests. It was raining, so the initial tests were performed while Anderson was in the car, and he passed these. While waiting on an officer with a PBT, he then had Anderson get out of the car to perform more tests, which he failed. He was arrested and convicted of DUI. He challenged the reasonable suspicion to justify his detention after he passed the initial tests. The court found the detention was reasonable, after the officer‘s response to
51
Anderson‘s request for assistance and his noting of the smell of alcohol and bloodshot and watery eyes. The tests were reasonably prompt.
FRESH PURSUIT—JURISDICTION—REASONABLE SUSPICION
State v. Ward 125 P.3d 1089, 2006 WL 44386 (2006)
***UNPUBLISHED***
At about 1:30 a.m., Shawnee Police Officer followed motorist suspected of DUI into Overland Park and stopped the vehicle. During the stop, another vehicle passed the officer, coming within 3 to 4 inches of hitting his patrol car. The officer took the tag number, quickly finished the stop, and pursued the other car. The car was eventually stopped in Lenexa and Samuel Ward was given a citation for not exercising due caution (KSA 8-1530). He was also charged with DUI, Open Container, and Driving While Suspended. Ward challenged for lack of reasonable suspicion for the stop and for the officer being out of his jurisdiction. Reasonable Suspicion: The determination Ward failed to exercise due caution is supported by the record, where the officer stated he was within 3 or 4 inches of the patrol car, when the highway was at least 16.5 feet to move left, which was corroborated by the video tape. Jurisdiction: KSA 2001 Supp. 22-2401a(2)(b) permits officers to exercise their powers in other jurisdictions when in fresh pursuit. Fresh pursuit is not limited to pursuit initiated in the officer‘s home city. The officer was making a lawful stop in Overland Park when he observed the infraction, and pursued the vehicle into Lenexa, so it was valid. Further, KSA 2001 Supp. 22-2401a(6) gives jurisdiction to officer in adjoining cities within Johnson County. All three cities in this case are joined within Johnson County. Conviction affirmed.
VOLUNTARY ENCOUNTER
State v. Carrow 128 P.3d 442, 2006 WL 399251 (2006)
***UNPUBLISHED***
Carrow, pro se, appealed his convictions of felony DUI and battery against a law enforcement officer. A passenger in Carrow‘s vehicle motioned KDWP officers to approach the truck she was riding in. Carrow got out of the truck and asked the officers about camp fees. After speaking with Carrow, the officers suspected Carrow was under the influence of alcohol. When Carrow was questioned about how much he had to drink, he attempted to flee; the officers stopped Carrow. Carrow consented to field sobriety tests but refused to submit to a preliminary breath test. Carrow resisted when he was placed under arrest for DUI. Carrow was convicted of felony DUI and battery against a law enforcement officer. The court rejected Carrow‘s argument the trial court erred in denying his motion to suppress based on an illegal stop. The court found the initial contact was voluntary since Carrow was requesting information. The subsequent Terry stop was justified by reasonable suspicion, as the officers observed an odor of alcohol, slurred speech, bloodshot eyes, and unusual behavior with regard to Carrow. The court also found Carrow‘s arrest was supported by sufficient probable cause, considering several of Carrow‘s physical factors, his attempt to flee, and his performance on field sobriety tests. Carrow raised numerous other issues on appeal, including improper bond procedure and excessive bail, speedy trial rights, judicial impropriety and insufficiency of the evidence, to which the court found no merit. The court affirmed.
52
LEFT OF CENTER NOT UNCONSTITUTIONALLY VAGUE
Sallman v. Ks. Dept. of Revenue 147 P.3d 1095, 2006 WL 3740882 (2006)
***UNPUBLISHED***
A police officer observed Sallman weave back and forth on the right side of a road for about a quarter mile, and then Sallman turned onto another road and continued to weave within his lane. Sallman was stopped for driving left of center. During the course of the stop, the officer detected the odor of alcohol coming from Sallman and further investigated. Sallman‘s driving privileges were subsequently suspended. On appeal, Sallman argued the trial court erred in affirming KDOR‘s suspension of his driving privileges. Sallman argued the officer lacked any reasonable suspicion to stop his vehicle. Specifically, Sallman claimed KSA 8-1514(a) was unconstitutionally vague. The court disagreed, finding the statute conveys sufficient definite warning and fair notice to drivers as to the prohibited conduct. Sallmanfurther argues the officer‘s detention was beyond the scope of the traffic stop. The court found after the officer lawfully stopped Sallman he detected the odor of alcohol coming from him. It was reasonable for the officer to believe Sallman might have been drinking and for the officer to investigate further. There was no evidence the detention was unreasonably prolonged.
TAILLIGHT OUT-GOOD FAITH
State v. Osterhout 117 P.3d 150, 2005 WL 1949912 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed the trial court‘s denial of the defendant‘s motion to suppress arguing the officer lacked justification for the stop. Officer Casagrande stopped Osterhout because his driver‘s side back light was not working properly. Osterhout moved to suppress evidence, claiming the stop was unlawful because his brake lights were working properly. The trial court denied the motion to suppress, holding: "Casagrande had a reasonable suspicion the defendant was operating a motor vehicle with a defective brake light when he stopped him." The Court rejected the defendant‘s argument the Officer needed probable cause before stopping the defendant. The Court held reasonable suspicion was the proper standard. The Court found the evidence supported the trial court's findings Casagrande had a good faith belief the brake light was defective.
TOLD NOT TO DRIVE-SAW DRIVING
State v. Rael 114 P.3d 191, 2005 WL 1562132 (2005)
***UNPUBLISHED***
This is an interlocutory appeal by the State from the district court's decision to suppress evidence derived from a voluntary vehicle encounter. We reverse and remand for further proceedings. The facts in the case were in dispute but the district court chose to believe the testimony of Park Ranger Latimer who testified he was patrolling a campground and public areas of Kanopolis Reservoir in his vehicle when he noticed a parked van with its hood up. Latimer stopped for a "motorist assist" to see if there was a problem. Latimer observed the defendant was having difficulty walking to his vehicle and was staggering. Latimer inquired of the defendant if he had been drinking, and the defendant said he had. Latimer asked the defendant to not drive any more that day, and the defendant indicated his plans were to stay for the weekend. The encounter lasted
53
around 10 minutes. Approximately an hour later, Latimer was continuing his patrol, coming out of one of the other campgrounds heading south, and observed the defendant driving his van heading north on a public highway. Upon seeing Latimer, the defendant pulled his vehicle over to the side of the road. Latimer did nothing to stop the defendant. Latimer stopped his vehicle alongside the defendant's van. Latimer observed the defendant was still intoxicated. Latimer testified the vehicle he was driving was equipped with the standard amber hazard lights and an additional single red strobe light in the front windshield. However, Latimer testified when he encountered the defendant driving his van, he did not activate any of his vehicle's emergency lights. Latimer was attired in a park ranger uniform consisting of green slacks, gray shirt, a badge, and a name tag. Latimer testified the defendant was free to leave and could have driven off if he had chosen to do so. Latimer called in a police officer who conducted a DUI investigation resulting in the defendant's arrest. The Court of Appeals was satisfied the court's decision to credit Latimer‘s testimony was supported by substantial competent evidence. As a result, the Court found the encounter between Latimer and the defendant was clearly voluntary. Since the encounter was voluntary it did not trigger Fourth Amendment scrutiny. The Court therefore reversed the trial court‘s decision to suppress the evidence.
TRAVELING THEN STOPPED-NO TRAFFIC INFRACTIONS
State v. Ostertag 110 P.3d 447, 2005 WL 1006408 (2005)
***UNPUBLISHED***
Sheriff's Deputy Adam Thompson, while traveling in a desolate area, observed a red pickup truck in front of him traveling in the same direction. Deputy Thompson watched the pickup pull off the side of the road and park. Thompson did not witness any traffic violations. He pulled in behind the pickup and activated his emergency lights. Immediately upon approaching the vehicle, Deputy Thompson smelled alcohol. A traffic stop ensued, culminating with the driver of the vehicle being charged with DUI, possession of marijuana, and possession of drug paraphernalia. The defendant argues the sheriff lacked a reason to approach the vehicle. The Court found Sheriff Thompson expressed specific and articulable facts for approaching Ostertag's vehicle for public safety concerns. The defendant pulled his car off the road at night in a desolate area. Deputy Thompson testified he was concerned for Ostertag's welfare. In addition, Deputy Thompson testified Ostertag's vehicle was parked partially in the roadway and was, therefore, a road hazard. The initial contact in this case was justified as a lawful public safety stop.
ARBITRARY DISREGARD-STATE FAILED TO PROVE
State v. Smith 99 P.3d 150, 2004 WL 2384243 (2004)
***UNPUBLISHED***
The Court of Appeals upheld the district court‘s finding the officer lacked reasonable suspicion to stop the defendant for speeding or for crossing the center line, noting when the findings are negative at the district court, for the State to win on appeal, there must be a showing of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice. They held the district court had a difficult factual situation to resolve and the court‘s decision was not so wide of the mark as to be considered unreasonable. As such, the district court found
54
the State "failed to prove reasonable suspicion by a preponderance of the evidence." Among the reasons the district court listed in favor of its decision was the officer's testimony relating to the radar was deficient. The court was critical of the fact the officer did not testify whether the radar was tested in a stationary mode, a moving mode, or both. Of more significance, the court was also skeptical of the officer's testimony concerning Smith's request to see the radar read-out after the stop, finding it odd the video wasn't offered to impeach Smith's testimony he requested to see the readout. Additionally, the court was critical of the officer's testimony concerning the issue of whether Smith crossed over the center line commenting that a driver who had to maneuver from the inside lane to the outside lane in order to turn right would have trouble making those turns. The court also found it odd the officer's only comment on Smith's ability to make these turns was, "[w]ell, I had already turned on my lights. I wasn't paying attention."
REASONABLE SUSPICION—BAT—20 MINUTE OBSRVATION PERIOD—FOUNDATION
State v. Criswell 95 P.3d 135, 2004 WL 1784614 (2004)
***UNPUBLISHED***
Criswell was stopped in the early hours of the day. A state trooper observed a car driven by Criswell drifting from side to side within its lane. Criswell was then seen driving on the shoulder. The trooper pulled over Criswell, cited her for failure to maintain a single lane, a violation of KSA 8-1522, and placed Criswell in the front passenger seat of the patrol car to escort her to jail. Upon arriving at the jail, the trooper read Criswell the implied consent advisory and she agreed to take a breath test. Criswell was subsequently charged with DUI and failure to maintain a single lane. Criswell's observation period for the breath test began at 3:39 a.m. as the trooper was driving her to the station. While driving, the trooper "continually look[ed] over at (Criswell)" to ensure she did not belch, vomit, or put anything in her mouth. They arrived at the jail at approximately 4:10 a.m. Criswell remained in the trooper's immediate presence the entire time with the exception of when they exited the car upon arriving at the jail. The breath test was administered at 4:23 a.m. Criswell argued the trial court erred in finding Turner had reasonable suspicion to initiate a traffic stop and in denying her motion to suppress evidence of the breath test. The Court held there was reasonable suspicion to stop Criswell‘s car, noting articulate specific facts the trooper witnessed prior to the stop and the training and experience of the trooper regarding impaired drivers. The Court stated there is no requirements an officer actually observe the commission of a traffic violation to have reasonable suspicion to stop a car. Lastly, the Court held the trooper‘s testimony constituted substantial competent evidence the observation period requirement was satisfied and an adequate foundation was laid at trial.
REASONABLE SUSPICION TO STOP—PROBABLE CAUSE TO ARREST
State v. Henning 92 P.3d 1147, 2004 WL 1542502 (2004)
***UNPUBLISHED***
The Court of Appeals overruled the trial court‘s suppression of evidence in a DUI trial. The Court found the officer had reasonable suspicion to stop the defendant and probable cause to make the arrest for DUI. Initially, the Court held it had jurisdiction to hear the state‘s appeal of a suppression of evidence filed pursuant to KSA 22-3602(b)(1). KSA 22-3603 is not the state‘s only avenue to file an appeal of a suppression of evidence. The trial court
55
had suppressed evidence in this case on the grounds of no reasonable suspicion to stop Henning‘s car and no probable cause to arrest. Originally, the officer did not turn on his "red light" or take any specific action to indicate to the defendant he should stop his vehicle. Henning argued the officer following him closely on a rural road equated to a show of force. The Court explained an officer simply following another car on a rural road plainly does not constitute a show of force. There were no facts to demonstrate the officer's act of following the defendant constituted a show of force giving rise to a stop and seizure. On the issue of probable cause to arrest, the officer testified the defendant's breath smelled like alcohol, his eyes were bloodshot and watery, he admitted to drinking, the preliminary breath test indicated the defendant had consumed alcohol, and the defendant showed indications of intoxication during the one-leg-stand test. Thus, the Court overruled the trial court‘s suppression of evidence, noting the challenged encounter was consensual, and the officer did have probable cause to arrest the defendant.
CROSSED CENTER LINE-REFUSED SFSTS
State v. Morris 87 P.3d 993, 2004 WL 835972 (2004)
***UNPUBLISHED***
Officer had observed defendant's car cross center line of highway, an odor of alcohol emanated from car, defendant's eyes were bloodshot, defendant declined to perform field sobriety tests, and before officer could administer breath test, defendant drove away in his car. The Court of Appeals held the trial record demonstrated the officer had reasonable suspicion to believe defendant was driving under the influence of alcohol, and thus it was proper for officer to ask defendant to submit to a breath test.
SPEEDING-ADMISSION-PROBABLE CAUSE
State v. Black 87 P.3d 993, 2004 WL 835992 (2004)
***UNPUBLISHED***
The Court of Appeals overturned a district court suppression of evidence in a DUI case. The Court held the traffic stop of the defendant's vehicle was supported by reasonable suspicion; the officer testified he observed Black speeding 57 in a 45, and Black's excessive speed was confirmed by radar equipment. The Court also found probable cause to support Black's arrest for DUI following the valid traffic stop. The Court noted the officer detected an odor of alcohol coming from Black, and Black could not maintain his balance on the walk and turn test (Black missed "heel-to-toe" on step one and raised his arms on step two.). Black did maintain the one-leg test for 20 seconds but "[s]omewhere in the last nine seconds he swayed, raised his arms and put his foot down." Black also failed the PBT, and admitted to the officer he had consumed alcohol.
56
PBT—ADMISSION OF DRINKING—PROBABLE CAUSE
State v. Allen 87 P.3d 994, 2004 WL 835994 (2004)
***UNPUBLISHED***
The Court of Appeals overturned a district court suppression of evidence in a DUI case. The Court held traffic stop was supported by reasonable suspicion, and probable cause existed to support the arrest. An officer with Saline County sheriff‘s department was working "a DUI saturation exercise" in Salina, Kansas. He was alerted by radar to a car going 52 mph in a 40 mph zone. He stopped the speeding car. The driver, Jason Allen, produced his driver's license without problem, but the officer smelled alcohol. The officer could still detect an alcohol smell and asked Allen if he had been drinking. Allen admitted to drinking half a pitcher of beer and stated he was drunk. He consented to field sobriety testing, which he failed. Allen then attempted to recite the alphabet but omitted the letter "m" and slurred "k" through "o." The proper advisories were given for a PBT, and Allen's result was .077. Allen was arrested and taken to the Saline County jail, where he performed the Intoxilyzer breath test. The proper procedure was followed and Allen's test result was .082 grams of alcohol per 210 liters of breath. Allen was charged with speeding and DUI. Allen filed a motion to suppress. A hearing was held at which officers testified to the facts set out above. Additionally, the officer who performed the Intoxilyzer test reviewed his credentials and the Intoxilyzer's calibration. The arresting officer did not have his radar "certification card" at the suppression hearing. The district court ruled there was insufficient evidence for the speeding charge and the arresting officer lacked probable cause for Allen's arrest for the DUI. On appeal by the State, the Court of Appeals held the officer's reliance on the radar gun reading met the reasonable suspicion requirement to stop, approach, and detain a driver of an indicated speeding vehicle. The Court also stated the totality of circumstances in this case indicated the arresting officer had enough evidence to believe Allen's guilt was more than just a possibility. Thus, the Court reversed the district court and allowed in the evidence supporting the stop of Allen's vehicle and the subsequent statements and other evidence supporting speeding and DUI.
REASONABLE SUSPICION—FIELD SOBRIETY TESTS
Pasek v. Ks. Dept. of Revenue 100 P.3d 975, 2004 WL 2694279 (2004)
***UNPUBLISHED***
The Court of Appeals reversed district court ruling which vacated suspension of a driver's license and remanded to district court for determination of whether probable cause to arrest existed. The Court held district court's decision was not supported by the evidence; although officer certainly did not have probable cause to arrest driver for DUI merely for odor of alcohol, all the normal indicators of intoxication were not present, officer unquestionably had reasonable suspicion driver had been drinking and driving and officer was within his authority to request driver to perform the normal field sobriety tests. Driver had driven an accident victim to the hospital with police escort. Officer did not observe any signs of intoxication during the drive. At the hospital, defendant carried victim to emergency room with no difficulties. Officer later smelled alcohol on driver and asked him to perform field sobriety tests. Defendant showed some signs of intoxication with tests, and also failed a PBT, however officer had not waited 15 minutes since the initial contact with driver to conduct the PBT. Following the PBT failure, officer placed driver under arrest. Driver later failed breathalyzer test. Driver's license was suspended for the test failure. Defendant appealed to the district court, where the suspension was vacated. The district court stated based on totality of the
57
circumstances, the officer did not have reason to ask driver to perform field sobriety tests. KDR appealed. The Court of Appeals stated the officer had reason to request the sobriety tests. The odor of alcohol on driver's breath indicated the possibility he was driving under the influence of alcohol. The Court reversed the district court ruling but remanded to consider whether there was probable cause to arrest driver for DUI.
JURISDICTION—REQUEST FOR ASSISTANCE
State v. Lakin 99 P.3d 1152, 2004 WL 2496812 (2004)
***UNPUBLISHED***
The Court of Appeals reversed the dismissal of charges of DUI, transporting an open container, and consumption of alcoholic beverage by a minor. The Court held verbal permission from other jurisdiction to officer allowing continued pursuit of vehicle constituted the requisite request for assistance under K.S.A.2003 Supp. 22-2401a(2)(b) to give officer jurisdiction to arrest defendant; and proper remedy for lack of jurisdiction is suppression of evidence not dismissal. The officer originally saw the taillights of what he believed to be a pickup truck traveling northbound. He believed the truck was approaching the Larned city limits. Officer continued to travel north and watch the taillights when he saw the brake lights activate and a "large cloud" of dust rise from the shoulder of the road. When he reached the location of the dust cloud, he determined the truck had turned west off of the paved road and onto a gravel road. Officer radioed Larned Police Captain, and "requested permission to pursue westbound outside the city limits to conduct a safety check, in the event said vehicle happened to travel off the gravel roadway and/or was involved in a traffic accident." Larned captain granted verbal permission to pursue. Soon thereafter, officer came upon defendant and another individual in a parking lot standing beside a white pickup truck bearing the same license plates as those mentioned in the original dispatch report. Officer immediately detected the odor of an alcoholic beverage coming from the two individuals and defendant's truck. The truck engine was idling. In response to officer's questions, defendant said he had been driving. Both individuals acknowledged they had been drinking but not much. After field sobriety tests were conducted, defendant was placed under arrest. Magistrate dismissed the charges. The district court ruled officer lacked jurisdiction to arrest defendant in he was acting outside of his jurisdiction and was neither in "fresh pursuit" of defendant, nor had officer received a "request for assistance" from the county as required by 22-2401a(2)(b). The State appealed. The Court of Appeals concluded the verbal permission granted by Larned Police captain to officer to pursue in this case constituted the requisite request for assistance under K.S.A.2003 Supp. 22-2401a(2)(b) to grant officer authority to arrest defendant. The Court noted even if officer had lacked the authority to arrest Lakin, the proper remedy is not dismissal of charges, but suppression of any evidence obtained as a result of the illegal arrest.
RADAR RELIABILITY—GOOD FAITH—PROBABLE CAUSE
State v. Carlin 87 P.3d 374, 2004 WL 795904 (2004)
***UNPUBLISHED***
The Court of Appeals reversed the district court‘s dismissal of a DUI charge and suspension of a driver‘s license. The Court held the fact the operator is not certified to test and operate radar unit does not preclude use of radar reading as a basis for stopping vehicle, and requirement that investigatory detention be supported by reasonable
58
suspicion is not subject to good faith exception. At a bench trial before a magistrate, Carlin was convicted of DUI and refusal to submit to a preliminary breath test. Carlin appealed to the district court and filed a motion to dismiss, alleging the officer did not have reasonable grounds to stop the vehicle nor did he have probable cause to arrest Carlin. The district court granted the motion, finding there was no reasonable suspicion upon which to stop the defendant's vehicle, primarily because Officer Bauer was not certified on the radar unit he used to establish the speeding infraction. In a separate hearing, the suspension of Carlin‘s driver‘s license was also overturned by the district court. Both the State and KDR appealed. The Court of Appeals held the fact the operator is not certified to test and operate radar unit does not preclude use of radar reading as a basis for stopping vehicle. They reversed and remanded for the district court to determine whether Officer Bauer's training and experience on the radar unit and his actual operation of that unit was sufficient to establish the reliability of the radar evidence to the degree his suspicion that Carlin's vehicle was speeding was reasonable. The Court also held a good faith exception did not exist to the requirement that investigatory detention be supported by reasonable suspicion, declining to extend the rationale of Leon, 468 US 897, 82 L.Ed.2d 677, 1045 Ct. 3405, Reh.denied 468.US.1250 (1984), in light of the specific holding in Terry v. Ohio, 392 US 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
REASONABLE SUSPICION—PUBLIC SAFETY
City of Liberal v. Carranza 78 P.3d 497, 2003 WL 22479568 (2003)
***UNPUBLISHED***
The Court of Appeals reversed a district court dismissal of a DUI charge. The Court held a police officer was justified in stopping a motorist for public safety reasons, and the officer had reasonable suspicion the motorist was committing a crime when officer stopped the motorist. Initially, a police officer was assisting with an emergency situation when he heard an engine "rev up to a high RPM" in a lighted parking lot approximately 150 feet across the street from where he was standing. The noise was coming from a parked pickup truck driven by Carranza. The officer ran over and stopped Carranza in the city parking lot. The officer testified there were several reasons why he stopped Carranza, including concern for the public safety, a belief Carranza may be DUI, and a belief Carranza was violating the city ordinance against exhibition of speed. Carranza appeared before the municipal court and pled guilty to both charges. He was sentenced to five days in jail, one year parole, and was also fined. Carranza appealed to the trial court. Carranza moved to suppress all evidence obtained from him after he was stopped by the officer. He alleged Wade had no legal basis for the stop. The district court agreed and dismissed the DUI charge. The city appealed. The Court of Appeals held a stop based on public safety reasons, however, should be analyzed separately from a stop based on reasonable suspicion under KSA 22-2402. A safety stop is not prompted by specific and articulable facts of suspected criminal activity but, rather, is justified by the mobility of the automobile and the danger to the public. Based upon the fact Carranza was driving in an erratic manner in a parking lot where people were moving about, the Court determined the officer was justified in stopping Carranza for public safety reasons. In addition, the Court found the officer also had reasonable suspicion the motorist was committing a crime when the officer stopped Carranza.
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PBT—REASONABLE SUSPICION—CONSENT
City of Goodland v. Yarger 77 P.3d 1009, 2003 WL 22227485 (2003)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction which was tried on stipulated facts. The Court of Appeals held the officer had reasonable grounds to believe the motorist had alcohol in his body, and the motorist voluntarily consented to the PBT. The Court noted an officer may request an individual to take a PBT if the officer has reasonable suspicion the person has alcohol in his or her body. Yarger was initially stopped for questioning on a matter unrelated to this DUI case. The officer noticed the smell of alcohol on Yarger and asked if he had been drinking. Yarger responded he had not had any alcohol to drink for approximately 22 hours. The officer then "subjected" Yarger to a PBT which Yarger failed. The officer arrested Yarger for DUI. The stipulations state that without the PBT there would have been no probable cause for the arrest. After the arrest, Yarger was taken to a hospital where he agreed to take a blood test. The test, which was taken within 2 hours of Yarger's operation or attempted operation of a vehicle, indicated a blood alcohol level of .09. Yarger was subsequently convicted in the Goodland Municipal Court, of DUI in violation of municipal traffic ordinances. The defendant appealed. The District Court of Sherman County, after denying defendant's motion to suppress the results of the PBT as well as all the evidence which flowed from the PBT, convicted the defendant of DUI based on stipulated facts. The defendant appealed. The Court of Appeals stated an investigating officer may request an individual to take a PBT if the officer has reasonable suspicion the person has alcohol in his or her body. The officer need not have probable cause or reasonable belief to arrest for DUI before requesting the test. The Court held the officer had reasonable grounds to believe Yarger had alcohol in his body. The Court also held Yarger voluntarily consented to the PBT. They noted the officer requested Yarger to submit to the PBT, which he had statutory authority to do, and Yarger then did so. The stipulations contained no evidence of any improper or illegal coercion on the part of the officer to induce Yarger to exert the effort he did in providing the "deep lung air" sample. The Court noted the notices do not enhance the voluntariness of a subject's consent to the PBT. Similarly, the statute also states that "failure to provide the notice shall not be an issue or defense in any action."
REASONABLE SUSPICION—PROBABLE CAUSE—IMPLIED CONSENT
Mayes v. Ks. Dept. of Revenue Slip opinion 2003 WL 21948325 (2003)
***UNPUBLISHED***
The Court of Appeals upheld a driver‘s license suspension. The Court held the officer had reasonable suspicion to stop driver; officer had probable cause to arrest driver for DUI of alcohol; evidence supported finding driver was in custody for purposes of implied consent law; and evidence supported finding officer gave driver proper notice under implied consent law. Originally, a Pratt police officer was following Mayes' vehicle. There were two vehicles in front of Mayes, and a Jeep was between the officer and Mayes. The officer testified the Jeep was properly in its lane, but he could see Mayes' vehicle go left of center and continue left of center for 2 1/2 blocks. There was no center line on the road, but the officer stated he could tell Mayes was left of center in relation to the Jeep, the overhanging lights, and from where traffic use had discolored the brick surface on the road. The officer pulled Mayes over for driving left of center. The officer testified Mayes used the door frame to balance himself while exiting the car. Mayes took a preliminary breath test, and the results indicated a blood alcohol level of .157. The officer
60
put Mayes in the front passenger seat of the patrol car. He gave Mayes written and oral notices of the implied consent advisory and then Mayes refused to take a blood test. He then arrested Mayes for DUI. Mayes sought review of decision of Department of Revenue suspending his driver's license following refusal to take blood test. The district court upheld the suspension. Mayes appealed. The Court of Appeals affirmed.
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2) Vehicle not in Motion
***PUBLISHED CASES***
ORDER OF ALCOHOL—VOLUNTARY ENCOUNTER
State v. Pollman 286 Kan. 881, 190 P.3d 234 (2008)
Vida Pollman and Leonard Pollman were traveling on separate motorcycles. Vida failed to use her turn signal and was stopped by Officer Walline. Leonard also stopped at the scene. Walline told Leonard to ―move along‖ however Leonard remained nearby. Walline suggested Leonard move to a parking lot, but he did not and remained near his motorcycle. Cpt. Allcock provided backup. Allcock smelled alcohol on Leonard‘s breath and Leonard admitted to drinking. Allcock testified Leonard was coherent and cooperative. Walline did not arrest Vida, howeve,r went over to speak with Leonard about obstruction of his order to move away from the scene. Allcock told Walline, ―He‘s been drinking, you need to check him.‖ Walline requested Leonard‘s driver‘s license and kept it. Walline had Leonard perform SFST and placed him under arrest. A blood test indicated BAC .10. The district court found reasonable suspicion existed to investigate DUI on Leonard. The court of appeals disagreed and the state appeals. The Supreme Court found the court of appeals imposed too high a burden and the circumstances raised a reasonable suspicion that Leonard was DUI. Leonard had allegedly obstructed an officer performing a legal duty by failing to leave the area despite repeated requests. The criminal activity justified asking for identification and making further inquiry as to what motivated the conduct, with intoxication being one potential cause. An officer‘s mere request for identification or information about one‘s identity does not, by itself, constitute a seizure under the Fourth amendment. Leonard was not stopped by the officer but voluntarily remained at the scene and the odor of an alcoholic beverage and the admission by the defendant to consuming alcohol gave officer sufficient reason to extend the scope and duration of the consensual encounter. The court of appeals is reversed and the case remanded to the court of appeals with directions.
PUBLIC SAFETY STOP—SCOPE
Nickelson v. Ks. Dept. of Revenue 33 Kan.App.2d 359, 102 P.3d 490 (2004)
The Court of Appeals affirmed suspension of driver's license. The Court held the state trooper expressed specific and articulable reasons for making public safety stop, and trooper was justified in detaining driver for further investigation after detecting odor of alcohol coming from driver's vehicle. Officer saw driver's stopped car in middle of nowhere at one a.m. on a cold night, there were no buildings or residences in the area where car was parked, and policy of state patrol was to check on welfare of any vehicle pulled off the highway. The responding officer immediately smelled odor of alcohol coming from driver's vehicle, and trooper requested driver to exit vehicle and he conducted field sobriety test. Driver later failed a breath test, and license suspension was initiated by KDR. Driver challenged validity of the stop, arguing officer had no lawful grounds to approach the vehicle, which had pulled off the highway. Driver then claimed even if the initial encounter was justified for public safety, the arresting officer improperly expanded the scope and length of the detention. On appeal, the Court of Appeals rejected these arguments and affirmed the suspension. The Court noted the
62
stop was valid as a public safety stop, and the scope of the stop was expanded when the odor of alcohol was observed by the officer. The stop was held to be valid, and the suspension was affirmed.
VEHICLE STOP—JURISDICTION—REQUEST FOR ASSISTANCE
State v. Rowe 18 Kan.App.2d 572, 856 P.2d 1340 (1993)
A Wamego police officer responded to a 911 call from across the Wabaunsee County line. A Wabaunsee sheriff‘s officer heard the radio traffic and responded. The police officers arrived first, discovered the defendant asleep, and when they awakened him he became combative and restraint was required. The sheriff officer arrived a short time later and conducted his investigation, which led to convictions of DUI and driving while suspended. Defendant moved to suppress evidence based on an illegal arrest by officers outside their jurisdiction, citing Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983). The Court of Appeals holds the request for assistance requirement under 22-2401a requires more than acquiescence, but after applying a reasonable construction to the statute, finds that a long-standing oral agreement between the agencies concerning emergencies along the county line constitutes a sufficient request. (Wabaunsee, 68193, 6/4/93)
63
***UNPUBLISHED CASES***
STOPPED FOR A WHILE THEN PROCEEDED WITHOUT INCIDENT
State v. Nichols 231 P.3d 587, 2010 WL 2216778 (05/21/10)
***UNPUBLISHED***
Deputy observed a vehicle stopped at a stop sign about 20 feet back from the stop sign and the Deputy conceded the vehicle was stopped appropriately. Deputy then proceeded a few more blocks and saw the vehicle still stopped. Deputy made a u-turn to check on the driver given the amount of time he remained at the stop sign. Once the deputy got back to the vehicle he noted the driver was ―still lookin straight ahead‖. The vehicle and the deputy‘s vehicle were the only ones present out driving at that time of night. The deputy parked behind the vehicle without activating his lights and began calling in the stop. The vehicle then signaled and turned. Deputy followed the vehicle and again watched it signal and turn appropriately again. There were no traffic violations observed once the vehicle began moving. Deputy stopped the vehicle and the driver was eventually arrest for DUI. The court found although the vehicle was stopped at the stop sign and did cause concern for the Deputy once the vehicle began driving in a legal manner that should have dispelled any concern the driver was in peril therefore the stop was not warranted. Conviction reversed.
911 CALL-NO TRAFFIC INFRACTIONS
City of Overland Park v. Williams 230 P.3d 461, 2010 WL 2044921(05/14/10)
***UNPUBLISHED***
Officer responded to a 911 distress call for assistance from a QuikTrip store regarding a disturbance between the store clerk and two customers, one white and one black, who had parked a red car in front of the store. Upon approach the officer observed two men, one white and one black, leaving the store and getting into the red car. The red car drove around to the back of the store with its headlights off. The officer briefly lost sight of the car, but she then saw the car in the parking lot of a hotel near the store. The officer stopped behind the red car and activated her patrol car's overhead lights. When Greene approached the defendant, she smelled the odor of alcohol eventually the defendant was arrested for DUI. The defendant tested 0.18. Defendant claimed the officer had no reasonable suspicion. It is important to remember this is all that is necessary-the law enforcement officer does not have to know that the defendant committed a crime. Merely pointing to some facts that would cause a reasonable person to be suspicious is enough to conduct a Terry stop.‖ State v. Finley 17 Kan App.2d 246 (1992)
ADMINISTRATIVE HEARING-EXCLUSIONARY RULE DOES NOT APPLY
Schraeder v. Ks. Dept. of Revenue 227 P.3d 1010, 2010 WL 1253630 (3/26/10)
***UNPUBLISHED***
Officer observed a vehicle parked on the side of the road at night. The interior lights were on but no headlights or taillights were illuminated. The officer pulled behind the vehicle and activated his lights. The officer detected alcohol and started a DUI investigation. After arrest the defendant refused testing. The KDOR suspended his license and defendant appealed
64
claiming his vehicle was improperly seized. District court found the stop to be one of safety and upheld the suspension. The Court of Appeals cites Martin v. KDOR 285 Kan. 625 (2008). The exclusionary rule will not apply in appeals from administrative license suspensions. The defendant however if the actions are egregious on the part of the officer exclusion should apply. The appellate court did not agree and stated even if that were true this officers actions were not egregious police conduct citing Nickelson v. KDOR 33 Kan.App.2d 359 (2004) which had almost the same set of facts. Affirmed.
VOLUNTARY ENCOUNTER-ROADBLOCK
State v. Loveland 225 P.3d 1211, 2010 WL 921102 (03/05/10)
***UNPUBLISHED***
A number of Officers had blocked the roadway with their patrol cars so a piece of equipment could be moved on the highway. Defendant drove up and parked behind the patrol cars. Other vehicles had turned around. An officer approached the vehicle to ask if the driver lived on the road and other information on how the driver could continue to travel. While speaking with the defendant the officer observed indications of impairment. After investigation and arrest the defendant tested 0.135. Defendant claimed the officers had set up an illegal roadblock i.e., Deskins and the evidence obtained should be suppressed. The judge suppressed the evidence. The Court of Appeals stated this was not a roadblock it was not set up to stop and detain motorists. The encounter by the officer was a voluntary encounter. The defendant pulled up behind the officers and stopped. The officer inquiry to him was only concerning the defendant‘s efforts to get home. The encounter changed when the officer then saw impairment and that is permissible.
DRIVER STANDING NEXT TO CAR-ACTIVATION OF EMERGENCY EQUIPMENT-NO PARKING SIGNS
State v. Lyons 221 P.3d 642, 2010 WL 174075 (01/08/10)
***UNPUBLISHED***
This is a state appeal based on the judge suppressing evidence. A school resource officer saw a car parked a considerable distance from the curb on a public street in front of no parking signs near a school. The defendant was not in the vehicle but standing outside stretching. The officer found this suspicious because he was not in running clothes. The officer then stopped his patrol car in the road and activated his emergency lights and approached the driver. There was no discussion about his inability to park the vehicle correctly. While speaking with the driver the officer could detect the odor of alcohol but the driver explained he is diabetic and that might be the smell. The officer did not observe any signs of impairment. However due to the odor of alcohol became a DUI investigation. The driver was unsuccessful in performing the SFSTs and he refused the PBT. The defendant was arrested and charged with DUI but no parking citations. The court suppressed the evidence. The appellate court noted at the time the officer activated his emergency lights this was a seizure and not a voluntary encounter. The officer never addressed the issue about the vehicle and therefore his only purpose was to contact the defendant. There was no indication of illegal activity. The encounter was neither voluntary nor based upon reasonable suspicion of criminal activity and therefore there is substantial evidence to support the court in suppressing the evidence.
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NO REASONABLE SUSPICION TO REQUEST-TOTALITY OF THE CIRCUMSTANCES
State v. Brown 216 P.3d 731, 2009 WL 3172776 (10/02/09)
***UNPUBLISHED***
Officers arrived at the scene and observed a vehicle missing the front passenger side tire and it appeared the vehicle had sustained ―side-swipe type damage―and yellow paint transfer. The defendant claimed he was the driver. While speaking with him the officer could detect an odor of alcohol but the defendant denied drinking; he failed also to give a reason for the crash. The defendant indicated he had not been injured and the officer did not see blood or other injuries. The defendant was asked to take SFST‘s which he did and failed. The defendant argued at a suppression hearing there was no reasonable suspicion justifying the officers‘ decision to administer the tests to him. The defendant did not dispute the officers had a right to detain him for the purpose of investigating the crash. Reasonable suspicion depends on the totality of the circumstances. The court noted State v. Evans 711 N.E.2d 761 (Ohio 1998): factors to consider: time, day and location of stop, erratic driving, report of intoxication, eyes, speech, odor of alcohol, demeanor, lack of coordination, admission of alcohol consumption and officer‘s previous experience with drunk driving. In this case based on the totality there was substantial competent evidence to believe the defendant was operating a vehicle under the influence. The decision to expand the scope of the investigation to include SFST‘s was warranted.
TIME OF NIGHT-AREA OF CRIMINAL ACTIVITY-NO TRAFFIC INFRACTIONS
City of Marysville v. Lake 214 P.3d 707, 2009 WL 2595948 (08/21/09)
***UNPUBLISHED***
Officer observed a stationary truck with its headlights on along a fence line of an estate in Marysville. This location was near where a burglary had occurred several months earlier. Because no businesses were open at the time, (2:15am) the officer thought the trucks presence was unusual. The officer stated he did not have reasonable suspicion a crime had been committed or a crime was about to be committed. The officer wanted to see what the truck was doing in that location at that time. The truck began to move and the officer pursued it. The officer activated his lights and the truck strayed across the unmarked center of the road. The truck did not pull over immediately and the officer could not see the license plate because the tailgate was down. The driver was determined to be DUI and was found guilty by the trial court. The defendant contends, on appeal, the trial court erred when it determined the City of Marysville police officer had reasonable suspicion to stop his truck and that the evidence obtained after the stop was admissible. The appellate court reviewed the evidence 1) location and time of day 2) fence had been erected to protect property 3) burglary had occurred in the area-this was not sufficient-the mere presence of an individual in a high crime area, in and of itself, was sufficient to create reasonable suspicion of illegal activity, Illinois v. Wardlow 528 U.S. 119 (2000). The court noted the information gathered by the officer may have given him a ―hunch‖ but that was not sufficient. Under the totality of the circumstances the officer did not have articulable facts creating a reasonable suspicion justifying a stop. All evidence obtained after the stop is inadmissible. Reversed.
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PUBLIC SAFETY STOP-PARKED IN ROADWAY-VOLUNTARY ENCOUNTER
State v. McPherson 203 P.3d 89, 2009 WL 744265 (03/13/08)
***UNPUBLISHED***
The defendant‘s vehicle was parked in the middle of the street. The officer believed the defendant was broke down so he turned around to approach the defendant. Upon turning around the vehicle began moving to park. The officer noted the vehicle was parked safely and the driver was standing outside the car. The officer activated his lights , approached the defendant and later arrested him. The district court suppressed the evidence indicating the officers initial concern of being broke down was set aside once the defendant parked safely. The State appeals. The appellate court acknowledged public safety stops turn on very specific facts and concur with the district court the safety worried about by the officer was negated when the vehicle moved and parked safely. The State also argued the officer‘s contact was voluntary. The court notes this was not raised at the suppression and therefore the state cannot raise it on appeal. Affirmed.
PARKED IN THE ROAD-TRAFFIC OFFENSE
State v. Brady 164 P.3d 850, 2007 WL 2377120 (2007)
***UNPUBLISHED***
Defendant Brady appeals his conviction for DUI on two grounds; first, there was no proper waiver of a jury trial, and second, the Douglas District Court erred in not suppressing evidence of Brady‘s stop. In a hearing held by the trial court on the suppression issue, the defendant‘s attorney stated they would now prefer a bench trial. The defendant was silent on the issue. The Court of Appeals stated a defendant must waive the right to a jury trial in writing, or in open court; neither occurred at the suppression hearing. Further, only the defendant, not the defendant‘s attorney, can waive the right to a jury trial. The instant court reversed the decision of the trial court, and remanded the case for a jury trial. On the suppression issue, the instant court affirmed the trial court‘s decision not to suppress. At the suppression hearing, the officer involved in the case testified the defendant stopped his vehicle in the middle of the driving lane, and he believed that constituted a traffic offense. The Court of Appeals ruled the officer had reasonable suspicion to suspect a violation of K.S.A. 8-1569 had occurred, and the stop was allowable.
RATIONAL INFERENCES
Giebler v. Ks. Dept. of Revenue 122 P.3d 42, 2005 WL 2950343 (2005)
***UNPUBLISHED***
Officer found vehicle in airport parking lot. Giebler was passed out in the driver‘s seat with head hanging out the window, and there was vomit on the ground outside the vehicle door and around Giebler‘s mouth, no other persons were present. There was a very strong odor of alcohol from the vehicle. He left Giebler to sleep it off. 5-10 minutes later, the officer saw Giebler leaving and initiated a traffic stop to insure he was able to drive; Giebler had a BAC of .091, so he was arrested for DUI and his license was administratively suspended. Giebler appeals, based on lack of reasonable suspicion to stop his vehicle. Stopping a vehicle is a seizure within the 4th Amendment. K.S.A. 22-2402 requires an officer to have prior knowledge of facts or observe conduct which causes the officer to reasonably suspect the person is
67
committing, has committed, or is about to commit a crime. There is no requirement an officer actually observe a traffic violation being committed before stopping a car (State v. Field, 252 Kan 657 (1993)), but an officer must be aware of specific articulable facts with rational inferences from the facts to warrant suspicion the vehicle contains individuals involved in criminal activity. State v. McKeown, 249 Kan 506 (1991). Here the officer saw the defendant passed out, with vomit on his face and the ground, and a strong odor of alcohol coming from him and his vehicle just minutes before seeing him drive off. There was no remoteness in time, and the officer reasonably suspected the defendant was DUI. Suspension affirmed.
PROBABLE CAUSE—FIELD SOBRIETY TESTS
Winkelman v. Ks. Dept. of Revenue 104 P.3d 1024, 2005 WL 217176 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed a suspension of a driver‘s license. The Court held officer had probable cause to believe defendant was DUI. Officer came upon two vehicles stopped beside each other and facing north on a two-lane road. Defendant smelled of alcohol, had red eyes, and his head was "hanging like he was half asleep." Defendant denied he had been drinking. Defendant was "very unsteady on his feet," and he had to either lean on his truck or shift his feet to maintain his balance. Defendant attempted the walk-and-turn test, but was unable to complete the exercise. Defendant then failed the alphabet test. Defendant was then placed under arrest and given the notice of suspension. The trial court concluded the suspension was appropriate, and the officer had probable cause to believe defendant was DUI. Affirmed.
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D. Operate/Attempt to Operate
***PUBLISHED CASES***
ALTERNATE MEANS/MULTIPLE ACTS—UNANIMITY OF VERDICT—
JURISDICTION—CONFESSION
State v. Stevens 285 Kan. 307, 172 P. 3d 570 (2007)
Officer saw a Jeep parked in the street with two people sitting in its front seat. Officer saw Stevens exit the driver‘s side and stumble toward the rear of the Jeep. Officer noticed strong odor of alcohol, Steven‘s admitted to drinking, and refused to explain why he got out of the drivers side of the Jeep. Steven‘s initially agreed to the field sobriety tests and officer attempted the HGN test. Stevens refused all further testing. Officer arrested Stevens. Stevens was read the implied consent and took the test. The test indicated a deficient sample of .205. The State charged Stevens with both theories, DUI, operating or attempting to operate under K.S.A. 8-1567(3). The deficient sample was admitted into evidence and Stevens was convicted. Stevens‘s appeals claiming the trial court erred in failing to require the State to elect its theory of prosecution thus depriving him of his right to a unanimous jury verdict. The court held the DUI statute provides alternative means of committing the same crime. Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. The court must determine whether a rational trier of fact could have found each means was proved beyond a reasonable doubt. The court must also review all the evidence in the light most favorable to the prosecution. In this case the appellate court found there was sufficient evidence for both. (There is a court of appeals dissenting opinion –Judge Johnson did not believe there was substantial evidence Stevens attempted to operate) The Supreme Court found there to be sufficient evidence. As for the Deficient sample, the court stated Stevens was prosecuted under the correct subsection of DUI law (3) ―as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013 and amendments thereto, is .08 or more.‖ Another claim by Stevens was there was no proof the acts occurred in Crawford County. It appears the question of jurisdiction was not asked however the officer testified he was with the Pittsburg PD in Crawford County and there was no evidence the officer was called outside his jurisdiction or he had no authority to make an arrest. Stevens also contends his ―confession‖ should not have been admitted however he never made an objection or a motion to suppress. The court noted confessions must be challenged prior to or during the trial or not at all. The Supreme Court noted his ―confession‖ was properly admitted. There was no cumulative error. There was discussion about BIDS.
CORPUS DELECTI—CONFESSION
City of Manhattan v. Feril 35 Kan.App.2d 740, 134 P.3d 666 (2006)
Officer Fritzson was dispatched to a report of a white Ford truck with Texas plates driving without headlights. Fritzson located the truck at a convenience store and observed Feril climbing into the truck‘s cab. Fritzson approached Feril and informed him of the report about someone driving without headlights. Feril admitted to driving without headlights.
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During the conversation, Fritzson observed lethargic movements, bloodshot eyes, and an odor of alcohol. Feril admitted he had been drinking. Fritzson administered field sobriety tests, which Feril failed; Feril was arrested for DUI and while in custody, provided breath sample which registered a .180. Feril was tried and convicted in municipal court of DUI. On appeal, Feril claimed the City‘s prima facie showing of corpus delicti must be made independent of his confession. Kansas law on corpus delicti is very consistent; a conviction of even the greatest offense may be sustained by circumstantial evidence. In order to establish corpus delicti, the extra judicial confession of a criminal defendant must be corroborated by other evidence tending to show the crime was committed. It need not be corroborated as to the person who committed the crime since identity of the perpetrator is not part of the corpus delicti and may be established by an extra judicial confession alone. The court held the identity of the perpetrator is not part of the corpus delicti of DUI. Feril‘s extrajudicial confession to Fritzson he was driving is enough to justify a conviction for the DUI offense. The court also held Feril‘s encounter with the officer was not a custodial interrogation, for Miranda purposes. Feril‘s response to Fritzson‘s comment was voluntary. Feril had not been taken into custody at the time of the statements, nor was he deprived of his freedom. The court found Fritzson was justified in stopping Feril.
ATTEMPT TO OPERATE—HARMLESS ERROR—IMPAIRMENT—APPRENDI
State v. Kendall 274 Kan. 1003, 58 P.3d 660 (2002)
The Supreme Court affirmed a DUI conviction. The Court held (1) to "operate" a vehicle under statute prohibiting operating or attempting to operate vehicle under influence of alcohol means to drive it; (2) to be convicted of operating a vehicle under the influence of alcohol, there must be some evidence, direct or circumstantial, the defendant drove the vehicle; (3) movement of vehicle is not required in order to convict defendant of DUI under theory defendant attempted to operate vehicle; (4) trial court's "no movement required" response to jury's request for legal definition of driving was erroneous; (5) such error was harmless; and (6) use of defendant's two prior DUI convictions to change classification of subsequent DUI conviction from misdemeanor to felony did not violate Apprendi. At trial, the jury asked for a legal definition of driving. The trial court responded: "Movement of the vehicle is not required." Kendall was convicted of DUI, driving while license suspended, and refusing a PBT. Kendall appealed. The issues were whether: the trial court erred in its response to a jury question regarding the definition of driving and, if error, was the error harmless; the trial court erred in allowing a witness to give an opinion as to whether Kendall was under the influence of alcohol; and the use of Kendall's two prior DUI convictions to change the classification of the instant DUI from a misdemeanor to a felony and increase his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court noted the instruction to the jury on the legal definition of driving was not a correct statement of the law. However, the Court held the instruction was harmless, in movement of the vehicle is not required to convict a defendant of DUI under the theory he attempted to operate the vehicle, and there was ample evidence Kendall attempted to operate the vehicle. The Court also held the trial court did not err in admitting the officer's testimony concerning Kendall's condition, and the use of Kendall's two prior DUI convictions to change the classification of the DUI here from a misdemeanor toa felony did not violate Apprendi.
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INTENT—FELONY DUI
State v. Martinez 268 Kan. 21, 988 P.2d 735 (1999)
The Supreme Court reversed a district court dismissal of a felony DUI count. The Court held imposing a felony penalty for a third conviction of DUI, pursuant to terms of the statute, was not an unconstitutional violation of due process of law, on the theory the statute should have required criminal intent to elevate DUI to felony. Before the district court, Martinez asserted that because DUI is a strict liability offense, the felony penalty of K.S.A.1998 Supp. 8-1567(f) is unconstitutional. The district court stated because the statute did not specifically state criminal intent was a requisite element for a felony conviction, the felony provision of K.S.A.1998 Supp. 8-1567(f) violated the defendant's right to due process of law, and the felony penalty provision was struck from the statute. On appeal, the Supreme Court examined the language of the statute. The Court concluded not all crimes require intent, and K.S.A.1998 Supp. 8-1567 is one of the recognized exceptions where the legislature has specifically stated that an offense does not require intent. Thus, the statute is constitutional, and the district court was reversed.
BAT—IMPLIED CONSENT—REASONABLE GROUNDS—ATTEMPT TO OPERATE
Furthmyer v. Ks. Dept. of Revenue 256 Kan. 825, 888 P.2d 832 (1995)
The Supreme Court reversed the Court of Appeals and affirmed a district court suspension of a driver‘s license. The Supreme Court held the legislature intended to affect license suspension when BAT requested under implied consent law was refused, KDR need only prove law enforcement officer had reasonable grounds to believe person was operating or attempting to operate motor vehicle while under influence of alcohol or drugs. In this case, officer observed appellant's car stopped very close to a stop sign. When the officer approached, the vehicle was running and in gear. The appellant was slumped over the wheel, either asleep or passed out, with his hands in his lap and his foot on the brake. A female passenger in the vehicle was also passed out or asleep when the officer approached the car. Upon request, driver did not blow sufficient sample for PBT. This amounted to refusal and driver‘s license was suspended. The Court stressed KDR need not show person had actually operated motor vehicle. There was sufficient evidence here to give officer reasonable grounds driver was operating or attempting to operate vehicle. Court of Appeals reversed and suspension affirmed.
PER SE RULE—DELAY IN ARREST
State v. Zito 11 Kan. App. 2d 432, 724 P.2d 149 (1986)
The Court of Appeals construes 8-1567(a)(1) and finds driving or attempting to drive with a BAT of .10 or more is a per se violation, and no evidence or erratic or impaired driving is required. The CA also holds there was no entrapment of the officer in failing to arrest the defendant before he got into his car, especially since there is no longer any offense for which he could have been arrested, since the public intoxication statutes has been repealed. (There may, however, be civil liability if the driver injures a third party, Fudge v. Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986)) (Riley, 58881, 9/4/86)
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CIRCUMSTANTIAL EVIDENCE MAY BE USED TO PROVE ANY ELEMENT OF DUI
State v. Ward 233 Kan. 144, 660 P.2d 957 (1983)
Evidence the defendant was sitting behind the steering wheel with his engine running and headlights on while stuck in a ditch beside a highway is sufficient circumstantial evidence to show the defendant was under the influence of alcohol when he drove his vehicle.
State v. Fish 228 Kan.204, 612 P.2d 180 (1980)
The State may use either direct or circumstantial evidence to show the defendant drove the motor vehicle in an intoxicated condition. The defendant was found asleep on the front seat of his motor vehicle with the engine running and the gear shift of the car in park. There was an open liquor bottle on the front seat and the officer was unable to arouse the defendant.
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***UNPUBLISHED CASES***
WHEEL BROKEN OFF-EVIDENCE CAR HAD MOVED-MISSOURI CONVICTION
State v. Skaggs 231 P.3d 588, 2010 WL 2245606 (05/28/10)
***UNPUBLISHED***
Defendant was charged in the alternative operating or attempting to operate. The Deputy arrived at the defendant‘s residence to find a full size pickup truck in the driveway with its wheel broken off. The street was littered with black tire marks and debris. The defendant told him after he got home he could not get the truck turned off. He stated he drove the truck back onto the street and the wheel broke off. There was no indication how it got back into the driveway. The court found there was clear evidence the defendant attempted to drive the truck when it became inoperable and determined there was sufficient evidence to support a jury finding of attempting to operate. The defendant also contends K.S.A. 8-1567(g)(1)(2007 supp.) does not permit the use of out-of-state (Missouri) convictions ie. Convictions under K.S.A. 8-1567. The court noted ―conviction‖ is defined in the law to include out of state convictions for DUI. See K.S.A. 8-1567(n)(2). The case was remanded in part because the court did not determine what method the defendant was able to pay the minimum mandatory fine on a 4th offense by cash or community service-citing State v. Copes 290 Kan. 209 (2010)
INTENT-ABSOLUTE LIABILITY OFFENCE
State v. Eyer 230 P.3d 461, 2010 WL 2044927 (05/14/10)
***UNPUBLISHED***
Defendant was charged with attempting to drive while under the influence of alcohol in violation of K.S.A.2007 Supp. 8-1567, not attempt as defined in K.S.A. 21-3301. One of the elements of attempt is intent. Driving under the influence of alcohol or drugs is an absolute liability offense and unlike most other crimes, does not require any criminal intent. State v. Creamer, 26 Kan.App.2d 914, 996 P.2d 339 (2000). There is no authority holding the State must prove each element of attempt as defined in K.S.A. 21-3301 to prove the means of attempting to operate for a DUI conviction under K.S.A.2007 Supp. 8-1567. As a result, the defendant failed to demonstrate the district court's refusal to instruct the jury on the elements of attempt in this case resulted in instructions that did not properly and fairly state the law as applied to the facts of this case. The district court did not err in declining to instruct the jury on the elements of attempt established in K.S.A. 21-3301 and set out in PIK Crim.3d 55.01.
DENIED DRIVING-KEYS IN THE IGNITION-CAR RUNNING
State v. Starbird 225 P.3d 780, 2010 WL 744803 (02/26/10)
***UNPUBLISHED***
An identified citizen called in a drunk driver with description of vehicle and license number. An officer found the vehicle 3 to 4 minutes later parked in a driveway of a residence, which was the defendant‘s. The vehicle‘s lights were on and the engine was running. The defendant was seated in the driver‘s seat and when he noticed the officer he took the keys
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from the ignition and threw them on the floor. Defendant was unable to remove his DL from his wallet and could not maintain his balance. The defendant noted many times he was not driving. Later the officer went to the door to give the occupants the keys to the vehicle. Defendant‘s wife and daughter came to the door appearing in bed clothes and looking like they had been sleeping. The defendant was charged in the alternative operating or attempting to operate. Jury instructions mirrored this charge. Defendant claimed the instruction was erroneous because it provided alternative means even though the State presented very little evidence the defendant was ―attempting to operate‖. The Court of appeals cites State v Stevens 285 Kan. 307 (2007) and stated there was sufficient evidence to show the defendant operated and attempted to operate. They noted in Stevens placement of keys in ignition constituted overt act necessary to convict defendant of DUI. There was also an argument concerning 60-455 evidence where defendant slapped the implied consent out of officer‘s hand constituting a battery on LEO and an Allen instruction.
PASSED OUT BEHIND THE WHEEL-INVOKED HIS RIGHT NO TO ANSWER
State v. Moffett 223 P.3d 837, 2010 WL 653097 (02/19/10)
***UNPUBLISHED***
Defendant was seated in his vehicle in the middle of the street with the engine running and his foot on the brake. He had either fallen asleep or passed out at the wheel and was unable to successfully operate the vehicle at that point. He had difficulty waking up. During the defendant‘s case-in-chief defendant suggested to the officer ―you never asked him how much he had to drink.‖ The officer responded I didn‘t ask on the stop. After he was Mirandized he refused to answer any questions. The defendant moved for a mistrial and it was denied. On appeal defendant claimed the court should have granted a mistrial. The court stated the defendant opened the door, knowing based on the officer‘s report, he invoked- and the evidence was so overwhelming there was no prejudice. The defendant also argued the DUI jury instruction concerning operate or attempt to operate. The court indicated this is a alternative means case where a single offense may be committed in different ways there must be jury unanimity as to guilt for the crime charged but not as to the particular means by which the crime was committed citing State v. Stevens 285 Kan 307 (2007). In this case there was ample information to support both. Affirmed.
ALTERNATIVE MEANS-CITY DID NOT PROVE BOTH
City of Pittsburg v. Witty 212 P.3d 1039, 2009 WL 2436695 (08/07/09)
***UNPUBLISHED***
The defendant was charge in the alternative with operating or attempting to operate any vehicle while under the influence. The facts are: defendant was asleep in the driver‘s seat in the parking lot of a local bar with the vehicles lights on and the engine running. The defendant claimed the state had to prove both alternative means and because the city did not prove both his DUI charge should be dismissed. The court notes State v. Stevens 285 Kan. 307 (2007) The DUI statute identifies two alternative means by which the crime can be committed. A criminal conviction must be predicated upon a unanimous verdict of the jurors if the case is tried to a jury. The Supreme Court found the jurors need not all agree on the particular means by which the DUI was committed so long as their unanimous finding of guilt is supported by substantial
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evidence of both alternative means. Here there was no jury, a judge decided the case. The city presented only evidence of attempting to drive and no evidence of actually driving of the vehicle. Unanimity was not at issue and Stevens does not apply. Conviction affirmed.
HEARSAY OF PASSENGERS-OWNERSHIP OF VEHICLE
State v. Busch 204 P.3d 1191, 2009 WL 981677 (04/10/09)
***UNPUBLISHED***
A deputy noticed a vehicle parked on the side of the road with two individuals standing outside. Evidence presented at trial indicated: dispatch informed the deputy the owner of the vehicle was the defendant. The deputy approached the persons standing and asked each if they had been driving. They both denied it. The deputy found the defendant behind the wheel, his hands on the wheel, the engine running, and the lights on. All persons associated with the vehicle were intoxicated as well as the defendant whose BAC was 0.17. The defendant was found guilty. The defendant appeals claiming hearsay on many of the issues presented at trial. The information from dispatch-the court stated the defendant‘s father testified he came to pick up ―his sons‖ car. Hearsay of the dispatcher was considered redundant and harmless. The fact the individuals outside the vehicle were NOT driving-the court noted the defendant again during cross of the deputy brought up the fact the officer had asked the other persons if they had been driving. The court found the defendant opened the door to inquiring about the response of the standing individuals. The court reiterated an officer has the right to express his opinion as to the intoxication of a person. There was also an issue of Apprendi. Affirmed.
INTENT TO BE DUI-PARKED VEHICLE
State v. Baldwin 189 P.3d 580, 2008 WL 3367567 (2008)
***UNPUBLISHED***
Officer came upon a parked vehicle with the engine running. Found Baldwin either asleep or passed out in the driver‘s seat. Officer woke Baldwin up and he said ―getting away from‖ his wife. Baldwin performed SFST and exhibited many clues that indicated impairment. Baldwin became tense and physically aggressive, resisting arrest. Baldwin took the breath test indicating BAC .12. During book-in process Baldwin stated ―I realized that I shouldn‘t be driving and pulled off to the side of the road, just like tonight, as to not to endanger any other people.‖ At trial Baldwin testified he had left his vehicle‘s engine running because it was cold outside. During Jury deliberations a question was asked ―Is there a legal definition of ‗attempting to operate a vehicle‘ or is it up to our interpretation?‖ The court answered, ―up to the jury to decide‖. No further instruction was given. Baldwin argues the court should have given the definition as reported in Kendall. The appellate court stated although the trial court‘s response was not particularly helpful to the jury, it was not error. Baldwin also claimed the state failed to meet the burden with respect to whether Baldwin operated the vehicle. The court determined there was substantial competent evidence to support Baldwin operated the vehicle while under the influence. Lastly Baldwin states the prosecutor misstated the law during closing argument. The prosecutor argued ―With regards to attempting to drive…there is no need for movement. There needs to be no intent of driving under the influence …although I think you have to find he did those actions. The
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State is not obligated to prove intent.‖ The court stated this was a correct statement of law. Affirmed.
NO PROOF OF DRIVING—DWI
State v. Piper 185 P.3d 972, 2008 WL 2510435 (2008)
***UNPUBLISHED***
Park ranger found the defendant‘s vehicle at 3:26 a.m. The car was running, the brake lights weren‘t on but the headlights were and the car was in gear. The ranger determined her to be DUI and wrote a ticket with the words ―DWI‖ and ―8-1567‖. The defendant claimed the complaint was defective because it did not have the ―essential facts constituting the crime charged‖ and failed to identify which subsection she had specifically violated. The court noted a complaint can be challenged at any time but when the first time is on appeal the court will liberally construe it in favor of validity. The defendant did not request a bill of particulars; however the defense attorney seemed to understand the charge arguing in his closing argument about a two hour limit. Defendant failed to show she was surprised by the charge or was prevented from preparing her defense. The uses of DWI and DUI are commonly understood, and have the same meaning. The defendant also challenged the ―operate or attempt to operate‖ element. She claimed she had left her car running to charge her cell phone and use the air conditioning. The court stated they would not reweigh the evidence and upheld her conviction.
QUESTION—UNLESS/UNTIL
State v. Weaver 172 P.3d 1221, 2007 WL 4577852 (2007) ***UNPUBLISHED***
Weaver was charged with felony DUI. Weaver's first argument is the sufficiency of the evidence. The Court noted there was ample evidence to convict Weaver. There is a discussion concerning actual driving and attempting to drive. The Court also noted viewing all evidence in light most favorable to the State the fact finder could find Weaver guilty beyond a reasonable doubt. The next challenge to the conviction was a jury question and response. After deliberating for an hour the jury sent a question to the Trial Court "is there a difference between attempting and contemplating an action?" The District Court responded, "an attempt to any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or intercepted in executing such crime. Contemplation is a mental process only." Weaver suggests by omitting the second portion of the pattern instruction "mere preparation is insufficient to constitute an overt act" was essential for the jury to understand what an overt act must entail. At trial, however, Weaver did not object to the response to the jury question. In this case there was more than ample evidence to demonstrate an overt act beyond "mere preparation". The jury either believed or disbelieved his defense and could not have been mislead by not being informed that mere preparation was insufficient. The Trial Court's omission of the second part of the attempt definition did nothing to prejudice Weaver's defense. This case involved a tipster at a bar who gave an excellent description of Weaver and his vehicle. The officer found the vehicle running with the lights on in the driveway of the address of the tag that had been reported. There was confirmation by the officer to the tipster of what exactly the defendant looked like and it did match the description of the person sitting behind the
77
wheel. Last argument by Weaver contends instruction to the jury concerning presumption of innocence. The wording you must presume he is not guilty ―until‖ you are convinced from the evidence he is guilty was given to the jury. Weaver argues reversible error is required because by using the word ―until‖ instead of ―unless‖ the instruction improperly expressed a belief the jury would find him guilty. Weaver did not object to the instruction at trial level thus review is limited. The Court followed the opinion of the Supreme Court in State v. Wilkerson 278Kan 158 (2004) the use of the word "until" even if erroneous did not warrant reversal because the instructions when read together accurately stated the law and could not have misled the jury.
MULTIPLE ACTS-ALTERNATIVE MEANS-UNANIMITY
State v. Hendrix 171 P.3d 285, 2007 WL 4246851 (2007) Rev. Den. (2008) ***UNPUBLISHED***
Trooper observed a pick up parked on the shoulder of an on ramp for westbound Interstate 70. When Trooper approached to check the welfare of the occupants of the vehicle Hendrix was in the driver's seat and Campbell was outside the vehicle urinating. The Trooper testified the truck's lights were on. Hendrix was seated at the steering wheel and the truck was running. Trooper did not know how long the vehicle had been stopped on the side of the road but neither man told Trooper they were having car trouble. The Trooper determined Hendrix was impaired and arrested him. During the drive to the hospital for a blood test, Hendrix stated the only reason he stopped the vehicle was to let Campbell relieve himself. The Trooper also testified Hendrix never told him he had been driving, but only stated he was parked. Hendrix testified at trial denying he drove under the influence the night he was arrested. He stated Campbell was driving the truck when it broke down so they pulled it over and stopped on I-70 ramp. Both men got out and Hendrix had gotten back in the driver's seat to attempt to start the truck when the Trooper arrived. Hendrix stated the truck was not running when the Trooper arrived. One of the elements of the jury instructions was the defendant drove or attempted to drive a vehicle. The jury received a unanimity instruction in which they were told their verdict must be unanimous. The State during closing arguments, argued this evidence proved Hendrix was driving or attempting to drive without distinguishing whether the evidence was specifically directed toward driving or attempting to drive. Hendrix's defense counsel argued Hendrix's act of trying to get the truck started was not driving or attempting to drive. The jury found Hendrix guilty of driving or attempting to drive a vehicle while having BAC of .08 or more. Hendrix claims this is a multiple acts case however this Court does not find it to be a multiple acts case. He argues it is an alternative means case. In a multiple acts case either the State must inform the jury which act to rely on in its deliberations or the Court must instruct the jury to agree on a specific criminal act. Factors to consider when deciding if there are separate and distinct acts or whether the acts occurred at or near the same time or location, where there is a cause or connection between the acts, whether there is an intervening event, and whether a subsequent act was motivated by a fresh impulse. Hendrix argued there were multiple acts because Hendrix and Campbell had stopped for 10 to 20 minutes before the Trooper observed Hendrix attempting to start the truck. He also claimed the truck breaking down was an intervening event separating the previous alleged driving and later attempt to drive. Trooper did not testify Hendrix was attempting to start the truck. The multiple acts Hendrix claim exist are merely the State's theory v. Hendrix defense. There was only one continuing act of driving or attempting to drive while intoxicated at issue in this case. This is not a multiple acts case so Hendrix unanimity instruction argument fails. An alternative means case is one in which a single offense may be
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committed more than one way. In these cases the jury must be unanimous as to guilt for the single crime charged however as long as substantial evidence supports each alternative means jury unanimity is not required as to the means by which the crime was committed. Hendrix relies on the dissent in State v. Stevens, 36 Kan App 2nd 323 (2006). The Appellate Court was not persuaded by his argument and stated there was substantial evidence to support both alternatives in this alternative means case and jury unanimity is not required as to the means by which the crime was committed. Affirmed.
UNDER 21—SUBSTANTIAL COMPLIANCE
Hoover v. Ks. Dept. of Revenue 168 P.3d 614, 2007 WL 2992427 (2007) ***UNPUBLISHED***
Hoover first contends the Trial Court erred in finding the law officer had reasonable grounds to believe she operated her motor vehicle. In this case it is uncontroverted Hoover failed the breath alcohol test. It is interesting to note Hoover is 16 years old. The Trial Court summarized the evidence as the car was running the lights were on, she was the only one in the car and she admitted she was driving. The Appellate Court concluded the substantial competent evidence supported the Trial Court's finding the officers had reasonable grounds to believe Hoover had operated her motor vehicle while intoxicated we find no error. Hoover also argued a jurisdictional defect. The Court determined this argument was without merit. Lastly Hoover contends the Trial Court should have suppressed the results of her breath test because the implied consent notice pertaining to drivers under 21 years of age did not meet the mandate of K.S.A. 8-1567(a). In K.S.A. 8-1001(g) states if a law enforcement officer has reasonable grounds to believe the person has been driving or attempting to drive a vehicle while having alcohol or other drugs in such person's system and such person was under 21 years of age the person also shall be given the notices required by K.S.A. 8-1567(a). Any failure to give the notices required by K.S.A. 8-1567(a) and amendments thereto shall not invalidate any action taken as a result of the requirements of this section. Hoover complains she was told if she provided a breath sample in excess of .02 she would lose her drivers privileges for 30 days. She was earlier told if she provided a breath sample in excess of .08 she would lose her driving privileges for one year. These are clearly inconsistent and confusing warnings. She was never told what would happen if she provided a breath sample between .02 and .08. The Appellate Court cited Batliner, Hoover was informed of the actual risk if she submitted to a breath test and tested .02 or greater or tested .08 or greater. The omission of the phrase but less than .08 was not material in light of the fact Hoover was also informed the penalty for testing .08 or greater under K.S.A. 8-1001(f)(F). Accordingly the Court of Appeals held the implied consent notices Hoover received substantially complied with statutes. The Court however went on to state they must determine whether or not there was actual prejudice to the driver. The Court noted Hoover's penalty would have been the same whether she refused the breath test or failed the breath test with a reading in excess of .08. Secondly, as previously noted any failure to give the notices shall not invalidate any action. The lack of prejudice to Hoover is apparent given these facts and the statutory language the Appellate Court affirmed the suspension.
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COMPULSION
State v. McConkey 150 P.3d 926, 2007 WL 316815 (2007)
***UNPUBLISHED***
A police officer reported to the scene of an accident involving McConkey. McConkey told the officer she was driving her vehicle and struck a parked car. McConkey did not appear to have any injuries from the accident. However, McConkey seemed to be confused, her speech was loud and slurred, she was swaying, and her eyes were droopy and bloodshot. McConkey admitted to the officer she had recently consumed alcohol. McConkey was arrested for DUI. McConkey later took a breath test, which showed her BAC was 0.212. McConkey was charged with felony DUI. At her jury trial, McConkey testified on the night of the accident she had been at her ex-husband‘s house drinking alcohol. According to McConkey, she and her ex-husband became angry at each other and her ex-husband started beating her in the head and grabbing her wrists. McConkey did not call the police because her ex-husband would not let her use the phone. Instead, she left the house to get away from her ex-husband‘s beating and drove towards her mother‘s house. McConkey testified she was afraid to stop before she got to her mother‘s house in case her ex-husband was following her, although she never saw him following her. McConkey testified she would not have normally driven on the night of the accident because she had been drinking alcohol, but she felt she had no choice but to get away from her ex-husband. At the conclusion of the evidence, the district court refused to give McConkey's requested jury instruction on the defense of compulsion. McConkey was subsequently found guilty of felony DUI, sentenced and assessed fines and fees. On appeal, McConkey argues the district court erred in refusing to give an instruction on the defense of compulsion. The court noted to constitute the defense of compulsion, a threat of danger must be present, imminent, impending, and continuous. The defense cannot be invoked by one who had a reasonable opportunity to escape the compulsion and avoid committing the crime. The court found there was no imminent and continuous danger to McConkey at the time she was arrested for the DUI. Moreover, she had driven over 20 miles from her ex-husband's house and had ample opportunity to withdraw from her criminal activity. Therefore, the district court did not err in refusing to instruct the jury on the compulsion defense. McConkey also claims the district court erred in sentencing her as a fourth-time DUI offender. The court reviewed McConkey‘s prior DUI convictions and found they were not void for lack of subject matter jurisdiction. Accordingly, the court found McConkey was properly sentenced. Finally, McConkey contends the district court erred in ordering McConkey to reimburse the BIDS for attorney fees. Affirmed in part, reversed in part, and remanded.
MULTIPLE ACTS—ALTERNATIVE MEANS
State v. Woodward 138 P.3d 417, 2006 WL 1902512 (2006)
***UNPUBLISHED***
A Pratt County Sheriff‘s Deputy was dispatched to a report of a suspicious car in a pasture. Upon arrival, the Deputy found Woodward in the driver‘s seat of a car in a pasture; damage to the car was consistent with driving through a barbed wire fence. Upon the Deputy‘s approach to the car, Woodward got out of the driver‘s seat and staggered to the back of the car. The Deputy observed a large wet fecal stain on the back of Woodward‘s pants. When asked if he had ―messed himself when he crashed through the fence,‖ Woodward responded, ―Yeah.‖ Woodward had no explanation for how he had gotten in the field, but asked the Deputy how he could get out of the field. The keys to the vehicle were in Woodward‘s left
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front pocket and he admitted he had purchased the vehicle. The Deputy observed numerous signs Woodward was intoxicated and a 12-pack of beer with one unopened beer on the passenger‘s floorboard of the car; Woodward admitted he had been drinking at a club that night. The Deputy determined it would be unsafe for Woodward to perform field sobriety tests and was unable to get a breath sample. Woodward was arrested for DUI and taken to the hospital, passing out on the way to the hospital and again after arriving. At trial, the owner of the pasture testified he had almost constant observation of the vehicle in the pasture and he had observed the vehicle driving back and forth in the field; the owner did not see anyone leave the car or the pasture. Woodward claimed someone else had been driving the vehicle. Woodward was convicted of his 18th DUI. On appeal, Woodward challenged the sufficiency of the evidence arguing the State failed to prove beyond a reasonable doubt he operated or attempted to operate a vehicle. When considering the sufficiency of circumstantial evidence to sustain a conviction, the question is whether there was a basis in the evidence for a reasonable inference of guilt. The court found there was more than a sufficient basis to support a reasonable inference Woodward operated and attempted to operate the vehicle. The court also found there was substantial evidence presented to establish Woodward was intoxicated. Woodward contended the case involved multiple acts and the trial court erred in failing to give a unanimity instruction at his trial. The court found the case did not involve multiple acts, but alternative means. The court noted in an alternative means case, a single offense may be committed in more than one way; while there must be unanimity as to the guilty for the single crime charge, unanimity is not required as to the means by which the crime was committed so long as each alternative means is supported substantial evidence. As there was sufficient evidence presented for the jury to convict Woodward beyond a reasonable doubt of both operating the vehicle and attempting to operate the vehicle while under the influence, the trial court did not error in failing to give a unanimity instruction.
EYEWITNESS IDENTIFICATION—DECAY PROVISION
State v. Rodriguez 130 P.3d 149, 2006 WL 686416 (2006)
***UNPUBLISHED***
A black vehicle on IBP road near Garden City crossed the centerline and struck two vehicles traveling in the opposite direction. The black vehicle stopped, and a man got out of the driver‘s side of the black vehicle. The driver of the first vehicle that was struck identified Rodriguez as the man she saw driving the vehicle and the man she saw get out of the driver‘s side, even though she was crying and upset shortly after the accident. She also said she saw a child in the front seat of the black vehicle. The driver of the second vehicle, a van, could not identify Rodriguez specifically, but said he looked just like the person she saw driving the vehicle that struck her van. She also saw the driver exit the vehicle and a child sitting in the passenger seat. A deputy arrived and found Rodriguez standing at the rear of the black vehicle. When questioned about whether he was the driver, Rodriguez did not respond. The deputy detected a strong odor of alcohol from Rodriguez, and noticed he was walking unsteadily. Another deputy arrived and Rodriguez admitted his name, and the deputy noticed slurred speech and a strong smell of alcohol. When asked to do field sobriety tests, Rodriguez began walking unsteadily, then started crying and asked to be arrested. After an interpreter read the implied consent, he was tested at a .203 BAC. He then admitted to having 8 beers, but said he was not the driver of the car. He was charged with DUI with a child under 14, and DWS. The only issue at trial was who the driver was. At trial, Rodriguez testified he and his son were in the back seat and his friend was driving. After the accident, the friend walked off and he moved his son to the front seat after he got
81
out of the car himself. He denied telling the deputy the beer bottles were not his and he had requested to be arrested by the deputy. A jury found him guilty. He appealed on grounds there was no eyewitness identification instruction given. The court found the instruction is only necessary when the identification is crucial to the case and a serious question exists as to the reliability of the identification. The court found the testimony established clearly the witness saw the defendant driving, and it was only after this she became upset and started crying. There was no question as to whether the identification was reliable. Furthermore, there was no indication, based on the other evidence presented, the jury would have reached a different conclusion had the instruction been given. The conviction was affirmed.
CONFLICTING STATEMENTS—CONSUMPTION OF ALCOHOL
State v. Guinn 124 P.3d 1084, 2005 WL 3527080 (2005)
***UNPUBLISHED***
Deputy responded to possible injury accident. Found pickup off roadway stuck on a fence and gate on a rural road. Guinn, with a small 2-year-old child, approached and asked for help getting the truck off the fence, and admitted he had been driving. His speech was slurred, he was unsteady, and there was an odor of alcohol. Upon investigation, the Deputy found a half full bottle of whiskey in Guinn‘s coat. Guinn failed the HGN and one-leg stand tests. He failed them again at the jail, and blew a .153 on the intoxilyzer. In a post arrest interview, after Miranda, he admitted to driving again, and he had consumed the whiskey before the accident. At trial, Guinn‘s daughter testified she had been driving, and walked away to find help, and Guinn denied ever driving. He challenged his conviction for DUI on grounds there was insufficient evidence he was driving, and the State failed to prove whether the alcohol was consumed before or after the accident. The district court found his statements to the officer at the time of the incident was enough circumstantial evidence of both. Viewing the evidence in the light favorable to the prosecution, this court affirmed. However, the intoxilyzer evidence was irrelevant because the State did not prove it was used within 2 hours of the accident.
STATEMENTS
State v. Edenfield 107 P.3d 1262, 2005 WL 638096 (3/18/05) Rev. Den. (2005)
***UNPUBLISHED***
At 1 a.m., state trooper left headquarters and observed a truck parked at side of road, which had not been there just minutes before. The trooper saw Edenfield sitting in front of the truck with his arms around his knees and his head down. Edenfield said he was on his way home. He had bloodshot, glazed, and watery eyes, he was flushed, had to support himself on the hood of the truck, and there was a strong odor of alcohol coming from him. Edenfield stated he knew he wasn‘t fit to drive so he pulled over. He refused all tests. He was found guilty of DUI and appealed due to sufficiency of evidence he had operated or attempted to operate the vehicle. His conviction was affirmed. All of the circumstances, coupled with his own statements, were sufficient to conclude he had been driving immediately before pulling over because he was unfit to drive.
82
ATTEMPTED MOVEMENT
State v. Boos 121 P.3d 488, 2005 WL 2715851 (2005)
***UNPUBLISHED***
Boos was charged with DUI and the case was submitted for Bench Trial on the following stipulated facts. State Trooper came upon a disabled vehicle on side of road. Boos was working on the engine and trying to start the car. Trooper noticed impaired motor skills, bloodshot eyes, and moderate odor of alcohol. Field sobriety tests were done and a PBT was given. Boos was then arrested. Intoxilyzer test revealed .155 BAC. Boos was found guilty and appealed, arguing insufficient evidence he attempted to operate the vehicle. He argued movement is not necessary for attempted operation, but attempted movement is. Court found there was evidence he was attempting to start the vehicle, and the fact the hood was open would not prevent his attempted operation of the vehicle. The court concluded there was a basis in the evidence for a reasonable inference of guilt, and Boos offered no reasonable story to support the notion he had not driven the vehicle or he would not have driven the vehicle had it started.
OPERATE OR ATTEMPT TO OPERATE
Grow v. Ks. Dept. of Revenue 114 P.3d 1000, 2005 WL 1618828 (2005) ***UNPUBLISHED***
The Court rejected the defendant‘s argument there was insufficient evidence to find he had operated or attempted to operate his vehicle and upheld his conviction of DUI. The defendant left a nightclub where he consumed alcoholic beverages and pain medication. Police officers subsequently came into contact with the defendant when he was found passed out behind the wheel of a vehicle parked on the highway. The defendant‘s eyes were droopy and bloodshot, his speech was slurred, he had difficultly maintaining his balance and had a very strong odor of alcohol emanated from his breath. The defendant admitted he had been drinking. He failed field sobriety tests and blew a 0.30 on the PBT. The officer on the scene asked the defendant if he had been operating his vehicle and the defendant replied he had. The officer also testified the defendant told him he was driving home from McPherson. However, the defendant testified his daughter drove him home because he was too sleepy. The Court of Appeals noted there was evidence the defendant identified himself as the driver. The defendant never said someone else had operated his vehicle. There were no businesses, convenience stores, or houses near where the vehicle was found. There was testimony the defendant car was parked in the northbound lane facing south. Based on the above facts, the Court found there was substantial competent evidence Grow operated a motor vehicle under the influence of alcohol.
OPERATE OR ATTEMPT TO OPERATE
Alfrey v. Ks. Dept. of Revenue 111 P.3d 663, 2005 WL 1214242 (2005) ***UNPUBLISHED***
The Court of Appeals affirmed the district court's order upholding Alfrey‘s driver's license suspension for DUI.Alfrey argued there was insufficient evidence he operated or attempted to operate a vehicle. In this case, two individuals told a police officer a man in a car smelling of alcohol had stopped to talk them. The two described the car and gave the officer a license plate number which matched the description and plate of
83
Alfrey's car. The officer drove to Alfrey‘s house and saw Alfrey passed out in the driver‘s seat of his car. The officer testified when he first arrived he saw exhaust coming out of the tailpipe and could hear the car‘s radio. When the officer approached the vehicle the car's engine was turned off and he could no longer hear the radio. Alfrey appeared to be intoxicated and told the officer he had driven the car and talked to two people. The officer admitted he never saw Alfrey drive the car and the keys were not in the ignition. At trial, Alfrey testified he decided to sleep in his car because he could not find his keys to the car or to his house. He denied driving. The Court held in a driver license suspension, the Kansas Department of Revenue need only establish a law enforcement officer had reasonable grounds to believe a person was operating or attempting to operate a motor vehicle; it is not necessary to prove the person actually operated or attempted to operate the vehicle. The Court found there were reasonable grounds to believe the defendant operated or attempted to operate a motor vehicle. Alfrey also argued the district court erred when it found he refused to submit to a breathalyzer test. He argues law enforcement officers led him to believe he had the option to submit to a blood or urine test in lieu of a breathalyzer test. The Court rejected this argument noting law enforcement officers select the test, not the arrestee and Alfrey never rescinded or attempted to rescind his refusal.
OPERATE OR ATTEMPT TO OPERATE
State v. Degand 116 P.3d 770, 2005 WL 1868914 (2005)
***UNPUBLISHED***
The Court rejected the defendant‘s argument the evidence was insufficient to sustain his conviction for DUI. Sheriff's Deputy Kasl testified was dispatched to a rural area of the county to check on a suspicious vehicle. Deputy Kasl located the vehicle, which was backed into a ditch, and found the defendant, Tommy Degand, asleep in the driver's seat. In response to Deputy Kasl's question as to how the vehicle got there, Degand pointed to the vehicle and said he was coming from a friend's house in Topeka. Deputy Kasl found several full beer bottles; cool to the touch, in the passenger seat next to Degand. Degand blew a .102, exceeding the legal limit of .08. Thus the sole issue before the trial court was whether Degand actually "operated or attempted to operate" the vehicle. The Court noted the defendant did not attempt to offer any other reasonable hypothesis as to how the vehicle might have come to rest in the ditch without the defendant driving it there. The Court also found there was more than sufficient circumstantial evidence to support the trial court's determination. The defendant's vehicle was found stuck in the ditch with the defendant sleeping in the driver's seat. No one else was in or around the vehicle. When asked how the vehicle got there, the defendant told officers he was coming from a friend's house. The defendant also argued there was insufficient evidence to prove he was intoxicated when he operated the vehicle. Degand did not dispute the fact he was intoxicated when found by Deputy Kasl. He challenged the sufficiency of the evidence to establish that he was intoxicated when he operated the vehicle. The Court rejected the defendant‘s argument finding there was sufficient evidence to establish the defendant operated his vehicle while intoxicated. The Court noted the defendant was intoxicated at the time he was found by the officer, as evidenced by the odor of alcohol, his bloodshot eyes, slurred speech, difficulty communicating, and the breath test result. The alcoholic containers in the vehicle were cold and unopened indicating Degand did not drink while parked in the ditch.
84
ATTEMPT TO OPERATE—MOVEMENT
State v. Penland 99 P.3d 1152, 2004 WL 2496811 (11/05/04)
***UNPUBLISHED***
A witness saw a car in the ditch and stopped to see if anyone was injured. The witness did not actually see the accident. While walking toward the car, the person in the driver's seat was revving up the engine and spinning the car's tires in an attempt to get out of the ditch. As the witness approached the car, he saw the person in the driver's seat get out of the car. At trial, the witness identified the defendant as the individual he saw in the driver's seat revving up the engine and spinning the tires. The witness saw defendant holding onto the side of the car while walking toward the back of the car. The witness also saw defendant swaying and detected a strong odor of alcoholic beverage on defendant's breath. An officer was dispatched to the scene and immediately noticed defendant was under the influence of alcohol. Defendant had difficulty standing, had bloodshot and watery eyes, slurred speech, and a strong odor of alcohol permeating from his person. Defendant attempted to perform the walk and turn test but ultimately failed it because his balance was extremely affected. The officer did not conduct any other test for safety reasons because he was concerned that defendant would fall. Officer arrested defendant and administered a breath test. At trial, defendant put on evidence he was not driving the car at the time of the accident. Defendant was convicted and appealed. He claims that the car was inoperable. However, the Court of Appeals held movement of the vehicle is not required in order to convict a defendant of DUI under the theory defendant attempted to operate the vehicle. The Court stressed the testimony of the witness who saw defendant in the driver's seat revving the engine and spinning the tires trying to get the car out of the ditch. Because defendant was unaware the car was inoperable after the accident, the Court stated it was apparent defendant attempted to operate the car in an attempt to remove it from the ditch. Affirmed.
MOTORCYCLE—ATTEMPT TO DRIVE—SUFFICIENCY OF EVIDENCE
City of Wichita v. Bell 99 P.3d 1152, 2004 WL 2496810 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held there was sufficient evidence to support Bell's conviction of DUI based upon his "attempt to operate" his motorcycle. Officer observed a motorcycle fitting the description of a stolen vehicle and witnessed defendant approaching the motorcycle. As defendant was walking toward the motorcycle, he was swaying back and forth, stumbling, and fumbling with his keys. According to the officer, the defendant sat down on his motorcycle and put the keys in the ignition. After about two to three minutes of fumbling around, the defendant started the motorcycle. The officer approached the defendant and smelled alcohol from his person. She told defendant to turn off the motorcycle, get off the vehicle, and sit on the ground. The defendant stumbled off the motorcycle and then fell backwards onto the ground as he sat down. Bell exhibited 7/8 clues on the walk and turn test, but refused further field tests and refused a breath test. Defendant was convicted in district court and challenged sufficiency of the evidence on appeal. The Court or Appeals held there was sufficient evidence that defendant attempted to drive the vehicle. Affirmed.
85
E. Accident
***PUBLISHED CASES***
ACCIDENT—BAC—CONSENT
State v. Murry 271 Kan. 223, 21 P.3d 528 (2001)
The Supreme Court reversed the district court‘s suppression of BAC evidence in a DUI trial. The Court held arrest is not required prior to warrantless extraction of blood to test BAC, so long as extraction is based on probable cause sufficiently strong to have justified arrest; disapproving of, State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973); and requirements for taking of sample of defendant's blood following vehicle accident were met. Murry crashed his vehicle into a culvert embankment. He was taken to the hospital, where an officer suspected Murry had been DUI of alcohol. At the hospital, the officer asked Murry to consent to a blood alcohol test. Murry replied, "I don't know what's going on, I'm starting to fade." A sample of blood was taken from Murry, despite the lack of consent and despite the fact he was not under arrest at the time. Murry filed a motion to suppress the blood sample evidence, arguing he had not consented and he had not been under arrest at the time the blood sample was taken. The trial court granted the motion. On appeal, the Supreme Court applied a three-part test in order to determine whether blood alcohol evidence can be taken from a suspect without a warrant. The three requirements are: (1) there must be exigent circumstances in which the delay necessary to obtain a warrant would threaten the destruction of the evidence, (2) the officer must have probable cause to believe that the suspect has been DUI, and (3) the procedures used to extract the blood must be reasonable. The Court held the test was met, which is also the same test for taking BAC sample following an accident.
ADMISSIONS—ACCIDENT INVESTIGATION- 20 MINUTES
State v. Almond 15 Kan. App. 2d 585, 811 P.2d 529 (1991)
The Court of Appeals holds a pre-arrest inquiry during an accident investigation in which defendant admitted to drinking does not rise to the level of custodial interrogation requiring a Miranda warning. The Court cites Berkemer v. McCarty, 468 U.S. 420, 82 L.Ed.2d 317, 104 S.Ct. 3138 (1984), for the proposition there is no custody until after an arrest, and statements made prior to that time are admissible. Further, the Court notes under 8-1604, 1611 and 1612 defendant had a duty to provide information about the accident. The Court also finds sufficient foundation for admission of the breath test where the officer and the machine were certified, even though the officer had not actually read the operator‘s manual. The fact the officer did not wait 20 minutes after defendant had belched was not critical, since the Intoxilyzer 5000 would have indicated a high mouth alcohol content. The Court also finds no deficiency in the fact there was no testimony equating his breath test result with the statutory definition, finding the statutory presumption in 8-1005 of .10 was met by defendant‘s test results of .172. (Shawnee, 65429, 5/24/91)
86
GENERAL ON-THE-SCENE QUESTIONING NOT SUBJECT TO MIRANDA WARNINGS
State v. Price 233 Kan. 706, 664 P.2d 869 (1983)
Sheriff‘s officers found an abandoned vehicle overturned in a ditch with scuff marks leading from the road to the vehicle. Approximately three miles down the road the defendant was found walking away from the accident scene. He had blood on his face. An officer took the defendant back to the scene and asked him how the accident occurred. The defendant told the officer he had been drinking prior to the accident, had fallen asleep and had run off the road. Based upon the admissions, the officer asked the defendant to submit to a field sobriety test. Based upon the defendant‘s poor performance on the field sobriety test he was placed under arrest for driving under the influence of alcohol. A breath test showed the result of .27%. The defendant filed a motion to suppress his statements because no Miranda warnings were given. The trial court overruled the motion and the Supreme Court affirmed the trial court‘s ruling stating Miranda warning are required only where there is custodial interrogation by police officers. On-the-scene questioning of citizens in the fact finding process does not constitute custodial interrogation and would therefore not require a Miranda warning. The officer‘s questions which were necessary to complete an accident report were routine and were not accusatory in nature. Until a person is in legal custody or deprived of his freedom in a significant way, Miranda warnings do not apply. The defendant did not become the focus of an investigation until his performance on the field sobriety test indicated he would be arrested for DUI. The defendant maintained that the prior PIK instruction 70.02 which used the words ―you shall presume‖ instead of ―you may presume‖ operated to create a conclusive presumption hence was unconstitutional. The Court holds 8-1005 merely creates a permissive presumption, which can be rebutted, and the wording of the instruction did not operate to change that presumption. The defendant also failed to object to the instructions, hence no reversal unless the instructions were clearly erroneous, and the Court found they were not. The defendant also challenged the sufficiency of the evidence of DUI, since he was not observed driving, and since there was no proof of his BAT at the time of the operation of the vehicle. The Court found this was in question of fact, resolved against him by the jury, and in this case, the court deferred to the jury.
87
***UNPUBLISHED CASES***
PASSENGER ADMITS DRIVING AND DRINKING
State v. Dillon 231 P.3d 1085, 2010 WL 2503000 (2010)
***UNPUBLISHED***
Officers were dispatched to a crash. During the investigation the passenger indicated that he and the defendant had consumed a couple of beers but that the defendant was not intoxicated. The defendant was transported to the hospital where the implied consent was read and agreed to by the defendant. BAC indicated 0.13. The District Court found the officer had reasonable suspicion to request a blood draw because of the information the defendant had been involved in a crash and the information provided by the passenger. The defendant appeals claiming LEO lacked reasonable grounds to request testing. The Court of Appeals looked to Poteet v. Ks. Dept. of Revenue 222 P.3d 564 (2010) in which medical personnel informed the officers of alcohol use by the driver. In this case Officers knew the defendant had been in a crash and the passenger indicated they had been drinking. These facts would lead any reasonably prudent law enforcement officer to believe that drinking may have contributed to the crash. SFSTs were not warranted because of the driver‘s injuries and therefore there was reasonable information to request the test. Affirmed.
DUTY OF DRIVER TO PROVIDE INFORMATION
State v. Custer 218 P.3d 814, 2009 WL 3738494 (11/06/09)
***UNPUBLISHED***
Officers found the defendant lying in a field at a crash site. The officers asked if the defendant was the driver and if he was injured. The driver admitted being the driver and was later charged with DUI. The defendant requested a motion to suppress his statements at the crash scene. The appellate court notes: ―The State has placed the duty on all drivers of vehicles involved in accidents to provide information regarding the facts and circumstances of the accident. Law enforcement officers routinely investigate accidents and insure proper reports are filed. Here the officers were performing their duty when obtaining the information necessary for the accident report. Police officers traditionally investigate the scene of accidents and during such investigation obtain information from individuals not under restraint. General on-the-scene questioning as to the facts surrounding the cause of the accident or other general questioning of citizens in a fact-finding process is not affected by Miranda.‖ The court did not error by allowing admission of the statements. There also was a review dealing with sufficiency of the evidence and fines assessed.
NO REASONABLE SUSPICION TO REQUEST-TOTALITY OF THE CIRCUMSTANCES
State v. Brown 216 P.3d 731, 2009 WL 3172776 (10/02/09)
***UNPUBLISHED***
Officers arrived at the scene and observed a vehicle missing the front passenger side tire and it appeared the vehicle had sustained ―side-swipe type damage,‖ and yellow paint
88
transfer. The defendant claimed he was the driver. While speaking with him the officer could detect an odor of alcohol but the defendant denied drinking; he failed also to give a reason for the crash. The defendant indicated he had not been injured and the officer did not see blood or other injuries. The defendant was asked to take SFST‘s which he did and failed. The defendant argued at a suppression hearing there was no reasonable suspicion justifying the officers‘ decision to administer the tests to him. The defendant did not dispute the officers had a right to detain him for the purpose of investigating the crash. Reasonable suspicion depends on the totality of the circumstances. The court noted State v. Evans 711 N.E.2d 761 (Ohio 1998): factors to consider: time, day and location of stop, erratic driving, report of intoxication, eyes, speech, odor of alcohol, demeanor, lack of coordination, admission of alcohol consumption and officer‘s previous experience with drunk driving. In this case based on the totality there was substantial competent evidence to believe the defendant was operating a vehicle under the influence. The decision to expand the scope of the investigation to include SFST‘s was warranted.
REQUIREMENT OF DRIVER—SHIFTING OF INVESTIGATION
City of Norton v. Ward 177 P.3d 1011, 2008 WL 624587 (2008) ***UNPUBLISHED***
Ward rounded a corner too fast, struck a curb, and turned his vehicle on its side. He climbed out of the vehicle and went to a friend's house in the area. Passer-by reported to the police someone had run from the accident scene and was hiding. An officer arrived at the scene and a few moments later Ward returned to the scene on foot. Ward told the officer he was the driver of the vehicle and he had left the scene and went to a friend's house. During the conversation the officer detected a strong odor of alcoholic beverage and noted Ward's eyes were blood shot. It was determined Ward was 20 years old and had indicated to the officer he had drank six or seven beers. The officer testified he considered Ward to be under arrest when he smelled an odor of alcohol, he was 20 years old, and he was going to the Sheriff's office for MIP. The officer specifically denied telling Ward he was under arrest. The officer's report however indicated he told Ward he was under arrest for DUI. At the scene the officer requested Ward to submit to a PBT. The officer gave him the three-part warning and the results indicated he was .08. No other field sobriety tests were conducted. The breath test indicated a BAC of .174. The officer then read Ward his Miranda rights and agreed to be question. Ward first contends these statements made at the accident scene should be suppressed. The Court noted when the defendant approached the wrecked vehicle the officer was justified in investigating the collision by asking the defendant certain preliminary or investigating questions. However the nature of the contact between the officer and the defendant began to shift when the officer noted the smell of alcohol and his blood shot eyes. The Court reviewed a number of traffic statutes, K.S.A. 8-1604 requiring driver‘s duty to provide certain information after a collision, K.S.A. 8-1611 the requirement for law enforcement officers to complete vehicle accident reports, K.S.A. 8-1612 directing the Department of Transportation to prepare and supply accident report forms to law enforcement officers. In all the cases reviewed by the Appellate Court the officer's questions were focused on the cause and circumstances of the vehicular accidents rather than accusatory questions more typical of custodial criminal interrogations. Ward's motion to suppress the statements, which indicate any person who operates or attempts to operate a vehicle within the state is deemed to have given consent to testing, included but not limited to a PBT. Legislative intent for that provision was to supersede State v. Jones 283 Kan. 186 (2007), decision in an act implied consent
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provisions for PBTs not to oppose all the notices and conditions required for tests admissible in court on PBTs. The Appellate Court stated the District Court did not err in failing to suppress the results of the PBT. The last issue Ward claims officer lacked probable cause to arrest him. In a DUI case the answer to the probable cause to arrest question depends on the officer's factual basis for concluding the defendant was intoxicated at the time of the arrest. Ward's incriminating statements at the accident scene, the results of the PBT, coupled with the officer's knowledge of the accident, and his determination Ward exhibited signs of drinking alcohol support a reasonable belief Ward had committed a DUI. Given the totality of the circumstances the officer had sufficient probable cause to arrest Ward. Affirmed.
CO-CONSPIRATOR/PASSENGER STATEMENTS-CRAWFORD
State v. Hagar 165 P.3d 320, 2007 WL 2410114 (2007) ***UNPUBLISHED***
Officers were dispatched to a hit and run accident. Upon arrival, they observed a vehicle had struck a building and discovered it was registered to Hagar. Officers then went to Hagar's address to further investigate the accident. A very short period of time had elapsed between the call coming in and them arriving at the house of Hagar. Biery answered the door of Hagar's residence. Biery eventually stated Hagar was the driver of the vehicle. Hagar then appeared at the doorway holding a half-gallon bottle of Vodka, which was half full. Biery was taken to the police station and given Miranda warnings. Biery gave a detailed statement. Later at a motion to suppress hearing Biery testified he had no memory of the incident. Both the State and Hagar stipulated Biery had no memory of any of his statements to the officers. Hagar filed a Motion in Limine arguing Biery's statements should be excluded under Crawford. Hagar contended Biery's lack of memory made Biery unavailable and that Biery's testimonial statements to the officers could not be subjected to cross-examination. The State argued Biery's statements were admissible as excited utterance or coconspirator statements. The State also argued the statements were admissible as res gestae evidence. The Trial Court eventually agreed with the State and allowed the statements of Biery to be admitted as evidence. Upon appeal Hagar contends Biery's statements to officers were testimonial and violated the confrontation clause under the sixth amendment. The Court noted State v. Henderson 284 Kan. 267 (2007). The Supreme Court held the test to be applied in determining whether a statement is testimonial is "an objective, totality of the circumstances test to determine the primacy purpose of the interview". The evidence in the case shows the primary purpose of the officers questioning of Biery was to establish what had previously occurred in the hit and run accident. This information would be potentially relevant to a later criminal prosecution. In applying the objective totality of the circumstances test from Henderson the Court concluded that Biery's statements made before his arrest was testimonial. In reviewing Biery's statement as a coconspirator the Court noted a coconspirator statement can be admitted into evidence under the exception to hearsay rule, however the statement must establish the following 1) the defendant and the declarant were participating in a plan to commit a crime or civil wrong; and 2) the statement was relevant to the plan or its subject matter; and3) the statement was made while the plan was in existence and before its complete execution or other termination. Review of the facts indicated Biery's statement was the only direct evidence Hagar had consumed alcohol before the accident. Biery's statement also showed Hagar was driving erratically just before the accident indicating Hagar was in an impaired condition. The Court could not say beyond a reasonable doubt the erroneous admission of Biery's
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statements had little if any likelihood of having changed the results of the trial. Reversed and remanded.
ALLEN INSTRUCTION—QUESTIONS—LESSER INCLUDED
State v. Trejo 137 P3d 1094, 2006 WL 1976743 (2006)
***UNPUBLISHED***
Trejo appeals his conviction of involuntary manslaughter in the commission of DUI. On appeal, Trejo argued the trial court erred in giving PIK Crim.3d 68.12, the Allen instruction, to the jury before it began deliberations. The Allen instruction states ―[l]ike all cases, it must be decided sometime.‖ Trejo did not object to the instruction during the jury instruction conference or before the jury retired. Because the Kansas Supreme Court has consistently upheld the Allen instruction prior to jury deliberations starting, the court was bound to follow the precedent and rejected Trejo‘s argument. On appeal, Trejo also argued answers given to the jury in response to questions were confusing. During trial, the jury asked: (1) ―We would like to know if there are three charges or four charges,‖ and (2) ―Do we vote for both of them, Count I and Alternative Count II?‖ The trial court answered: (1) ―There are four charges, but only three require a jury decision,‖ and (2) ―The answer to this question can be found in Instruction Number 22,‖ which provides that each charge is a separate and distinct offense and that the defendant may be convicted or acquitted on any or all of the offenses charged. Neither the State nor Trejo objected to the trial court‘s proposed responses to the jury questions. The court found as to question (1) while the response may have been a misstatement of law, reversal was not required because there was no real possibility the jury would have reached a different verdict. On question (2), the court found the response followed the PIK committee recommendation an alternative charges instruction not be given and the jury should be free to enter a verdict on all the charges. Trejo failed to establish the trial court‘s responses were clearly erroneous or he was prejudiced by any error that may have occurred. Trejo raised the issue of whether involuntary manslaughter-reckless driving is a lesser-included offense of involuntary manslaughter-DUI. The court held involuntary manslaughter-reckless driving is not a lesser-included offense of the involuntary manslaughter-DUI. Finally, Trejo contended the trial court erred by denying his motion to suppress statements made at the scene of the accident. The court affirmed the trial court, finding the purpose of Trejo‘s ―detention‖ at the scene of the accident was for medical attention, not law enforcement investigation; therefore, law enforcement was not required to Mirandize him.
CONTRIBUTORY NEGLIGENCE—CLOSING ARGUMENT—VERACITY OF WITNESS
State v. Perez 130 P.3d 593, 2006 WL 768904 (2006)
***UNPUBLISHED***
Perez was charged with involuntary manslaughter while driving under the influence of alcohol after the truck he was in struck a van driven by Tina Rogers, resulting in her death. Rogers‘ blood was tested and found to contain cocaine, opiates, and barbiturates, while Perez had a .18 BAC. The State filed a motion in limine to exclude mention of Rogers‘ blood tests, which was granted by the court. Perez was convicted and appealed, claiming the exclusion was improper. The court found the challenge without merit. Although negligent conduct can be an intervening factor in the cause of death in a case of involuntary manslaughter while DUI, Perez made no claim at trial the accident was the fault of
91
Rogers, leaving the only issue to be whether he was driving. Perez also claimed prosecutorial misconduct, based on comments in closing attacking the credibility of a defense witness. The prosecutor urged the jury to not believe the witness based on physical evidence. The court found the prosecutor was properly contradicting the witness‘s statements with the physical evidence, and urging the jury to rule in the State‘s favor. This is permitted as long as personal opinion is not interjected. Affirmed.
CONFLICTING STATEMENTS—CONSUMPTION OF ALCOHOL
State v. Guinn 124 P.3d 1084, 2005 WL 3527080 (2005)
***UNPUBLISHED***
Deputy responded to possible injury accident. Found pickup off roadway stuck on a fence and gate on a rural road. Guinn, with a small 2-year-old child, approached and asked for help getting the truck off the fence, and admitted he had been driving. His speech was slurred, he was unsteady, and there was an odor of alcohol. Upon investigation, the Deputy found a half full bottle of whiskey in Guinn‘s coat. Guinn failed the HGN and one-leg stand tests. He failed them again at the jail, and blew a .153 on the intoxilyzer. In a post arrest interview, after Miranda, he admitted to driving again, and he had consumed the whiskey before the accident. At trial, Guinn‘s daughter testified she had been driving, and walked away to find help, and Guinn denied ever driving. He challenged his conviction for DUI on grounds there was insufficient evidence he was driving, and the State failed to prove whether the alcohol was consumed before or after the accident. The district court found his statements to the officer at the time of the incident was enough circumstantial evidence of both. Viewing the evidence in the light favorable to the prosecution, this court affirmed. However, the intoxilyzer evidence was irrelevant because the State did not prove it was used within two hours of the accident.
PROBABLE CAUSE TO ARREST
State v. Spoon 90 P.3d 378, 2004 WL 1176688 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction and held probable cause existed to support defendant's arrest. A Hays police officer was dispatched to investigate an automobile accident in the Applebee's parking lot. He was advised a driver may be trying to leave the scene of the accident. The officer observed a Jeep with severe damage to its front end turning out of the Applebee's parking lot. Parts of the vehicle were hanging and falling off the damaged front portion of the Jeep. A man was running behind the Jeep and pointing at it. The officer yelled at the driver of the Jeep to stop, followed the Jeep, and turned on his overhead lights. The Jeep stopped behind another vehicle at a stop sign. The officer approached the Jeep and found Spoon in the driver's seat and a woman sitting in the front passenger seat. The officer asked Spoon where he was going, whether he knew he had been involved in an accident, and whether he was attempting to leave the scene of the accident. Spoon did not respond and stared straight ahead. As the officer continued to ask Spoon if he had been involved in the accident, he smelled a strong odor of alcohol coming from the car and asked Spoon to step out of the Jeep. After Spoon exited the Jeep, the officer smelled a strong odor of alcohol coming from Spoon and noted Spoon's bloodshot eyes. The officer asked Spoon to perform the first of the field sobriety tests, the walk and turn test. Spoon received a failing score, but told the officer this was
92
due to problems with his knees. Spoon failed the test a second time. The officer decided not to administer the one-leg stand test due to the road conditions and Spoon'scondition. Spoon refused to submit to a preliminary breath test. Spoon was arrested for DUI. In a pretrial suppression motion, Spoon challenged probable cause to arrest. At the hearing, the arresting officer stated he relied most heavily on the strong odor of alcohol, Spoon's demeanor, and his difficulty in moving around. The officer believed Spoon's difficulty in moving was a result of his intoxication, and he did not take into account Spoon's refusal to take the preliminary breath test into deciding to arrest him. Spoon lost the suppression motion, and raised the same issue on appeal following his conviction. The Court stated there was probable cause for the arrest and the trial court properly refused to suppress evidence obtained after Spoon‘s lawful arrest.
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F. Impairment
***PUBLISHED CASES***
PRELIMINARY HEARING—PROBABLE CAUSE—RECKLESSNESS
State v. Robinson 267 Kan. 734, 987 P.2d 1052 (1999)
The Supreme Court reversed the district court dismissal of information charging the defendant with reckless aggravated battery. The Court held (1) the State introduced sufficient evidence to bind defendant over for trial, (2) the State does not have to prove recklessness at the preliminary hearing stage; it must, however, present some evidence of recklessness to support a charge of reckless aggravated battery, and (3) although intoxication cannot be the sole evidence of recklessness, intoxication may, among other factors, be evidence of reckless behavior. At preliminary hearing, the State presented evidence defendant ran stop sign at major intersection and collided with automobile having right-of-way, that passenger in automobile driven by defendant sustained serious injuries, and defendant's blood alcohol level two hours after accident was over twice the legal limit. The Court noted intoxication of the defendant, although not exhaustive, was evidence of recklessness, and the State presented sufficient evidence of recklessness to bind the charge of reckless aggravated battery over for trial.
OPINION—SEARCH INCIDENT TO ARREST—SUFFICIENCY OF EVIDENCE
City of Dodge City v. Hadley 262 Kan. 234, 936 P.2d 1347 (1997)
The Supreme Court reversed the Court of Appeal‘s dismissal of an appeal and affirmed the district court‘s convictions for DUI and open container. The Court of Appeals had dismissed the defendant‗s appeal as untimely. The Supreme Court held (1) defendant's failure to timely file appeal did not preclude appellate jurisdiction; (2) police officers could properly give expert testimony regarding whether defendant was intoxicated; (3) search of defendant's truck incident to arrest was proper; (4) defendant's arrest was supported by probable cause; and (5) evidence was sufficient to support conviction. Defense counsel failed to timely file notice of appeal, because attorney believed appeal could not be filed until journal entry of conviction had been filed and sentencing had occurred. The Supreme Court held Defendant's failure to timely file appeal did not preclude exercise of appellate jurisdiction over his appeal in DUI case, where untimely filing was due to mistake of defense attorney. The Court also held that officer‘s could testify regarding defendant's intoxication and his ability to safely operate motor vehicle. The officers did not express opinion defendant was guilty, case was tried without jury, and testimony was based on officers' personal observations of defendant and their expertise as police officers. Regarding the search incident to arrest, the Court furthered even though defendant was in handcuffs at time of search, search was proper for purpose of discovering instrumentalities or evidence of DUI. The Court also found sufficient probable cause to arrest, in that defendant smelled strongly of alcohol, his speech was slurred, he almost fell getting out of his truck and had difficulty trying to perform failed sobriety test, and officer had received complaints defendant had behaved in disorderly manner and was seen driving pickup truck. Lastly, the
94
Court found sufficient evidence to support conviction. Court of Appeals reversed and district court was affirmed.
HEARSAY—DECLARATION AGAINST INTEREST—INTOXICATION—SPECIFIC
INTENT—HARMLESS ERROR
State v. Cooper 20 Kan.App.2d 759, 892 P.2d 909 (1995)
The Court of Appeals affirmed a jury conviction of theft. At trial, district court had denied defendant's motion to admit his statement made to police on night of arrest. On appeal, the Court of Appeals held (1) defendant's statement he was intoxicated did not constitute declaration against interest as it was not that a reasonable person in defendant's position would not have made statement unless it was true; (2) defendant had failed to establish sufficiently his trustworthiness as would allow admission of statement under hearsay exception; and (3) any error by trial court in refusing admission of statement was harmless in light of overwhelming evidence of defendant's guilt. Defendant appealed conviction based on district court's excluding evidence of defendant's out-of-court statement he was intoxicated at the time of his arrest. Defendant contended his pre-arrest statement to the police he was intoxicated was a declaration against his interest and was admissible as an exception to the hearsay rule under KSA 60-460(j). Defendant claimed this statement would have helped prove his intoxication prevented him from knowing the car was stolen when he acquired possession of it. Court of Appeals denied the appeal, denying contention that statement satisfied reliability requirements of hearsay exceptions. Also, the Court ruled any exclusion, if in error, was harmless based upon weight of evidence against the defendant. Officer testified defendant was the only occupant in the car after a high-speed chase with the police, and defendant was coherent and functioning properly at the time of the arrest. Furthermore, emergency personnel determined defendant was conscious and coherent enough to have him sign a refusal of medical treatment form. And importantly, the only evidence before the jury of defendant's intoxication was officer‘s statement defendant had an odor of alcohol on his breath, but such odor was not enough to warrant a DUI investigation. Affirmed.
IMPAIRMENT—LEGISLATIVE INTENT
State v. Arehart 19 Kan. App. 2d 879,878 P.2d 227 (1994)
The Court of Appeals construes the legislative intent behind 8-1567, and holds it applies to driving while intoxicated to the extent the driver cannot drive safely. This is a minimum standard and the trial court‘s application of a different standard (one drink impairs to the extent a driver is no longer driving safely) was contrary to the minimum standard. The Court notes facts relied on: smell of alcohol, difficulty walking, and making a wide turn out of a parking lot, may have been sufficient to conviction under the proper standard, but the trial court‘s application of the wrong standard requires reversal. (The BAT result of .204 was no help because the trial court dismissed the per se count due to errors in administration of the breathalyzer).
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ABSOLUTE LIABILITY—INTENT NOT REQUIRED
City of Wichita v. Hull 11 Kan. App. 2d 441, 724 P.2d 699 (1986)
The Court of Appeals construes a city ordinance similar to 8-1567 and finds it is an absolute liability offense, hence no error in failing to admit evidence on the issue of intent. Likewise, there is no defense or involuntary intoxication from an alleged use of medication, where the facts show the defendant‘s actions were voluntary, and to recognize such a defense would jeopardize the effectiveness of DUI statutes. (Sedgwick, 58713, 9/11/86)
IMPAIRMENT IS NOT AN ELEMENT OF DUI
State v. Reeves 233 Kan. 702, 664 P. 2d 862 (1983)
The requirement of impairment of mental or physical is not an element of K.S.A. 8-1567, but is only a definition of ―under the influence of alcohol‖. The definition should be given as a separate instruction from the instruction on the elements of the offense.
ERRATIC DRIVING NOT REQUIRED TO PROVE DUI
State v. Mourning 233 Kan. 678, 664 P.2d 857 (1983)
To prove someone is driving under the influence of alcohol requires the State to prove the defendant‘s physical capacity to function is impaired by alcohol or drugs to the extent he is no longer capable of safely driving the vehicle. It is unnecessary to prove, in addition, the vehicle was being driven in a reckless manner. Such driving may constitute circumstantial evidence the driver was under the influence of alcohol. ―One does not need to swerve all over the road or drive through another‘s yard to be guilty of driving under the influence of alcohol or drugs. A person under the influence of alcohol may actually drive in a straight line in the proper lane of traffic down the street although incapable of safely operating the vehicle in accordance with traffic regulations that may be encountered.‖ Reckless driving is not a lesser included offense of driving under the influence of alcohol and/or drugs as provided in K.S.A. 8-1567.
STATE MUST SHOW IMPAIRMENT
City of Topeka v. Martin 4 Kan. App. 2d. 218, 604 P.2d 73 (1979)
Requires impairment of mental or physical function to the extent defendant is incapable of safely driving a vehicle as a minimum standard to sustain a DUI conviction.
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DRUNK/INTOXICATED NOT STATUTORY
State v. Grimes 193 Kan. 294, 392 P.2d 926 (1964)
K.S.A. 8-1567 makes it illegal to drive any vehicle within the State of Kansas while under the influence of alcohol and/or drugs. The statute does not require a person to be ―intoxicated‖ or ―drunk‖ as those terms are commonly understood. Kansas cases have long held the effects of intoxicating liquor are the determining factor in DUI cases, not whether the defendant was drunk, or intoxicated. See also State v. Hayden, 126 Kan. 799, 271 Pac. 291 (1928); Thornton v. Franse, 135 Kan. 782, 12 P.2d 728 (1932); State v. Spohr, 171 Kan. 129, 230 P.2d 1013 (1951).
―DEAD DRUNK‖ – ENDANGER OTHERS
State v. Ketter 121 Kan. 516, 247 P.430 (1926)
The DUI statute at trial read ―under the influence of intoxicating liquor‖. The defendant argued the statute does not differentiate between one slightly intoxicated and one ―dead drunk‖. The court indicated it prohibits one from driving an automobile who is only slightly under the influence of intoxicating liquor, because his action may endanger others.
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***UNPUBLISHED CASES***
UNEXPLAINED DAMAGE—SUBSTANTIAL EVIDENCE
State v. Long 176 P.3d 250, 2008 WL 440789 (2008) ***UNPUBLISHED***
Long is appealing his denial of his motion for judgment of acquittal on his conviction for DUI. Long argues the District Court erred in its interpretation of the elements required for conviction of DUI under K.S.A.8-1567(a) (3). Long implies the State failed to prove he consumed alcohol prior to driving. There was no proof he was DUI while driving or his ability to drive safely was impaired. In the present case the Court found all the circumstantial evidence pointed to and showed Long had been DUI. There was substantial evidence Long was under the influence, he smelled strongly of alcohol, he had blood shot eyes and his speech was slurred. There was extensive damage to Long's vehicle and there was no explanation as to what was the cause of the accident other than Long driving in an unsafe manner causing the accident. The fact he drove five miles after the initial serious accident is a further indication he was driving an unsafe vehicle while in an unsafe condition. There was clearly substantial competent evidence. Affirmed.
LAY WITNESS OPINION –OFFICER CAN USE FOR PROBABLE CAUSE TO ARREST
City of Concordia v. Jones 141 P.3d 1199, 2006 WL 2595300 (2006)
***UNPUBLISHED***
Defendant Jason Jones was convicted of DUI after a bench trial in Cloud District Court. The appeal filed by Defendant alleges the District Court erred in finding probable cause at the Defendant‘s suppression hearing. Both the Defendant‘s wife, Deena Jones, and the arresting officer testified at the hearing. Deena testified Jason violated a restraining order in coming to her home, and when he arrived, his eyes were ―hazed over and glossy,‖ his speech was slurred, and he ―reeked of alcohol.‖ Deena called the police, and reported she felt he was intoxicated. When Officer Shawn Dillon arrived, he observed the running lights or headlights were illuminated on the vehicle which Jason was alleged to have driven. The Officer knew from experience the lights on the vehicle turn on after the vehicle is started, and turn off after a short time after. Officer Dillon found the Defendant, and had him perform two field sobriety tests. The Defendant failed both. Officer Dillon then asked the Defendant to take the PBT, and he did, blowing a .175. Officer Dillon placed the Defendant under arrest. The Court of Appeals considered the information provided by the Defendant‘s wife, and Officer Dillon‘s testimony in reaching a decision to affirm the District Court‘s ruling of probable cause. Key legal points include the finding that either failing the field sobriety tests, or failing the PBT would provide probable cause for arrest, and a person who is the wife of a defendant for a substantial period of time can give lay opinion at trial, and therefore an officer of the law can rely upon that opinion in order to continue or begin an investigation into a potential DUI.
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DRE PROTOCOL—NOT SCIENTIFIC
State v. McHenry 136 P3d 964 2006 WL 1816305 (2006) Rev. Den. (2006)
***UNPUBLISHED***
McHenry was driving a semi-tractor trailer that collided with a car, killing one of the passengers. Trooper Turner, who is a certified DRE officer, was involved in the investigation of the accident and administered a DRE protocol to evaluate whether McHenry was under the influence. Turner suspected McHenry was impaired and confronted McHenry with his suspicions. McHenry admitted to taking cocaine the day before the accident. McHenry was convicted of vehicular homicide. On appeal, McHenry argued there was insufficient evidence to support his conviction. The court found there was sufficient evidence to support the conviction, as under the totality of the circumstances, McHenry‘s driving was a material deviation from the standard of care which a reasonable person would observe under the same circumstances. McHenry further argued the trial court abused its discretion when it allowed Turner to testify as to whether McHenry was incapable of driving safely and the trial court violated K.S.A. 60-456(b)(2), because Turner‘s testimony failed to comply with the Frye standards. At trial, Turner was limited to testifying about the kind of symptoms different drugs elicit in a human body and what symptoms he was McHenry exhibit. He was not allowed to testify based on his DRE knowledge and training; he believed McHenry was under the influence of a specific drug. The court held evidence offered by Turner related to the DRE protocol did not constitute scientific evidence requiring the Frye standard. Turner‘s testimony offered his observations of McHenry‘s acts, conduct and appearance. This is identical to a DUI investigation. Turner also offered his opinion on McHenry‘s state of impairment based on those observations. He did not, however, give an opinion based on scientific evidence McHenry was under the influence. Instead, the toxicology report was the evidence the State presented showing McHenry was under the influence of cocaine. Affirmed.
BAT REFUSAL—VIDEO RECORDING—SUFFICIENCY OF THE EVIDENCE
State v. Crank 95 P.3d 135, 2004 WL 1784575 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a DUI conviction. Crank argued on appeal a videotape of his actions directly after his arrest should not have been allowed by the trial court in that it did not tend to prove at the time of driving he was incapable of driving safely. The Court ruled the trial court did not abuse its discretion in allowing in the videotape. After Crank was originally arrested for DUI, based on his driving, his behavior, and his refusal to submit to sobriety tests, Crank was taken to the sheriff's department after waiting approximately 15 minutes for a tow truck. At the sheriff's department, a video camera recorded Crank's behavior of cursing, not paying attention, and repeating himself. Crank also refused testing. Crank was charged and convicted of DUI. The jury was allowed to see the video tape, which had been redacted to remove references to Crank‘s previous DUIs. On appeal, Crank argued the evidence was insufficient to establish he was incapable of safely driving a vehicle and the trial court committed reversible error by allowing into evidences the videotape made at the sheriff's office. Crank argued his condition after his driving was not relevant because it does not tend to prove at the time of driving he was incapable of driving safely. The Court ruled the trial court did not abuse its discretion in allowing in the videotape. The Court noted the videotape was recorded approximately 15 to 20 minutes after his arrest and was relevant to his demeanor, condition, and ability to safely operate a vehicle. Based on the tape, and all the other evidence, the Court denied Crank‘s appeal.
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EVIDENCE OF INTOXICATION—SUFFICIENCY OF THE EVIDENCE
City of Liberal Kansas v. Chappell 90 P.3d 378, 2004 WL 1176594 (2004)
***UNPUBLISHED***
Around midnight on September 1, 2001, Robert Mesa was in his backyard socializing with neighbors when he heard the sound of a car crash. Upon investigating, Mesa observed Chappell's car "crashed up against" a parked truck, with Chappell in the driver's seat attempting to start the engine. Chappell was bleeding profusely and offered to pay Mesa for the damage to the truck. Upon determining the car would not start, Chappell began to walk away from the scene. When law enforcement officers arrived, they located Chappell laying under a parked car a couple of blocks away. Upon being apprehended, Chappell denied being involved in a traffic accident but admitted to drinking alcohol. According to the testimony of the arresting officer, Chappell smelled of alcohol, had bloodshot eyes, and had slurred speech. Because of Chappell's condition, neither field sobriety tests nor a preliminary breath test were performed, and Chappell refused a blood test. Chappell's vehicle contained multiple cans of beer, some of which might have been forced into the passenger compartment from the trunk due to the force of the impact. Some of the beer, however, was found in the front passenger floorboard area, and one can was open, was still cool to the touch, and contained a small amount of what appeared to be beer. The City of Liberal cited Chappell with DUI, transporting an open container, leaving the scene of an accident, and a seatbelt violation. Chappell was convicted in municipal court of DUI, transporting an open container, and leaving the scene of an accident, but he was acquitted of the seatbelt violation. Chappell appealed the case to the district court. In closing argument, defense counsel admitted "there is in the car by Officer Rogers' testimony, one can that appears to have been opened during normal operations of someone opening a can of beer and then drinking it." The district court conducted a trial de novo and found Chappell guilty of DUI and transporting an open container but acquitted Chappell of leaving the scene of an accident. On appeal, the Court concluded there was sufficient evidence to support the convictions of DUI and transporting an open container.
NO TESTING—QUESTIONS BY JURY
State v. Henderson 83 P.3d 1270, 2004 WL 292122 (2004)
***UNPUBLISHED***
Henderson was charged with DUI. Henderson was operating the pickup truck at all times, he struck two parked cars in the club parking lot, drove recklessly away from the scene, attempted to evade police, committed a number of traffic violations, smelled of alcohol, and admitted drinking several beers that evening. The fact Henderson refused to perform field sobriety tests or a breathalyzer test. The officer was allowed to state his opinion, over objection, that Henderson was sufficiently under the influence to be impaired and unable to safely operate a vehicle. Henderson argues there was insufficient evidence to support his conviction. While the jury did send out a question asking whether field sobriety tests or breath tests were required to convict Henderson for DUI, this does not establish the jury concluded there was insufficient evidence. To the contrary, after the jury was advised to simply reread the DUI elements instruction, it found Henderson guilty. This only establishes the jury believed there was enough evidence to show impairment, even without the testing. The court also found the opinion testimony was appropriate. There was a question concerning ID of driver but the court found sufficient information was available for the jury to convict. There was also a Batson challenge that was denied. Affirmed.
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FRYE—IMPAIRMENT—SUFFICIENCY OF EVIDENCE
State v. Foiles 2003 WL 21947332 (2003) Rev. Den. (2003)
***UNPUBLISHED***
The Court of Appeals reversed convictions for reckless involuntary manslaughter, aggravated battery, and DUI of drugs. The Court held expert testimony a person with a drug screen showing a particular concentration of inactive metabolites from marijuana would be impaired in operating motor vehicle by residual effects of chronic marijuana use was inadmissible under Frye analysis, and the evidence was insufficient to show recklessness with respect to involuntary manslaughter and aggravated battery charges. At trial, Dr. Scanlan testified Foiles' drug screen of 730 nanograms meant he was a chronic or heavy marijuana user. Dr. Scanlan testified even if an individual ceases marijuana use, there are residual effects that affect visual and spacial awareness, cognitive function, memory, and eye-hand coordination. Dr. Scanlan stated the impairment caused by chronic marijuana use would render Foiles incapable of safely operating a motor vehicle. The Court of Appeals held this testimony violated the Frye standard, because the expert knew of no studies on how various levels of inactive metabolites from marijuana affected a person's driving. The Court also found insufficient evidence regarding recklessness to affirm the convictions for reckless involuntary manslaughter and aggravated battery without the expert testimony and considering all who came into contact with the defendant after the accident testified there was no reason to believe he was impaired, and the record showed only that defendant ran a stop sign.
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2) Officer Contact
A. Opinion Evidence
***PUBLISHED CASES***
FRYE REQUIRED FOR 68% STATISTIC-TESTS-PASS/FAIL
State v. Shadden --- P.3d ----, 2010 WL 2696967 (07/09/10)
Defendant stopped for DUI. The officer requested defendant to perform some SFSTs. The video was unable to record defendant‘s performance. The officer had defendant perform the walk and turn test. The defendant exhibited all 8 clues. Because of the grade of the road the officer did not have the defendant perform the one leg stand. Other tests such as the alphabet test, counting test and finger-to nose test were performed. All tests indicated intoxication. The Defendant refused the breath test after arrest. Defendant filed a motion in limine to preclude the officer from referring to the field sobriety exercises as tests. Defendant conceded the officers testimony related to his performance on the tests were admissible; however, the fact he ―passed or failed‖ the tests were unfairly prejudicial. The Supreme Court in reviewing the COA decision concurred in determing it was appropriate for the officer to testify field sobriety tests were administered and based upon the officer‘s training and experience, the driver failed those tests. The agreed with the COA it is impermissible to take the additional step of equating a level of certainty or probability to the officer‘s opinion or to correlate the driver‘s performance with a specific BAC level. The officer had testified according to NHTSA standards a driver who exhibits two clues during the walk and turn test has a 68% likelihood of having at least a 0.10 BAC. The court determined the officer was not qualified to testify about the reliability of the NHTSA standards and no expert testimony was provided to qualify the NHTSA standards under Frye. There was an issue of prosecutorial misconduct. The defendant alleged the prosecutor violated a previous order of the court relative to the officer stating his opinion. Both courts agreed this is well established in Kansas if a proper foundation is laid, the officer can testify that a person at the time of driving was intoxicated. The COA reversed the conviction however the Supreme Court said the information about equating the BAC level to physical signs of impairment was Harmless-no reversal necessary.
ATTEMPT TO OPERATE—HARMLESS ERROR—IMPAIRMENT-APPRENDI
State v. Kendall 274 Kan. 1003, 58 P.3d 660 (2002)
The Supreme Court affirmed a DUI conviction. The Court held (1) to "operate" a vehicle under statute prohibiting operating or attempting to operate vehicle under influence of alcohol means to drive it; (2) to be convicted of operating a vehicle under the influence of alcohol, there must be some evidence, direct or circumstantial, that the defendant drove the vehicle; (3) movement of vehicle is not required in order to convict defendant of DUI under theory defendant attempted to operate vehicle; (4) trial court's "no movement required" response to jury's request for legal definition of driving was erroneous; (5) such error was harmless; and (6) use of defendant's two prior DUI convictions to change
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classification of subsequent DUI conviction from misdemeanor to felony did not violate Apprendi. At trial, the jury asked for a legal definition of driving. The trial court responded: "Movement of the vehicle is not required." Kendall was convicted of DUI, driving while license suspended, and refusing a PBT. Kendall appealed. The issues were whether: the trial court erred in its response to a jury question regarding the definition of driving and, if error, was the error harmless; the trial court erred in allowing a witness to give an opinion as to whether Kendall was under the influence of alcohol; and the use of Kendall's two prior DUI convictions to change the classification of the instant DUI from a misdemeanor to a felony and increase his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court noted the instruction to the jury on the legal definition of driving was not a correct statement of the law. However, the Court held the instruction was harmless, in that movement of the vehicle is not required to convict a defendant of DUI under the theory he attempted to operate the vehicle, and there was ample evidence Kendall attempted to operate the vehicle. The Court also held the trial court did not err in admitting the officer's testimony concerning Kendall's condition, and the use of Kendall's two prior DUI convictions to change the classification of the DUI here from a misdemeanor to a felony did not violate Apprendi.
TIMELY APPEAL—OPINION TESTIMONY—SEARCH INCIDENT TO ARREST—
SUFFICIENCY OF EVIDENCE
City of Dodge City v. Hadley 262 Kan. 234, 936 P.2d 1347 (1997)
The Supreme Court reversed the Court of Appeal‘s dismissal of an appeal and affirmed the district court‘s convictions for DUI and open container. The Court of Appeals had dismissed the defendant‗s appeal as untimely. The Supreme Court held (1) defendant's failure to timely file appeal did not preclude appellate jurisdiction; (2) police officers could properly give expert testimony regarding whether defendant was intoxicated; (3) search of defendant's truck incident to arrest was proper; (4) defendant's arrest was supported by probable cause; and (5) evidence was sufficient to support conviction. Defense counsel failed to timely file notice of appeal, because attorney believed appeal could not be filed until journal entry of conviction had been filed and sentencing had occurred. The Supreme Court held Defendant's failure to timely file appeal did not preclude exercise of appellate jurisdiction over his appeal in DUI case, where untimely filing was due to mistake of defense attorney. The Court also held officers could testify regarding defendant's intoxication and his ability to safely operate motor vehicle. The officers did not express opinion defendant was guilty, case was tried without jury, and testimony was based on officers' personal observations of defendant and their expertise as police officers. Regarding the search incident to arrest, the Court furthered even though defendant was in handcuffs at time of search, search was proper for purpose of discovering instrumentalities or evidence of DUI. The Court also found sufficient probable cause to arrest, in that defendant smelled strongly of alcohol, his speech was slurred, he almost fell getting out of his truck and had difficulty trying to perform failed sobriety test, and officer had received complaints defendant had behaved in disorderly manner and was seen driving pickup truck. Lastly, the Court found sufficient evidence to support conviction. Court of Appeals reversed and district court was affirmed.
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DUI—HORIZONTAL GAZE NYSTAGMUS—FOUNDATION—FRYE TEST REQUIRED
State v. Witte 251 Kan. 313, 836 P.2d 1110 (1992)
The Supreme Court reverses a conviction of DUI, holding horizontal gaze nystagmus results are scientific evidence, hence the foundation for admission of results requires meeting the criteria of the Frye test. The Court also finds admission of the evidence was not harmless error, where the remaining evidence made it a close question, including a BAT of .103. The Court also declines to take judicial notice of other states that have determined HGN met the Frye criteria. (Sedgwick, 66065, 7/10/92)
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***UNPUBLISHED CASES***
DEFENDANT DID NOT TAKE SFSTS-NOT MULTIPLE ACTS CASE
State v. Doyle 225 P.3d 780, 2010 WL 744796 (02/26/10)
***UNPUBLISHED***
Defendant committed at least eight traffic infractions while fleeing from the police. He was physically removed from the vehicle. Officers noted: odor of alcohol, poor balance, admitted to drinking. The defendant was arrested. While at the station he refused to perform SFSTs and refused the evidentiary breath test. The officer testified he felt the defendant could not safely operate a vehicle. During closing arguments the defendant claimed he did not perform the SFSTs cause he was already under arrest. The State countered with ―He refused to show he wasn‘t under the influence‖ During appeal the defendant claimed the officer could not express his opinion. The court cited State v. Kendall 274 Kan. 1003 (2002) and City of Dodge City v. Hadley 262 Kan. 234 (1997) whether an officer‘s opinion is expert or lay testimony matters little since either type of testimony is acceptable. The defendant also claimed burden shifting during closing argument. Citing State v. Rubick 16 Kan.App.2d 585 (1992) a defendant‘s refusal to submit to field sobriety testing is admissible for purposes of proving DUI. Lastly felony flee and elude is NOT a multiple acts case and the jury does not have to be unanimous on the traffic infractions- only he committed 5 of them.
OFFICER MAY TESTIFY TO WHETHER PERSON INCAPABLE OF SAFELY DRIVING
State v. Germann 223 P.3d 323, 2010 WL 481268 (02/05/10)
***UNPUBLISHED***
During jury trial the officer indicated Defendant was under the influence of alcohol to the extent he was not capable of driving safely. He was found guilty. Defendant appeals claiming the officer commented on the ultimate issue for the jury and this was improper. In State v. Kendall 274 Kan. 1003 (2002) the Supreme Court held the officer did not opine the defendant was guilty of the crime and that was admissible. It was irrelevant whether the evidence was characterized as expert or lay testimony because either type of testimony is acceptable. Court also noted City of Dodge City v. Hadley 262 Kan 234 (1997) There was a fine argument also.
OFFICER STATED DRIVER IMPAIRED-STATE ARGUED OFFICER SAID SHE WAS DUI
State v. Huffmier 223 P.3d 323, 2010 WL 481257 (02/05/10)
***UNPUBLISHED***
The officer testified during trial the defendant could not safely operate a vehicle. This is permissible. However during closing arguments the State commented: It was his opinion (officer‘s) she was under the influence, that she should not be driving a vehicle, and it should be yours‖ The court noted the State could comment on the defendant being ―impaired‖, ―drunk‖, ―that she should not be driving a vehicle‖ however claiming the officer‘s opinion was she was ―driving under the influence‖ is arguably equivalent to saying she was guilty of the offense which is not allowable. However the officer never testified to this, and the prosecutors statements are not evidence and the jury in this case was so instructed. There was also an argument about
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admissibility of irrelevant and prejudicial evidence relating specifically to the parenting skills of the defendant that are extremely specific to this case and will not be discussed here.
OPEN CONTAINER-P.B.T. USE-PHOTOGRAPHED
State v. Fuller Slip Copy, 2009 WL 2242442 (07/24/09)
***UNPUBLISHED***
The defendant was arrested for DUI, disorderly conduct, and transporting an open container. The officer found a bottle labeled ―Barton Vodka‖ in the defendant‘s truck. Upon returning to the office, the officer photographed the bottle, opened it and smelled its contents. It smelled like vodka to the officer. The photograph indicated the bottle was approximately one-fourth full and did not appear to be sealed. The officer used his P.B.T. device on the bottle and it registered positive for alcohol. The appeal indicated the defendant failed to object properly about a Frye hearing on the use of the P.B.T. and therefore this issue was not considered. However the court did review the sufficiency of the evidence concerning the open container and concluded: the information presented above indicated ample circumstantial evidence supported the conviction.
LAY WITNESSES/OFFICERS OPINION-VIDEO DESTROYED-COMMENTS-ALLEN-TYPE INSTRUCTIONS
State v. Duncan 201 P.3d 1, 2009 WL 398995 (02/13/09)
***UNPUBLISHED***
OPINION TESTIMONY-Supreme court has held officers as well as lay witnesses are allowed to testify to the defendant‘s sobriety level and ability to safely operate a motor vehicle based on his personal observations and expertise was an officer and has found no abuse when permitting this testimony. ATTORNEY ACTIONS: It is clearly improper for the prosecutor to state facts that are not evidence. The state elicited from the officer there was a video of the stop but it had been inadvertently destroyed. The defendant first claims obtaining the testimony was improper-the court indicated no objection was made therefore this issue is moot. Secondly the defendant argues comments during closing argument the video, if we had one, would be consistent with the officer‘s testimony was improper. The court noted the prosecutor was only responding to the defendant‘s closing argument. There was no indication anything on the tape would have supported the defendant‘s version of the facts just the jury could not see what happened for themselves. State‘s comments made were reasonable inferences of the evidence. JURY INSTRUCTION/COMMENT: During deliberations the jury asked ―what are the instructions for a split decision?‖ The court answered with ―There are two verdict options: guilty or not guilty; if you are able to agree on a verdict‖. The defendant argues this was an Allen-type response and impermissible. The court disagreed and stated the response was not attempting to compel the jury to reach a verdict but informing them of the two verdict options IF they could agree on a verdict. Cumulative error?-denied. Affirmed.
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OPEN CONTAINERS-LABELS-HEARSAY
State v. Gubbels 166 P.3d 449, 2007 WL 2580501 (2007)
***UNPUBLISHED***
Defendant Gubbels appealed his conviction of DUI and transporting an open container based on hearsay and insufficient evidence. The court found there was sufficient evidence for DUI, and affirmed the DUI conviction. The transporting an open container conviction was also upheld, but only after a discussion of hearsay. Gubbels was pulled over by Officer Farcas for suspicion of DUI. After pulling the vehicle over, Farcas searched Gubbels vehicle and discovered two champagne bottles, two wine bottles, and a bottle of grain alcohol on the floor behind the passenger seat. The bottles were open, and still had some liquid in them. Gubbels contests the labels on the bottles are hearsay, and do not fall under any of the hearsay exceptions. The court agreed with Grubbels, stating the labels on the bottles were in fact hearsay, and the hearsay rule that governs, ―a list, register, periodical, or other published compilation‖ does not apply to alcohol bottle labels. The court stated the trial court should have excluded the evidence, but the error was harmless error. The court stated the conviction can be upheld because, ―Officer Farcas testified he smelled the wine bottles and they smelled like wine. Finally, Gubbels admitted the bottles had been in his car for a week because he and some friends had a party.‖ Both convictions -upheld.
OPEN CONTAINER ANALYSIS—PHOTOS—CLERICAL JE ERROR
State v. Vanbibber 169 P.3d 696, 2007 WL 3275898 (2007) ***UNPUBLISHED***
Vanbibber was stopped for failing to have a tag light. Upon review of the evidence the State proved several facts a) there was an odor of alcohol b) the admission of drinking c) blood shot eyes d) failure of sobriety tests e) beer and liquor bottles found in the car and f) refusal to take the breath test. Vanbibber argues there was no direct evidence he appeared to be under the influence or he appeared incapable of driving safely. We agree the absence of such evidence is unusual in such a case but this is not fatal. Incapacity to drive can be established through sobriety tests and other means and one does notneed to swerve all over the road or drive through another's yard to be guilty of driving under the influence. Viewing the evidence was favorable to the prosecution there was sufficient evidence to support Vanbibber's conviction. Next Vanbibber challenges the sufficiency to support his second conviction of transporting an open container. The officer testified he found an open beer can stuck between the driver and passenger seat and also a quarter full bottle of tequila under the driver's seat which was obviously open and a nearly empty bottle of vodka in the passenger seat. Vanbibber argued the substances in these containers were never analyzed. The Court noted this is not essential to successful conviction of an open container. It noted the description of the bottle, their labels and the officer's testimony it contained alcohol and absent any evidence challenging the nature of the substances there in the jury could reasonably infer the substances were alcoholic. Again the evidence was sufficient to support that conviction. Vanbibber next argues photographs admitted of the containers found in his vehicle were not the best evidence. The Court noted best evidence rule applies to written documents and is not an inflexible rule of exclusion but rather a preferential rule. There was proper foundation laid for the officer's testimony the photographs were a fair and accurate depiction of the containers found in the vehicle. Vanbibber's challenge was rejected. Vanbibber's last argument was a certified journal entry of conviction establishing a prior DUI had an
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erroneous digit in the social security number. It did contain, however the correct name of the defendant, date of birth, driver‘s license number and reflection of the same counsel as was in the present case. Clearly the matching information virtually eliminated any possibility of misidentification of the subject journal entry. There was no abused discretion admitting the journal entry for purposes of sentencing despite what clearly appears to be a typographical error on the social security number. Affirmed.
DRE PROTOCOL—NOT SCIENTIFIC
State v. McHenry 136 P.3d 964, 2006 WL 1816305 (2006) Rev. Den. (2006)
***UNPUBLISHED***
McHenry was driving a semi-tractor trailer that collided with a car, killing one of the passengers. Trooper Turner, who is a certified DRE officer, was involved in the investigation of the accident and administered a DRE protocol to evaluate whether McHenry was under the influence. Turner suspected McHenry was impaired and confronted McHenry with his suspicions. McHenry admitted to taking cocaine the day before the accident. McHenry was convicted of vehicular homicide. On appeal, McHenry argued there was insufficient evidence to support his conviction. The court found there was sufficient evidence to support the conviction, as under the totality of the circumstances, McHenry‘s driving was a material deviation from the standard of care which a reasonable person would observe under the same circumstances. McHenry further argued the trial court abused its discretion when it allowed Turner to testify as to whether McHenry was incapable of driving safely and that the trial court violated K.S.A. 60-456(b)(2), because Turner‘s testimony failed to comply with the Frye standards. At trial, Turner was limited to testifying about the kind of symptoms different drugs elicit in a human body and what symptoms he was McHenry exhibit. He was not allowed to testify based on his DRE knowledge and training; he believed McHenry was under the influence of a specific drug. The court held evidence offered by Turner related to the DRE protocol did not constitute scientific evidence requiring the Frye standard. Turner‘s testimony offered his observations of McHenry‘s acts, conduct and appearance. This is identical to a DUI investigation. Turner also offered his opinion on McHenry‘s state of impairment based on those observations. He did not, however, give an opinion based on scientific evidence McHenry was under the influence. Instead, the toxicology report was the evidence the State presented showing McHenry was under the influence of cocaine. Affirmed.
VOUCHING—BOLSTERING—MISTRIAL—PRIOR DUIS
State v. Lawrence 125 P.3d 590, 2005 WL 3579257 (2005)
***UNPUBLISHED***
Lawrence appeals her conviction for DUI contending cumulative trial errors. Lawrence claimed prosecutorial misconduct, in the prosecution impermissibly buttressed the testimony of the prosecution witnesses by personally vouching for their credibility during closing arguments. The court found the prosecutor‘s comments, taken in context, did not constitute personal opinion but rather argument to the jury why the witnesses should be deemed credible. In addition, Lawrence claimed the prosecutor‘s comments concerning her guilt were prejudicial. The court held the challenged statements were relatively innocuous when considered in context and the jury understood the
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prosecution‘s declaration of the defendant‘s guilt to be argument rather than an interjection of the prosecutor‘s personal beliefs. Lawrence also claimed the prosecutor‘s personal account about leaving her purse unattended was improper. While the court agreed it was improper for the prosecutor to present unsworn testimony to the jury concerning an incident in which she left her purse unattended, the statement neither increased nor decreased the likelihood the jury would find the defendant‘s version credible. Further, Lawrence claimed the prosecution improperly bolstered the credibility of its witnesses by having them reaffirm their oath to testify truthfully. The court found the prosecution‘s practice of asking its witnesses to reaffirm their oath does not constitute prejudicial misconduct, as the witness is being asked to testify to their own credibility and the duty to assess a particular witness‘ credibility is not diminished or removed from the jury. Next, Lawrence contended the district court erred in refusing to grant her motion for a mistrial. During direct examination, the officer testified Lawrence ―had been in trouble before for DUIs‖. The defense failed to make a contemporaneous objection to the testimony and the officer‘s response was unsolicited. The court held the passing remarks of the officer were not so inherently unjust as to prejudice Lawrence and the district court‘s denial of the motion for a mistrial was not error. The court found the district court properly permitted the officer to testify to factors which influence the alcohol absorption into the human, however, the officer‘s opinion as to the reasonableness of the defendant‘s claim concerning alcohol absorption was improper but did not prejudice Lawrence. Finally, the court held the district court committed no reversible error in permitting the late endorsement of two prosecution witnesses, as Lawrence failed to request a continuance. The court affirmed Lawrence‘s convictions.
NO TESTING—QUESTIONS BY JURY
State v. Henderson 83 P.3d 1270, 2004 WL 292122 (2004)
***UNPUBLISHED***
Henderson was charged with DUI. Henderson was operating the pickup truck at all times, he struck two parked cars in the club parking lot, drove recklessly away from the scene, attempted to evade police, committed a number of traffic violations, smelled of alcohol, and admitted drinking several beers that evening. The fact Henderson refused to perform field sobriety tests or a breathalyzer test. The officer was allowed to state his opinion, over objection, Henderson was sufficiently under the influence to be impaired and unable to safely operate a vehicle. Henderson argues there was insufficient evidence to support his conviction. While the jury did send out a question asking whether field sobriety testsor breath tests were required to convict Henderson for DUI, this does not establish the jury concluded there was insufficient evidence. To the contrary, after the jury was advised to simply reread the DUI elements instruction, it found Henderson guilty. This only establishes the jury believed there was enough evidence to show impairment, even without the testing. The court also found the opinion testimony was appropriate. There was a question concerning ID of driver but the court found sufficient information was available for the jury to convict. There was also a Batson challenge that was denied. Affirmed.
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BASIS FOR IMPAIRMENT—OFFICER TESTIMONY
State v. Parker 90 P.3d 379, 2004 WL 1191450 (2004)
***UNPUBLISHED***
The trooper was conducting surveillance on I-35 highway and observed Parker's vehicle weave out of its lane and drive on the fog line. The trooper initiated a traffic stop and testified it took "quite some time" for Parker's vehicle to come to a complete stop. The trooper smelled an odor of alcohol emanating from Parker. Parker's eyes were glazed, glassy, and bloodshot and his speech was slurred. Initially Parker denied any alcohol use but later admitted he had consumed one beer. As Parker exited his vehicle, he had to use the vehicle for support. The trooper administered several field sobriety tests. Parker could not satisfactorily complete either the walk-and-turn test or the one-leg-stand test. Parker refused to take a preliminary breath test and was arrested. Parker was read his Miranda rights after his arrest. Parker told the trooper he took methadone and Xanax that made him drowsy. He was taken to the police station, where he was given a copy of the implied consent advisory. Parker completed the breath test at the station and produced a result of .044. Parker was charged with one count each of DUI, failure to submit to a preliminary breath test, and failure to maintain a single lane. A urine test revealed the presence of Xanax, hydromorphone, and methadone in Parker's system. The Court held the highway patrol officer was qualified to offer an opinion, in prosecution for DUI, that defendant was impaired and did not safely operate a vehicle based on their personal observations and expertise as police officers. KSA 60-456. The Court also held the testimony of the highway patrol officer the defendant was impaired and incapable of safely driving a vehicle supported conviction for DUI. KSA 8-1567(a)(5).
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B. Field Sobriety Test
***PUBLISHED CASES***
ADMINISTRATIVE HEARING-REASONABLE GROUNDS
Lewis v. Ks. Dept. of Revenue 218 P.3d 814, 2009 WL 3738334 (11/06/09)
***UNPUBLISHED***
Officer found a vehicle parked left of center in the street with the door open and the motor running. It was blocking the driveway of a residence. Defendant admitted she had been driving the car, she had just arrived, and she had consumed alcohol just prior to driving the vehicle. The officer noticed her eyes were bloodshot and watery, she mumbled her speech, and she emitted a strong odor of alcohol. The defendant admitted to parking the vehicle left of center in the road. The licensee argues the officer had no reasonable grounds to request SFSTs. The appellate court noted based on the totality of the circumstances, the officer had a reasonable belief the defendant was DUI, such that further field sobriety testing was appropriate and, is supported by substantial competent evidence.
HGN ADMITTED-MARGIN OF ERROR-ALCOHOL STANDARD
State v. Ruth 217 P.3d 1018, 2009 WL 3428611 (10/23/09)
***UNPUBLISHED***
A trooper stopped the defendant for speeding and found her to be intoxicated. At trial to the court, the trooper indicated he administered the HGN test and saw nystagmus in both eyes. The defendant was arrested and taken to the jail where she took the test. During the protocol the external standard solution indicated a 0.074 reading which was within the protocol. The defendant‘s breath sample showed her BAC to be .08. The judge found her guilty. The defendant appealed the case based on the admission of HGN citing the Witte case. The appellate court indicated this case is distinguishable from Witte. This case was heard by a judge and not a jury. The fact the judge in ruling on the objections of the defendant concerning HGN stated the actual results of the test were questionable but the trooper could testify as to his own observations. The defendant also claimed as in Witte the HGN evidence could have a disproportionate impact on the decision-making process of the fact finder in light of the fact the external standard was on the low side of its 0.08 true content. The court indicated even if the court had erred with the HGN evidence the State is not required to prove the driver‘s intoxication level has reached the 0.08 threshold within a certain margin of error. The margin of error is just one factor to be considered by the fact finder. The 0.08 reading was sufficient to uphold the conviction.
FRYE REQUIRED FOR 68% STATISTIC-TESTS-PASS/FAIL
State v. Shadden --- P.3d ----, 2010 WL 2696967 (07/09/10)
Defendant stopped for DUI. The officer requested defendant to perform some SFSTs. The video was unable to record defendant‘s performance. The officer had defendant perform the walk and turn test. The defendant exhibited all 8 clues. Because of the grade of the road
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the officer did not have the defendant perform the one leg stand. Other tests such as the alphabet test, counting test and finger-to nose test were performed. All tests indicated intoxication. The Defendant refused the breath test after arrest. Defendant filed a motion in limine to preclude the officer from referring to the field sobriety exercises as tests. Defendant conceded the officers testimony related to his performance on the tests were admissible; however, the fact he ―passed or failed‖ the tests were unfairly prejudicial. The Supreme Court in reviewing the COA decision concurred in determing it was appropriate for the officer to testify field sobriety tests were administered and based upon the officer‘s training and experience, the driver failed those tests. The agreed with the COA it is impermissible to take the additional step of equating a level of certainty or probability to the officer‘s opinion or to correlate the driver‘s performance with a specific BAC level. The officer had testified according to NHTSA standards a driver who exhibits two clues during the walk and turn test has a 68% likelihood of having at least a 0.10 BAC. The court determined the officer was not qualified to testify about the reliability of the NHTSA standards and no expert testimony was provided to qualify the NHTSA standards under Frye. There was an issue of prosecutorial misconduct. The defendant alleged the prosecutor violated a previous order of the court relative to the officer stating his opinion. Both courts agreed this is well established in Kansas if a proper foundation is laid, the officer can testify a person at the time of driving was intoxicated. The COA reversed the conviction however the Supreme Court said the information about equating the BAC level to physical signs of impairment was Harmless-no reversal necessary.
SFST AT STATION—FURTHER INVESTIGATION
City of Norton v. Wonderly 38 Kan.App.2d 797, 172 P.3d 1205 (2007) Rev.Den. (2008)
In this case a motorist and his passenger called law enforcement on their cell phone reporting a white pickup truck driving northbound was driving erratically. The callers told the dispatcher their names reported the truck's license plate number and stated the pickup truck was traveling behind two semi-trailer trucks. An officer within 35 minutes observed this white truck traveling with two semi-trucks. The officer determined the license plate did match. The officer followed the truck for approximately three minutes and did not observe any traffic infractions. The officer stopped the vehicle. The officer could detect an odor of alcoholic beverage coming from Wonderly. Wonderly provided his license to the officer without any difficulty, exited his vehicle without incident and had no problems walking back to the officer's patrol car. Wonderly did state he had been drinking at a bar earlier and his speech was fair and not particularly slurred. The officer requested Wonderly to take a PBT; it indicated his BAC was greater than .08. The officer failed to wait the 15 minutes before administrating the PBT. The officer noted it had been raining and misting and the roads were slick. The officer decided Wonderly should perform the SFSTs at the Sheriff's department. The officer did not place him under arrest; however he did place him in handcuffs and transported him two blocks away to the Sheriff's office, which took approximately two minutes. The officer testified based on everything he had observed at the traffic stop and the sheriff's office he believed he was impaired to the extent he could not safely drive. The Intoxilyzer test indicated a BAC of .174. Wonderly first objects to the traffic stop being justified. The Appellate Court stated based on the two identified callers giving first hand information to law enforcement and the fact the officer saw the truck coming and it matched all the descriptions, he had reasonable suspicion to stop the vehicle, even without observing any traffic infractions. Wonderly next contends his arrest was without probable cause. Due to the totality of the circumstances the Appellate Court stated a reasonable person in Wonderly's
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position would have believed they were under arrest. Therefore the court must look to determine whether or not there was probable cause to believe he should have been in that position. The Court of Appeals concluded the officer had reasonable suspicion for the stop. The limited evidence the officer had gathered at the scene of the traffic stop was insufficient to support probable cause for an arrest. The fact the officer felt it was necessary to continue his investigation at the Sheriff's office before formally arresting Wonderly supports that conclusion. Reversed.
ABUSE OF DISCRETION—COMMON KNOWLEDGE OF MEDICAL CONDITION
State v. McFadden 34 Kan. App.2d 473, 122 P. 3d 384 (2005)
Hosheit & Mayes were riding motorcycles and witnessed erratic driving by a person they believed was impaired. They followed the vehicle until it stopped, and approached driver. Driver had difficulty standing and there was a strong odor of alcohol. Hosheit, a former deputy, called the sheriff and removed McFadden‘s keys. Deputy Yohn arrived, observed McFadden had trouble standing, had slurred speech and glassy eyes, and strong odor of alcohol. He performed poorly on field sobriety and was arrested. A blood test was done revealing a BAC of .20. At trial, McFadden attempted to testify about a medical condition he has that would cause these characteristics. The State objected because there was no expert testimony on the condition. The Court sustained the objection and McFadden was found guilty. He appeals based on the court not admitting his testimony. He argues although admission of evidence carries an abuse of discretion standard of review, this case involves a question of law and the review should therefore be de novo. The court found this to be a non-issue. In Kansas, a lay witness may testify about external appearances and manifest medical conditions that are readily apparent to anyone. Hiatt v. Groce, 215 Kan 14 (1974). However, lay witnesses are not competent to provide reliable testimony about medical matters beyond the common knowledge of laypersons, or those that are not readily apparent such as medical diagnoses or the effects of possible medical conditions. Smith v. Prudential Ins. Co., 136 Kan 120 (1932). McFadden‘s proffer of testimony about his medical condition goes beyond the common knowledge of laypersons. The court did not abuse its discretion.
BAT ADMISSIBILITY—ONE TEST IS SCIENTIFICALLY RELIABLE
Campbell v. Ks. Dept. of Revenue 25 Kan.App.2d 430, 962 P.2d 1150 (1998)
The Court of Appeals affirmed a district court judgment granting the Department of Revenue's motion for involuntary dismissal of the appeal of a driver‘s license suspension. The Court held results from a single breath test authorized by implied consent statute had sufficient scientific reliability to be admitted into evidence, and police officer had probable cause to arrest motorist for DUI when officer asked motorist to perform field sobriety tests. The officer observed motorist speeding in early morning hours and smelled liquor on motorist's breath when he approached motorist; motorist admitted having a few drinks, and his eyes appeared glazed and blood shot. The district court granted KDR‘s motion for involuntary dismissal after Campbell had presented his evidence. On appeal, the Court of Appeals held as a matter of law the testing procedure used to determine the alcohol concentration in Campbell's breath was reliable. The Court also refused to decide whether probable cause to arrest for DUI must be shown before field sobriety tests are to be given, but the Court did
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conclude the arresting officer in this case did have probable cause before administering the tests. Affirmed.
INDEPENDENT TEST—HGN TEST—FRYE—PROXIMATE CAUSE—
CONTRIBUTORY NEGLIGENCE—SENTENCING DISCRETION
State v. Chastain 265 Kan. 16, 960 P.2d 756 (1998)
The Supreme Court affirmed a DUI conviction. The Supreme Court held (1) defendant retained right to secure independent testing for BAC after blowing inadequate sample for breath test; (2) officer's statement to defendant blood test would register higher than breath test did not deprive defendant of his right to additional testing; (3) evidence of HGN testing could not be admitted without establishing requirements of Frye v. United States; and (4) decedent's contributory negligence was circumstance to be considered in determining whether defendant's conduct was proximate cause of decedent's death for purposes of involuntary manslaughter. Following defendant‘s arrest, defendant was unable to blow a sufficient sample on the breath test, although the machine registered a .210 concentration of alcohol. Defendant requested a blood test. The officer told the defendant the blood test would register higher, so the defendant decided against the blood test. Defendant was convicted of DUI as lesser-included offense of charge of involuntary manslaughter. On appeal, the defendant claimed the results of his breath test should have been suppressed and the trial court abused its discretion in the sentence imposed. The State cross-appealed on two questions reserved: (1) the exclusion of horizontal gaze nystagmus testing and (2) instructions on involuntary manslaughter. The Court agreed with the trial court's resolutions of both questions reserved and affirmed the conviction and the sentence. The Court explained the officer‘s statement to the defendant concerning the blood test was not unreasonable interference with suspect's right to additional testing for BAC, and defendant‘s sentence was within the statutory guidelines, where judges receive much discretion. The Court also stated HGN testing was scientific evidence which had not achieved general acceptance within relevant scientific community, and therefore evidence of such testing could not be admitted without establishing requisite foundation under Frye. The Court also stated victim‘s contributory negligence is a circumstance to be considered along with all other evidence to determine whether defendant's conduct was or was not theproximate cause of decedents' deaths.
PROBABLE CAUSE TO ARREST—HEEL TO TOE TEST
City of Dodge City v. Norton 262 Kan. 199, 936 P.2d 1356 (1997)
The Supreme Court reversed the district court‘s dismissal of a DUI charge. The Court held probable cause existed for warrantless arrest. The Court found probable cause existed, even though arresting officer had defendant perform only one field sobriety test and even though test involved use of legs, which defendant claimed had been operated on several times. The Court noted defendant had created a disturbance at a trailer park and was intoxicated and driving a pickup; defendant's pickup narrowly missed construction barrels and weaved in defendant's own lane; defendant parked next to a bar, got out of his pickup, and told the officer he had been at the trailer park to arouse a friend and was going into the bar for a few drinks; defendant's eyes were pink or bloodshot; defendant told the officer he had problems with his legs and failed the heel-to-toe test; and the officer smelled alcohol on defendant's breath as he approached
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him to place him under arrest. The Court found probable cause to arrest existed and reversed the district court.
SELF INCRIMINATION—SUSPENSION—DOUBLE JEOPARDY
State v. Maze 16 Kan.App.2d 527, 825 P.2d 1169 (1992)
The Court of Appeals affirms a conviction of DUI, holding sobriety testing, including recitation of the alphabet, is not testimonial communication, and a Miranda warning is not required. In reaching its decision, the Court considers the U.S. Supreme Court decision of Pennsylvania v. Muniz 496 U.S 582 (1990), and determines that while the decision considered recitation of the alphabet, it did not exclude it from sobriety testing. The CA also considers numerous decisions from other jurisdictions in reaching its decision. The Court also finds no error in admission of a BAT even where the sample was deficient, due to defendant‘s refusal to furnish a sufficient sample. The Court then holds administrative suspension of a license for the initial refusal of the test and the present criminal action do not violate the double jeopardy clause. (Sedgwick, 66286, 2/14/92)
HORIZONTAL GAZE NYSTAGMUS—FOUNDATION—FRYE TEST REQUIRED
State v. Witte 251 Kan. 313, 836 P.2d 1110 (1992)
The Supreme Court reverses a conviction of DUI, holding horizontal gaze nystagmus results are scientific evidence, hence the foundation for admission of results requires meeting the criteria of the Frye test. The Court also finds admission of the evidence was not harmless error, where the remaining evidence made it a close question, including a BAT of .103. The Court also declines to take judicial notice of other states that have determined that HGN met the Frye criteria. (Sedgwick, 66065, 7/10/92)
APPEAL—FIELD SOBRIETY TESTS—NON TESTIMONIAL
State v. Rubick 16 Kan.App.2d 585, 827 P.2d 771 (1992)
The magistrate judge declared a mistrial when the State attempted to introduce evidence of defendant‘s refusal to perform field sobriety tests. The State appealed to the district court, which reversed and remanded to the magistrate for trial. On remand the case was heard by another district judge, the magistrate not being available, and defendant waived a jury. The Court finds no requirement defendant be re-arraigned on remand, and defendant waived arraignment when he proceeded to trial. The Court also finds no error in the admission of refusal to perform field sobriety tests, finding although 8-1001 expressly admits refusal of a BAT, and is silent on refusal of field tests, there no constitutional privilege against self-incrimination involved, analogizing to the refusal to submit handwriting exemplars in State v. Haze.
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MIRANDA WARNING IS NOT REQUIRED FOR A FIELD SOBRIETY TEST
State v. Jones 3 Kan. App.2d.553, 598 P.2d 192 (1979)
An officer who stops a defendant suspected of driving under the influence of alcohol is not required to advise the defendant of his Miranda rights prior to requesting him to submit to a field sobriety test. A Jackson v. Denno hearing is not necessary, as it relates to such test, since such a hearing applies only to testimonial evidence. The mere fact a suspect is under arrest does not require the officer to read him his rights. Rights must only be given before custodial interrogation is conducted. When completing the interview portion of the drug and alcohol influence report, Miranda warnings must be given or statements of the defendant in response to the questions on the form will be excluded.
SFST AND BLOOD TEST NOT FORCED COMMUNICATION
State v. Faidley 202 Kan. 517, 450 P. 2d 20 (1969)
Compelling the defendant to perform a coordination or sobriety test on the highway for observation by an officer involves no compulsion of the defendant to give any evidence having testimonial significance. At most, it requires the defendant to demonstrate his ability to walk after being requested to walk in a particular manner. There is no forced communication by the defendant to disclose any knowledge from his own mouth.
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***UNPUBLISHED CASES***
65 YEARS OLD-REFUSED
Ritter v. Ks. Dept. of Revenue Slip opinion, 2010 WL 3324436 (08/20/10)
***UNPUBLISHED***
An off-duty officer informed an on-duty officer Ritter‘s car had went left of center. The on-duty Officer stopped the vehicle. He detected: strong odor of alcohol, no bloodshot eyes, speech normal. However, based on the traffic infraction and odor of alcohol, the officer requested Ritter to take field sobriety tests. The officer asked another officer should he have a 65 year old perform SFSTs. He was instructed to do so but he should ―take that into consideration when he witnessed the tests‖. Ritter indicated she had good balance and she was in good health. Walk and turn indicated: did not stand correctly, started test before instructed, took 10 instead of 9 steps, missed heal to toe and stepped off the line. On the one leg stand: put her foot down several times. Ritter was asked to recite the alphabet: got to P then started again at H went to P again then she said O,N,M and stopped. The officer said there appeared to be something other than age that was affecting the tests. She was arrested and read the implied consent-she refused claiming she ―didn‘t trust any officer‖. Ritter appeals her license suspension claiming no reason to stop the vehicle and officer did not have reasonable grounds to request the test. Appellate court concluded constitutionality of the stop was not an issue a driver could raise in a DL hearing citing K.S.A. 8-1020(h). Based on the driving cue and all the SFSTs the court found the officer had reasonable grounds to request the test.
ESTIMATION OF SPEED-NO RADAR USED-SFSTS REFUSED
State v. Steele 217 P.3d 1018, 2009 WL 3428624 (10/23/09)
***UNPUBLISHED***
An officer observed the defendant traveling at a high rate of speed, in his estimation 40 mph in a 20 mph, approaching an intersection. The driver slammed on his brakes and the vehicle ―dipped down‖ and came to a stop past the crosswalk. Officer activated his lights. The driver stopped approximately 5 feet from the curb. The driver was ―very curt‖ in his answers, produced an ID card but was adamant he had a license. After the officer pointed out he had given him an ID card the defendant produced a license but dropped it in the process. The officer smelled a strong odor coming from the defendant and asked if he had been drinking. The defendant denied drinking. He was asked to step from the car but refused. Eventually he did step from the car but refused to take the SFSTs. The officer attempted to place him under arrest. There was a brief scuffle and the defendant was arrested. He did take the breath test which indicated a BAC of 0.181. The defendant claimed there was no reasonable suspicion to stop him for the traffic infraction-the court indicated the estimation of speed alone might not have been enough to convict him of speeding but it certainly established a reasonable suspicion he was speeding not to mention pulling past the crosswalk. The defendant also claimed no probable cause for the arrest. The defendant focuses on his refusal to take the SFSTs and cites Wonderly. The appellate court noted the defendant‘s refusal to perform the SFST‘s is but just one factor that caused the officer to have PC to
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arrest. The court noted it is justified in considering a defendant‘s refusal to submit to field sobriety tests citing State v. Bradford 27 Kan.App.2d 597 (2000).
CRASH-NO FIELD SOBRIETY TESTS-NO INJURY
State v. Hamilton 217 P.3d 1018, 2009 WL 3378207 (10/16/09)
***UNPUBLISHED***
A Pottawatomie Deputy found a vehicle which had left the roadway and was in the middle of a field. It was raining. The deputy found a person reclining in the driver‘s seat asleep. He woke up the defendant and determined he was not hurt, had a very faint slurred speech, was unsteady on his feet, smelled strongly of alcohol. The defendant believed he was somewhere between Wichita and Coffeyville-nowhere near his present location. Because of weather conditions, the deputy did not administer SFST‘s nor a PBT but placed the defendant under arrest for DUI. At the jail the defendant failed SFST‘s and his BAC was 0.153. The defendant filed a motion to suppress evidence because there was a lack of probable cause for his arrest. The court looked to the totality of the circumstances and noted the defendant exhibited clear physical manifestations of intoxication which was different than in the Wonderly and Pollman cases. The facts here would lead a reasonable and prudent officer to believe guilt was more than a mere possibility. The defendant also complained of his fine. But the court also found the record to be sufficient to determine if he had financial resources to pay.
NO REASONABLE SUSPICION TO REQUEST-TOTALITY OF THE CIRCUMSTANCES
State v. Brown 216 P.3d 731, 2009 WL 3172776 (10/02/09)
***UNPUBLISHED***
Officers arrived at the scene and observed a vehicle missing the front passenger side tire and it appeared the vehicle had sustained ―side-swipe type damage―and yellow paint transfer. The defendant claimed he was the driver. While speaking with him the officer could detect an odor of alcohol but the defendant denied drinking; he failed also to give a reason for the crash. The defendant indicated he had not been injured and the officer did not see blood or other injuries. The defendant was asked to take SFST‘s which he did and failed. The defendant argued at a suppression hearing there was no reasonable suspicion justifying the officers‘ decision to administer the tests to him. The defendant did not dispute the officers had a right to detain him for the purpose of investigating the crash. Reasonable suspicion depends on the totality of the circumstances. The court noted State v. Evans 711 N.E.2d 761 (Ohio 1998): factors to consider: time, day and location of stop, erratic driving, report of intoxication, eyes, speech, odor of alcohol, demeanor, lack of coordination, admission of alcohol consumption and officer‘s previous experience with drunk driving. In this case based on the totality there was substantial competent evidence to believe the defendant was operating a vehicle under the influence. The decision to expand the scope of the investigation to include SFST‘s was warranted.
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REASONABLE SUSPICION-PROBABLE CAUSE-REASON TO REQUEST
Carson v. Ks Dept. of Revenue 211 P.3d 188, 2009 WL 2144042 (07/17/09)
***UNPUBLISHED***
This was on a petition for judicial review of a KDR order to challenge whether the officer had reasonable grounds to believe the defendant was DUI given that speeding is not an indicator of DUI. The defendant refused to take SFSTs and did not exhibit slurred speech or difficulty communicating contrary to the officer‘s allegations. The district court judge found there was not sufficient reason to ask the defendant for SFSTs and therefore granted relief on the petition. The appellate court noted the district court raised this issue sua sponte and that is not allowed. There was confusion whether probable cause is necessary before an officer can ask for SFSTs and cited Campbell v. Ks Dept. of Revenue 25 KanApp.2d 430 (1998). The ultimate question is whether or not the officer had reasonable grounds to request a breath test and that determination can come throughout the entire stop not just whether to request SFST or not. The Court also cited Bruch v. Ks Dept. of Revenue 282 Kan. 764 (2006) noting one may have reasonable grounds to believe a person was operating a vehicle under the influence but not have the probable cause required to arrest under K.S.A. 8-1001(b)(1) This case was reversed and remanded with direction.
SUBSTANTIAL COMPLIANCE-WEIGHT V. ADMISSIBILITY
State v. Collier 209 P.3d 214, 2009 WL 1766236 (06/19/09)
***UNPUBLISHED***
The officer while performing the one leg stand test instructed the defendant to raise his leg 12 inches off the ground instead of the standard 6 inches. The defendant used her arms for balance and put her foot down. Because of this deviation the district court refused to give any weight to the one-leg stand test. The judge did, however, consider the defendant's performance on the walk-and-turn test even though the officer told the defendant to take ten steps, instead of the standard nine steps. The defendant appealed his conviction arguing the judge should have also disregarded the walk-and-turn test. The defendant challenged the weight to be given by the trial judge to the walk and turn test. The COA does not reweigh evidence. The defendant failed to cite any authority that any deviation from standard procedure in conducting field sobriety testing, however slight, and renders the evidence inadmissible. The court found substantial competent evidence supports the district court's finding the officer deviated only slightly from standard procedure in conducting the walk-and-turn test and this deviation did not affect the outcome of the test. The district court appropriately considered the results of the walk-and-turn tests as one factor in determining whether defendant‘s arrest was supported by probable cause. Affirmed.
―TESTS‖-WHETHER PASSED/FAILED-4TH AND 5TH AMENDMENTS
State v. Seymour 207 P.3d 288, 2009 WL 1499161 (05/22/09)
***UNPUBLISHED***
The defendant challenged the word ―tests‖ when talking about SFST and the fact the defendant ―passed or failed‖ them. The defendant argued the court erred in admitting the refusal to take a blood test after taking the intox evidentiary test with a reading of 0.00. The defendant admitted to taking several medications. Lastly, the defendant argued
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―doctrine of unconstitutional conditions‖ All these issues were never objected to during trial. The court cited State v. Hawkins 37 Kan.App.2d 195 (review granted, see 285 Kan 842) to determine if there was an exception to the contemporaneous objection rule. The appellate court found none. The court also indicated all these issues had been raised in other cases and been thoroughly analyzed. Affirmed.
TECHNICAL IRREGULARITIES-FALLACY OF NEGATIVE PROOF
State v. Scott 203 P.3d 1281, 2009 WL 929102 (04/03/09)
***UNPUBLISHED***
Officer observed defendant driving the wrong way down a one-way street. The vehicle was stopped and the officer observed the defendant had bloodshot eyes and detected a strong odor of alcohol. The officer also noticed an orange arm band indicated he had been at one of the local bars that night. The defendant admitted he had consumed alcohol. The Defendant was cooperative and on the walk-and –turn test the defendant indicated the following clues: started the test before he was told, on both the first and second set of nine steps he twice failed to touch heel to toe, he incorrectly turned by pivoting on both feet and he took only eights steps on the second set of nine-steps. No clues were exhibited on the one leg stand. The defendant was arrested and a test indicated a 0.149 BAC. At trial the defendant filed a motion to suppress based on lack of probable cause. The court found PC and the defendant was found guilty. In a DUI case the answer to the probable cause to arrest question will depend on the officer‘s factual basis for concluding the defendant was intoxicated at the time of arrest. PC to arrest is a ―preponderance of the evidence given the totality of the circumstances. The defendant focused on the various factual circumstance (or lack thereof) that tended to mitigate against a conclusion the defendant was legally impaired to drive, arguing they support a conclusion there was nothing more than a possibility he was DUI so probable cause was lacking. The defendant claims the performance on the SFSTs did establish any objective indications of possible impairment. Rather the defendant maintains the officer observed only a few ―technical irregularities‖ in the performance. PC is a fact-intensive determination made on a case by case basis. The defendant‘s argument is an example of what logicians call the fallacy of negative proof. This occurs when someone attempts to sustain a factual proposition merely by negative evidence. PC was established. Affirmed.
FALLACY OF NEGATIVE PROOF
City of Great Bend v. Rowlands 203 P.3d 1281, 2009 WL 929131 (4/03/09)
***UNPUBLISHED***
Officer receives an anonymous tip a black car was being driven recklessly without its headlights. The officer, upon reaching the area described, observed a black car without its‘ headlights on. The officer upon approach of the vehicle notice the car had its lights on but one was not illuminated. The car made an illegal J-turn and parked in a stall. The officer approached the car and smelled a strong odor of alcohol. The defendant fumbled for his license, was unable to provide insurance. The defendant had difficulty getting out of his car had a sluggish composure eyes were bloodshot and speech slurred. He admitted to having one beer. The defendant failed the finger dexterity test (twice); on the walk and turn did not touch heel to toe, did not turn correctly, was unable to follow the straight line on the sidewalk while performing the test and used his arms for balance. The defendant on the one
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leg stand again was unable to count past three, used his arms touched the ground with his foot and was unable to complete the test. On the finger to nose test-rather than touch his nose he grabbed and squeezed it. The defendant claimed the officer did not have PC to arrest him. The court denied the motion and the defendant was found guilty. The case was appealed to the district court. The case was submitted on stipulated facts and again the defendant was found guilty. Again the appellate court mentioned the fallacy of negative proof-as they did in State v. Scott unpublished 2009 WL 929102 (2009). The defendant wants the court to focus on other known signs of legal impairment he did not exhibit while glossing over or trying to discount those signs of impairment he did exhibit. To do so ignores this court‘s standard of review in determining probable cause. The facts and circumstances observed by the officer prior to his arrest of the defendant taken in their totality and viewed from the perspective of a reasonable prudent police officer-are supported by substantial competent evidence and demonstrates more than a mere possibility that the defendant was DUI.
NHTSA STANDARDS-DC-27-‖EXPERT‖ NOT HELPFUL
Hower v. Ks. Dept. of Revenue 200 P.3d 38, 2009 WL 248231 (01/30/09)
***UNPUBLISHED***
Defendant complains the SFSTs were administered ―in an irregular or non-standardized fashion‖ FIELD SOBRIETY TESTS: Appellate court states: Field Sobriety tests must generally be performed in the field, under conditions which may not always comport with NHTSA standards.‖ PROTOCOL: The defendant claimed the DC-27 was not filled out correctly. Specifically the box indicating SFSTs were failed was not marked. The appellate court mentioned State v. Baker 269 Kan. 383 (2000) in which the ―mere failure to check the appropriate box does not require suppression of the test results or refusal where implied consent are met.‖ The State may establish foundation for admission through the use of the DC-27 through competent testimony or through a combination of both. EXPERT: Expert testified in order to obtain reliable results from SFSTs, the test must be performed under NHTSA standardized conditions without deviation. Expert inspected the area in which the SFSTs were done and testified the area was not flat, level, and smooth. The trial court found the physical condition of the street and the NHTSA standards were neither helpful nor necessary to aid the court in understanding the facts and excluded his testimony. Citing Witte 251 Kan. 313 the appellate court found no error in the exclusion. Affirmed.
DANGEROUS DRIVING-INCLEMENT WEATHER
State v. Carter 186 P. 3d 858, 2008 WL 2678517 (2008)
***UNPUBLISHED***
Carter was driving a corvette detected to be traveling 58 mph in a 35 mph zone. The vehicle was stopped and the officer noticed Carter‘s pants zipper undone, eyes bloodshot, slurred speech and smelled of alcohol. The SFST indicated impairment (he almost fell over at one point during the one-legged stand). Carter refused the P.B.T. and the evidentiary breath test. A video was made of the stop. Carter was found guilty. Carter appeals claiming there was insufficient evidence to find him guilty. The appellate court must view the evidence in the light most favorable to the state. After review of the facts there was sufficient information to support a DUI conviction. Carter also argues inclement
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weather during the stop made it difficult for him to perform the field sobriety tests administered by the officer. The video supports Carter's claim it was cold during the stop. There is nothing in the record to indicate the judge did not take this into account. Carter also claims there was no evidence he was driving in a dangerous manner. It is unnecessary to prove a vehicle was being driven in a reckless manner in order to sustain a DUI conviction. Affirmed.
OFFICER REPORT-PROBABLE CAUSE
State v. Brown 179 P.3d 1163, 2008 WL 940796 (2008) ***UNPUBLISHED***
In the early morning hours, an officer observed a vehicle driven by Brown driving the wrong way down a one-way street. Brown was stopped and the officer immediately noted a strong odor of alcohol. Brown indicated he had "a few". At trial the arresting officer testified he had no specific recollection about Brown's performance on the field tests; however the arresting officer's field sobriety checklist was admitted with no objection. The checklist indicated Brown failed the "walk and turn" test when he (one) stopped while walking (two) left half inch or more between his heel and toe and (three) stepped off the line. On the one-leg stand test, the checklist indicated Brown used his arms to balance and put his foot down during the test. The judge determined the officer had probable cause toarrest Brown, denied Brown's motion to suppress and found Brown guilty of DUI on stipulated facts. Brown appeals. Brown argues the arresting officer did not have probable cause to arrest him. The Court noted the record on appeal contained sufficient evidence of probable cause Brown was DUI. Affirmed.
DC-27—REPAIRS—NON-ENGLISH SPEAKING
State v. Hernandez 174 P.3d 936, 2008 WL 217046 (2008)
***UNPULISHED***
Hernandez's first challenge is the officer conducting the test did not complete the DC-27 form. Hernandez contends absent a DC-27 form the breath test was inadmissible under the statute. The District Court disagreed. The Appellate Court stated if a DC-27 form is inadmissible to prove facts omitted from its certification, it makes little difference whether the form is completed at all. While the DC-27 form is indispensable in administrative proceedings, in a criminal trial it is only one means of proof for the factors listed in K.S.A. 8-1002(a) (3). During the trial through competent testimony the factors that are listed in the statute were presented and therefore based on the DC-27 that in of itself does not preclude the admission of the breath test. Hernandez also complains of gaps in the maintenance log for the machine on which he was tested, specifically a failure to record the type of repairs made on certain dates in 2003. Hernandez counsel conducted extensive cross-examination of the records custodian and the officer in charge of maintenance regarding the gaps. While some question remains regarding the precise maintenance conducted on certain dates in 2003 both the officer who performed the testing and the officer in charge of maintenance tests find the machine in question was operating properly when Hernandez was tested. The fact the machine received unknown repairs at other times went to the weight of the evidence, not its admissibility. Hernandez next argues the results of the field sobriety tests were unreliable and tainted because the officer did not fully demonstrate each test and also he gave instructions in English. The officer did testify he had not fully performed the tests for Hernandez such as the walk and
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turn because he would have been required to walk into traffic or turn his back on Hernandez. The officer also stated he did not hold his foot up for thirty seconds while demonstrating the one leg stand but explained to Hernandez he must hold his foot up until I told him the test was completed. These explanations were reasonable and do not suggest a deprivation of fundamental rights. Lastly Hernandez argues a false premise of the fact there was no proof at trial Hernandez could not understand English. The officer who conducted the testing said he assumed Hernandez had a limited understanding of English, but Hernandez did exactly what he had explained him to do. Hernandez never claimed to not understand the officer's instructions. Hernandez and the passenger spoke to each other in English. Lastly it was noted by the officer Hernandez did converse in English outside the courtroom during the proceedings. Hernandez also believed that was irrelevant evidence. The Court disagreed this testimony was irrelevant. Hernandez's use of the English language at the Courthouse would have some tendency and reason to prove he sufficiently understood the SFST instructions. Affirmed.
OPEN CONTAINER ANALYSIS—PHOTOS—CLERICAL JE ERROR
State v. Vanbibber 169 P.3d 696, 2007 WL 3275898 (2007) ***UNPUBLISHED***
Vanbibber was stopped for failing to have a tag light. Upon review of the evidence the State proved several facts a) there was an odor of alcohol b) the admission of drinking c) blood shot eyes d) failure of sobriety tests e) beer and liquor bottles found in the car and f) refusal to take the breath test. Vanbibber argues there was no direct evidence he appeared to be under the influence or he appeared incapable of driving safely. We agree the absence of such evidence is unusual in such a case but this is not fatal. Incapacity to drive can be established through sobriety tests and other means and one does not need to swerve all over the road or drive through another's yard to be guilty of driving under the influence. Viewing the evidence was favorable to the prosecution there was sufficient evidence to support Vanbibber's conviction. Next Vanbibber challenges the sufficiency to support his second conviction of transporting an open container. The officer testified he found an open beer can stuck between the driver and passenger seat and also a quarter full bottle of tequila under the driver's seat which was obviously open and a nearly empty bottle of vodka in the passenger seat. Vanbibber argued the substances in these containers were never analyzed. The Court noted this is not essential to successful conviction of an open container. It noted the description of the bottle, their labels and the officer's testimony it contained alcohol and absent any evidence challenging the nature of the substances there in the jury could reasonably infer the substances were alcoholic. Again the evidence was sufficient to support that conviction. Vanbibber next argues photographs admitted of the containers found in his vehicle were not the best evidence. The Court noted best evidence rule applies to written documents and is not an inflexible rule of exclusion but rather a preferential rule. There was proper foundation laid for the officer's testimony the photographs were a fair and accurate depiction of the containers found in the vehicle. Vanbibber's challenge was rejected. Vanbibber's last argument was a certified journal entry of conviction establishing a prior DUI had an erroneous digit in the social security number. It did contain, however the correct name of the defendant, date of birth, driver‘s license number and reflection of the same counsel as was in the present case. Clearly the matching information virtually eliminated any possibility of misidentification of the subject journal entry. There was no abused discretion admitting the journal entry for purposes of sentencing
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despite what clearly appears to be a typographical error on the social security number. Affirmed.
HGN RESULTS-AMENDED COMPLAINT
State v. Hagen 157 P.3d 6, 2007 WL 1309737 (2007)
***UNPUBLISHED***
Officer Berg stopped Hagen‘s vehicle after observing her commit several traffic infractions. Hagens was given field sobriety tests consisting of HGN, and the walk and turn test. A video was made of these tests. Hagen was charged with third or subsequent offense of DUI. During the preliminary hearing Hagen‘s driving record indicated four prior convictions for DUI. The State subsequently amended the complaint to state Hagan had three or more prior convictions. A pre-sentence report showed Hagen had five prior convictions. Hagen filed a motion for a new preliminary hearing raising a due process argument. The trial court denied Hagen‘s motion. The Court of Appeals stated State v. Moody 282 Kan 181 (2006) resolved this issue. Hagen was on notice she was charged with a felony, evidence presented at the preliminary hearing included the four prior convictions, she did not challenge her prior convictions at the prelim or at sentencing. Hagen was provided sufficient notice of the charges against her. During the trial the video was played of the stop. The judge allowed testimony from the Officer of Hagen‘s inability to follow the instructions during the HGN. No results of the tests were permitted. On the video the Officer stated Hagen was being arrested for failing the two field sobriety tests. Hagan requested a mistrial due to the allowance of the ―results‖ of the HGN having been admitted. This was denied. The Court of Appeals indicated although it was possible for the jury to infer Hagan failed the HGN test Hagan had not shown the denial of the mistrial prejudiced her substantial right to a fair trial. Lastly, Hagan‘s argues her refusal to take the PBT could not be used to indicate she was DUI. The statute specifically does not allow for the admission of the PBT results if she had taken the test. She had requested a special instruction. Due to her refusal for the PBT as well as the evidentiary breath test the jury instruction requested by Hagen would not have supported a theory she had not hidden evidence from the jury. (See State v. Wahweotten for further information about limiting instructions for the use of PBT)
INDEPENDENT RECOLLECTION-USE OF REPORTS
State v. Mollenker 150 P.3d 336, 2007WL 220169 (2007)
***UNPUBLISHED***
A police officer stopped Molleker‘s vehicle due to a defective headlight. After the stop, the officer conducted a DUI investigation, including two field sobriety tests, and Molleker was arrested for DUI. Prior to trial, Molleker filed a motion to suppress, arguing the officer did not have probable cause to make the arrest, which was denied. After a bench trial, Molleker was convicted of DUI. On appeal, Molleker argued the officer should not have been allowed to testify about the result of the walk and turn test at the motion hearing because the officer did not have an independent recollection of the test and the officer‘s memory was improperly refreshed by his police report without an adequate foundation. At trial, the officer had testified regarding the walk and turn test by reading his report. When defense counsel objected, the officer said he was reading his report to ―refresh his memory.‖ On cross, the officer testified he had no independent recollection of Molleker‘s performance on the walk and turn test. The court noted a
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witness must have personal knowledge of information in order to testify. However, the court pointed out a witness is allowed to refresh his recollection of the events by reviewing his police report prepared at the time of the arrest. The court found while the foundation for the officer‘s use of the report could have been improved, there was no error. Furthermore, the court found there were other factors which provided the officer with probable cause to arrest Molleker for DUI, including the fact ―Molleker admitted to having six beers; there was a faint odor of alcohol; he had an open beer can in the car or in the truck; [and] his eyes were watery and blood shot.‖ Affirmed.
SHIFT THE BURDEN-HGN
State v. Graves 149 P.3d 894, 2007 WL 136036 (2007)
***UNPUBLISHED***
Graves appeals his conviction for DUI of drugs or alcohol. First, Graves challenges the sufficiency of the evidence to support his conviction. The court noted under KSA 8-1567(a)(4), evidence of incapacity to drive safely can be established through sobriety tests and other means and observed erratic driving is not required for conviction. The trial court heard testimony from the officers at the scene of the stop, all of who described Graves as being nervous and anxious and noticed Graves was sweating profusely, even though it was a cool April morning. Moreover, Graves failed all the field sobriety tests he attempted, and lab tests showed the presence of cocaine metabolites in Graves‘ system. Accordingly, the appeals court found the evidence was sufficient to support the conviction. Graves also argues on appeal the State impermissibly shifted the burden of proof to the defense by arguing Graves failed to provide sufficient evidence to support the possibility that he did, in fact, suffer a concussion. In this case, the court noted the prosecutor was arguing inferences based on the balance or the lack of evidence. The court found this action by the prosecutor was permissible. Finally, Graves contends his trial counsel was ineffective in failing to object to evidence regarding the HGN test and by eliciting testimony regarding the HGN test which would have otherwise been inadmissible. The court found defense counsel's questions were clearly an attempt to bolster the theory of defense that Graves was not under the influence of drugs or alcohol, but rather he had suffered a concussion. Further, Graves failed to show he was prejudiced by his trial counsel‘s performance. Affirmed.
REFUSAL-ADMISSIBILITY OF FST
State v. Weber 142 P.3d 338, 2006 WL 2661487 (2006)
***UNPUBLISHED***
Weber was pulled over after another driver noticed erratic driving. Deputy had Weber perform field sobriety tests, and Weber failed the alphabet test, the walk-and-turn test, the finger to nose test, and the horizontal gaze nystagmus test. Weber refused a blood test. Jury found Weber guilty of felony DUI. Weber appealed, and his main issue on appeal is suppression of the field-sobriety tests and refusal to take the blood test. Weber also claims reasonable suspicion was not present when the office stopped his vehicle. The court claims a ―traffic violation alone gives an officer reasonable suspicion for an initial stop, even if the stop is pretextual.‖ On the main issue of appeal, Weber contended the Deputy did not comply with implied consent parameters when asking for the blood test. The Court of Appeals stated, ―Immediately after this initial request, however, McBride arrested Weber, provided the advisories, and again requested a blood test. Weber refused both requests. Based upon these facts, McBride
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substantially complied with K.S.A. 2005 Supp 8-1001(b) and (f).‖ In regards to the suppression of the field sobriety tests, the State argued the conducting of field-sobriety tests is an issue of weight, and not one of admissibility. The Court agrees, stating, ―A defendant‘s ability to perform field sobriety tests is obviously relevant to a DUI charge.‖ The Court also states, ―Weber has failed to establish the field sobriety tests were not performed in a reliable manner. The probative value of the field sobriety tests was not substantially outweighed by the risk of unfair prejudice.‖
NO IMPAIRMENT—FURTHER TESTING
State v. Anderson 127 P.3d 349, 2006 WL 265227 (2006)
***UNPUBLISHED***
Officer stopped Anderson at 10:12 a.m. for failure to signal a turn and erratic driving. The Officer immediately detected alcohol and bloodshot and watery eyes, although his speech was coherent and not slurred. Anderson asked the officer for directions, so the officer called dispatch. He then had Anderson perform field sobriety tests. It was raining, so the initial tests were performed while Anderson was in the car, and he passed these. While waiting on an officer with a PBT, he then had Anderson get out of the car to perform more tests, which he failed. He was arrested and convicted of DUI. He challenged the reasonable suspicion to justify his detention after he passed the initial tests. The court found the detention was reasonable, after the officer‘s response to Anderson‘s request for assistance and his noting of the smell of alcohol and bloodshot and watery eyes. The tests were reasonably prompt.
MORE THAN MERE POSSIBILITY—OFFICER REPORT
Sprenkel v. Ks. Dept. of Revenue 124 P.3d 109, 2005 WL 3534011 (2005)
***UNPUBLISHED***
Officer stopped Sprenkel after failing to stop at stop sign. Upon contact, the officer detected alcohol, saw blood shot eyes, and asked if she had been drinking, she said yes. There were no other indicators. Upon exiting the vehicle, officer noticed stronger smell of alcohol. Field sobriety tests were conducted and there were four indicators on the walk and turn test and one indicator on the one-leg stand test. After a PBT, she was arrested. Intoxilyzer showed BAC of .08. Her license was suspended. She filed for review in district court, claiming no PC for the arrest. The suspension was affirmed. The court found PC toarrest for DUI because, among other things, she had four clues on walk and turn test. She appeals. The legal question of probable cause requires a look at the quantum of evidence and whether it would lead a reasonably prudent officer to believe it was more than a mere possibility Sprenkel was driving under the influence. Prior to the stop, the officer did not suspect DUI, only a traffic infraction. Sprenkel objects to the use of the four clues on the walk and turn test because on direct examination, the officer could not remember what she did wrong and could not describe her actions; the only indication was four checked boxed on the report. The boxes listed as clues on the report, however, were only followed by explanations of what the officer was looking for. The Court found the field sobriety tests report form did provide the district court with substantial competent evidence that Sprenkel exhibited two or more distinct clues on the walk-and-turn test. The court noted according to NHTSA standards, such evidence provided a strong likelihood of impairment. Therefore, the test results, added to the evidence of alcohol
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consumption, provided the officer with probable cause to arrest Sprenkel for DUI. Affirmed.
NO PROBABLE CAUSE
State v. Rupp 123 P.3d 212, 2005 WL 3289408 (2005)
***UNPUBLISHED***
At 2 a.m. Officer observed vehicle decelerate rapidly entering intersection with stop sign. After failing to stop, the vehicle turned, making a wide turn into parking stalls before correcting into the driving lane. Officer stopped the vehicle and noticed strong odor of alcohol and bloodshot eyes. Rupp denied drinking, and was rude and agitated, his speech was not slurred. Rupp fumbled to get his license, and gave officer restricted papers from previous DUI. Field sobriety tests were given; there were four clues on walk and turn test (lost balance, started early, improper turn, stepped off line). PBT revealed BAC of .131. He was arrested and charged with DUI. Rupp filed motion to suppress PBT, arguing without the PBT there was no PC. Court denied, ruling there was PC even without the PBT. Rupp waived jury trial, and case was heard on stipulated facts. He was found guilty. He appeals, challenging the ruling on the motion to suppress. Probable Cause to arrest is that quantum of evidence that would lead a reasonably prudent officer to believe guilt is more than a mere possibility. In a DUI, the officer‘s factual basis for concluding the Defendant was intoxicated at the time of arrest determines whether the officer had PC to arrest. Here, the officer‘s observations, along with the results of the field sobriety test provided PC to arrest for DUI.
SCOPE OF STOP—FIELD SOBRIETY TESTS—RECORD ON APPEAL
State v. Neuman 105 P.3d 279, 2005 WL 283612 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed a conviction for DUI, second-offense. The Court held a 20 minute delay in investigating DUI was not was so lengthy it implicated defendant‘s Fourth Amendment rights. Defendant was stopped for failure to use turn signal. Officer smelled odor of alcohol, but defendant claimed the field sobriety tests, and thus the DUI investigation, were not initiated until 20 minutes after the initial stop. Defendant argued the DUI investigation fell outside the permissible scope of the initial stop. Trial court denied motion and convicted defendant. On appeal, the record did not include the videotape of the stop. The Court of Appeals stated the burden is on the appellant to show the DUI investigation was beyond the scope of the stop. The Court held the appellant, with the record as it was, did not adequately meet that burden. Affirmed.
PROBABLE CAUSE TO ARREST
State v. Zouzas 115 P.3d 181, 2005 WL 1661566 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed the district court‘s dismissal of DUI charges. The district court held the officer lacked probable cause to arrest the defendant for DUI. The Court of Appeals held there was substantial competent evidence to support the district court's factual
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findings. A sheriff‘s deputy noticed the defendant‘s vehicle drifting in its lane nearly strike the median. After stopping the vehicle and approaching the defendant, the deputy observed Zouzas' eyes were bloodshot and watery. Zouzas‘ speech was slurred and he had a strong odor of alcoholic beverage coming from his breath. Zouzas exited his vehicle without stumbling, exhibiting instability or using the vehicle for support. The deputy asked Zouzas how much he had to drink. Zouzas initially denied having drunk anything, but later admitted to drinking a couple of beers. The deputy then administered field sobriety tests which the district court found the defendant completed them satisfactorily. Zouzas failed the PBT. Based on this evidence, the district court held the officer lacked probable cause to arrest the defendant for DUI. District Court found the protocol for PBT was not followed. The Court of Appeals held there was substantial competent evidence to support the district court's factual findings and the court's finding of a lack of probable cause was an appropriate legal conclusion to be drawn from those facts.
ILLEGAL SEIZURE—PROBABLE CAUSE TO ARREST
State v. White 90 P.3d 380, 2004 WL 1191645 (2004)
***UNPUBLISHED***
The Court of Appeals overturned the district court‘s suppression of evidence in a DUI trial. The Court held probable cause existed to support defendant's arrest for DUI, thus the seizure of the defendant was legal and the evidence should not have been suppressed. The defendant was observed weaving within her lane while driving down interstate highway at 2:14 a.m., she had bloodshot, watery eyes, her breath smelled of alcohol, and she admitted to consuming alcohol before the officer asked her to submit to preliminary screening tests. The defendant also exhibited several ―clues‖ during the field sobriety tests. The Court ruled the officer possessed probable cause to arrest prior to conducting any field sobriety tests or a PBT. Therefore, all of the evidence was legally obtained in that the defendant was not illegally seized. The Court overturned the district court‘s ruling.
REFUSAL OF FIELD SOBRIETY TESTS—NOT TESTIMONIAL EVIDENCE
State v. Ely 90 P.3d 379, 2004 WL 1191458 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a conviction of felony fleeing or attempting to elude a police officer. The Court held the officer's testimony regarding defendant's refusal to perform field sobriety and breath tests was admissible at trial because the refusal is not testimonial evidence and thus not protected by the Fifth Amendment of the U.S. Constitution. The Court also held the defendant was not entitled to an instruction on lesser-included offense of misdemeanor fleeing or attempting to elude police officer. Ely‘s arrest resulted from a short, around-the-block vehicle pursuit, commencing and ending at a bar parking lot, but involving eight alleged traffic violations. After the chase, law enforcement officers had to forcibly remove Ely from his vehicle and arrested him for DUI and the subject fleeing/eluding charge. A jury acquitted Ely of DUI but convicted him of the charge before us. On appeal, the Court found there was sufficient evidence to affirm the conviction of felony fleeing or attempting to elude a police officer. The Court also held the lesser included offense of misdemeanor fleeing or attempting to elude did not have to be included in jury instructions, because the
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element makes the offense a felony is the defendant committing five or more moving violations during the chase, and the defendant‘s testimony did not dispute at least five of the moving violations. Lastly, the Court held a defendant's refusal to perform field sobriety tests is admissible in a prosecution for DUI because the refusal is not testimonial evidence and, thus, is not protected by the Fifth Amendment to the United States Constitution.
FIELD SOBRIETY TEST—REASONABLE SUSPICION
State v. Morris 87 P.3d 993, 2004 WL 835972 (2004)
***UNPUBLISHED***
The Court of Appeals held the trial record demonstrated the officer had reasonable suspicion to believe defendant was driving under the influence of alcohol, and thus it was proper for officer to ask defendant to submit to a breath test; officer had observed defendant's car cross center line of highway, an odor of alcohol emanated from car, defendant's eyes were bloodshot, defendant declined to perform field sobriety tests, and before officer could administer breath test, defendant drove away in his car.
ADMISSION—FIELD SOBRIETY TEST—REASONABLE SUSPICION—PROBABLE CAUSE
State v. Black 87 P.3d 993, 2004 WL 835992 (2004)
***UNPUBLISHED***
The Court of Appeals overturned a district court suppression of evidence in a DUI case. The Court held the traffic stop of the defendant's vehicle was supported by reasonable suspicion; the officer testified he observed Black speeding 57 mph in a 45, and Black's excessive speed was confirmed by radar equipment. The Court also found probable cause to support Black's arrest for DUI following the valid traffic stop. The Court noted the officer detected an odor of alcohol coming from Black, and Black could not maintain his balance on the walk and turn test (Black missed "heel-to-toe" on step one and raised his arms on step two.). Black did maintain the one-leg test for 20 seconds but "[s]omewhere in the last nine seconds he swayed, raised his arms and put his foot down." Black also failed the PBT, and admitted to the officer he had consumed alcohol.
REASONABLE SUSPICION—FIELD SOBRIETY TESTS
Pasek v. Ks. Dept. of Revenue 100 P.3d 975, 2004 WL 2694279 (2004)
***UNPUBLISHED***
The Court of Appeals reversed district court ruling which vacated suspension of a driver's license and remanded to district court for determination of whether probable cause to arrest existed. The Court held district court's decision was not supported by the evidence; although officer certainly did not have probable cause to arrest driver for DUI merely for odor of alcohol, all the normal indicators of intoxication were not present, officer unquestionably had reasonable suspicion driver had been drinking and driving and officer was within his authority to request driver to perform the normal field sobriety tests. Driver had driven an accident victim to the hospital with police escort. Officer did not observe any signs of intoxication during the drive. At the
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hospital, defendant carried victim to emergency room with no difficulties. Officer later smelled alcohol on driver and asked him to perform field sobriety tests. Defendant showed some signs of intoxication with tests, and also failed a PBT; however officer had not waited 15 minutes since the initial contact with driver to conduct the PBT. Following the PBT failure, officer placed driver under arrest. Driver later failed breathalyzer test. Driver's license was suspended for the test failure. Defendant appealed to the district court, where the suspension was vacated. The district court stated based on totality of the circumstances, the officer did not have reason to ask driver to perform field sobriety tests. KDR appealed. The Court of Appeals stated the officer had reason to request the sobriety tests. The odor of alcohol on driver's breath indicated the possibility he was driving under the influence of alcohol. The Court reversed the district court ruling but remanded to consider whether there was probable cause to arrest driver for DUI.
PROBABLE CAUSE—FIELD SOBRIETY TESTS
McCune v. Ks. Dept. of Revenue 83 P.3d 1270, 2004 WL 292117 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed the suspension of a driver‘s license. The Court of Appeals held officer had probable cause to arrest the motorist for DUI. In the early morning hours of January 1, 2002, an officer stopped McCune for speeding after observing McCune driving 34 miles per hour in a 20 mile-per-hour speed zone. When the officer approached the vehicle, he smelled a strong odor of alcohol as well as observed McCune's eyes were bloodshot and his speech was slurred. The officer inquired as to whether McCune had consumed any alcohol that evening, to which McCune replied he had drank three beers earlier in the evening. As McCune exited the vehicle, the officer noticed McCune's balance was unsteady and the odor of alcohol was coming from McCune's breath. Prior to conducting any field sobriety tests, the officer held up his pen approximately 12 inches from McCune's face and asked McCune to touch the pen with his index finger. McCune attempted to touch the pen three times but missed it each time. The officer then asked McCune to perform field sobriety tests. McCune explained to the officer he could not perform sobriety tests because of back problems that affected his balance. Nevertheless, McCune agreed to perform the walk and turn test. The officer testified when McCune attempted the walk and turn test, he stepped off the line to the left, raised his arms shoulder high for balance, stepped off the line three times in the first nine steps, crossed his feet over when he made a turn, and stepped off the line three times on the return nine steps. McCune refused to perform any more field sobriety tests because of his back injury. McCune then refused to submit to a preliminary breath test and was arrested. The officer testified based on his observations, he believed McCune was impaired. McCune appealed the district court's judgment affirming the KDR suspension of his driver's license. The Court of Appeals held the arresting officer had probable cause to arrest McCune for driving under the influence. They stated the observations of the officer were more than sufficient to satisfy a reasonably prudent police officer that McCune had been driving under the influence. Consequently, the Court concluded the district court did not err in affirming the administrative order of suspension of McCune's driver's license.
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C. P.B.T.
***PUBLISHED CASES***
REFUSAL-LIMITING INSTRUCTION-CANNOT USE TO PROVE DUI
State v. Hardesty 42 Kan App 2d 431, 213 P.3d 745 (8/14/09)
The judge prior to trial would decide the defendant‘s guilt with respect to the charge of refusal to take a PBT. In response to this the defendant requested the court exclude from the jury any testimony regarding his refusal to take the PBT. During closing arguments of the DUI trial of the defendant the State urged the jury to consider the defendant‘s refusal to take the PBT as evidence he was DUI. The defendant was found guilty. The appellate court determined the court did error in the admission of the refusal of the PBT to indicate the defendant was DUI however they found this error harmless because the evidence was overwhelming. There was also a great discussion about identity theft (defendant claimed he was his deceased brother) and Apprendi.
DEVICE NOT APPROVED BY KDHE-FACTORS TO DETERMINE P.C.
State v. Pollman 41 Kan.App.2d 20, 204 P.3d 630 (11/21/08)
The court of appeals said per se law was constitutional and not vague...however the Supreme Court reversed his conviction on the basis his arrest was not supported by PC. It found the district court should have suppressed the PBT results because at the time of the stop the PBT device was NOT on the approved list of devicespublished by the KDHE. Absent the PBT results there was no PC to arrest the defendant. Although he allegedly failed one out of four SFSTs the State did not present evidence on the results of the SFSTs. The only evidence to consider was 1) Defendant refused to follow lawful requests to leave the area. 2) Defendant admission to consuming a few beers. 3) Defendant had an odor of alcohol on his breath. THIS EVIDENCE was not sufficient to warrant a reasonable prudent police officer to believe guilt was more than a mere possibility....therefore the conviction is REVERSED. See also Pollman 286 Kan 881 (08/08/08)
SFST AT STATION—FURTHER INVESTIGATION
City of Norton v. Wonderly 38 Kan.App.2d 797, 172 P.3d 1205 (2007) Rev.Den.5/28/08)
In this case a motorist and his passenger called law enforcement on their cell phone reporting a white pickup truck driving northbound was driving erratically. The callers told the dispatcher their names reported the truck's license plate number and stated the pickup truck was traveling behind two semi-trailer trucks. An officer within 35 minutes observed this white truck traveling with two semi-trucks. The officer determined the license plate did match. The officer followed the truck for approximately three minutes and did not observe any traffic infractions. The officer stopped the vehicle. The officer could detect an odor of alcoholic beverage coming from Wonderly. Wonderly provided his license to the officer without any difficulty, exited his vehicle without incident and had no problems walking back to the officer's patrol car. Wonderly did state he had been drinking at a bar earlier and his speech was fair and not particularly slurred. The officer requested Wonderly to take a PBT;
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it indicated his BAC was greater than .08. The officer failed to wait the 15 minutes before administrating the PBT. The officer noted it had been raining and misting and the roads were slick. The officer decided Wonderly should perform the SFSTs at the Sheriff's department. The officer did not place him under arrest; however he did place him in handcuffs and transported him two blocks away to the Sheriff's office, which took approximately two minutes. The officer testified based on everything he had observed at the traffic stop and the sheriff's office he believed he was impaired to the extent he could not safely drive. The Intoxilyzer test indicated a BAC of .174. Wonderly first objects to the traffic stop being justified. The Appellate Court stated based on the two identified callers giving first hand information to law enforcement and the fact the officer saw the truck coming and it matched all the descriptions, he had reasonable suspicion to stop the vehicle, even without observing any traffic infractions. Wonderly next contends his arrest was without probable cause. Due to the totality of the circumstances the Appellate Court stated a reasonable person in Wonderly's position would have believed they were under arrest. Therefore the court must look to determine whether or not there was probable cause to believe he should have been in that position. The Court of Appeals concluded the officer had reasonable suspicion for the stop. The limited evidence the officer had gathered at the scene of the traffic stop was insufficient to support probable cause for an arrest. The fact the officer felt it was necessary to continue his investigation at the Sheriff's office before formally arresting Wonderly supports that conclusion. Reversed.
PBT NOT ADMISSIBLE FOR PROOF OF DUI
State v. Wahweotten 36 Kan.App.2d 568, 143 P.3d 58 (2006)
A police officer stopped Wahweotten for speeding. During the stop, the officer smelled a strong odor of alcohol. The officer asked Wahweotten if he had been drinking, and Wahweotten responded he had ―had a couple.‖ The officer noticed Wahweotten‘s eyes were bloodshot and ―had a glazed look to them‖ and his speech was slightly slurred. Wahweotten agreed to take field sobriety tests. After Wahweotten showed signs of impairment on the field sobriety tests, Harwood asked Wahweotten to take a preliminary breath test, which he refused. The officer placed Wahweotten under arrest for DUI. The officer read Wahweotten the implied consent advisory and asked him to take a breath test. Wahweotten refused to take the breath test. Wahweotten was charged with DUI, refusing to submit to a PBT and no liability insurance. At a jury trial, Wahweotten was found guilty of the charged offenses. On appeal, Wahweotten raised five arguments, including: (1) the trial court improperly allowed the admission of evidence of his PBT refusal; (2) he was improperly forced to give up his constitutional right against self-incrimination in favor of his constitutional right against a warrantless search; (3) he was denied a fair trial and his right to due process by the prosecutor‘s statements during closing arguments; (4) the evidence was insufficient to convict him of DUI; and (5) cumulative error deprived him of a fair trial. First, the court held PBT results cannot be used to prove a defendant was guilty of DUI beyond a reasonable doubt. Accordingly, the court found the trial court should have instructed the jury to consider evidence of Wahweotten‘s PBT refusal only for the charge of refusal to submit to a PBT. However, Wahweotten failed to object to the lack of a limiting instruction at trial and the court found the instructions were not clearly erroneous. Second, the court held because Wahweotten's Fifth Amendment privilege was never implicated, he was not faced with the decision to choose between his Fifth Amendment right against self-incrimination and his Fourth Amendment right against unreasonable searches and seizures when asked to take the breath tests. Therefore, the doctrine of unconstitutional conditions did not apply. Third, the court found the prosecutor‘s statements did not amount to misconduct. The court noted the comments made by the prosecutor during closing
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arguments were an attempt to show Wahweotten‘s story was not feasible in light of the other evidence introduced at trial. Moreover, the court pointed out the prosecutor's comments was made in response to defense counsel's lengthy discussion of perjury and the defendant's credibility. Accordingly, the court found no prejudicial error occurred where the questionable statements by the prosecuting attorney were provoked and made in response to prior arguments or statements by defense counsel. Fourth, the court found there was more than sufficient evidence to find Wahweotten was incapable of safely driving an automobile. Finally, the court found there was no cumulative error. Affirmed.
KDHE APPROVED—JUDICIAL NOTICE—PBT
Leffel v. Ks. Dept. of Revenue 36 Kan. App 2d 244, 138 P.3d 784 (2006)
An officer observed Leffel cross the centerline and then straddle the centerline for approximately one and a half blocks. The officer conducted a traffic stop and upon approaching Leffel, he smelled a strong odor of alcohol. The officer also noticed Leffel‘s eyes were red and his speech was slurred. When asked if he had been drinking, Leffel responded ―he had a couple.‖ Leffel underwent field sobriety testing and afterward agreed to take a preliminary breath tests which was conducted on the Alco-sensor IV. Leffel‘s results from the PBT showed his BAC was above the legal limited. Leffel was arrested for DUI and after an administrative hearing was conducted, the KDR suspended his driver‘s license. Leffel appeals the trial court‘s decision affirming the suspension of his driver‘s license. Leffel argued the trial court erred in considering the PBT results were obtained on the Alco-sensor IV, a device not approved for use by KDHE. At trial, the State failed to show Leffel‘s preliminary breath test was conducted on a device approved by the KDHE.Because the Alco-sensor IV was not listed as an approved device under KAR 28-32-7(a), the State needed to bring forward some form of evidence showing the Alco-sensor IV had been evaluated by KDHE and had met the criteria in KAR 28-32-6. The court held, in the absence of proof the testing device was approved by KDHE, Leffel‘s preliminary breath test result should not have been admitted. The court held even though the PBT did not constitute substantial competent evidence, the arresting officer‘s testimony provided substantial competent evidence to support the trial court‘s decision there was probable cause to believe Leffel was DUI.
PBT—IMPLIED CONSENT—BAT—REASONABLE GROUNDS
State v. Jones 279 Kan. 71, 106 P.3d 1 (2005)
The Supreme Court reversed the Court of Appeals ruling affirmed DUI conviction, and remanded to district court for new trial. The Court held PBT performed on defendant was search subject to Fourth Amendment strictures; defendant did not give voluntary consent to administration of PBT; and statutory implied consent rule did not apply to PBT. Arresting officer responded to one-vehicle accident. Defendant failed PBT, was arrested, and blood test was taken later at the hospital. The case was tried on stipulated facts. The facts revealed the statutory PBT warnings of K.S.A. 8-1012 were read, defendant was not free to leave, and defendant "did submit" to the PBT. The trial court allowed the PBT results as well as a blood test results. The Court of Appeals affirmed the trial court. The Supreme Court reversed, noting under the scant facts in the stipulations, defendant‘s mere acquiescence to the PBT did not establish voluntary consent. Thus, the PBT was not proper, and there were no other reasonable grounds for the blood test. The blood test was also fruit of the poisonous tree. The conviction was reversed and remanded for new trial.
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PBT—PROBABLE CAUSE—SEPARATION OF POWERS
State v. Chacon-Bringuez 28 Kan.App.2d 625, 18 P.3d 970 (2001)
The Court of Appeals affirmed a DUI conviction. The Court held a statute allowing a law enforcement officer to make an arrest based solely on the results of a PBT does not violate the separation of powers doctrine. The Court also held the trooper had probable cause to stop defendant's vehicle and probable cause to arrest defendant for DUI. K.S.A. 2000 Supp. 8-1012 allows an officer to make his or her determination whether to make an arrest based solely or in part upon the results of the PBT. The Court concluded this does not constitute a significant interference by the Legislature with the function of the judiciary. Judicial determination of probable cause in a warrantless arrest is always available and is not abrogated by the provisions in the statute allowing a law enforcement officer to make an arrest based solely on the results of a PBT. The Court also held not having license plates constituted probable cause to stop defendant‘s vehicle and other facts, including defendant‘s failure of field sobriety tests, constituted probable cause to arrest for DUI.
PBT—REASONABLE GROUNDS—REASONABLENESS
Gross v. Ks. Dept. of Revenue 26 Kan.App.2d 847, 994 P.2d 666 (2000)
The Court of Appeals affirmed KDR‘s suspension of a driver‘s license. The Court held (1) to request a PBT of motorist's breath, it is not necessary police officer formulate probable cause or reasonable belief to arrest the motorist for DUI; (2) trial court had jurisdiction to determine whether police officer's request for PBT was proper; and (3) statute authorizing police officer to request motorist to submit to PBT, when followed, does not run afoul of the Fourth Amendment. The Court noted probable cause is synonymous with the term "reasonable grounds," within the meaning of the statute providing an officer may request a motorist to submit to a preliminary screening test of the motorist's breath to determine alcohol concentration if the officer has reasonable grounds to believe that the motorist has alcohol in his or her body. KSA 8-1012. When such a test is requested, the issue under the Fourth Amendment is not one of probable cause but whether the request is reasonable. The Court noted that KSA 8-1012 provides adequate safeguards to insure reasonableness and, when followed, does not run afoul of the Fourth Amendment.
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***UNPUBLISHED CASES***
―DON‘T LIE TO ME‖-SOLUTION CHANGED EVERY 7 DAYS-DC-70 LOST
State v. Sigg 231 P.3d 587, 2010 WL 2245601 (05/28/10)
***UNPUBLISHED***
Trooper arrived at the scene of a crash and spoke with the defendant who claimed she was the driver. While speaking with her the Trooper could detect an odor of alcohol coming from her. Later a Deputy arrived at the scene and was asked by the Trooper to investigate further the possibility of alcohol use by the defendant. The defendant denied to the Deputy any use of alcohol. The Deputy stated she should not ―lie to him,‖ and again asked her if she had been drinking. The defendant claimed she had one drink earlier. No Miranda was read to the defendant during this entire process. SFSTs indicated impairment and the defendant‘s BAC was .136. During trial the defendant argues her statement should be suppressed because she was in custody and no Miranda was read. There are two things to look at to determine if custodial or investigative First: court looks at the circumstances surrounding the interrogation and Second: court decides whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation. Under K.S.A. 8-1611 and K.S.A. 8-1612(a) a LEO has a duty to make a detailed written report which would require speaking with the driver to get relevant information. However in this instance the Deputy had begun speaking to her as a suspect and not an ordinary witness involved in the crash. The court determined the questioning was interrogation and however the evidence was so overwhelming the use of the statements she gave was harmless error. The defendant also argued since the DC-70 that was read to her was lost or destroyed and not available to the state her breath test should be suppressed. The court noted in State v. Alfrey unpublished No. 93890 ―there is no language in the statute requiring the State to establish by written documentation that it complied with K.S.A. 8-1001. The defendant also argued the solution on the Intox 5000 had not been changed ever 7 days. The defendant failed to show any authority for the claim. The court also noted Lincoln v. Ks Dept. of Revenue to lay a foundation for the admissibility of breath test results; the KDHE is not required to establish certification of the standard solution used to calibrate breath testing equipment. There was an order by the court specifically not to mention the results of the PBT at trial. The Deputy was questions about his reasons stated on the DC-27 form showing his belief she was under the influence. The Deputy stated ―failed PBT‖ along with other indicators. There was a request for Mistrial which was denied. The Court of Appeals stated the mention of the PBT was inadvertent, the state did not follow up with any other questions about the PBT and no attention was drawn to the mistake. Conviction upheld.
NOT UNDERSTANDING WARNINGS NOT A DEFENSE-NO REASON TO SUPPRESS OR FAIL TO CONSIDER FOR PC
City of Salina v. Arias 229 P.3d 420, 2010 WL 1874096 (04/30/10)
***UNPUBLISHED***
This was an interlocutory appeal from the City claiming the trial court erred in refusing to consider the results of the defendant‘s PBT test in determining whether probable cause existed for his arrest. The defendant was Spanish speaking. The officer read the warnings in
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English as noted in K.S.A. 8-1012. The State is required to show the defendant ―unequivocally, specifically, freely, and intelligently consented‖ citing State v. Jones 279 Kan 71(2005). The court noted K.S.A. 8-1012(c) which states ―failure to give the notice shall not be an issue on defense‖ The court reviewed Kim v. KDOR 22 Kan.App.2d 319 (1996) and State v. Bishop 264 Kan. 717 (1998) whether English speaking or even deaf –a person who does not understand the oral notice is immaterial. Although K.S.A. 8-1012 does not have the specific language of K.S.A. 8-1001(n) (it shall not be a defense the person did not understand the written or oral notice required by this section‖) it does not affect the validity of his consent to the PBT and the defendant may not raise his failure to understand the PBT notice as an issue or defense in the case.
REFUSE PBT
State v. Angel 223 P.3d 837, 2010 WL 653124 (02/19/10)
***UNPUBLISHED***
The defendant refused all SFSTs, PBT and evidentiary breath test. During trial the officer testified the defendant refused the PBT. No comments were made by the prosecutor during closing arguments about his refusal to take a PBT. The defendant cites Wahweotten 36 Kan.App.2d 568 (2006) claiming the refusal of the PBT is inadmissible against a charge of DUI. The defendant however did not object during the testimony by the officer and the court found this was not proper before the court and found the issue was not preserved. There was an issue concerning about attorney‘s fees that was remanded.
PBT INDICATED UNDER 0.08-―LEGAL TO DRIVE‖-CONTINUED WITH THE INVESTIGATION
State v. Barner 223 P.3d 837, 2010 WL 597019 (02/12/10)
***UNPUBLISHED***
Officer received a report of a reckless and possibly impaired driver. Officer located the vehicle and observed it cross over the center line once and fog line twice. The vehicle was stopped and the driver indicated he had not been drinking. The Officer could NOT detect an odor of alcohol. Defendant had slurred speech and trouble retrieving his DL. The officer asked the driver to submit to a PBT. The PBT indicated 0.07. Defendant then stated he did have one beer. The Officer informed Defendant he was ―legal to drive‖ but told him to wait while he contacted his Sergeant. SFSTs were then administered and based on all information Defendant was arrested. A subsequent BAC indicated 0.279. A motion to suppress was filed on two grounds-once the officer had completed the check of his DL and registration he should have been free to go OR after requesting the PBT and he was ―legal to drive‖ the stop should have concluded. Court indicates ‗totality of the circumstances‘ is the guide and clearly the officer had enough information to request a PBT even though he could not smell an odor of alcohol. Also the court noted although the officer indicated he was ―legal to drive‖ a blood alcohol content below 0.08 does not immunize a driver from a DUI. The result of the PBT did not mandate a course of action for the officer to follow—Officers are afforded the latitude to broaden their inquiry based on newly acquired information citing State v. Morlock 289 Kan. 218 (2009)
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MANUFACTURERS INSTRUCTIONS-15 MINUTE DEPRIVATION
Kirby v. Ks. Dept. of Revenue 221 P.3d 642, 2010 WL 173957 (01/08/10)
***UNPUBLISHED***
The underage defendant had contact with the police around 2 am on a separate matter and was determined to have been drinking. The defendant was given a ticket and allowed to leave but was warned not to operate a vehicle, his jeep which was close by, since his BAC was .08. Later around 4 am one of the officers who had prior contact saw the jeep fail to stop at a stop sign and began pursuit. The officer could not tell who was driving. The car turned into a parking lot and the officers found it locked and parked. The officers located the defendant. During a licensing hearing the PBT was admitted over the objection of the defendant. The appellate court noted the K.A.R.28-32-6(c) states the screening device must contain specific instructions provided by the manufacturer describing the proper operating procedure in clear, concise and accurate language. K.A.R. 28-32-7(a) states the PBT is to be ―operated according to the manufacturers‘ written directions‖. The PBT used by the officer did not require a specific 15 min deprivation but one in which the officer upon inquiry: if the defendant states he has not consumed within 15 minutes and the officer believes he has not had any alcohol in his mouth the test could be given. In this case, the defendant stated he had not consumed for about 40 minutes. In this instance, the appellate court found the officer did not violate the manufacturer‘s instructions. The defendant cited City of Concordia v. Ellis (no. 95,745 unpublished case 2006) The arrest was valid.
PBT STATUTE ALTHOUGH THREATENING IS OK-PATROL CAR DISCUSSION ON CAR STOP
State v. Smith 220 P.3d 594, 2009 WL 5062492 (12/18/09)
***UNPUBLISHED***
Defendant was stopped for pulling a trailer without working taillights. The officer stated he would give a warning ticket to the defendant and to have a seat in his patrol car. While in the car the officer asked a series of questions that led him to believe the defendant may be intoxicated. SFSTs were given and the defendant was asked to take a PBT. The officer did give the standard warnings before administering the PBT. The defendant was arrested and his BAC was 0.099. The defendant suggested during a suppression motion Miranda should have been given prior to the questioning in the patrol car and the use of his deep-lung air for the PBT violated his 4th Amendment. The court denied both requests; thus the appeal. The Miranda warnings are intended to prevent coerced confessions, but parties recognize in a routine traffic stop that although they may be momentarily delayed, they will soon be free to go on about their business. While it is true a patrol car is sometimes used as a ―temporary jail‖ that is not what happened here. A number of cases were cited Price 233 Kan. 706 (1983), Almond 15 Kan.App.2d 585 (1991) and Berkemer v. McCarty 468 U.S. 420 (1984). As for the PBT, the court found the defendant consented to the testing. The defendant claims he was coerced due to the reading of the rights concerning traffic infractions. The court indicated the Supreme Court noted: Compulsory testing for alcohol or drugs through drivers implied even coerced consent does not violate the Constitution it is reasonable in light of the State‘s compelling interest in safety on the public roads. The defendant did not cite any case law suggesting consent is invalid or unlawful when obtained after giving a driver accurate information about the consequences of a test refusal. The defendant also challenged the PC for the arrest-no merit was found. Affirmed.
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UNDER 21-ADMITTED TO DRINKING
Christensen v. Ks. Dept. of Revenue 219 P.3d 491, 2009 WL 4035522 (11/20/09)
***UNPUBLISHED***
Officer stopped vehicle for a broken taillight. Upon approach the officer observed the following: bloodshot eyes, slurred speech, difficulty communicating, and admitted to five or six beers. The officer also determined the driver was under 21. A PBT was administered and registered 0.11. After the PBT field sobriety tests were given. The hearing officer suspended the license. The defendant sought review of the district court which affirmed and it was appealed stating the officer did not have reasonable grounds to request testing. The State argued because the defendant was under the age of 21 the officer only had to have reasonable grounds the defendant had operated or attempted to operate a vehicle for the implied consent to even apply. The officer need not show he was under the influence of alcohol or drugs. The appellate court noted based on the observations of the officer (not taking into account the SFSTs) there was substantial competent evidence to support the findings. Affirmed.
4TH AMENDMENT-USE REFUSAL OF EVIDENTIAL TEST AS A DEFENSE AND REFUSING THE P.B.T.
State v. Weaver Slip Copy, 2009 WL 2242420 (07/24/09)
***UNPUBLISHED***
The defendant argued the admission of his refusal to take the Intoxilyzer 5000 is prohibited by the 4th amendment. The court reiterated their opinion in State v. Bussart-Savaloja 40 Kan.App.2d 916 (2008): Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. Due to K.S.A. 8-1001 the State was allowed to argue as reasonable inference from that evidence that the defendant was DUI. The defendant also suggested because Miranda was not read his refusal to submit was not admissible. The court noted State v. Zabrinas 271 Kan. 422 (2001) where defendant willingly allows admission of a statement at trial and uses it as part of defense mere fact that such trial strategy proves unsuccessful does not allow defendant to then challenge admission of the statements on appeal. In this case the defendant argued in closing he was a simple person who did not trust the technical innovations of modern society. Also the court noted State v. Wahweotten 36 Kan.App. 2d 568 (2006) and Pennsylvania v. Muniz 496 U.S. 582(1990) making it clear a breath test refusal does not implicate the 5th amendment. Defendant also refused to take the P.B.T. and defendant claimed the court admitted it in error. The court concluded the admittance of the P.B.T. was error it was harmless. There was also a juror misconduct and BIDS argument.
K.S.A. 8-1012 ADVISORIES
Luea v. Ks. Dept. of Revenue 209 P.3d 764, 2009 WL 1858260 (06/26/09)
***UNPUBLISHED***
The officer observed bad driving and stopped the defendant‘s car. Perfomance of the SFST indicated impairment and the defendant was placed in the patrol car. The officer informed the defendant he was not under arrest but his investigation was continuing. The officer then read the implied consent advisory to him and requested he take a PBT. The defendant took the test. He was then placed under arrest and transported to take
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the formal Intoxylizer test. Again the officer read the implied consent advisory and requested he take the Intoxylizer test. His test indicated 0.195. The defendant argues he was not given the advisories provided in K.S.A. 8-1012 and therefore was mislead. The defendant claimed this was a ―blatant misuse and violation of the Kansas Implied Consent Law‖ The defendant provided no authority for this argument. The court noted the defendant could not have been prejudiced by getting more advisories than the abbreviated PBT notices. The court found the officer substantially complied with the notices of K.S.A. 8-1012 and there was no evidence the defendant was induced to take the Intoxylizer test. It was noted the only issue during the licensing hearing is whether or not the defendant failed or refused the Intoxylizer test after being given the appropriate implied consent advisories. There was no challenge to the advisories given before the intoxylizer test. Suspension affirmed.
LIMITING INSTRUCTION
State v. Logan-Price 197 P.3d 904, 2008 WL 5401323 (12/19/08)
***UNPUBLISHED***
The defendant was convicted of DUI, refusing to take the PBT and a number of traffic infractions. The defendant appeals the district court‘s refusal to instruct the jury it should not consider the refusal to take the PBT in determining her guilt or innocence of the DUI charge.-pursuant to the ruling in Wahweotten 36 Kan.App.2d 568 (2006). The defendant had specifically requested this instruction. It was determined the court clearly erred in not giving the instruction the error was harmless in the face of overwhelming evidence of her guilt.
ELLIOT—INADMISSIBILITY
State v. Salsberry 178 P.3d 688, 2008 WL 762521 (2008) Rev. Den. (2008) ***UNPUBLISHED***
Salisbury was charged with felony DUI. During the jury trial the officer testified he administered a PBT. Once completed, the defendant was placed under arrest. Clearly K.S.A. 8-1012(d) says the results of a PBT are inadmissible in any civil or criminal action unless it is to validate the arrest. During the trial Salisbury did not object to this testimony. Also Salisbury's own attorney referred to the PBT on cross. The result of the PBT was not admitted and the judge explained to the jury it was not to consider the PBT as evidence of intoxication. Therefore there was no reason for a new trial based on admittance of the PBT. Salisbury also contends the Court erred in accepting his criminal history. Salisbury's criminal history indicated he had five prior convictions for DUI, one occurring in Louisiana in which the State did not present any evidence concerning that conviction and the Court did not take it into account. What is significant about his criminal history is the fact that a 1994 conviction in State Court, two convictions in Municipal Court in 2002, and the fifth conviction in 2005 in State Court. The Court reviewed Elliot and determined the one conviction in 2002 in Municipal Court was in fact a felony and Elliot would prevail. Therefore, that one should not have been considered, however Salisbury still had three prior convictions and should have been sentenced as a fourth offense which he was. Affirmed.
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COMMERCIAL DRIVER‘S LICENSE—FRUIT OF POISONOUS TREE
Hillburn v. Ks.Dept. of Revenue 177 P.3d 1011, 2008 WL 624594 (2008) ***UNPUBLISHED***
An officer observed Hillburn swerve and drive on to the shoulder of the road three separate times and then observed the car drive through a ditch before stopping. When the officer approached the car he asked Hillburn if he had been drinking. Hillburn replied he had a few beers. Hillburn was arrested. Hillburn initially complained concerning the implied consent advisory, however the Court noted the officer is not required to put Hillburn on notice Hillburn's CDL and privileges might suffer more severe sanctions than his individual driver‘s license. Hillburn also complained because he did not consent to a search of his deep lung air and because the officer did not have a warrant authorizing the conduct to conduct the PBT the results of the Intoxilyzer 5000 must be suppressed as fruit of the poisonous tree. The officer clearly had independent probable cause to arrest Hillburn without the PBT results. The court noted they did not need to address Hillburn's claim the exclusionary rule should apply in civil driver‘s license suspension hearings.
REQUIREMENT OF DRIVER—SHIFTING OF INVESTIGATION
City of Norton v. Ward 177 P.3d 1011, 2008 WL 624587 (2008) ***UNPUBLISHED***
Ward rounded a corner too fast, struck a curb, and turned his vehicle on its side. He climbed out of the vehicle and went to a friend's house in the area. Passer-by reported to the police someone had run from the accident scene and was hiding. An officer arrived at the scene and a few moments later Ward returned to the scene on foot. Ward told the officer he was the driver of the vehicle and that he had left the scene and went to a friend's house. During the conversation the officer detected a strong odor of alcoholic beverage and noted Ward's eyes were blood shot. It was determined Ward was 20 years old and had indicated to the officer he had drank six or seven beers. The officer testified he considered Ward to be under arrest when he smelled an odor of alcohol, he was 20 years old, and he was going to the Sheriff's office for MIP. The officer specifically denied telling Ward he was under arrest. The officer's report however indicated he told Ward he was under arrest for DUI. At the scene the officer requested Ward to submit to a PBT. The officer gave him the three-part warning and the results indicated he was .08. No other field sobriety tests were conducted. The breath test indicated a BAC of .174. The officer then read Ward his Miranda rights and agreed to be question. Ward first contends these statements made at the accident scene should be suppressed. The Court noted when the defendant approached the wrecked vehicle the officer was justified in investigating the collision by asking the defendant certain preliminary or investigating questions. However the nature of the contact between the officer and the defendant began to shift when the officer noted the smell of alcohol and his blood shot eyes. The Court reviewed a number of traffic statutes, K.S.A.8-1604 requiring driver‘s duty to provide certain information after a collision, K.S.A.8-1611 the requirement for law enforcement officers to complete vehicle accident reports, K.S.A.8-1612 directing the Department of Transportation to prepare and supply accident report forms to law enforcement officers. In all the cases reviewed by the Appellate Court the officer's questions were focused on the cause and circumstances of the vehicular accidents rather than accusatory questions more typical of custodial criminal interrogations. Ward's motion to suppress the statements, which indicate any person who operates or attempts to operate a vehicle within the state is deemed to have given consent
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to testing, included but not limited to a PBT. Legislative intent for that provision was to supersede State v. Jones decision in an act implied consent provisions for PBTs not to oppose all the notices and conditions required for tests admissible in court on PBTs. The Appellate Court stated the District Court did not err in failing to suppress the results of the PBT. The last issue Ward claims officer lacked probable cause to arrest him. In a DUI case the answer to the probable cause to arrest question depends on the officer's factual basis for concluding the defendant was intoxicated at the time of the arrest. Ward's incriminating statements at the accident scene, the results of the PBT, coupled with the officer's knowledge of the accident, and his determination Ward exhibited signs of drinking alcohol support a reasonable belief Ward had committed a DUI. Given the totality of the circumstances the officer had sufficient probable cause to arrest Ward. Affirmed.
SHIFTING THE BURDEN—NOT TO PROVE DUI
State v. Newburn 174 P.3d 458, 2008 WL 142114 (2008) ***UNPUBLISHED***
Newburn first argues his refusal to submit to a PBT could not be used by the State to prove he was intoxicated. The only reference during the State‘s case in chief was the officer‘s testimony Newburn stated he was ―not going to blow‖. The officer testified he took that to mean he wasn‘t going to take the PBT or possibly the intoxilyzer so the officer took it as he knew what was next after the field sobriety tests. The appellate court cited State v. Wahweotten 36 Kan. App.2d 568 (2006) a defendant‘s refusal to take a PBT may not be used by the State to prove the defendant also committed DUI. The officer never asked Newburn to take a PBT. During cross the defendant discussed PBT with the officer. The appellate court noted Newburn did not ask for a limiting instruction and objected only to the inference he had been arrested for DUI before. The trial court had no opportunity to address any harm that may have flowed from this evidence. Even if it was error the appellate court found overwhelming evidence of guilt. Newburn also implies the prosecutor shifted the burden to Newburn arguing Newburn must have been intoxicated because he refused the Intox test. K.S. A. 8-1001(i), states a refusal can be used against the defendant. The court reasoned the prosecutor could make the inferences based on the lack of evidence so long as the remarks did not draw an indirect inference on the defendant‘s failure to testify.
REQUIREMENT TO TAKE A PBT- UNEQUIVOCAL CONSENT-ANYTHING LESS IS REFUSAL
City of Lenexa v. Gross 161 P.3d 815, 2007 WL 2043580 (2007)
***UNPUBLISHED***
The City of Lenexa appealed the suppression of Amy Gross‘s PBT results based on the fact the City felt as if the PBT was voluntarily taken by the defendant. The defendant had earlier been fired from her job for coming to work intoxicated, and upon leaving her place of business, she backed her vehicle into a parked vehicle, though the parked vehicle sustained no damage. Her previous work supervisor called 911 to report the defendant as a drunk driver, and an officer was dispatched to her location. The officer did not notice any erratic driving by the defendant, but pulled the vehicle over based on the report by dispatch. The officer noticed an odor of alcohol on her breath, and asked the defendant to submit to a PBT. The defendant was informed she had to take the PBT as a matter of state law.
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The PBT result indicated she was over the legal limit, and 15 minutes later, the officer gave another PBT which showed she was still over the legal limit. She was arrested for DUI.The statement by the officer that Gross was required by law to take the PBT is violative of K.S.A.Supp 2005 8-1012 which states an officer may request a driver submit to a PBT. Because the officer did not give Gross the option of taking the test, the test was essentially forced on her by coercion. The law is well settled a person taking the PBT must unequivocally, specifically, freely, and intelligently consent to the test. She did not do so, and therefore the Court of Appeals affirmed suppression of the PBT results.
HGN RESULTS-AMENDED COMPLAINT
State v. Hagen 157 P.3d 6, 2007 WL 1309737 (2007)
***UNPUBLISHED***
Officer Berg stopped Hagen‘s vehicle after observing her commit several traffic infractions. Hagens was given field sobriety tests consisting of HGN, and the walk and turn test. A video was made of these tests. Hagen was charged with third or subsequent offense of DUI. During the preliminary hearing Hagen‘s driving record indicated four prior convictions for DUI. The State subsequently amended the complaint to state Hagan had three or more prior convictions. A pre-sentence report showed Hagen had five prior convictions. Hagen filed a motion for a new preliminary hearing raising a due process argument. The trial court denied Hagen‘s motion. The Court of Appeals stated State v. Moody 282 Kan 181 (2006) resolved this issue. Hagen was on notice she was charged with a felony, evidence presented at the preliminary hearing included the four prior convictions, she did not challenge her prior convictions at the prelim or at sentencing. Hagen was provided sufficient notice of the charges against her. During the trial the video was played of the stop. The judge allowed testimony from the officer of Hagen‘s inability to follow the instructions during the HGN. No results of the tests were permitted. On the video the officer stated Hagen was being arrested for failing the two field sobriety tests. Hagan requested a mistrial due to the allowance of the ―results‖ of the HGN having been admitted. This was denied. The Court of Appeals indicated although it was possible for the jury to infer Hagan failed the HGN test. Hagan had not shown the denial of the mistrial prejudiced her substantial right to a fair trial. Lastly, Hagan‘s argues her refusal to take the PBT could not be used to indicate she was DUI. The statute specifically does not allow for the admission of the PBT results if she had taken the test. She had requested a special instruction. Due to her refusal for the PBT as well as the evidentiary breath test the jury instruction requestedby Hagen would not have supported a theory she had not hidden evidence from the jury. (See State v. Wahweotten for further information about limiting instructions for the use of PBT)
CONSTITUTIONALITY
State v. Braden 143 P.3d 421, 2006 WL 2864742 (2006)
***UNPUBLISHED***
An officer observed Braden‘s vehicle make a very wide turn, cross the double-yellow line, and straddle the yellow line for approximately 40 feet. Suspecting DUI, the officer stopped the vehicle and approached the driver. Braden smelled of alcohol, his eyes were glazed, his speech was slurred, he admitted to drinking and stumbled out of the car. Braden submitted to and subsequently failed several different field sobriety tests. Braden refused to submit to
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a PBT. Braden was arrested for DUI and refused to take a breath test on the Intoxilyzer 5000. Following a jury trial, Braden was convicted of DUI, refusal to submit to a PBT, and other traffic infractions. On appeal, Braden argued the district court erred in admitting evidence of his refusal to submit to a PBT to support his DUI charge. However, during the trial Braden did not request the jury be instructed this evidence relates only to the charge of refusal to submit to a PBT and not to the DUI charge. Therefore, it was not clear error for the district court not to provide the jury with a limiting instruction. Braden also argued on appeal K.S.A. 8-1012 is unconstitutional. The court found there was no merit to Braden‘s argument because the statute‘s requirement of reasonable grounds does not conflict with the Fourth Amendment‘s require of probable cause, as probable cause is synonymous with the statutory term ―reasonable grounds.‖ Here, the officer had probable cause to request Braden submit to a PBT pursuant to K.S.A. 8-1012. Braden further argued testimony that he refused to submit to a PBT violated his Fifth Amendment privilege against self-incrimination. The court cited State v. Leroy 15 Kan. App 2d 68 (1990), which held an officer‘s request that a person submit to a PBT does not invoke the person‘s Fifth Amendment privileges, because a request a person submit to PBT is not custodial interrogation but rather the taking of physical evidence to determine intoxication. Accordingly, the court found Braden‘s Fifth Amendment privilege against self-incrimination was not violated by the admission of evidence of the very act that constitutes the offense, Braden‘s refusal to take the PBT. Finally, Braden argued the district court erred in ordering him to reimburse BIDS for attorney fees. Affirmed in part, vacated in part, and remanded with direction.
PBT—MANUFACTURERS PROTOCOL
City of Concordia v. Ellis 138 P. 3d 418, 2006 WL 2043865 (07/21/06)
***UNPUBLISHED***
At 1:50 AM, a Concordia Police officer stopped Ellis‘ car for failing to stop at a stop sign. As the officer approached Ellis, he observed him put something in his mouth. While speaking with Ellis, the officer smelled the odor of an alcoholic beverage coming from inside the car and also noticed Ellis‘ speech was slurred. Ellis stumbled as he exited his car and the officer noticed Ellis‘ eyes were red, bloodshot, and watery. The officer asked Ellis to spit the gum out of his mouth. Ellis swayed while he was speaking with the officer. Ellis performed field sobriety tests and the officer found three indicators or clues on each test. Ellis agreed to take a PBT, which requires a 15-minute observation period. The officer advised dispatch at 1:56 a.m. he was going to administer the PBT. The PBT sample was actually taken at 2:10 a.m., which showed a BAC of .207. Ellis was arrested for DUI and subsequently convicted in municipal court. Ellis filed a timely appeal to the district court. On Ellis‘ motion to suppress the PBT results, the district court granted the motion finding the required 15-minute observation period had not expired when the PBT was administered. The State filed an interlocutory appeal. The court found the PBT results should be suppressed because the officer did not adhere to the manufacturer‘s protocol in the performance of the test, which required a 15-minute observation period prior to administering the test. Therefore, the district court properly suppressed the PBT results, based upon the State‘s failure to prove the 15-minute observation period had been satisfied.
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SUPPRESSION OF INTOX-FAILURE TO PRESENT FOUNDATION
State v. Burton 176 P.3d 251, 2008 WL 441015 (2005) ***UNPUBLISHED***
An interlocutory appeal was made based on an order suppressing the Intoxilyzer 5000 test results of Burton. Burton filed a motion to suppress the PBT and intoxilizer results claiming the officer did not have the level of suspicion required to request the tests. Burton also argued the tests were not performed properly. The officer had observed Burton's vehicle driving without its headlights and activated a turn signal when not required. Burton's vehicle also turned on to a service lane where vehicles normally do not drive and came to a stop at the dead end street. The officer stopped behind Burton and approached the vehicle and asked for his license. Burton searched two or three times in his wallet before producing a temporary driver's license. Burton told the officer he had been to a bar and had consumed a couple of drinks. The officer did not smell alcohol on Burton's breath. Burton was unable to perform field sobriety test because of his prosthetic legs. The officer then asked Burton to perform a PBT. Another officer read the consent advisories to Burton. Based on the PBT results Burton was taken into custody for DUI. The Intoxilyzer was administered. At the hearing on the motion the State mistakenly did not offer evidence of the procedure the officers follow when administering the Intoxilyzer test. The Court stated the State had the burden to prove the legality of the test results and the State had failed to provide evidence at the suppression hearing the officers had followed the proper protocol in administering the test. It then ordered another hearing. The State on its appeal argues Burton failed to allege facts showing the search and seizure were unlawful and therefore the burden never shifted to the State to prove the lawfulness of the seizure. The problem with the evidence request of the District Court was its motion lacked specific facts to support the raw conclusion the Intoxilyzer was not done properly. The motion falls short of the requirements in K.S.A. 22-3216 (2) which states facts showing where the search and seizure were unlawful. Although it is true under Lieurance and Bishop before Intoxilyzer results are admitted the State must lay a proper foundation. Obviously the State will have to do so in this case some time prior to the admission of Burton's test results. However the State had no such burden at the hearing on the suppression motion because Burton had not stated specific facts in his motion to impose the burden at that time. The District Court erred in suppressing the Intoxilyzer results. Reversed and remanded.
P.B.T.—NOTICES
Ks. Dept. of Revenue v. Hurst 117 P.3d 150, 2005 WL 1949914 (2005)
***UNPUBLISHED***
The Court of Appeals reversed the trial court‘s decision to exclude the PBT results and held the failure to give the notices required by K.S.A. 8-1012 prior to the administration of a PBT was irrelevant. The trial court excluded the results of the preliminary breath test (PBT) based on the trooper's failure to advise Hurst of the notices required by K.S.A. 8-1012. The Court of Appeals found a plain reading of K.S.A. 8-1012 suggests the notice provisions are, in fact, meaningless. The Court held under the clear wording of the statute the failure to give the oral advisories simply cannot be an issue or defense in this action. The Court therefore reversed the trial court‘s decision to exclude the PBT.
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CONSTITUTIONAL RIGHT—WARRANTLESS SEARCH
Prewett v. Ks. Dept. of Revenue 88 P.3d 1257, 2004 WL 1041355 (5/7/04)
***UNPUBLISHED***
An officer observed Prewett fail to dim his lights and twice veered left of center. Prewett was stopped and the officer detected alcohol. Prewett stated he had been drinking. Prewett performed SFSTs and clues indicated impairment was observed. The officer then asked Prewett to submit to a PBT. Prewett was advised he could not speak with an attorney, a refusal to submit to the PBT would result in a traffic infraction and further testing may be required. In addition, the officer told Prewett he did not have a constitutional right to refuse the test. Prewett commented he felt like he did not have a choice on whether to take the test. The officer responded to Prewett he could not tell Prewett whether or not he had a choice but not taking the test would be a traffic infraction. Prewett agreed to submit to the PBT and failed. As a result of these events Prewett‘s driver‘s license was suspended. Prewett appealed the suspension where it was affirmed. Prewett appealed the district courts judgement. The Appellate Court held the Implied Consent Law provides adequate safeguards to insure reasonableness in the request for a PBT, and, when followed, does not run afoul of the constitutional prohibition against warrantless searches. Prewett‘s implied consent to submit to a PBT was also not precluded by the officer‘s statement ―had no constitutional right to refuse the test‖ although the better practice would have been to strictly adhere to statutory warnings. The court also determined there was adequate probable cause for his arrest. Affirmed.
CONSTITUTIONAL—FOURTH AMENDMENT SEARCH—PBT TEST
Von Lintel v. Ks. Dept. of Revenue 88 P.2d 807, 2004 WL 944028 (2004)
***UNPUBLISHED***
The defendant attacks the constitutionality of using a PBT. The defendant argues a PBT is unreasonable warrantless search of his deep lung air. The defendant also argues his consent to such a search was invalid because he was coerced by the threat of criminal prosecution if he refused. The Court of Appeals accepted the premise a PBT is a search implicating the Fourth Amendment. State v. Baughman, 29 Kan.App.2d 812, 814 (2001). The Court went on to say ―a threat of traffic citation is not improper coercion so long as the recited legal consequences are true and accurate‖ City of Kingman v. Lubbers, 31 Kan.App.2d 426, 428-29 (2003). Furthermore, the court held by operating or attempting to operate a motor vehicle, the driver has consented to testing under K.S.A. 8-1001(a). Therefore, a driver must unequivocally withdraw such statutory consent. Without such withdraw, PBT procedures fall within the consent exception of the Fourth Amendment.
PBT—REASONABLE SUSPICION—CONSENT
City of Goodland v. Yarger 77 P.3d 1009, 2003 WL 22227485 (2003)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction which was tried on stipulated facts. The Court of Appeals held the officer had reasonable grounds to believe the motorist had alcohol in his body, and the motorist voluntarily consented to the PBT. The Court noted an officer may request an individual to take a PBT if the officer has reasonable suspicion the person has alcohol in his or her body. Yarger was initially stopped for
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questioning on a matter unrelated to this DUI case. The officer noticed the smell of alcohol on Yarger and asked if he had been drinking. Yarger responded he had not had any alcohol to drink for approximately 22 hours. The officer then "subjected" Yarger to a PBT which Yarger failed. The officer arrested Yarger for DUI. The stipulations state without the PBT there would have been no probable cause for the arrest. After the arrest, Yarger was taken to a hospital where he agreed to take a blood test. The test, which was taken within two hours of Yarger's operation or attempted operation of a vehicle, indicated a blood alcohol level of .09. Yarger was subsequently convicted in the Goodland Municipal Court, of DUI in violation of municipal traffic ordinances. The defendant appealed. The District Court of Sherman County, after denying defendant's motion to suppress the results of the PBT as well as all the evidence which flowed from the PBT, convicted the defendant of DUI based on stipulated facts. The defendant appealed. The Court of Appeals stated an investigating officer may request an individual to take a PBT if the officer has reasonable suspicion the person has alcohol in his or her body. The officer need not have probable cause or reasonable belief to arrest for DUI before requesting the test. The Court held the officer had reasonable grounds to believe Yarger had alcohol in his body. The Court also held Yarger voluntarily consented to the PBT. They noted the officer requested Yarger to submit to the PBT, which he had statutory authority to do, and Yarger then did so. The stipulations contained no evidence of any improper or illegal coercion on the part of the officer to induce Yarger to exert the effort he did in providing the "deep lung air" sample. The Court noted the notices do not enhance the voluntariness of a subject's consent to the PBT. Similarly, the statute also states that "failure to provide the notice shall not be an issue or defense in any action."
PBT—PROBABLE CAUSE
State v. Black 77 P.3d 1009, 2003 WL 22227535 (2003)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held the police officer had probable cause to arrest the defendant for DUI. Initially, Black was stopped for speeding. As the trooper was nearing Black, he smelled a strong odor of alcohol on Black and on Black's breath. Additionally, he saw Black‘s eyes were glazed and bloodshot. Black told the trooper he had just come from the Station Casino. The trooper was puzzled by Black's statement about where he had been considering Black's direction of travel. Black told the trooper he had consumed three drinks. Also, the trooper noticed Black's passenger, who was passed out in the car, had a strong odor of alcohol on his person. The trooper had Black perform two field sobriety tests. First, Black performed the walk and turn test. Black scored three "cues" out of a total of eight while completing this test. Next, the Black performed the one-leg stand test. The trooper did not observe any cues in Black's performance of that test. The trooper then asked Black to submit to a PBT. In addition to the statutory notice, the trooper told Black if he did not take the PBT, he would arrest him. The trooper performed a PBT on Black. When Black failed the PBT, he was arrested for DUI. The trooper took Black to the police station for further testing. The final test results showed a blood alcohol level of .093. Black moved to suppress the PBT results, arguing the test results were obtained in violation of his Fourth Amendment rights. The trial court disagreed. In addition, the trial court determined the trooper had probable cause to arrest Black before asking him to submit to a PBT. On appeal, the Court of Appeals agreed. They did not address whether a PBT is a search because the trial court properly determined Turner had probable cause to arrest Black even before asking Black to submit to a PBT.
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3) Arrest
A. Miranda
***PUBLISHED CASES***
ALTERNATE MEANS/MULTIPLE ACTS—UNANIMITY OF VERDICT—JURISDICTION—CONFESSION
State v. Stevens 285 Kan. 307, 172 P.3d 570 (2007)
Officer saw a Jeep parked in the street with two people sitting in its front seat. Officer saw Stevens exit the driver‘s side and stumble toward the rear of the Jeep. Officer noticed strong odor of alcohol, Steven‘s admitted to drinking, and refused to explain why he got out of the drivers side of the Jeep. Steven‘s initially agreed to the field sobriety tests and officer attempted the HGN test. Stevens refused all further testing. Officer arrested Stevens. Stevens was read the implied consent and took the test. The test indicated a deficient sample of .205. The State charged Stevens with both theories, DUI, operating or attempting to operate under K.S.A. 8-1567(3). The deficient sample was admitted into evidence and Stevens was convicted. Stevens‘s appeals claiming the trial court erred in failing to require the State to elect its theory of prosecution thus depriving him of his right to a unanimous jury verdict. The court held the DUI statute provides alternative means of committing the same crime. Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. The court must determine whether a rational trier of fact could have found each means was proved beyond a reasonable doubt. The court must also review all the evidence in the light most favorable to the prosecution. In this case the appellate court found there was sufficient evidence for both. (There is a court of appeals dissenting opinion –Judge Johnson did not believe there was substantial evidence Stevens attempted to operate) The Supreme Court found there to be sufficient evidence. As for the Deficient sample, the court stated Stevens was prosecuted under the correct subsection of DUI law (3) ―as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013 and amendments thereto, is .08 or more.‖ Another claim by Stevens was there was no proof the acts occurred in Crawford County. It appears the question of jurisdiction was not asked however the officer testified he was with the Pittsburg PD in Crawford County and there was no evidence the officer was called outside his jurisdiction or he had no authority to make an arrest. Stevens also contends his ―confession‖ should not have been admitted however he never made an objection or a motion to suppress. The court noted confessions must be challenged prior to or during the trial or not at all. The Supreme Court noted his ―confession‖ was properly admitted. There was no cumulative error. There was discussion about BIDS.
INVESTIGATORY DETENTION—CASE BY CASE
State v. Vanek 180 P.3d 1087, 2008 WL 1756293 (2008)
Vanek was charged with felony DUI. The State filed an interrogatory appeal after the Trial Court suppressed Vanek's statements during the traffic stop because Vanek was not Mirandize before questioning. The officer observed erratic driving and stopped Vanek's
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vehicle. Based on conversation with Vanek he admitted to drinking, his last drink was a minute before the stop, he had been coming from a bar and he had been drinking all day. Vanek performed some field sobriety tests and then placed under arrest. The officer then asked if there was any alcohol in a cup found in the vehicle. Vanek replied the cup contained alcohol mixed with Coke. During this entire encounter the officer never informed Vanek of his Miranda rights. The State did concede the comments made about the container found in his vehicle were inadmissible because Vanek had not been Mirandize. However all of the inquiry leading to the arrest of Vanek the State wished to admit. The Trial Court suppressed all statements made by Vanek. The Appellate Court noted a person can be seized without being under arrest making the encounter an investigatory detention. They note a person is considered under arrest by law enforcement when the person is physically restrained or otherwise deprived of his or her freedom of action in any significant way. The Court made note of two cases Berkamer v. McCarty, 468 US 420 (1994) and State v. Almond, 15Kan.App.2nd585 (1991). The Court concluded a law enforcement officer is not required to Mirandize an individual before asking routine investigatory questions where the individual is not in legal custody or deprived of his or her freedom in any significant way. The Court noted this is true even though the officer suspects the individual may have committed a crime and even though the individual is not free to leave during the lawful detention. However a law enforcement officer is required to Mirandize an individual before questioning can continue once the individual is accused of a crime and has been arrested and taken into custody. We recognize each law enforcement officer's encounter with an individual is unique and must be resolved on a case by case basis. Reversed and remanded.
CORPUS DELECTI—CONFESSION
City of Manhattan v. Feril 35 Kan. App. 2d 740, 134 P.3d 666 (2006)
Officer Fritzson was dispatched to a report of a white Ford truck with Texas plates driving without headlights. Fritzson located the truck at a convenience store and observed Feril climbing into the truck‘s cab. Fritzson approached Feril and informed him of the report about someone driving without headlights. Feril admitted to driving without headlights. During the conversation, Fritzson observed lethargic movements, bloodshot eyes, and an odor of alcohol. Feril admitted he had been drinking. Fritzson administered field sobriety tests, which Feril failed; Feril was arrested for DUI and while in custody, provided breath sample which registered a .180. Feril was tried and convicted in municipal court of DUI. On appeal, Feril claimed the City‘s prima facie showing of corpus delicti must be made independent of his confession. Kansas law on corpus delicti is very consistent; a conviction of even the greatest offense may be sustained by circumstantial evidence. In order to establish corpus delicti, the extra judicial confession of a criminal defendant must be corroborated by other evidence tending to show the crime was committed. It need not be corroborated as to the person who committed the crime since identity of the perpetrator is not part of the corpus delicti and may be established by an extra judicial confession alone. The court held the identity of the perpetrator is not part of the corpus delicti of DUI. Feril‘s extrajudicial confession to Fritzson he was driving is enough to justify a conviction for the DUI offense. The court also held Feril‘s encounter with the officer was not a custodial interrogation, for Miranda purposes. Feril‘s response to Fritzson‘s comment was voluntary. Feril had not been taken into custody at the time of the statements, nor was he deprived of his freedom. The court found Fritzson was justified in stopping Feril.
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SELF-INCRIMINATION—SUFFICIENCY OF EVIDENCE—HEARSAY
City of Colby v. Cranston 27 Kan.App.2d 530, 7 P.3d 300 (2000)
The Court of Appeals affirmed convictions for DUI, obstruction of legal process, and failure to maintain a single lane. The Court held (1) deciding an issue of first impression, trial court erred by giving jury instruction which only instructed jury it could not draw adverse inference from defendant's silence, but failed to instruct jury defendant could not be compelled to testify, however, such error was harmless; (2) evidence was sufficient to support defendant's DUI conviction; and (3) statement of passenger to officer she could not drive defendant's car because she and defendant had been drinking was admissible under contemporaneous statements exception to hearsay rule. The Court of Appeals concluded the evidence against defendant was direct and overwhelming. This made the error in jury instructions harmless and denied the sufficiency of the evidence claim made by defendant. The Court also noted a statement made by the passenger of defendant‘s car to a police officer (that she could not drive because she and the defendant had been drinking) was admissible as a contemporaneous statement because the passenger was perceiving and explaining the condition that her statement explained, which was, she and defendant had been drinking. Affirmed.
IMPLIED CONSENT—DEAF/MUTE—BREATH TEST—ADMISSIBILITY—FOUNDATION—
SELF INCRIMINATION
State v. Bishop 264 Kan. 717, 957 P.2d 369 (1998)
The Court held (1) failure of motorist, who was deaf and mute, to understand the statutorily-required oral implied consent advisory did not render the motorist's breath test result inadmissible; (2) administering the breath test was not "interrogation" and thus the Fifth Amendment privilege against self-incrimination was inapplicable; (3) state was not required to appoint an interpreter to give the informed consent advisory; and (4) evidence established foundation for admission of breath test result. Bishop, who was deaf and mute, was arrested for DUI. The arresting officer provided Bishop with a written copy of the implied consent advisory, and despite knowledge Bishop was deaf, the trooper also read the implied consent advisory out loud to Bishop. Bishop failed the breath test. At trial, the State introduced original log book of calibrations for the breath test machine, machine's original certification document, copy of certified monthly standard report for the machine, copy of document certifying calibration solution, and trooper's testimony he was certified to conduct breath tests at the time he administered the motorist's breath test. Defendant was convicted after jury trial and his appeal was transferred to the Supreme Court. The Supreme Court noted the breath test was admissible even if the defendant could not understand the implied consent advisory. The State was not required to provide an interpreter during this warning, and the breath test was not ―interrogation‖ for Fifth Amendment purposes. Finally, the Court stated there was sufficient foundation admission of the breath test at trial. Affirmed.
HEARSAY—DECLARATION AGAINST INTEREST—INTOXICATION—SPECIFIC
INTENT—HARMLESS ERROR
State v. Cooper 20 Kan.App.2d 759, 892 P.2d 909 (1995)
The Court of Appeals affirmed a jury conviction of theft. At trial, district court had denied defendant's motion to admit his statement made to police on night of arrest. On appeal,
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the Court of Appeals held (1) defendant's statement he was intoxicated did not constitute declaration against interest as it was not that a reasonable person in defendant's position would not have made statement unless it was true; (2) defendant had failed to establish sufficiently his trustworthiness as would allow admission of statement under hearsay exception; and (3) any error by trial court in refusing admission of statement was harmless in light of overwhelming evidence of defendant's guilt. Defendant appealed conviction based on district court's excluding evidence of defendant's out-of-court statement he was intoxicated at the time of his arrest. Defendant contended his pre-arrest statement to the police he was intoxicated was a declaration against his interest and was admissible as an exception to the hearsay rule under KSA 60-460(j). Defendant claimed this statement would have helped prove his intoxication prevented him from knowing the car was stolen when he acquired possession of it. Court of Appeals denied the appeal, denying contention that statement satisfied reliability requirements of hearsay exceptions. Also, the Court ruled any exclusion, if in error, was harmless based upon weight of evidence against the defendant. Officer testified defendant was the only occupant in the car after a high-speed chase with the police, and defendant was coherent and functioning properly at the time of the arrest. Furthermore, emergency personnel determined defendant was conscious and coherent enough to have him sign a refusal of medical treatment form. And importantly, the only evidence before the jury of defendant's intoxication was officer‘s statement defendant had an odor of alcohol on his breath, but such odor was not enough to warrant a DUI investigation. Conviction was affirmed.
SELF INCRIMINATION—SUSPENSION—DOUBLE JEOPARDY
State v. Maze 16 Kan.App.2d 527, 825 P.2d 1169 (1992)
The Court of Appeals affirms a conviction of DUI, holding sobriety testing, including recitation of the alphabet, is not testimonial communication, and a Miranda warning is not required. In reaching its decision, the Court considers the U.S. Supreme Court decision of Pennsylvania v. Muniz 496 US 582 (1990), and determines that while the decision considered recitation of the alphabet, it did not exclude it from sobriety testing. The CA also considers numerous decisions from other jurisdictions in reaching its decision. The Court also finds no error in admission of a BAT even where the sample was deficient, due to defendant‘s refusal to furnish a sufficient sample. The Court then holds administrative suspension of a license for the initial refusal of the test, and the present criminal action does not violate the double jeopardy clause. (Sedgwick, 66286, 2/14/92)
BAT—ADMISSIONS—ACCIDENT INVESTIGATION
State v. Almond 15 Kan. App. 2d 585, 811 P.2d 529 (1991)
The Court of Appeals holds a pre-arrest inquiry during an accident investigation in which defendant admitted to drinking does not rise to the level of custodial interrogation requiring a Miranda warning. The Court cites Berkemer v. McCarty, 468 U.S. 420 (1994), for the proposition that there is no custody until after an arrest, and statements made prior to that time are admissible. Further, the Court notes under 8-1604, 1611 and 1612 defendant had a duty to provide information about the accident. The Court also finds sufficient foundation for admission of the breath test where the officer and the machine were certified, even though the officer had not
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actually read the operator‘s manual. The fact the officer did not wait 20 minutes after defendant had belched was not critical, since the Intoxilyzer 5000 would have indicated a high mouth alcohol content. The Court also finds no deficiency in the fact there was no testimony equating his breath test result with the statutory definition, finding the statutory presumption in 8-1005 of .10 was met by defendant‘s test results of .172. (Shawnee, 65429, 5/24/91)
SIXTH AMENDMENT—COUNSEL—BAT
State v. Bristor 236 Kan. 313, 691 P.2d 1 (1984)
The Supreme Court reverses the Court of Appeal‘s decision which upheld the trial court‘s suppression on BAT results because defendant had not been given the opportunity to consult with counsel prior to deciding on a BAT. In reaching its decision the Court recites Standish v. Ks. Dept. of Revenue, 235 Kan. 900 (1984), in finding no right to counsel attaches to the decision to take BAT, but notes the case was a civil proceeding involving license forfeiture, hence no constitutional rights attach. Here in a criminal case, the Sixth Amendment obviously applies, but the issue is at what stage of the proceedings. The Court finds the decision to take a BAT may be critical in the economic sense (loss of license, etc.), but statute, and sanctions for refusal, allow testing of an unconscious individual. State v. Garner, 227 Kan. 566 (1980). Thus, since there is no real decision to be made, it is not a critical stage. While acknowledging the Sixth Amendment applies to pre-trial proceedings, Kirby v. Illinois 406 US 682 (1972), it does so only after the initiation of a prosecution; it is only after the ticket is filed with the court the prosecution begins, 8-2108. The Court then broadens its role to being an arbiter of confusion as well as the Constitution when it holds the arresting officer must give the Miranda warning as well as a warning that no right to counsel attaches to the BAT decision: to avoid ―confusion‖. Since this ruling does not appear to be based on the Sixth Amendment, presumably the Court finds a possible Fifth Amendment right not to be confused. (Ford, 55283, 11/30/84)
NO RIGHT TO COUNSEL BEFORE B.A.T—REFUSAL OF B.A.T. MAY BE RESCINDED
Standish v. Ks. Dept. of Revenue 235 Kan. 900, 683 P.2d 1276 (1984)
Involves an appeal by the Department of Revenue of a district court‘s reversal of suspension of plaintiff‘s license for refusal to take a chemical test. After being stopped, failing field tests, and being given the Miranda warnings, plaintiff was asked to take a breath test. He responded he wanted to talk to his attorney first. He was then taken to jail, unsuccessfully attempted to reach his attorney, and again declined to take the test because he could not speak with his attorney. Fifteen to thirty minutes later, plaintiff asked to take the test but was told it was too late, the arresting officer having returned to patrol duty. The trial court held plaintiff had rescinded his refusal within a reasonable time. The Supreme Court holds as a matter of policy the test should be encouraged, hence an original refusal can be rescinded if: it is made within a reasonable time; if the test would still be accurate; the testing equipment was still readily available; there would be no substantial inconvenience or expense to the police; and the individual is still in custody of the arresting officer and has been under observation the entire time. The response of wanting advice of counsel is held to be refusal, but in this case, since it immediately followed the Miranda warning, it was confusing to the plaintiff. The SC then adopts the standards of Berkemer v. McCarty, 468 US 420 (1984), which requires
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Miranda warnings only after the SC holds there is no constitutional right to counsel prior to determining whether to submit to the test or not. The SC also ―suggests‖ the officer give a warning of the consequences of refusal and the fact there is no right to counsel before deciding on the test.
GENERAL ON-THE-SCENE QUESTIONING NOT SUBJECT TO MIRANDA WARNINGS
State v. Price 233 Kan. 706, 664 P.2d 869 (1983)
Sheriff‘s officers found an abandoned vehicle overturned in a ditch with scuff marks leading from the road to the vehicle. Approximately three miles down the road the defendant was found walking away from the accident scene. He had blood on his face. An officer took the defendant back to the scene and asked him how the accident occurred. The defendant told the officer he had been drinking prior to the accident had fallen asleep and had run off the road. Based upon the admissions, the officer asked the defendant to submit to a field sobriety test. Based upon the defendant‘s poor performance on the field sobriety test he was placed under arrest for driving under the influence of alcohol. A breath test showed the result of .27 percent. The defendant filed a motion to suppress his statements because no Miranda warnings were given. The trial court overruled the motion and the Supreme Court affirmed the trial court‘s ruling stating Miranda warning are required only where there is custodial interrogation by police officers. On-the-scene questioning of citizens in the fact finding process does not constitute custodial interrogation and would therefore not require a Miranda warning. The officer‘s questions which were necessary to complete an accident report were routine and were not accusatory in nature. Until a person is in legal custody or deprived of his freedom in a significant way, Miranda warnings do not apply. The defendant did not become the focus of an investigation until his performance on the field sobriety test indicated he would be arrested for DUI. The Court also stated a conclusive presumption. The defendant maintained the prior PIK instruction 70.02 which used the words ―you shall presume‖ instead of ―you may presume‖ operated to create a conclusive presumption, hence was unconstitutional. The Court holds 8-1005 merely creates a permissive presumption, which can be rebutted, and the wording of the instruction did not operate to change that presumption. The defendant also failed to object to the instructions, hence no reversal unless the instructions were clearly erroneous, and the Court found they were not. The defendant also challenged the sufficiency of the evidence of DUI, since he was not observed driving, and since there was no proof of his BAT at the time of the operation of the vehicle. The Court found this was in question of fact, resolved against him by the jury, and in this case, the court deferred to the jury. (Shawnee, 55281, 6/10/83)
MIRANDA WARNING IS NOT REQUIRED FOR A FIELD SOBRIETY TEST
State v. Jones 3 Kan. App.2d.553, 598 P.2d 192 (1979)
An officer who stops a defendant suspected of driving under the influence of alcohol is not required to advise the defendant of his Miranda rights prior to requesting him to submit to a field sobriety test. A Jackson v. Denno hearing is not necessary, as it relates to such test, since such a hearing applies only to testimonial evidence. The mere fact a suspect is under arrest does not require the officer to read him his rights. Rights must only be given before custodial interrogation is conducted. When completing the interview portion of the drug and alcohol influence report, Miranda
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warnings must be given or statements of the defendant in response to the questions on the form will be excluded.
PROXIMATE CAUSE-SPECIFIC DEGREE OF INTOXICATION
State v. Spohr 171 Kan. 129, 230 P.2d 1013 (1951)
Spohr was convicted of 4th degree manslaughter after a jury trial was conducted in the Ford District Court. Spohr contends the trial court erred in overruling his motion to quash the information. On the information, Spohr was cited as killing the victim by driving a motor vehicle at a speed greater than was reasonable and proper, and while under the influence of intoxicating liquor. Spohr‘s argument is the statute at that time included the words ―proximate cause‖, and in order for the information to be accurately stated, the words proximate cause had to be included in the filed information. The Court disagreed, stating ―except where defined by law…the words used in the statute to define an offense need not be strictly pursued, but other words conveying the same meaning may be used.‖ Spohr next contends a confession given to an officer after the accident was not freely and voluntarily given. Spohr did not complain of any injury prior to, or during the conversation with the officer, but it was later found out Spohr had some broken ribs and a broken arm. Spohr later claimed he was in great pain while conversing with the officer, but the Court found in the end, Spohr did not contradict any statements made by himself during the conversation with the officer, and thus the statements were allowed. Spohr further contends in order to find him guilty of manslaughter, the State has to prove the negligence of the defendant is some unlawful act. The Court stated, ―[n]egligence is not merely conduct which fails to conform to the familiar, common standard, the conduct of a reasonable man under like circumstances. Negligence is conduct which is induced by recklessness, and which involves undue risk of harm.‖ The Court ruled driving at a speed of 50 to 55 miles per hour, on the other side of the center stripe, while being intoxicated, met the standard. Spohr finally contends the jury instruction regarding intoxication was inappropriate because it was overly broad, and evidence of a suspicion of intoxication does not rise tothe level of reasonable doubt. The instruction stated the State did not have to prove any specific degree of intoxication, and the term ―under the influence‖ covered all of the well known and easily recognized conditions and degrees of intoxication but also any mental or physical condition which tended to deprive a driver of that clearness of intellect and control of himself which he would normally possess. The Court refused to listen to this argument, and pointed to State v. Ketter, 121 Kan. 516 (1926), and a few other cases as being the reason why. Pennsylvania v. Bruder 488 U.S. 9 (1988) ordinary traffic stops did not involve ―custody‖ for purposes of Miranda Rule. Spohr‘s appeal failed.
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***UNPUBLISHED CASES***
―DON‘T LIE TO ME‖-SOLUTION CHANGED EVERY 7 DAYS-DC-70 LOST
State v. Sigg 231 P.3d 587, 2010 WL 2245601 (05/28/10)
***UNPUBLISHED***
Trooper arrived at the scene of a crash and spoke with the defendant who claimed she was the driver. While speaking with her the Trooper could detect an odor of alcohol coming from her. Later a Deputy arrived at the scene and was asked by the Trooper to investigate further the possibility of alcohol use by the defendant. The defendant denied to the Deputy any use of alcohol. The Deputy stated she should not lie to him and again asked her if she had been drinking. The defendant claimed she had one drink earlier. No Miranda was read to the defendant during this entire process. SFSTs indicated impairment and the defendant‘s BAC was .136. During trial the defendant argues her statement should be suppressed because she was in custody and no Miranda was read. There are two things to look at to determine if custodial or investigative First: court looks at the circumstances surrounding the interrogation and Second: court decides whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation. Under K.S.A. 8-1611 and K.S.A. 8-1612(a) a LEO has a duty to make a detailed written report which would require speaking with the driver to get relevant information. However in this instance the Deputy had begun speaking to her as a suspect and not an ordinary witness involved in the crash. The court determined the questioning was interrogation and however the evidence was so overwhelming the use of the statements she gave was harmless error. The defendant also argued since the DC-70 that was read to her was lost or destroyed and not available to the state her breath test should be suppressed. The court noted in State v. Alfrey unpublished No. 93890 ―there is no language in the statute requiring the State to establish by written documentation that it complied with K.S.A. 8-1001. The defendant also argued the solution on the Intox 5000 had not been changed ever 7 days. The defendant failed to show any authority for the claim. The court also noted Lincoln v. Ks Dept. of Revenue to lay a foundation for the admissibility of breath test results; the KDHE is not required to establish certification of the standard solution used to calibrate breath testing equipment. There was an order by the court specifically not to mention the results of the PBT at trial. The Deputy was questions about his reasons stated on the DC-27 form showing his belief she was under the influence. The Deputy stated ―failed PBT‖ along with other indicators. There was a request for Mistrial which was denied. The Court of Appeals stated the mention of the PBT was inadvertent, the state did not follow up with any other questions about the PBT and no attention was drawn to the mistake. Conviction upheld.
NEVER SAID HE WAS DRIVING-POST-ARREST SILENCE
State v. Franks 225 P.3d 1212, 2010 WL 1078436 (3/19/10)
***UNPUBLISHED***
Defendant‘s truck was crashed. Officers found defendant passed out in the vehicle with his feet in the driver‘s side area. There was an odor of alcohol coming from the defendant. There was no one else found in the area. During transport to jail defendant stated ―you
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caught me‖. Officers asked what he meant by that and he stated ―drinking and driving‖. In closing arguments the prosecutor stated: He never once said ―hey I wasn‘t the driver why are you arresting me when I wasn‘t even driving-- someone else was driving. Defendant never once said that.‖ The prosecutor continued ―In fact what he said at the time, ‗I don‘t care, I am drunk‘ when he was being arrested.‖ Although there was no objection to these statements on appeal the defendant argued this was a Doyle violation-improperly impeaching the defendant‘s credibility with his post-arrest silence. Doyle v. Ohio 426 U.S. 610 (1976) Court noted, there was no evidence any interrogation was going on or the defendant had been informed of his right to remain silent. It is not a violation to impeach the defendant‘s trial testimony through the use of a prior inconsistent statement given after the defendant was provided Miranda warnings. The prosecutor was not arguing defendant must be guilty because he remained silent he was suggesting the statement at the time of his arrest did not correspond with his defense at trial. Please note there is a dissenting opinion which finds the prosecutors statement in violation of Doyle but notes it was not prejudicial in light of the overwhelming evidence.
PASSED OUT BEHIND THE WHEEL-INVOKED HIS RIGHT NOT TO ANSWER
State v. Moffett 223 P.3d 837, 2010 WL 653097 (02/19/10)
***UNPUBLISHED***
Defendant was seated in his vehicle in the middle of the street with the engine running and his foot on the brake. He had either fallen asleep or passed out at the wheel and was unable to successfully operate the vehicle at that point. He had difficulty waking up. During the defendant‘s case-in-chief defendant suggested to the officer ―you never asked him how much he had to drink.‖ The officer responded I didn‘t ask on the stop. After he was Mirandized he refused to answer any questions. The defendant moved for a mistrial and it was denied. On appeal defendant claimed the court should have granted a mistrial. The court stated the defendant opened the door, knowing based on the officer‘s report, he invoked- and the evidence was so overwhelming there was no prejudice. The defendant also argued the DUI jury instruction concerning operate or attempt to operate. The court indicated this is a alternative means case where a single offense may be committed in different ways there must be jury unanimity as to guilt for the crime charged but not as to the particular means by which the crime was committed citing State v. Stevens 285 Kan 307 (2007). In this case there was ample information to support both. Affirmed.
PBT STATUTE THREATENING IS OK-PATROL CAR
State v. Smith 220 P.3d 594, 2009 WL 5062492 (12/18/09)
***UNPUBLISHED***
Defendant was stopped for pulling a trailer without working taillights. The officer stated he would give a warning ticket to the defendant and to have a seat in his patrol car. While in the car the officer asked a series of questions that led him to believe the defendant may be intoxicated. SFSTs were given and the defendant was asked to take a PBT. The officer did give the standard warnings before administering the PBT. The defendant was arrested and his BAC was 0.099. The defendant suggested during a suppression motion Miranda should have been given prior to the questioning in the patrol car and the use of his deep-lung air for the PBT violated his 4th Amendment. The court denied both requests; thus the appeal.
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The Miranda warnings are intended to prevent coerced confessions, but parties recognize in a routine traffic stop that although they may be momentarily delayed, they will soon be free to go on about their business. While it is true a patrol car is sometimes used as a ―temporary jail‖ that is not what happened here. A number of cases were cited Price 233 Kan. 706 (1983), Almond 15 Kan.App.2d 585 (1991) and Berkemer v. McCarty 468 U.S. 420 (1984). As for the PBT, the court found the defendant consented to the testing. The defendant claims he was coerced due to the reading of the rights concerning traffic infractions. The court indicated the Supreme Court noted: Compulsory testing for alcohol or drugs through drivers implied even coerced consent does not violate the Constitution it is reasonable in light of the State‘s compelling interest in safety on the public roads. The defendant did not cite any case law suggesting consent is invalid or unlawful when obtained after giving a driver accurate information about the consequences of a test refusal. The defendant also challenged the PC for the arrest-no merit was found. Affirmed.
DUTY OF DRIVERS TO PROVIDE INFORMATION
State v. Custer 218 P.3d 814, 2009 WL 3738494 (11/06/09)
***UNPUBLISHED***
Officers found the defendant lying in a field at a crash site. The officers asked if the defendant was the driver and if he was injured. The driver admitted being the driver and was later charged with DUI. The defendant requested a motion to suppress his statements at the crash scene. The appellate court notes: ―The State has placed the duty on all drivers of vehicles involved in accidents to provide information regarding the facts and circumstances of the accident. Law enforcement officers routinely investigate accidents and insure that proper reports are filed. Here the officers were performing their duty when obtaining the information necessary for the accident report. Police officers traditionally investigate the scene of accidents and during such investigation obtain information from individuals not under restraint. General on-the-scene questioning as to the facts surrounding the cause of the accident or other general questioning of citizens in a fact-finding process is not affected by Miranda.‖ The court did not error by allowing admission of the statements. There also was a review dealing with sufficiency of the evidence and fines assessed.
4TH AMENDMENT-USE REFUSAL OF EVIDENTIAL TEST AS A DEFENSE AND REFUSING THE P.B.T.
State v. Weaver Slip Copy, 2009 WL 2242420 (07/24/09) Rev. Den.(2010)
***UNPUBLISHED***
The defendant argued the admission of his refusal to take the Intoxilyzer 5000 is prohibited by the 4th amendment. The court reiterated their opinion in State v. Bussart-Savaloja 40 Kan.App.2d 916 (2008): Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. Due to K.S.A. 8-1001 the State was allowed to argue as reasonable inference from that evidence that the defendant was DUI. The defendant also suggested because Miranda was not read his refusal to submit was not admissible. The court noted State v. Zabrinas 271 Kan. 422 (2001) where defendant willingly allows admission of a statement at trial and uses it as part of defense mere fact that such trial strategy proves unsuccessful does not allow defendant to then challenge admission of the
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statements on appeal. In this case the defendant argued in closing he was a simple person who did not trust the technical innovations of modern society. Also the court noted State v. Wahweotten 36 Kan.App. 2d 568 (2006) and Pennsylvania v. Muniz 496 U.S. 582(1990) making it clear a breath test refusal does not implicate the 5th amendment. Defendant also refused to take the P.B.T. and defendant claimed the court admitted it in error. The court concluded the admittance of the P.B.T. was error it was harmless. There was also a juror misconduct and BIDS argument.
HANDCUFFED IN HOSPITAL
State v. Brown 196 P.3d 1232, 2008 WL 5234533 (12/12/08)
***UNPUBLISHED***
Brown was involved in a single –vehicle accident. The defendant was found slumped over in the driver‘s seat and wearing a Bud Light wristband on his left wrist. The Officer smelled a very strong odor of alcohol coming from the defendant. The officer asked about the odor and Brown responded he probably drank ―way too much‖ that evening. Brown was transported to the hospital. While there the officer began asking Brown about the collision. Miranda was not given. Brown made several incriminating statements during this time. While at the hospital, Brown became more belligerent and eventually was handcuffed to the hospital bed. Implied consent was read to Brown and Brown stated he would submit to a blood test and a breath test. Brown again became obstructive and blood was not taken. The officer arrested Brown after being released from the hospital that evening. Brown was transported to the jail and again the officer read the implied consent form to Brown and he agreed to a breath test which indicated 0.159. Brown made no further requests and was placed in jail. Brown contends the results of his breath test should be suppressed because he was denied a reasonable opportunity to have additional testing completed after submitting to the breath test. The court noted the State must make a ―reasonable opportunity‖ to obtain additional testing. The State cannot unreasonably interfere with attempts to secure additional testing. In this case Brown failed to request a blood test after he completed the breath test; therefore Brown‘s rights were not violated. Brown next states his statements at the hospital should be suppressed. The officer asked Brown (1) what caused the accident (2) where Brown had been; (3) whether Brown had been drinking. Miranda is required when an accused is subjected to a custodial interrogation. Custody is determined on the ―objective circumstances of the interrogation, not on the subjective views by either the interrogating officers or the person being interrogated. The Kansas Supreme Court set out the following factors to be considered in analyzing the circumstance of interrogation: When and where the interrogation occurred; How long it lasted; How many police officers were present; What the officers and the defendant said and did; The presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; Whether the defendant is being questioned as a suspect or a witness; How the defendant got to the place of questioning; What happened after the interrogation-whether the defendant left freely, was detained, or was arrested. The Court notes these eight things are not exclusive generally the two questions that must be reviewed are: First, what were the circumstances surrounding the interrogation? Second, under the totality of the circumstances would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? Looking at all the circumstances surrounding Brown‘s questioning, the court found under the totality of the circumstance no reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. The statements at the hospital should be suppressed.
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REFUSAL TO TAKE BREATH TEST—BURDEN OF PROOF INSTRUCTION
State v. Oakes 185 P.3d 972, 2008 WL 2510574 (2008)
***UNPUBLISHED***
A citizen reported a blue pickup truck was hitting construction cones on the highway. An Officer proceeded to the location and observed the vehicle matching the description. The officer detected the vehicle traveling 77 mph in a 70 mph zone, touch the white fog line twice and then straddle the dotted centerline before swerving back into its lane. The vehicle was stopped and the driver had a very strong odor of alcohol, speech slurred and eyes bloodshot. SFSTs indicated impairment and Oakes was placed under arrest. Implied consent was read and Oakes was informed a refusal could be used against him at trial on the DUI charge. Oakes refused. Oakes was convicted of DUI. Oakes during trial did not object to various issues however he appeals. The first issue Oakes states is the error on the trial court for allowing his refusal of the breath test to be admitted during trial. Oakes claimed this statement was made prior to his Miranda rights being read. The appellate court reviewed the law regarding new legal theories raised the first time on appeal and determined his argument was flawed. Court noted in State v. Bishop 264 Kan. 717 the Supreme Court decided a refusal to take a breath test is not equivalent to interrogation. Oakes further objects to the ―presumption of innocence‖ instruction. The wording ―until you are convinced‖ the person is guilty language was determined to to read ―unless you are convinced‖. Oakes did not object at trial and the court pointed out State v. Wilkerson 278 Kan. 147 did not warrant reversal of conviction because the instruction was inappropriately worded. Affirmed.
REQUIREMENT OF DRIVER—SHIFTING OF INVESTIGATION
City of Norton v. Ward 177 P.3d 1011, 2008 WL 624587 (2008) ***UNPUBLISHED***
Ward rounded a corner too fast, struck a curb, and turned his vehicle on its side. He climbed out of the vehicle and went to a friend's house in the area. Passer-by reported to the police someone had run from the accident scene and was hiding. An officer arrived at the scene and a few moments later Ward returned to the scene on foot. Ward told the officer he was the driver of the vehicle and that he had left the scene and went to a friend's house. During the conversation the officer detected a strong odor of alcoholic beverage and noted Ward's eyes were blood shot. It was determined Ward was 20 years old and had indicated to the officer he had drank six or seven beers. The officer testified he considered Ward to be under arrest when he smelled an odor of alcohol, he was 20 years old, and he was going to the Sheriff's office for MIP. The officer specifically denied telling Ward he was under arrest. The officer's report however indicated he told Ward he was under arrest for DUI. At the scene the officer requested Ward to submit to a PBT. The officer gave him the three-part warning and the results indicated he was .08. No other field sobriety tests were conducted. The breath test indicated a BAC of .174. The officer then read Ward his Miranda rights and agreed to be question. Ward first contends these statements made at the accident scene should be suppressed. The Court noted when the defendant approached the wrecked vehicle the officer was justified in investigating the collision by asking the defendant certain preliminary or investigating questions. However the nature of the contact between the officer and the defendant began to shift when the officer noted the smell of alcohol and his blood shot eyes. The Court reviewed a number of traffic statutes, K.S.A.8-1604 requiring driver‘s duty to provide certain information after a collision, K.S.A.8-1611 the requirement for law enforcement officers to complete vehicle accident reports, K.S.A.8-1612 directing
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the Department of Transportation to prepare and supply accident report forms to law enforcement officers. In all the cases reviewed by the Appellate Court the officer's questions were focused on the cause and circumstances of the vehicular accidents rather than accusatory questions more typical of custodial criminal interrogations. Ward's motion to suppress the statements, which indicate any person who operates or attempts to operate a vehicle within the state is deemed to have given consent to testing, included but not limited to a PBT. Legislative intent for that provision was to supersede State v. Jones 279 Kan. 71 (2005) decision in an act implied consent provisions for PBTs not to oppose all the notices and conditions required for tests admissible in court on PBTs. The Appellate Court stated the District Court did not err in failing to suppress the results of the PBT. The last issue Ward claims officer lacked probable cause to arrest him. In a DUI case the answer to the probable cause to arrest question depends on the officer's factual basis for concluding the defendant was intoxicated at the time of the arrest. Ward's incriminating statements at the accident scene, the results of the PBT, coupled with the officer's knowledge of the accident, and his determination Ward exhibited signs of drinking alcohol support a reasonable belief Ward had committed a DUI. Given the totality of the circumstances the officer had sufficient probable cause to arrest Ward. Affirmed.
ORDINARY TRAFFIC STOPS—KNOWLEDGE OF OFFICERS
State v. Shade 172 P.3d 1222, 2007 WL 4578022 (2007) ***UNPUBLISHED***
Shade was charged with DUI second offense. A motion to suppress was filed. Shade was stopped for driving across a field in a ditch from one roadway to another roadway. The officer testified he had grown up around Americus and was not aware of any road ever going through the field between Sixth and Seventh Streets. He also admitted he was not aware of any City Ordinance making it illegal to drive across the field. Despite that the officer pulled the truck over and spoke with Shade. During this conversation Shade told the officer he had drank. The officer could smell an odor of alcoholic beverage. Another officer, Atchison, at the scene spoke with Williamson and told him Shade could be under the influence of alcoholic beverage and it was up to Williamson to decide whether to arrest Shade for DUI. Williamson decided to take Shade into custody in order to have him take a breath test. Williamson admitted the only evidence he had personally gathered of Shade's intoxication before deciding to arrest him was his observation of Shade driving across the field, the smell of alcohol from Shade, and Shade's acknowledgement he had been drinking. Williamson read the implied consent advisory and performed the breath test, the result indicated Shade was over the legal limit. Shade argues Miranda warnings should have been given before asking questions at the traffic stop. The State argues the questioning did not constitute custodial interrogation. The Court relied again on Berkamer v. McCardy 468 US 420 (1994). The Court concluded ordinary traffic stops do not involve custody for the purposes of Miranda. The Court noted other cases came to the same conclusion, State v. Price 233Kan706 (1983), State v. Stephens 36Kan App 2nd 323 (2006), City of Manhattan v. Ferrell 35Kan App 2nd 740 (2006), State v. Maze 16Kan App 2nd 527 (1992), and State v. Almond 15 Kan App 2nd 585 (1991). Williamson was not required to Mirandize Shade and therefore the Court erred in suppressing Shade's statements. Since the District Court suppressed Shade's statements it determined because the statements were the primary basis for administering the test, test results had to be suppressed as fruit of the poisonous tree. Shade argued that we should still suppress the Intoxilyzer results because Williamson and Atchison failed to satisfy the requirements of K.S.A. 8-1001(b) before administering the test to Shade. Williamson
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lacked both reasonable grounds to believe Shade was operating his truck under the influence and lacked probable cause to arrest him at the scene for the traffic stop. The Court noted the knowledge of one police officer may be imputed to a fellow officer for purpose of establishing probable cause. The Court reviewed all the information Williamson and Atchison had and determined probable cause existed to arrest Shade and therefore reasonable grounds existed for the officer to request Shade submit to a breath test. Reversed and remanded.
ANSWER ―WILL YOU TAKE A TEST‖-USE OF ―IMPAIRMENT‖ AND ―GUILTY‖ DURING CLOSING ARGUMENT
State v. Morris 162 P.3d 66, 2007 WL 2080462 (2007)
***UNPUBLISHED***
Morris appealed his conviction of a third DUI. Morris was parked in front of a residence belonging to a city counsel member. Officer Stiles noticed him parked there, drove past the vehicle, drove around the block, and returned. Stiles watched Morris exit the vehicle, and try to raise the hood. Stiles approached Morris and asked if he had car trouble, and Morris replied he did not. Stiles continued asking Morris questions, and Morris stated he had been drinking the night before. Stiles noticed Morris had difficulty exiting his vehicle, slurred his speech, and reeked of alcohol. Stiles requested back up, and attempted to perform field sobriety testing, which was not completed due to a leg injury Morris had. Morris was taken to the station. He was read implied consent notices, and was asked to blow. He refused. Stiles then read him Miranda and arrested him. Morris appeals on five grounds. First, Morris states he was improperly bound over for trial. The law is clear if a Defendant is found guilty after a trial, any error at the preliminary hearing stage is harmless. Second, Morris claims he was unlawfully detained by Stiles. Because this issue was never raised before the trial court, this issue can not be raised on appeal. Third, Morris claims a tape of his interview session in the implied consent room should have been suppressed because he was not first Mirandized. The Kansas Supreme Court ruled in State v. Bishop, 264 Kan. 717, (1998) a request for a defendant to take a breath test, or an actual breath test, does not amount to an interrogation. The video in the interrogation room showed Stiles asking Morris to take the breath test, and the reading of his implied consent notices. The Court of Appeals stated the District Court did not err in allowing this exhibit. Fourth, Morris states State committed prosecutorial misconduct in its closing argument. In its closing the State used the term ―impairment.‖ Morris states ―impairment‖ is not the same standard as ―incapable‖ under K.S.A. 8-1567. The Court stated the Kansas Supreme Court has consistently interpreted the phrase ―under the influence of alcohol‖ to mean, ―the defendant‘s physical or mental function was so impaired…‖ The Court rejected Morris‘ argument. Fifth, Morris contends in closing, the State improperly characterized his denial to take the breath test. The State said, ―The point about that is why he refused the breath test and say it would incriminate me is the same as saying it would show that I‘m guilty.‖ The Court rejects any wrong doing by the State, noting State v. Wahweotten, 36 Kan.App.2d 568 (2006). Conviction affirmed.
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VIDEO—DOCTRINE OF UNCONSTITUTIONAL CONDITIONS
State v. Ramirez 169 P.3d 1147, 2007 WL 3341739 (2007) ***UNPUBLISHED***
Ramirez was charged with driving while suspended and DUI felony. Ramirez argues the Trial Court erred sua sponte failing to give a limiting instruction on the evidence of his criminal history as presented on a book-in video. During cross examination of the officer the defendant's counsel requested, outside the presence of the jury, permission to play a redacted copy of the book-in video. The State objected arguing defense counsel could not lay a proper foundation for the redacted tape and the redacted version distorted the events of the evening and was not a fair and accurate representation. The defense counsel agreed to show the entire booking process to the jury but with a redaction of the discussion of prior arrests and DUIs. Eventually defense counsel stated he wished to use the tape to cross-examine the officer, he'll stipulate the copy of the book-in video the state has can be admitted. The video was used on cross-examination of the officer. The un-redacted version was never presented to the jury in open court. The only video presented to the jury was the redacted version defense counsel used in the cross examination of the officer. The defendant presented no evidence to the Appellate Court the jury watched any video or if it even heard the evidence of his prior DUIs during the booking session on the tape therefore there was no reversible error. Ramirez secondly contends his request to take a breath test under K.S.A. 8-1001 forced him to choose between his Fifth Amendment right against self-incrimination and his Fourth amendment right to be free of searches of his person. This same argument was made in State v. Wahweotten. The Appellate Court in this case agreed with the reasoning in Wahweotten, stating the defendant's Fifth Amendment privilege was never implicated; he was not faced with a decision to choose between his Fifth Amendment right against self-incrimination and his Fourth Amendment right against unreasonable search and seizures. There is no impermissible form of coercion when a law enforcement officer asks a suspect to take a breath test and the suspect then refuses. The Court concluded K.S.A. 8-1001(i) is constitutional. Ramirez also makes an Apprendi argument, which again fails.
ALLEN INSTRUCTION—QUESTIONS—LESSER INCLUDED
State v. Trejo 137 P3d 1094, 2006 WL 1976743 (2006)
***UNPUBLISHED***
Trejo appeals his conviction of involuntary manslaughter in the commission of DUI. On appeal, Trejo argued the trial court erred in giving PIK Crim.3d 68.12, the Allen instruction, to the jury before it began deliberations. The Allen instruction states ―[l]ike all cases, it must be decided sometime.‖ Trejo did not object to the instruction during the jury instruction conference or before the jury retired. Because the Kansas Supreme Court has consistently upheld the Allen instruction prior to jury deliberations starting, the court was bound to follow the precedent and rejected Trejo‘s argument. On appeal, Trejo also argued answers given to the jury in response to questions were confusing. During trial, the jury asked: (1) ―We would like to know if there are three charges or four charges,‖ and (2) ―Do we vote for both of them, Count I and Alternative Count II?‖ The trial court answered: (1) ―There are four charges, but only three require a jury decision,‖ and (2) ―The answer to this question can be found in Instruction Number 22,‖ which provides each charge is a separate and distinct offense and the defendant may be convicted or acquitted on any or all of the offenses charged. Neither the State nor Trejo objected to the trial court‘s proposed responses to the jury questions. The
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court found as to question (1) that while the response may have been a misstatement of law, reversal was not required because there was no real possibility the jury would have reached a different verdict. On question (2), the court found the response followed the PIK committee recommendation an alternative charges instruction not be given and the jury should be free to enter a verdict on all the charges. Trejo failed to establish the trial court‘s responses were clearly erroneous or he was prejudiced by any error that may have occurred. Trejo raised the issue of whether involuntary manslaughter-reckless driving is a lesser-included offense of involuntary manslaughter-DUI. The court held involuntary manslaughter-reckless driving is not a lesser-included offense of the involuntary manslaughter-DUI. Finally, Trejo contended the trial court erred by denying his motion to suppress statements made at the scene of the accident. The court affirmed the trial court, finding the purpose of Trejo‘s ―detention‖ at the scene of the accident was for medical attention, not law enforcement investigation; therefore, law enforcement was not required to Mirandize him.
INVESTIGATIVE DETENTION—PROSECUTOR MISCONDUCT
State v. Shirk 127 P.3d 1034, 2006 WL 319398 (2006)
***UNPUBLISHED***
Moran Shirk appealed his DUI conviction. On October 19, 2003, at about 1:20 a.m., an officer was dispatched to a car parked in the middle of the road. When the officer approached the car, he noticed the car was running, the headlights were on, and the car was ―in drive.‖ Shirk was asleep in the car, slumped over the console to his right, with his foot on the break. The officer tried numerous times to wake Shirk up. When the officer was finally able to open his eyes, he asked him if he was all right, to which he responded affirmatively, but remained slumped over. The officer noticed a ―very strong odor of alcohol‖ coming from Shirk‘s breath. The officer asked Shirk how much he had had to drink and Shirk said, ―Way too much,‖ and ―Yes, I am, I am drunk.‖ Eventually, the officer was able to get Shirk out of the vehicle and attempted to have Shirk perform field sobriety tests. Shirk was argumentative and resistive and was placed under arrest for DUI. The officer attempted to give Shirk a breath test, but after three attempts, Shirk failed to provide a sufficient sample. Shirk was charged with DUI and driving while his license was suspended. Shirk pled guilty to the suspended driver‘s license charge and proceeded to jury trial on the DUI trial. The district court denied Shirk‘s pretrial motion to suppress the statements he made to the officer prior to his arrest. The jury convicted Shirk and he was sentenced for his fourth DUI. On appeal, Shirk claimed the statements he made to the officer prior to his arrest were inadmissible because he was in custody and the officer failed to give him a Miranda warning. The Court of Appeals found Shirk had failed to preserve the issue of the admissibility of the statements, because he had not objected to the officer‘s testimony concerning the statements and had not objected to the admission of the videotape at trial. On the merits of Shirk‘s argument, the court held the officer‘s on-scene, threshold questioning of Shirk occurred during an investigative detention and not an arrest; therefore, the officer was not required to provide him with a Miranda warning. Shirk also argued he was denied a fair trial due to comments made by the prosecutor about the insufficient breath samples during the State‘s closing argument. Specifically, the prosecutor said: ―People learn the system. If you don‘t do the field sobriety tests, if you don‘t do the Intoxilyzer, State might not have evidence, enough evidence.‖ Shirk argued such statement referenced prior arrests or convictions in violation of a motion in limine. The Court of Appeals found the State‘s argument was an attempt to explain why a person would intentionally give an insufficient breath sample and the prosecutor did not argue Shirk had learned the system from prior DUI arrests or convictions.
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The court held the prosecutor‘s comments during closing arguments were not improper. Affirmed.
EVIDENCE OF DRIVING—SUFFICIENCY OF EVIDENCE
State v. Edenfield 107 P.3d 1262, 2005 WL 638096 (3/18/05) Rev. Den. (2005)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held sufficient evidence existed to convict the defendant of DUI. Officer observed Edenfield sitting in front of his truck at the side of the road at approximately 1 a.m. with his head down. The truck had not been there a few minutes earlier. Edenfield smelled of alcohol, had bloodshot, watery eyes, and appeared shaky. Moreover, Edenfield's own statements to officer confirmed Edenfield had been driving immediately before pulling over and Edenfield was not "fit" to drive. Affirmed.
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B. Searches
***PUBLISHED CASES***
PBT—IMPLIED CONSENT—REASONABLE GROUNDS
State v. Jones 279 Kan. 71, 106 P.3d 1 (2005)
The Supreme Court reversed the Court of Appeals ruling affirmed DUI conviction, and remanded to district court for new trial. The Court held PBT performed on defendant was search subject to Fourth Amendment strictures; defendant did not give voluntary consent to administration of PBT; and statutory implied consent rule did not apply to PBT. Arresting officer responded to one-vehicle accident. Defendant failed PBT, was arrested, and blood test was taken later at the hospital. The case was tried on stipulated facts. The facts revealed the statutory PBT warnings of K.S.A. 8- 1012 were read, defendant was not free to leave, and defendant "did submit" to the PBT. The trial court allowed the PBT results as well as a blood test results. The Court of Appeals affirmed the trial court. The Supreme Court reversed, noting that under the scant facts in the stipulations, defendant‘s mere acquiescence to the PBT did not establish voluntary consent. Thus, the PBT was not proper, and there were no other reasonable grounds for the blood test. The blood test was also fruit of the poisonous tree. The conviction was reversed and remanded for new trial.
IMPLIED CONSENT—NON-DUI CASES—SEARCH INCIDENT TO ARREST
State v. Conn 278 Kan. 387, 99 P.3d 1108 (2004)
The Supreme Court affirmed in part and reversed in part a Court of Appeals opinion which reversed convictions for possession of various drugs and drug paraphernalia, obstruction of legal process, and having no proof of insurance. The Court held (1) troopers lacked statutory authority for warrantless search of defendant's automobile to discover evidence of obstruction of official duty because defendant was not arrested for that crime; (2) warrantless search of automobile driven by defendant for evidence of defendant's identification was justified under probable cause with exigent circumstances exception to search warrant requirement; (3) defendant's consent to a drug investigation urinalysis was coerced, making results of testing inadmissible; and (4) trial court's error in admitting urinalysis test results was not harmless. After defendant had given officer fake name, defendant was arrested for driving without a valid driver's license in his possession and failing to provide proof of insurance. Officers then searched vehicle for defendant's ID. The Court held this was not a proper search incident to arrest. However, the Court allowed the search based on exigent circumstances, reversing the Court of Appeals. The Court stated the officers had probable cause defendant committed offense of obstruction of official duty when defendant falsely provided information regarding having a valid Texas driver's license, and thus defendant's identification would have been evidence defendant had provided false name. Defendant was also suspected of possessing drugs in the vehicle. Officers asked defendant to take a urine test, and defendant was threatened with implied consent advisory usually given to those arrested for DUI. Defendant consented, and tested positive for meth. This evidence was introduced at trial on charge of possession of meth. Court of Appeals reversed trial court, holding the consent to the test was coerced. The Supreme Court affirmed the Court of Appeals on this
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issue, noting none of the requirements of KSA 8-1001 were met regarding implied consent. The case was remanded for a new trial.
ACCIDENT—BAC—CONSENT
State v. Murry 271 Kan. 223, 21 P.3d 528 (2001)
The Supreme Court reversed the district court‘s suppression of BAC evidence in a DUI trial.
The Court held arrest is not required prior to warrantless extraction of blood to test BAC, so long as extraction is based on probable cause sufficiently strong to have justified arrest; disapproving of, State v. Brunner, 211 Kan. 596 (1973), and requirements for taking of sample of defendant's blood following vehicle accident were met. Murry crashed his vehicle into a culvert embankment. He was taken to the hospital, where an officer suspected Murry had been DUI of alcohol. At the hospital, the officer asked Murry to consent to a blood alcohol test. Murry replied, "I don't know what's going on, I'm starting to fade." A sample of blood was taken from Murry, despite the lack of consent and despite the fact he was not under arrest at the time. Murry filed a motion to suppress the blood sample evidence, arguing he had not consented and he had not been under arrest at the time the blood sample was taken. The trial court granted the motion. On appeal, the Supreme Court applied a three-part test in order to determine whether blood alcohol evidence can be taken from a suspect without a warrant. The three requirements are: (1) there must be exigent circumstances in which the delay necessary to obtain a warrant would threaten the destruction of the evidence, (2) the officer must have probable cause to believe the suspect has been DUI, and (3) the procedures used to extract the blood must be reasonable. The Court held the test was met, which is also the same test for taking BAC sample following an accident.
OPINION TESTIMONY—SEARCH INCIDENT TO ARREST—
SUFFICIENCY OF EVIDENCE
City of Dodge City v. Hadley 262 Kan. 234, 936 P.2d 1347 (1997)
The Supreme Court reversed the Court of Appeal‘s dismissal of an appeal and affirmed the district court‘s convictions for DUI and open container. The Court of Appeals had dismissed the defendant‗s appeal as untimely. The Supreme Court held (1) defendant's failure to timely file appeal did not preclude appellate jurisdiction; (2) police officers could properly give expert testimony regarding whether defendant was intoxicated; (3) search of defendant's truck incident to arrest was proper; (4) defendant's arrest was supported by probable cause; and (5) evidence was sufficient to support conviction. Defense counsel failed to timely file notice of appeal, because attorney believed appeal could not be filed until journal entry of conviction had been filed and sentencing had occurred. The Supreme Court held Defendant's failure to timely file appeal did not preclude exercise of appellate jurisdiction over his appeal in DUI case, where untimely filing was due to mistake of defense attorney. The Court also held officers could testify regarding defendant's intoxication and his ability to safely operate motor vehicle. The officers did not express opinion defendant was guilty, case was tried without jury, and testimony was based on officers' personal observations of defendant and their expertise as police officers. Regarding the search incident to arrest, the Court furthered even though defendant was in handcuffs at time of search, search was proper for purpose of discovering instrumentalities or evidence
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of DUI. The Court also found sufficient probable cause to arrest, in defendant smelled strongly of alcohol, his speech was slurred, he almost fell getting out of his truck and had difficulty trying to perform failed sobriety test, and officer had received complaints defendant had behaved in disorderly manner and was seen driving pickup truck. Lastly, the Court found sufficient evidence to support conviction. Court of Appeals reversed and district court was affirmed.
SEARCH INCIDENT TO ARREST
State v. Anderson 259 Kan. 16, 910 P.2d 180 (1996)
The Supreme Court affirmed a district court suppression of evidence in a trial for various drug charges. The Court held police officer who arrested driver of automobile for driving on suspended license and on outstanding traffic warrant could not search interior of vehicle for drugs incident to arrest. At the time of the search, the defendant was handcuffed and in the police car. Thus, the district court concluded, and the Supreme Court affirmed, the officer safety did not warrant the search incident to arrest. Similarly, the officer could not search for drugs in the vehicle as evidence of the crimes for which defendant was arrested (not drug crimes). Thus, the Supreme Court concluded the district court did not err in suppressing the drug evidence.
SEARCH—STOP AND FRISK—WEAPONS—EVIDENCE—INEVITABLE DISCOVERY
State v. Waddell 14 Kan. App. 2d 129, 784 P.2d 381 (1989)
The Court of Appeals affirms denial of a motion to suppress, holding although the officer‘s search of defendant‘s pockets went beyond an allowable Terry search; the doctrine of inevitable discovery applies in this case. The Court holds defendant would have been arrested for DUI and driving on a suspended license and the drugs found in his pocket would have been discovered during an inventory search at the jail. The Court finds it is bound by the officer‘s testimony the search occurred prior to the arrest, and he was not in fear and did not have reason to believe defendant had a weapon when he conducted the pat-down. (Sedgwick, 63340, 12/22/89)
ARREST—SEARCH INCIDENT—DUI
State v. Press 9 Kan. App. 2d 589, 685 P.2d 887 (1984)
The State appeals suppression of evidence seized after defendant has been arrested for DUI. After the trooper observed defendant driving erratically, and stopped at a green light, he stopped defendant‘s vehicle. Defendant subsequently failed field sobriety tests and was arrested. The trooper then searched the passenger compartment of defendant‘s vehicle, recovering marijuana, two hemostats and an empty wine bottle. He then searched the truck and found more mj, which was also found in the glove compartment. The trial court found the search was not incident to an arrest, nor was there probable cause to search the vehicle. The Court of Appeals holds there was probable cause to arrest; that upon arrest, the passenger compartment can be searched, New York v. Belton 453 Kan 454 (1981); and the trunk could also be searched, U.S. v. Ross 456 US 798 (1982). Further, the CA holds once contraband was discovered in the passenger compartment, the officer had probable cause to search the truck. Judge Rees
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dissents, mainly because of a narrow reading of Belton, maintaining since defendant was removed from the vehicle, he could not longer reach any area within the passenger compartment and the search was illegal. (Ellis, 55621, 7/12/84)
WITHDRAWAL OF BLOOD DOES NOT VIOLATE FIFTH AMENDMENT
Schmerber v. California 384 U.S. 757, 16 L.Ed. 2d 908, 86 S.Ct. 1826 (1966)
The defendant was arrested at a hospital while receiving treatment for injuries he had sustained in an automobile accident. The police officer directed hospital personnel to take a sample of the defendant‘s blood for testing. The defendant, after checking with his legal counsel, refused to consent to the test. The defendant contended a blood test violated his Fourth Amendment rights against unreasonable search and seizure, and his Fifth Amendment right to counsel. The U.S. Supreme Court held the privilege against self-incrimination was not violated since the privilege protects an accused only from being compelled to testify against himself. The withdrawal of blood is physical evidence and non-testimonial. The privilege of self-incrimination does not exclude the use of the defendant‘s body as evidence when it may be material. As far as the right to counsel claim, the Court found the defendant was not denied his right to counsel by being required to submit to the test, even after his counsel told him not to. The Court found the defendant had no greater right simply because his attorney advised him incorrectly. The officer has probably cause to believe that the defendant was under the influence of alcohol. Since the delay necessary to obtain a warrant would threaten the destruction of evidence and the extraction of blood sample for testing in commonplace and involves no virtue of risk, trauma or pain, the Court held the withdrawal of the defendant‘s blood taken by a physician according to acceptable medical practices was not an unreasonable search.
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***UNPUBLISHED CASES***
DWS-ARRESTED OUTSIDE CAR-GLOVE BOX SEARCHED
State v. Witmer 216 P.3d 191, 2009 WL 3082577 (09/25/09)
***UNPUBLISHED***
Defendant was stopped for an expired tag. The officer could smell alcohol on her breath and requested she step out of the car to perform SFSTs. The defendant did not indicate impairment on any of the tests however the officer arrested defendant for DWS. The arrest occurred outside the vehicle. The officer then searched her car incident to her arrest and looked in the glove box and found some pills which turned out to be hydrocodone which she did not have a prescription. The court of appeals found the officer had no reasonable basis to believe there was any evidence of the crime of driving on a suspended license in the car. She was handcuffed in a patrol car and could not get into her car for any weapon. Court cited Arizona v. Gant 129 S.Ct. 1710 (2009) and found the search was unlawful.
INNOCENT USES
State v. Dunn 188 P.3d 977, 2008 WL 3004804 (2008)
***UNPUBLISHED***
Off-duty officer observed a vehicle swerving all over the road. The driver, Dunn, was making erratic motions as he drove, slapping himself on the head, and wildly waving his arms. The car pulled into a driveway. An on-duty deputy responded within seconds. Upon approach Dunn appeared to be unconscious though the cars engine was still running and it was in gear. Dunn‘s foot was resting on the brake pedal. The officer opened the door and Dunn awakened. Dunn was asked to step from the vehicle. As he did so an officer observed what he believed was a Brillo pad the officer knew was commonly used for smoking cocaine. Dunn was extremely jittery and had very poor balance and coordination. His movements were erratic, his eyes were dilated, and he was extremely sweaty. The officer concluded Dunn was under the influence of a narcotic or some other substance. Dunn was charged only with possession of cocaine which was found in a search of his vehicle. Dunn at trial moved to suppress the evidence. The appellate court found an officer had a reasonable suspicion Dunn was DUI and can order a driver out of his vehicle without any suspicion of an additional crime. The court also found there was sufficient information to establish Probable cause to believe Dunn committed a crime, evidence of which was found in the vehicle. While Brillo pads have an obviously innocent use, any possible innocent use recedes into the distant background when considering the totality of the circumstances that confronted the officer. Affirmed.
OPEN CONTAINERS-LABELS-HEARSAY
State v. Gubbels 166 P.3d 449, 2007 WL 2580501 (2007)
***UNPUBLISHED***
Defendant Gubbels appealed his conviction of DUI and transporting an open container based on hearsay and insufficient evidence. The court found there was sufficient evidence for DUI, and affirmed the DUI conviction. The transporting an open container conviction was also
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upheld, but only after a discussion of hearsay. Gubbels was pulled over by Office Farcas for suspicion of DUI. After pulling the vehicle over, Farcas searched Gubbels vehicle and discovered two champagne bottles, two wine bottles, and a bottle of grain alcohol on the floor behind the passenger seat. The bottles were open, and still had some liquid in them. Gubbels contests the labels on the bottles are hearsay, and do not fall under any of the hearsay exceptions. The court agreed with Grubbels, stating the labels on the bottles were in fact hearsay, and the hearsay rule that governs, ―a list, register, periodical, or other published compilation‖ does not apply to alcohol bottle labels. The court stated the trial court should have excluded the evidence, but the error was harmless error. The court stated the conviction can be upheld because, ―Officer Farcas testified he smelled the wine bottles and they smelled like wine. Finally, Gubbels admitted the bottles had been in his car for a week because he and some friends had a party.‖ Both convictions -upheld.
WARRANTLESS—EXIGENT CIRCUMSTANCES—HOT PURSUIT
State v. Pratt 134 P. 3d 691, 2006 WL 1460594 (2006)
***UNPUBLISHED***
Pratt appeals his conviction for DUI, arguing the district court erred by overruling his motion to suppress evidence obtained by a warrantless entry into his home. Officer Williams observed Pratt‘s truck at about midnight traveling on the roadway without headlights. Williams activated his lights in an attempt to stop Pratt, but Pratt took evasive action to elude Williams, traveling at excessive speeds through residential areas, sometimes on the wrong side of the road, and failing to signal turns. Williams suspected Pratt was DUI. Pratt approached his residence and entered the garage, attempting to enter the house and close the garage door behind him. Williams stopped his patrol car with the hood extending under the garage door. Pratt activated the garage door twice, each time the door hit the hood of the patrol car. Pratt ignored orders to come to Williams. Pratt headed toward the interior door to the house and Williams grabbed his arm as he opened it. As Pratt struggled to get away, Williams noticed a strong odor of alcohol on Pratt‘s breath, in addition to other indicators Pratt was under the influence. Pratt was arrested for DUI. At trial, Pratt moved to suppress the evidence surround his arrest; the court overruled the motion. On appeal, the court found the warrantless entry fell within the exigent circumstances exception to the Fourth Amendment. The court noted Williams had reasonable suspicion to justify stopping the car based on the traffic violations, the suspicion of DUI, and Pratt‘s attempt to flee and elude an LEO. Williams was in hot pursuit, which created an exigent circumstance justifying the warrantless entry into Pratt‘s home. ―Being able to outrun the cops may be an effective strategy in a ‗Dukes of Hazzard‘ episode, but not in Kansas.‖
SCOPE OF STOP—FIELD SOBRIETY TESTS—RECORD ON APPEAL
State v. Neuman 105 P.3d 279, 2005 WL 283612 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed a conviction for DUI, second-offense. The Court held that a 20 minute delay in investigating DUI was not was so lengthy it implicated defendant‘s Fourth Amendment rights. Defendant was stopped for failure to use turn signal. Officer smelled odor of alcohol, but defendant claimed the field sobriety tests, and thus the DUI investigation, were not initiated until 20 minutes after the initial stop.
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Defendant argued the DUI investigation fell outside the permissible scope of the initial stop. Trial court denied motion and convicted defendant. On appeal, the record did not include the videotape of the stop. The Court of Appeals stated the burden is on the appellant to show that DUI investigation was beyond the scope of the stop. The Court held the appellant, with the record as it was, did not adequately meet that burden. Affirmed.
WARRANTLESS BAT—EXIGENT CIRCUMSTANCES—PROBABLE CAUSE
State v. Espe 88 P.3d 807, 2004 WL 944248 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed convictions of aggravated battery and DUI. The Court held the blood test in this case to be constitutional under the Schmerber test, noting the delay of getting a warrant was a sufficient exigent circumstance that threatened destruction of the evidence, probable cause of DUI existed, and the test was performed reasonably. The Court also found there was sufficient evidence to sustain a conviction of aggravated battery based on recklessness. The Court did find the blood test to be a bodily invasion that threatened the Fourth Amendment; thus, the taking must still be constitutionally sound. The warrantless seizure of blood from the defendant in absence of arrest was proper, even though officers physically restrained the defendant to permit the nurse to draw blood. The delay necessary to obtain a warrant would have threatened the destruction of blood alcohol evidence. Empty beer cans in defendant's car, odor of alcohol on defendant's breath, and defendant's belligerent attitude provided officers with probable cause to suspect defendant had been driving under the influence, and the blood draw was performed in a reasonable manner. For purposes of conviction for aggravated battery stemming from automobile collision, the Court found the evidence was sufficient to show the defendant acted in a reckless manner. The defendant's blood alcohol content measured .289, almost three times the legal limit, and defendant smelled of alcohol, was loud and uncooperative, had numerous beer cans in his vehicle, failed to yield to oncoming traffic, and turned in front of a car traveling 55 mph when it was almost on top of him. Thus, there was sufficient evidence to sustain a conviction of aggravated battery based on recklessness.
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C. Probable Cause to Arrest
***PUBLISHED CASES***
DEVICE NOT APPROVED BY KDHE-FACTORS TO DETERMINE P.C.
State v. Pollman 41 Kan.App.2d 20, 204 P.3d 630 (11/21/08)
The court of appeals said per se law was constitutional and not vague...however the Supreme Court reversed his conviction on the basis his arrest was not supported by PC. It found the district court should have suppressed the PBT results because at the time of the stop the PBT device was NOT on the approved list of devices published by the KDHE. Absent the PBT results there was no PC to arrest the defendant. Although he allegedly failed one out of four SFSTs the State did not present evidence on the results of the SFSTs. The only evidence to consider was 1) Defendant refused to follow lawful requests to leave the area. 2) Defendant admission to consuming a few beers. 3) Defendant had an odor of alcohol on his breath. THIS EVIDENCE was not sufficient to warrant a reasonable prudent police officer to believe guilt was more than a mere possibility....therefore the conviction is REVERSED. See also Pollman 286 Kan. 881 (08/08/08)
SFST AT STATION—FURTHER INVESTIGATION
City of Norton v. Wonderly 38 Kan.App.2d 797,172 P.3d 1205 (2007)Rev.Den.(5/28/08)
In this case a motorist and his passenger called law enforcement on their cell phone reporting a white pickup truck driving northbound was driving erratically. The callers told the dispatcher their names reported the truck's license plate number and stated the pickup truck was traveling behind two semi-trailer trucks. An officer within 35 minutes observed this white truck traveling with two semi-trucks. The officer determined the license plate did match. The officer followed the truck for approximately three minutes and did not observe any traffic infractions. The officer stopped the vehicle. The officer could detect an odor of alcoholic beverage coming from Wonderly. Wonderly provided his license to the officer without any difficulty, exited his vehicle without incident and had no problems walking back to the officer's patrol car. Wonderly did state he had been drinking at a bar earlier and his speech was fair and not particularly slurred. The officer requested Wonderly to take a PBT; it indicated his BAC was greater than .08. The officer failed to wait the 15 minutes before administrating the PBT. The officer noted it had been raining and misting and the roads were slick. The officer decided Wonderly should perform the SFSTs at the Sheriff's department. The officer did not place him under arrest; however he did place him in handcuffs and transported him two blocks away to the Sheriff's office, which took approximately two minutes. The officer testified based on everything he had observed at the traffic stop and the sheriff's office he believed he was impaired to the extent he could not safely drive. The Intoxilyzer test indicated a BAC of .174. Wonderly first objects to the traffic stop being justified. The Appellate Court stated based on the two identified callers giving first hand information to law enforcement and the fact the officer saw the truck coming and it matched all the descriptions, he had reasonable suspicion to stop the vehicle, even without observing any traffic infractions. Wonderly next contends his arrest was without probable cause. Due to the totality of the circumstances the Appellate Court stated a reasonable person in Wonderly's position would have believed they were under arrest. Therefore the court must look to determine whether or not there
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was probable cause to believe he should have been in that position. The Court of Appeals concluded the officer had reasonable suspicion for the stop. The limited evidence the officer had gathered at the scene of the traffic stop was insufficient to support probable cause for an arrest. The fact the officer felt it was necessary to continue his investigation at the Sheriff's office before formally arresting Wonderly supports that conclusion. Reversed.
PBT—IMPLIED CONSENT—BAT—REASONABLE GROUNDS
State v. Jones 279 Kan. 71, 106 P.3d 1 (2005)
The Supreme Court reversed the Court of Appeals ruling affirmed DUI conviction, and remanded to district court for new trial. The Court held PBT performed on defendant was search subject to Fourth Amendment strictures; defendant did not give voluntary consent to administration of PBT; and statutory implied consent rule did not apply to PBT. Arresting officer responded to one-vehicle accident. Defendant failed PBT, was arrested, and blood test was taken later at the hospital. The case was tried on stipulated facts. The facts revealed the statutory PBT warnings of K.S.A. 8- 1012 were read, defendant was not free to leave, and defendant "did submit" to the PBT. The trial court allowed the PBT results as well as a blood test results. The Court of Appeals affirmed the trial court. The Supreme Court reversed, noting under the scant facts in the stipulations, defendant‘s mere acquiescence to the PBT did not establish voluntary consent. Thus, the PBT was not proper, and there were no other reasonable grounds for the blood test. The blood test was also fruit of the poisonous tree. The conviction was reversed and remanded for new trial.
PROBABLE CAUSE—BAT ADMISSIBILITY—MISTRIAL—PHOTOS—SENTENCING
State v. Hobbs 276 Kan. 44, 71 P.3d 1140 (2003)
The Supreme Court affirmed convictions for involuntary manslaughter, aggravated battery, and leaving the scene of an injury accident. The Court held: (1) results of defendant's blood alcohol test were admissible (despite being below .08); (2) exchange during recess in trial between juror and state witness did not warrant mistrial; (3) autopsy photograph of victim was admissible; (4) report of death form completed by district coroner, showing manner of death as "accidental," was admissible as an official court record, but improper exclusion of that evidence was harmless; (5) prosecutor's rebuttal closing argument, that there was no evidence of a malfunction of defendant's vehicle at time of fatal collision, was proper response to defense counsel's closing argument and did not improperly shift burden of proof; and (6) trial court could take judicial notice of a defendant's presentence report filed in a previous case without objection instead of requiring state to produce evidence to establish disputed portion of criminal history by a preponderance of the evidence. Hobbs challenged the constitutionality of KSA 2000 Supp. 8-1001(f)(1), which supplies probable cause to believe the defendant operated a vehicle under the influence of alcohol or drugs "if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to another person.‖ The Supreme Court held a defendant to whom a statute may constitutionally be applied cannot challenge the statute on the ground it may conceivably be applied unconstitutionally in circumstances not before the court. The Court noted there was probable cause of DUI absent the use of KSA 8-1001(f)(1). See (State v. Schow 287 Kan. 529 (2008) concerning PSI). Hobbs also
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complained the district court erred by admitting the results of his blood alcohol test into evidence, specifically because the results were not above .08. The Court held the admission or exclusion of evidence lies within the sound discretion of the trial court. A defendant asserting the trial court abused its discretion bears the burden of showing the trial court's action was arbitrary, fanciful, or unreasonable, which was not done by Hobbs.
INVESTIGATORY STOP—JURISDICTION—PUBLIC SAFETY STOP
State v. Hamman 273 Kan. 89, 41 P.3d 809 (2002)
The Supreme Court affirmed convictions for DUI of alcohol and transporting an open container. The Court held deputy sheriff had a reasonable belief defendant was driving under the influence of alcohol, and thus, was justified in conducting an investigatory stop of defendant and detaining defendant until police officer arrived, even though sheriff conducted stop in county that was outside his jurisdiction. A Coffey County deputy was called to assist a Lyon County deputy. There were juveniles with alcohol at the boat ramp on the east side of Hartford. The boat ramp is on the line between Coffey and Lyon Counties. The juveniles were on the Coffey County side. In order to get to the boat ramp, the deputy had to drive into Lyon County and back again into Coffey County. While in Lyon County, the Coffey County deputy observed defendant's vehicle going from side to side its lane two or three times, and, upon stopping defendant, observed she moved sluggishly and smelled of alcoholic beverage. A Lyon County deputy placed the defendant under arrest. The Supreme Court held a law enforcement officer who makes a warrantless arrest outside the territorial limits of the officer's jurisdiction must be treated as a private person. A private person may make an arrest when any crime, other than a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the arrested person in the view of the person making the arrest. K.S.A. 2001 Supp. 22-2403. Safety reasons alone may also justify the stop if the safety reasons are based upon specific and articulable facts. Affirmed.
PBT—REASONABLE GROUNDS—REASONABLENESS
Gross v. Ks. Dept. of Revenue 26 Kan.App.2d 847, 994 P.2d 666 (2000)
The Court of Appeals affirmed KDR‘s suspension of a driver‘s license. The Court held (1) to request a PBT of motorist's breath, it is not necessary police officer formulate probable cause or reasonable belief to arrest the motorist for DUI; (2) trial court had jurisdiction to determine whether police officer's request for PBT was proper; and (3) statute authorizing police officer to request motorist to submit to PBT, when followed, does not run afoul of the Fourth Amendment. The Court noted probable cause is synonymous with the term "reasonable grounds," within the meaning of the statute providing an officer may request a motorist to submit to a preliminary screening test of the motorist's breath to determine alcohol concentration if the officer has reasonable grounds to believe the motorist has alcohol in his or her body. KSA 8-1012. When such a test is requested, the issue under the Fourth Amendment is not one of probable cause but whether the request is reasonable. The Court noted KSA 8-1012 provides adequate safeguards to insure reasonableness and, when followed, does not run afoul of the Fourth Amendment.
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BAT—REASONABLE GROUNDS—PROBABLE CAUSE—COLLATERAL ESTOPPEL
Huelsman v. Ks. Dept. of Revenue 267 Kan. 456, 980 P.2d 1022 (1999)
The Supreme Court reversed a district court ruling for a motorist in a driver‘s license suspension case. The Court held state and city were not in privity, for purposes of collateral estoppel and the quality and extensiveness of city's DUI prosecution and state's administrative license suspension proceeding were not alike, and thus, the suppression of evidence in DUI prosecution based on lack of probable cause to arrest did not collaterally estop state from arguing in suspension proceeding that officer had reasonable grounds to request a breath test pursuant to the implied consent law. The Court explained while reasonable grounds is synonymous in meaning with probable cause, one may have reasonable grounds to believe a person was operating a vehicle under the influence but not have the probable cause required to arrest under K.S.A.1996 Supp. 8-1001(b)(1). An arresting officer may formulate reasonable grounds sufficient to request a test under the statute before or after arrest and, under K.S.A.1996 Supp. 8-1001(b)(2), without any arrest whatsoever. Thus, the district court‘s ruling in favor of the motorist was reversed.
OPINION —SEARCH INCIDENT TO ARREST—SUFFICIENCY OF EVIDENCE
City of Dodge City v. Hadley 262 Kan. 234, 936 P.2d 1347 (1997)
The Supreme Court reversed the Court of Appeal‘s dismissal of an appeal and affirmed the district court‘s convictions for DUI and open container. The Court of Appeals had dismissed the defendant‗s appeal as untimely. The Supreme Court held (1) defendant's failure to timely file appeal did not preclude appellate jurisdiction; (2) police officers could properly give expert testimony regarding whether defendant was intoxicated; (3) search of defendant's truck incident to arrest was proper; (4) defendant's arrest was supported by probable cause; and (5) evidence was sufficient to support conviction. Defense counsel failed to timely file notice of appeal, because attorney believed appeal could not be filed until journal entry of conviction had been filed and sentencing had occurred. The Supreme Court held Defendant's failure to timely file appeal did not preclude exercise of appellate jurisdiction over his appeal in DUI case, where untimely filing was due to mistake of defense attorney. The Court also held officers could testify regarding defendant's intoxication and his ability to safely operate motor vehicle. The officers did not express opinion defendant was guilty, case was tried without jury, and testimony was based on officers' personal observations of defendant and their expertise as police officers. Regarding the search incident to arrest, the Court furthered even though defendant was in handcuffs at time of search, search was proper for purpose of discovering instrumentalities or evidence of DUI. The Court also found sufficient probable cause to arrest, in that defendant smelled strongly of alcohol, his speech was slurred, he almost fell getting out of his truck and had difficulty trying to perform failed sobriety test, and officer had received complaints defendant had behaved in disorderly manner and was seen driving pickup truck. Lastly, the Court found sufficient evidence to support conviction. Court of Appeals reversed and district court was affirmed.
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CAUSE TO ARREST—HEEL-TO-TOE TEST
City of Dodge City v. Norton 262 Kan. 199, 936 P.2d 1356 (1997)
The Supreme Court reversed the district court‘s dismissal of a DUI charge. The Court held probable cause existed for warrantless arrest. The Court found probable cause existed, even though arresting officer had defendant perform only one field sobriety test and even though test involved use of legs, which defendant claimed had been operated on several times. The Court noted defendant had created a disturbance at a trailer park and was intoxicated and driving a pickup; defendant's pickup narrowly missed construction barrels and weaved in defendant's own lane; defendant parked next to a bar, got out of his pickup, and told the officer he had been at the trailer park to arouse a friend and was going into the bar for a few drinks; defendant's eyes were pink or bloodshot; defendant told the officer he had problems with his legs and failed the heel-to-toe test; and the officer smelled alcohol on defendant's breath as he approached him to place him under arrest. The Court found probable cause to arrest existed and reversed the district court.
BAT—REASONABLE GROUNDS—PROBABLE CAUSE TO ARREST—IMPLIED CONSENT
State v. Counseller 22 Kan.App.2d 155, 912 P.2d 757 (1996)
The Court of Appeals reversed a district court suppression of BAT results in a DUI prosecution. The Court held (1) implied consent statute is remedial legislation and is to be liberally construed; (2) officer may have reasonable grounds to believe person was operating vehicle under influence, allowing officer to perform test under implied consent statute, while not having probable cause required to arrest under statute; and (3) reasonable grounds to believe motorist was operating vehicle under influence may be formulated after person is in custody for any offense arising from operation or attempted operation of motor vehicle, and may be formulated before or after arrest, or without any arrest. Counseller was arrested for reckless driving and transported to the sheriff‘s department. The arresting officer smelled liquor on Counseller's breath and requested he submit to a breath test to determine the presence of alcohol. Counseller was provided a copy of the implied consent advisory pursuant to K.S.A.1995 Supp. 8-1001(f)(1). He gave consent, and a breathalyzer test was then administered that produced a test result of .197. In the prosecution for DUI, the district court suppressed the BAT results, noting since defendant was not arrested for an alcohol-related offense, the implied consent warning was coercive. On appeal, the Court of Appeals held the implied consent statute does not apply solely to per se alcohol offenses; it may apply to any offense that was alcohol or drug related. Also, the determination of whether an offense is alcohol or drug related may be made subsequent to arrest. Reversed and Remanded.
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***UNPUBLISHED CASES***
ALTERNATIVE THEORY-HOUSE ARREST
State v. Harrison 231 P.3d 587, 2010 WL 2217564 (05/21/10)
***UNPUBLISHED***
Trooper legally stopped the defendant. Trooper noted watery bloodshot eyes, slurred and mumbled speech, odor of alcohol and actions to be slow and methodical. The defendant admitted to drinking six beers, was unsteady getting out of the vehicle and numerous clues on the walk and turn and one leg stand including upon finishing the walk and turn the defendant staggered back into the curb and fell to the ground. The PBT indicated impairment. Defendant‘s BAC was 0.15. The defendant argued on appeal a number of issues including no reason for the detention for the SFSTs, Probable cause for the arrest and sufficiency of the evidence. The court determined all were without merit. One specifically interesting the defendant‘s sufficiency argument was on ―impaired to operate‖ theory which he was not convicted. He was charged in the alternative but found guilty of the per se violation and therefore no need to determine sufficiency on a charge he was not convicted. Lastly he argues the court erred in not granting him house arrest on a 4th offense. The court noted K.S.A. 8-1567(g) (2006 supp.) the legislature did not provide for a house arrest for a 4th offense.
NUMEROUS TRAFFIC INFRACTIONS-SFSTS INDICATED IMPAIRMENT
State v. Bohnen 221 P.3d 642, 2010 WL 173953 (01/08/10)
***UNPUBLISHED***
An Officer observed a vehicle over 7 miles. He observed 87mph in a 70 zone, following too close, failing to maintain a single lane and straddling the line. Upon approach an odor of alcohol was detected. SFSTs indicated impairment however on the one leg stand the only clue observed was swaying. The defense focused on City of Norton v. Wonderly 38 Kan.App.2d 199(2007). The defendant noted he failed only one field sobriety test (walk and turn) and passed the one leg stand test. The performance on the tests did not establish PC he was DUI. The court noted SFSTs are not in isolation rather the court must consider them in conjunction with the other factors known to the officer. The court looked to State v. Shaw 37 Kan.App.2d 485(2007) although performance on the SFSTs is one thing, the defendant‘s ability to operate his vehicle also needs to be taken into account. Affirmed.
CRASH-NO FIELD SOBRIETY TESTS-NO INJURY
State v. Hamilton 217 P.3d 1018, 2009 WL 3378207 (10/16/09)
***UNPUBLISHED***
A Pottawatomie Deputy found a vehicle which had left the roadway and was in the middle of a field. It was raining. The deputy found a person reclining in the driver‘s seat asleep. He woke up the defendant and determined he was not hurt, had a very faint slurred speech, was unsteady on his feet, smelled strongly of alcohol. The defendant believed he was somewhere between Wichita and Coffeyville-nowhere near his present location. Because of weather conditions, the deputy did not administer SFST‘s nor a PBT but placed the
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defendant under arrest for DUI. At the jail the defendant failed SFST‘s and his BAC was 0.153. The defendant filed a motion to suppress evidence because there was a lack of probable cause for his arrest. The court looked to the totality of the circumstances and noted the defendant exhibited clear physical manifestations of intoxication which was different than in the Wonderly and Pollman cases. The facts here would lead a reasonable and prudent officer to believe guilt was more than a mere possibility. The defendant also complained of his fine. But the court also found the record to be sufficient to determine if he had financial resources to pay.
GUILT IS MORE THAN A MERE POSSIBILITY-BEFORE-DURING-AFTER STOP
Stowers v. Ks Dept. of Revenue 212 P. 3d 1039, 2009 WL 2436682 (08/07/09)
***UNPUBLISHED***
The defendant challenges the reasonable grounds to ask for the breath test which caused his license suspension. The appellate court stated an officer has reasonable grounds to believe a person is operating or attempting to operate a vehicle under all of the circumstances a reasonably prudent police officer would believe that the person‘s guilt is more than a mere possibility. In looking at the, ―reasonable grounds‖ standard, the court believed it similar to the determination of whether an officer has ―probable cause‖ to arrest someone. The way this is determined is to look at the behavior of the driver before during and after the person was behind the wheel. The court looked to Campbell v. KDOR 25 Kan.App.2d 430 (1998). The defendant in this case had: erratic driving, this was done at 2 a.m., smelled of alcohol, admitted to consuming, and eyes were bloodshot. Even without SFST there was ―reasonable grounds‖ to believe guilt is more than a mere possibility.
TEXTING-DENIED DRINKING
Grabner v. Ks. Dept. of Revenue 210 P.3d 687, 2009 WL 2030383 (07/10/09)
***UNPUBLISHED***
Defendant challenges his arrest claiming there was no probable cause. The evidence indicated defendant was traveling 40 in a 30 mph zone. He swerved to the right hand curb and abruptly returned to the center of the roadway. Officer smelled a strong odor of alcohol but defendant denied drinking. Defendant claimed he was texting and that was the cause of the swerve. SFSTs indicated impairment however the defendant claimed he had previously broken his foot and later accused the officer of a ―crooked‖ line to walk. The defendant also admitted he was on a number of medications. The defendant argued City of Norton v. Wonderly 38 Kan.App.2d 797 (2007) and State v. Blair 26 Kan.App.2d 7 (1999). The court found probable cause to arrest is a preponderance of the evidence given the totality of the circumstances. In this case there sufficient evidence to determine the defendant was impaired. Affirmed.
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TECHNICAL IRREGULARITIES-FALLACY OF NEGATIVE PROOF
State v. Scott 203 P.3d 1281, 2009 WL 929102 (04/03/09)
***UNPUBLISHED***
Officer observed defendant driving the wrong way down a one-way street. The vehicle was stopped and the officer observed the defendant had bloodshot eyes and detected a strong odor of alcohol. The officer also noticed an orange arm band indicated he had been at one of the local bars that night. The defendant admitted he had consumed alcohol. The Defendant was cooperative and on the walk-and –turn test the defendant indicated the following clues: started the test before he was told, on both the first and second set of nine steps he twice failed to touch heel to toe, he incorrectly turned by pivoting on both feet and he took only eights steps on the second set of nine-steps. No clues were exhibited on the one leg stand. The defendant was arrested and a test indicated a 0.149 BAC. At trial the defendant filed a motion to suppress based on lack of probable cause. The court found PC and the defendant was found guilty. In a DUI case the answer to the probable cause to arrest question will depend on the officer‘s factual basis for concluding the defendant was intoxicated at the time of arrest. PC to arrest is a ―preponderance of the evidence given the totality of the circumstances. The defendant focused on the various factual circumstance (or lack thereof) that tended to mitigate against a conclusion the defendant was legally impaired to drive, arguing they support a conclusion there was nothing more than a possibility he was DUI so probable cause was lacking. The defendant claims the performance on the SFSTs did establish any objective indications of possible impairment. Rather the defendant maintains the officer observed only a few ―technical irregularities‖ in the performance. PC is a fact-intensive determination made on a case by case basis. The defendant‘s argument is an example of what logicians call the fallacy of negative proof. This occurs when someone attempts to sustain a factual proposition merely by negative evidence. PC was established. Affirmed.
FALLACY OF NEGATIVE PROOF
City of Great Bend v. Rowlands 203 P.3d 1281, 2009 WL 929131 (4/03/09)
***UNPUBLISHED***
Officer receives an anonymous tip a black car was being driven recklessly without its headlights. The officer, upon reaching the area described, observed a black car without its‘ headlights on. The officer upon approach of the vehicle notice the car had its lights on but one was not illuminated. The car made an illegal J-turn and parked in a stall. The officer approached the car and smelled a strong odor of alcohol. The defendant fumbled for his license, was unable to provide insurance. The defendant had difficulty getting out of his car had a sluggish composure eyes were bloodshot and speech slurred. He admitted to having one beer. The defendant failed the finger dexterity test (twice); on the walk and turn did not touch heel to toe, did not pivot correctly, was unable to follow the straight line on the sidewalk while performing the test and used his arms for balance. The defendant on the one leg stand again was unable to count past three, used his arms touched the ground with his foot and was unable to complete the test. On the finger to nose test-rather than touch his nose he grabbed and squeezed it. The defendant claimed the officer did not have PC to arrest him. The court denied the motion and the defendant was found guilty. The case was appealed to the district court. The case was submitted on stipulated facts and again the defendant was found guilty. Again the appellate court mentioned the fallacy of negative proof-as they did in State v. Scott unpublished 2009 WL 929102 (2009). The defendant wants the court to focus on other known signs of legal impairment
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he did not exhibit while glossing over or trying to discount those signs of impairment he did exhibit. To do so ignores this court‘s standard of review in determining probable cause. The facts and circumstances observed by the officer prior to his arrest of the defendant taken in their totality and viewed from the perspective of a reasonable prudent police officer-are supported by substantial competent evidence and demonstrates more than a mere possibility that the defendant was DUI.
TOTALITY OF CIRCUMSTANCES-MERE POSSIBILITY
State v. Glynn 192 P.3d 1130, 2008 WL 4472258 (10/03/08)
***UNPUBLISHED***
The defendant‘s vehicle was observed driving without headlights or taillights at 2am. Upon stopping the vehicle the defendant had a strong odor of alcohol and admitted to having 5 beers. Field sobriety tests indicated impairment. The defendant had slurred speech, her eyes were glassy, bloodshot and glazed. The officer placed the defendant under arrest. On appeal the defendant claimed the officer lacked probable cause to arrest her. The court indicated Probable cause for an arrest is higher standard than reasonable suspicion for a stop. Probable cause to arrest is that quantum of evidence that would lead a reasonably prudent law enforcement officer to believe that guilt is more than a mere possibility. In this case the appellate court found sufficient evidence to lead a law enforcement officer to believe the defendant ‗s guilt was more than a mere possibility. Totality of the evidence indicates probable cause to arrest. Affirmed.
URINATION—BROKEN TAIL LAMP
State v. Jepson 187 P.3d 608, 2008 WL 2796460 (2008)
***UNPUBLISHED***
Officer observed the following: broken tail lamp that was emitting a white, instead of red; the driver stopped at a residence and the officer witnessed the individual urinating on the front driveway; this occurred at 4 a.m.; the driver then after urinating went and knocked on the front door of the residence, no answer; the registration on the vehicle did not come back to the address of the residence. The court concluded, as the officer did, based on the totality of the circumstances the officer could stop, approach and speak with the driver. The court also review information gained after the stop; odor of alcohol, driver admitted to drinking; failed PBT and could not complete SFSTs—and concluded the officer had PC to arrest the driver.
INNOCENT EXPLANATIONS-STANDARD
Burroughs v. Ks. Dept. of Revenue 168 P.3d 1040, 2007 WL 3085363 (2007) ***UNPUBLISHED***
Early morning, Burroughs was pulled over in a traffic stop. Officers smelled the odor of alcoholic beverage coming from him. Burroughs had consumed alcohol within 20 minutes of this stop. Burroughs eyes were bloodshot. He had difficulty producing his insurance card. He had been weaving within his lane of traffic, had crossed the fog line, and had crossed the
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center line, all driving within a nine or ten block area. Burroughs concedes he violated a traffic ordinance by crossing the centerline. Burroughs found no fault with the test procedure or results so his challenge was limited to whether the officer had reasonable grounds to request a test in the first place, which was the sole issue. The Court after making these findings noted there could be an innocent explanation for some of them and concluded the officer had lacked reasonable grounds to request a breath test as part of a drunk driving investigation. The judge set aside the administrative suspension of Burroughs' driving privileges. The Court's review is substantial competent evidence. The Appellate Court noted the District Court did not disbelieve any of the officer's testimony or make any credibility determinations. Instead the District Court simply noted there could be innocent explanations for some of the things the officer observed. On the issue of probable cause the District Court may not explain away all inferences of guilt by concluding each one of them could have an innocent explanation. The same probable cause standard is applied at preliminary hearings in criminal prosecutions, a hearing in which the state has the burden of proof. Probable cause exists so long as a person of ordinary prudence would consciously entertain a reasonable belief of the defendant's guilt. Reversed.
NOT FREE TO LEAVE-RESTRAINT
Fox v. Ks. Dept. of Revenue 155 P.3d 744, 2007 WL 1110544 (2007)
***UNPUBLISHED***
Fox was driving 85 mph on I-70 in Russell County. Trooper pulled the car over, and upon speaking with Fox, smelled alcohol. After an initial search of Fox‘s vehicle, Trooper saw an open bottle of alcohol. Fox performed field sobriety tests, and was placed in the patrol car. Trooper read Fox the implied consent advisory while Fox was inside the patrol car, and Fox consented to the breath test. Fox‘s appeal contends he was not under arrest or in custody when the implied consent advisories were given. The Court stated ―Even though there was not a statement made he was under arrest at the time the officer gave the implied consent notices, it is clear he was in custody and was not able to leave.‖ The Court also cites to State v. Louis, 240 Kan. 175, 727 (1986) in regards to the argument Fox makes about not being in custody, instead the court stated the test to be applied in determining whether a person who has not been arrested us in police custody is, ‗whether at that time there were some significant restraints on his freedom of movement which were imposed by some law enforcement agency.‘
OFFICER CAN USE-LAY WITNESS OPINION FOR PROBABLE CAUSE TO ARREST
City of Concordia v. Jones 141 P.3d 1199, 2006 WL 2595300 (2006)
***UNPUBLISHED***
Defendant Jason Jones was convicted of DUI after a bench trial in Cloud District Court. The appeal filed by Defendant alleges the District Court erred in finding probable cause at the Defendant‘s suppression hearing. Both the Defendant‘s wife, Deena Jones, and the arresting officer testified at the hearing. Deena testified Jason violated a restraining order in coming to her home, and when he arrived, his eyes were ―hazed over and glossy,‖ his speech was slurred, and he ―reeked of alcohol.‖ Deena called the police, and reported she felt he was intoxicated. When Officer Shawn Dillon arrived, he observed the running lights or headlights were illuminated on the vehicle which Jason was alleged to have driven. The Officer knew from experience the lights on the vehicle turn on after the vehicle is started,
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and turn off after a short time after. Officer Dillon found the Defendant, and had him perform two field sobriety tests. The Defendant failed both. Officer Dillon then asked the Defendant to take the PBT, and he did, blowing a .175. Officer Dillon placed the Defendant under arrest. The Court of Appeals considered the information provided by the Defendant‘s wife, and Officer Dillon‘s testimony in reaching a decision to affirm the District Court‘s ruling of probable cause. Key legal points include the finding that either failing the field sobriety tests, or failing the PBT would provide probable cause for arrest, and a person who is the wife of a defendant for a substantial period of time can give lay opinion at trial, and therefore an officer of the law can rely upon that opinion in order to continue or begin an investigation into a potential DUI.
PROBABLE CAUSE TO ARREST
Boeken v. Ks. Dept. of Revenue 90 P.3d 379, 2004 WL 1191609 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a driver‘s license suspension. The Court held the arresting officer had probable cause to arrest licensee for DUI even without considering the PBT. The officer initially responded to a disturbance call in Hutchinson. Upon his arrival, the officer approached a parked pickup in which Boeken was seated on the driver's side. The officer observed alcoholic beverage containers in the truck bed and then questioned Boeken regarding his alcohol consumption. According to the officer, Boeken stated he drank heavily at a bar just before driving to the location in Halstead. Boeken told the officer he had stopped there because he was too drunk to continue driving. The officer tried to get Boeken to perform two field sobriety tests: the nine-step walk and turn test and the one leg stand test. After being instructed on how to perform the tests and seeing them demonstrated, Boeken could not even begin the first one. He said he was too drunk and knew he would fail. Before the second test, he told the officer not to bother because he was too drunk to do that test as well. The officer testified Boeken failed to follow his directions on the first test and began to do the test before being instructed to do so. He asked Boeken if he had any questions; Boeken said yes but did not ask any. Boeken agreed to take a PBT. The result was .161 BAC. The officer arrested Boeken for driving under the influence of alcohol. Boeken later took and failed an Intoxilyzer 5000 breath test. After an administrative hearing, the Department of Revenue suspended Boeken's driving privileges. The trial court affirmed. The Court held substantial competent evidence supported the trial court's determination the officer had probable cause to arrest Boeken for DUI prior to requesting him to submit to a PBT.
ILLEGAL SEIZURE—PROBABLE CAUSE TO ARREST
State v. White 90 P.3d 380, 2004 WL 1191645 (2004)
***UNPUBLISHED***
The Court of Appeals overturned the district court‘s suppression of evidence in a DUI trial. The Court held probable cause existed to support defendant's arrest for DUI, thus the seizure of the defendant was legal and the evidence should not have been suppressed. The defendant was observed weaving within her lane while driving down interstate highway at 2:14 a.m., she had bloodshot, watery eyes, her breath smelled of alcohol, and she admitted to consuming alcohol before the officer asked her to submit to preliminary screening tests. The defendant also exhibited several ―clues‖ during the field sobriety tests. The Court ruled the officer possessed probable cause to arrest prior to conducting any field
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sobriety tests or a PBT. Therefore, all of the evidence was legally obtained in that the defendant was not illegally seized. The Court overturned the district court‘s ruling.
PROBABLE CAUSE TO ARREST
State v. Spoon 90 P.3d 378, 2004 WL 1176688 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction and held probable cause existed to support defendant's arrest. A Hays police officer was dispatched to investigate an automobile accident in the Applebee's parking lot. He was advised a driver may be trying to leave the scene of the accident. The officer observed a Jeep with severe damage to its front end turning out of the Applebee's parking lot. Parts of the vehicle were hanging and falling off the damaged front portion of the Jeep. A man was running behind the Jeep and pointing at it. The officer yelled at the driver of the Jeep to stop, followed the Jeep, and turned on his overhead lights. The Jeep stopped behind another vehicle at a stop sign. The officer approached the Jeep and found Spoon in the driver's seat and a woman sitting in the front passenger seat. The officer asked Spoon where he was going, whether he knew he had been involved in an accident, and whether he was attempting to leave the scene of the accident. Spoon did not respond and stared straight ahead. As the officer continued to ask Spoon if he had been involved in the accident, he smelled a strong odor of alcohol coming from the car and asked Spoon to step out of the Jeep. After Spoon exited the Jeep, the officer smelled a strong odor of alcohol coming from Spoon and noted Spoon's bloodshot eyes. The officer asked Spoon to perform the first of the field sobriety tests, the walk and turn test. Spoon received a failing score, but told the officer this was due to problems with his knees. Spoon failed the test a second time. The officer decided not to administer the one-leg stand test due to the road conditions and Spoon's condition. Spoon refused to submit to a preliminary breath test. Spoon was arrested for DUI. In a pretrial suppression motion, Spoon challenged probable cause to arrest. At the hearing, the arresting officer stated he relied most heavily on the strong odor of alcohol, Spoon's demeanor, and his difficulty in moving around. The officer believed Spoon's difficulty in moving was a result of his intoxication, and he did not take into account Spoon's refusal to take the preliminary breath test into deciding to arrest him. Spoon lost the suppression motion, and raised the same issue on appeal following his conviction. The Court stated there was probable cause for the arrest and the trial court properly refused to suppress evidence obtained after Spoon‘s lawful arrest.
PROBABLE CAUSE
Stephenson v. Ks. Dept. of Revenue 88 P.3d 807, 2004 WL 944253 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a driver‘s license suspension and held the arresting police officer had probable cause to arrest driver for DUI even though the officer did not see traffic infractions or evidence of impaired driving before the stop and did not find slurred speech, poor balance, or other signs of intoxication while talking to driver after the stop; the officer smelled alcohol on driver and observed his trouble locating his license, and the driver admitted possibility of being over legal limit and declined to perform field sobriety tests after initially agreeing to do so.
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ADMISSION—FIELD SOBRIETY TEST—REASONABLE SUSPICION—PROBABLE CAUSE
State v. Black 87 P.3d 993, 2004 WL 835992 (2004)
***UNPUBLISHED***
The Court of Appeals overturned a district court suppression of evidence in a DUI case. The Court held the traffic stop of the defendant's vehicle was supported by reasonable suspicion; the officer testified he observed Black speeding 57 mph in a 45, and Black's excessive speed was confirmed by radar equipment. The Court also found probable cause to support Black's arrest for DUI following the valid traffic stop. The Court noted the officer detected an odor of alcohol coming from Black, and Black could not maintain his balance on the walk and turn test (Black missed "heel-to-toe" on step one and raised his arms on step two.). Black did maintain the one-leg test for 20 seconds but "[s]omewhere in the last nine seconds he swayed, raised his arms and put his foot down." Black also failed the PBT, and admitted to the officer he had consumed alcohol.
PROBABLE CAUSE—FIELD SOBRIETY TESTS
McCune v. Ks. Dept. of Revenue 83 P.3d 1270, 2004 WL 292117 (2004)
***UNPUBLISHED****
The Court of Appeals affirmed the suspension of a driver‘s license. The Court of Appeals held officer had probable cause to arrest the motorist for DUI. In the early morning hours of January 1, 2002, an officer stopped McCune for speeding after observing McCune driving 34 miles per hour in a 20 mile-per-hour speed zone. When the officer approached the vehicle, he smelled a strong odor of alcohol as well as observed McCune's eyes were bloodshot and his speech was slurred. The officer inquired as to whether McCune had consumed any alcohol that evening, to which McCune replied he had drank three beers earlier in the evening. As McCune exited the vehicle, the officer noticed McCune's balance was unsteady and the odor of alcohol was coming from McCune's breath. Prior to conducting any field sobriety tests, the officer held up his pen approximately 12 inches from McCune's face and asked McCune to touch the pen with his index finger. McCune attempted to touch the pen three times but missed it each time. The officer then asked McCune to perform field sobriety tests. McCune explained to the officer he could not perform sobriety tests because of back problems affecting his balance. Nevertheless, McCune agreed to perform the walk and turn test. The officer testified when McCune attempted the walk and turn test, he stepped off the line to the left, raised his arms shoulder high for balance, stepped off the line three times in the first nine steps, crossed his feet over when he made a turn, and stepped off the line three times on the return nine steps. McCune refused to perform any more field sobriety tests because of his back injury. McCune then refused to submit to a preliminary breath test and was arrested. The officer testified based on his observations, he believed McCune was impaired. McCune appealed the district court's judgment affirming the KDR suspension of his driver's license. The Court of Appeals held the arresting officer had probable cause to arrest McCune for driving under the influence. They stated the observations of the officer were more than sufficient to satisfy a reasonably prudent police officer that McCune had been driving under the influence. Consequently, the Court concluded the district court did not err in affirming the administrative order of suspension of McCune's driver's license.
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PBT—REASONABLE SUSPICION—CONSENT
City of Goodland v. Yarger 77 P.3d 1009, 2003 WL 22227485 (2003)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction which was tried on stipulated facts. The Court of Appeals held the officer had reasonable grounds to believe the motorist had alcohol in his body, and the motorist voluntarily consented to the PBT. The Court noted an officer may request an individual to take a PBT if the officer has reasonable suspicion the person has alcohol in his or her body. Yarger was initially stopped for questioning on a matter unrelated to this DUI case. The officer noticed the smell of alcohol on Yarger and asked if he had been drinking. Yarger responded he had not had any alcohol to drink for approximately 22 hours. The officer then "subjected" Yarger to a PBT which Yarger failed. The officer arrested Yarger for DUI. The stipulations states without the PBT there would have been no probable cause for the arrest. After the arrest, Yarger was taken to a hospital where he agreed to take a blood test. The test, which was taken within two hours of Yarger's operation or attempted operation of a vehicle, indicated a blood alcohol level of .09. Yarger was subsequently convicted in the Goodland Municipal Court, of DUI in violation of municipal traffic ordinances. The defendant appealed. The District Court of Sherman County, afterdenying defendant's motion to suppress the results of the PBT as well as all the evidence which flowed from the PBT, convicted the defendant of DUI based on stipulated facts. The defendant appealed. The Court of Appeals stated an investigating officer may request an individual to take a PBT if the officer has reasonable suspicion the person has alcohol in his or her body. The officer need not have probable cause or reasonable belief to arrest for DUI before requesting the test. The Court held the officer had reasonable grounds to believe Yarger had alcohol in his body. The Court also held Yarger voluntarily consented to the PBT. They noted the officer requested Yarger to submit to the PBT, which he had statutory authority to do, and Yarger then did so. The stipulations contained no evidence of any improper or illegal coercion on the part of the officer to induce Yarger to exert the effort he did in providing the "deep lung air" sample. The Court noted the notices do not enhance the voluntariness of a subject's consent to the PBT. Similarly, the statute also states "failure to provide the notice shall not be an issue or defense in any action."
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4) BAT / Blood / Urine
A. Refusal
***PUBLISHED CASES***
REFUSED TESTING BEFORE READ IMPLIED CONSENT-2ND REFUSAL AFTER BEING READ
State v. Bradley 42 Kan. App. 2d 104, 208 P.3d 788 (2009)
The Defendant was arrested for DUI. When the officer placed her in his patrol car he asked her if she would take a breath test. He gave her no implied consent warnings. She refused. Later at the station, he read her the implied consent warnings and again asked her to take the breath test. She again refused. Her attorney moved to suppress both ―refusals‖ on the grounds that the first one was given without the statutorily required implied consent warnings, and the second one was tainted by the initial request and refusal and should also be suppressed. The COA held the first refusal must be suppressed for failure to comply with the implied consent warnings, but the second one should not be suppressed. K.S.A. §8-1001(f) requires implied consent advisories before a test is administered. Here the proper advisories were given before a test was administered. The Court did say the results of a second or subsequent test may be suppressible as fruit of the poisonous tree if it can be shown the results were obtained ‗as a result‖ of the first test or leads obtained from the first test. This did not occur in this case. Affirmed in part, reversed in part and remanded.
NO 4TH AMENDMENT RIGHT BASED ON PC
State v. Bussart-Savaloja 40 Kan.App.2d 916, 198 P.3d 163 (12/05/08)
The defendant was placed under arrest and requested to take a breath test in which she consented. During the observation period the defendant claimed she was going to vomit and the officer decided to change his request to a blood test. The officer went over the implied consent again and she refused. Upon appeal the defendant argued the implied consent law, K.S.A. 8-1001(i) violates her fourth amendment right to be free from unreasonable searches and seizures. The court found no constitutional right to avoid a search conducted upon probable cause. Therefore refusal to consent to such a search has absolutely no constitutional significance regarding the reasonableness of the search and is not an invocation of any right at all. The defendant also raised an Apprendi issue.
BREATH TEST—RESCINDING REFUSAL
Eberle v. Ks. Dept. of Revenue 33 Kan.App2d 759, 108 P.3d 465 (2005)
The Court of Appeals affirmed suspension of driver's license based on motorist's refusal to submit to breath test. The Court held motorist did not have right to rescind initial refusal to take breath test after he left police custody. The Court noted when a person is arrested for DUI, after the initial refusal to take a breath test, a
190
subsequent consent or request to take a breath test must be made: (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since the arrest. The appellant in this case had left the building and was out of police custody before returning to rescind refusal of breath test. Thus, appellant could not rescind refusal of breath test. Suspension affirmed.
BAT—RESCISSION OF REFUSAL—RIGHT TO ATTORNEY
City of Dodge City v. Wipf 33 Kan.App.2d 51, 99 P.3d 635 (2004)
The Court of Appeals affirmed the trial court‘s suppression of blood test results because of the officer‘s failure to allow the defendant to consult with an attorney after the blood test was performed. The Court also held the defendant effectively rescinded his initial refusal of the test. After Wipf was initially arrested for DUI, the arresting officer transported him to the police station for the purpose of administering the Intoxilyzer 5000. Wipf initially refused to consent to any blood alcohol testing at the police station, asking he be able to call an attorney. The officer told him he could do so after the testing. After the officer finished reading the implied consent advisory, he again asked Wipf to submit to a breath test. Wipf again refused but requested a blood test. The officer acquiesced. The officer transported Wipf to the hospital, where his blood was drawn. While enroute back to the detention center, Wipf asked to call his attorney. The officer told him the jailers would let him use a phone at the detention center. Wipf testified at trial the jailer told him he could not call anyone from the detention center. The jailer testified Wipf was uncooperative during the booking process and Wipf refused to sign documents because "he wanted to speak to an attorney." The Court held under the plain language of KSA 8-1001(f)(I) which must be construed in Wipf's favor, Wipf had the right to consult with an attorney after completion of the testing. The remedy for a violation of KSA 8-1001(f)(I) is suppression of the evidence. The Court affirmed the district court‘s suppression of Wipf‘s blood test results.
PBT—RESCIND REFUSAL—DISMISSAL
State v. Gray 270 Kan. 793, 18 P.3d 962 (2001)
The Supreme Court affirmed the district court‘s dismissal of refusing to take PBT for alcohol concentration and reversed a dismissal of a DUI charge. The Court held the record supported the finding defendant motorist properly and timely rescinded his initial post-arrest refusal to take breath test for blood-alcohol concentration; absence of evidence motorist was offered PBT pre-arrest warranted dismissal of charge he refused such test; but failure to offer post-arrest chemical test after motorist rescinded his initial refusal did not require dismissal of DUI charge. The Court noted the consent to the PBT was given within minute or less of when the officer checked the "refusal" box on the consent form, the test would have still been within two hours of the original arrest and therefore still accurate, the testing equipment was still available, the test would have taken only two to five minutes from when the defendant gave his consent, and the defendant was in custody and under the observation of the arresting officer from the time of arrest to the point of his subsequent consent. The Court continued, stating when a finding has been made that a person
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charged with DUI of alcohol properlyrescinded his or her initial refusal to take a chemical test and the arresting law enforcement officer does not give the test, the proper remedy is to suppress any reference to testing procedures and not to dismiss the charges where other evidence is alleged to exist sufficient to substantiate the DUI charge. Thus, the Court reversed the dismissal of the DUI, where independent evidence existed, but affirmed the dismissal of the refusal to take the PBT.
DC-27—REASONABLE GROUNDS
Thomas v. Ks. Dept. of Revenue 26 Kan.App.2d 132, 979 P.2d 1255 (1999)
The Court of Appeals affirmed the suspension of a motorist‘s driving privileges. The Court held the certification and notification of refusal form could contain arresting officer's conclusory statements supporting reasonable grounds to believe motorist was intoxicated. Thomas was arrested for DUI and refused a breath test. The arresting officer‘s DC-27 form stated there were reasonable grounds Thomas was operating a vehicle under the influence of alcohol. Thomas contends the DC-27 is required to set forth detailed facts supporting the reasonable grounds. The district court denied this contention. On appeal, the Court rejected the suggestion there should be read into the statute a requirement the DC-27 must contain a factual statement of reasonable grounds comparable to a probable cause affidavit for an arrest or a search warrant. The Court held all that is required under the statute is the conclusory statement of the officer. Affirmed.
DC-27 FORM—SUPPRESSION
Madison v. Ks. Dept. of Revenue 25 Kan.App.2d 760, 969 P.2d 259 (1998)
The Court of Appeals affirmed the suspension of a motorist‘s driver‘s license for refusal to submit to a breath test. The Court held minor errors by the police officer in completing certification form did not require evidence of test refusal be suppressed. The Court explained that State v. Bunker, 260 Kan. 564 (1996), does not require technical errors in filling out the DC-27 requires suppression of the results. The DC-27 form calls for the officer to complete and certify questions one through eight when a licensee fails or refuses a breath test. The form additionally requires the officer to certify to questions 9 through 11 when the licensee fails a breath test. The officer in this case certified all 11 questions even though Madison refused to take the requested test. The Court held this technical error did not warrant suppression of the test results. Affirmed.
BAT—IMPLIED CONSENT—FAILURE TO SPEAK ENGLISH
Kim v. Ks. Dept. of Revenue 22 Kan.App.2d 319, 916 P.2d 47 (1996)
The Court of Appeals affirmed KDR‘s suspension of motorist‘s driver's license for refusing to submit to BAT. The Court held driver's due process rights were not violated by KDR‘s failure to furnish him with interpreter at administrative refusal hearing, and implied consent statute was constitutional. The Court stated in an appeal from administrative agency decision, person is limited to issues he or she raises at administrative hearing, and noted motorist failed to raise issues of providing an interpreter and effective
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assistance of counsel at the administrative hearing. The Court held motorist‘s due process rights were not violated in that driver had several opportunities to request interpreter and driver's form requesting administrative hearing did not indicate he did not understand English. On the implied consent issue, the Court stated person's failure to understand or speak English shall not be defense person did not understand written or oral notice required by implied consent statute. Also, because implied consent statute was remedial law and was to be liberally construed to promote health, safety, and welfare of public, statute would be construed as constitutional. Affirmed.
BAT—INSUFFICIENT SAMPLE—REFUSAL
McRoberts v. Ks. Dept. of Revenue 17 Kan.App.2d 680, 843 P.2d 280 (1992)
The Court of Appeals holds failure to provide a sufficient breath sample due to a drunken state constitutes a refusal under 8-1001(f)(2). The Court holds the determination of a refusal is a question of fact, which was resolved against defendant. (Franklin, 67888, 12/4/92)
BAT—DEFICIENT SAMPLE
Call v. Ks. Dept. of Revenue 17 Kan.App.2d 79, 831 P.2d 970 (1992)
The Court of Appeals reversed the trial court‘s decision petitioner had failed a breath test, which reversed an administrative order she had refused a breath test (the difference of a suspension period for one year v. 30 days). The district court held a test was completed if a sample exceeded .10 BAC. While this may meet the evidence requirement of 8-1567, the implied consent statute requires a sample of deep lung breath unless petitioner can show a physical inability due to a medical condition unrelated to alcohol or drugs. Petitioner failed to meet her burden of proving such a medical condition, hence refused the test. (Bourbon, 67436, 5/15/92)
BAT REFUSAL—ADVICE
Ramirez v. Ks. Dept. of Revenue 13 Kan. App. 2d 332, 770 P.2d 490 (1989)
The Court of Appeals reverses a district court‘s decision that Standish requires an officer to ask the suspect to take a test again, even after an initial refusal. The Court holds while Standish allows rescission of a refusal, there is no requirement of officer gives advice of that fact, and the driver must make a specific request to re-take the test. (Johnson, 62242, 3/10/89)
BAT REFUSAL—REASONABLENESS
Woodhead v. Ks. Dept. of Revenue 13 Kan. App. 2d 145, 765 P.2d 167 (1988)
The Court of Appeals holds under (1987) Supp. 8-1002(d) the reasonableness of a driver‘s refusal to take a BAT is no longer in issue. The only issue is whether the officer had reasonable grounds to believe the person was operating while under the
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influence, the person was under arrest for an alcohol related offense or accident, the officer gave the required notice, and the driver refused the test. The Court also finds the elimination of the reasonableness issue is not unconstitutional as it is properly within the police powers of the State. (Johnson, 62418, 12/9/88)
BAT—SEARCH WARRANT
State v. Adee 241 Kan. 825, 740 P.2d 611 (1987)
The Supreme Court affirms a trial court ruling under 8-1001 the State may not obtain a search warrant for a blood sample after the suspect has exercised the right of refusal. While the search under warrant is constitutional under Schmerber, it is statutorily prohibited. The Court notes the original version of 8-1001(g) allowed a search warrant, but the language was deleted on final passage. (Dickinson, 60466, 7/17/87) (See current version of DUI law-that corrects this)
BAT—REFUSAL BY SILENCE
In re Hamstead 11 Kan. App. 2d 527, 729 P.2d 461 (1986)
The Court of Appeals holds where appellant refused to say anything upon being requested to take a BAT, her silence constituted a refusal and the suspension of her driving privileges was proper. (Sedgwick, 58589, 12/4/86)
BAT REFUSAL—SUSPENSION OF DRIVERS LICENSE
In re Gantz 10 Kan. App. 2d 299, 698 P.2d 385 (1985)
The Court of Appeals holds an appeal in district court of suspension of driver‘s license under 8-259 for refusal to take a BAT does not require service on the Attorney General, only the Department of Revenue. (Ness, 56670, 4/18/85)
SIXTH AMENDMENT—COUNSEL—BAT
State v. Bristor 236 Kan. 313, 691 P.2d 1 (1984)
The Supreme Court reverses the Court of Appeal‘s decision which upheld the trial court‘s suppression on BAT results because defendant had not been given the opportunity to consult with counsel prior to deciding on a BAT. In reaching its decision the Court recites Standish v. Ks. Dept. of Revenue, 235 Kan. 900 (1984), in finding that no right to counsel attaches to the decision to take BAT, but notes the case was a civil proceeding involving license forfeiture, hence no constitutional rights attach. Here in a criminal case, the Sixth Amendment obviously applies, but the issue is at what stage of the proceedings. The Court finds the decision to take a BAT may be critical in the economic sense (loss of license, etc.), but statute, and sanctions for refusal, allow testing of an unconscious individual. State v. Garner, 227 Kan. 566 (1980). Thus, since there is no real decision to be made, it is not a critical stage. While acknowledging the Sixth Amendment applies to pre-trial proceedings, Kirby v. Illinois 406 US 682 (1972), it does so only after the initiation of a prosecution; it is only after the
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ticket is filed with the court that the prosecution begins, 8-2108. The Court then broadens its role to being an arbiter of confusion as well as the Constitution when it holds the arresting officer must give the Miranda warning as well as a warning that no right to counsel attaches to the BAT decision: to avoid ―confusion‖. Since this ruling does not appear to be based on the Sixth Amendment, presumably the Court finds a possible Fifth Amendment right not to be confused. (Ford, 55283, 11/30/84)
NO RIGHT TO COUNSEL BEFORE B.A.T—REFUSAL OF B.A.T. MAY BE RESCINDED
Standish v. Ks. Dept. of Revenue 235 Kan. 900, 683 P.2d 1276 (1984)
Case involves an appeal by the Department of Revenue of a district court‘s reversal of suspension of plaintiff‘s license for refusal to take a chemical test. After being stopped, failing field tests, and being given the Miranda warnings, plaintiff was asked to take a breath test. He responded he wanted to talk to his attorney first. He was then taken to jail, unsuccessfully attempted to reach his attorney, and again declined to take the test because he could not speak with his attorney. Fifteen to thirty minutes later, plaintiff asked to take the test but was told that it was too late, the arresting officer having returned to patrol duty. The trial court held that plaintiff had rescinded his refusal within a reasonable time. The Supreme Court holds as a matter of policy the test should be encouraged, hence an original refusal can be rescinded if: it is made within a reasonable time; if the test would still be accurate; the testing equipment was still readily available; there would be no substantial inconvenience or expense to the police; and the individual is still in custody of the arresting officer and has been under observation the entire time. The response of wanting advice of counsel is held to be refusal, but in this case, since it immediately followed the Miranda warning, it was confusing to the plaintiff. The SC then adopts the standards of Berkemer v. McCarty 468 US 420 (1984), which requires Miranda warnings only after the SC holds there is no constitutional right to counsel prior to determining whether to submit to the test or not. The SC also ―suggests‖ the officer give a warning of the consequences of refusal and the fact there is no right to counsel before deciding on the test.
REFUSAL TO TAKE A BREATH TEST IS ADMISSIBLE IN COURT
South Dakota v. Neville 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)
Admission into evidence of a defendant‘s refusal to submit to a blood alcohol test does not violate his Fifth Amendment rights against self-incrimination. The privilege against self-incrimination bars the State only from compelling communications or testimony from the defendant. Since a blood test is physical or real evidence rather than testimonial evidence, the refusal to submit does not violate the Fifth Amendment.
State v. Compton 233 Kan. 690, 664 P.2d 1370 (1983)
Based upon K.S.A. 8-1001, the implied consent statute requiring a person to submit to the breath or blood test of the alcohol content in their body, there is no provision either statutory or otherwise requiring the police officer to explain the consequences of the refusal to submit to such a test. The admissibility into evidence of the accused refusal to submit to a blood alcohol test is not dependent upon a finding the refusal to take the test was made knowingly, voluntarily, and intelligently. Since
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the defendant has a right to refuse to take the test by statute, the State cannot ―coerce‖ him to refuse to take the test but gives him a choice. The right of refusal is granted by the legislature and not the constitution. Refusal to take the test after it has been lawfully requested is not an act coerced by the officer and thus not protected by the privilege against self-incrimination. Further, the failure of the officer to warn the defendant a refusal could be used against him is not considered coercion or trickery if the evidence is later offered against the defendant in a trial.
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***UNPUBLISHED CASES***
4TH AMENDMENT-RIGHT TO REFUSE-―VIOLATIONS OF THIS SECTION‖
State v. Patel 230 P.3d 461, 2010 WL 2044936 (05/14/10)
***UNPUBLISHED***
Defendant argues K.S.A.2009 Supp. 8-1001(k)(8), the statute authorizing the admission of test refusals in DUI trials, violates his right under the Fourth Amendment to refuse to submit to a breath test. The appellate court has already determined there is no Fourth Amendment right to refuse a breath or blood test, meaning there can be no constitutional error in admitting the fact of the refusal in a subsequent DUI trial. State v. Bussart-Savaloja, 40 Kan.App.2d 916, 928-29, 198 P.3d 163 (2009). Defendant also argues what constitutes a prior conviction. The definition of a conviction found in subsection (o) clearly applies to the term ―conviction‖ used throughout K.S.A. 8-1567. As the statute clearly expresses, if a defendant has any prior DUI convictions, including out-of-state convictions or DUI diversions, subsection (o) commands they be counted in determining whether a currently charged offense is a first, second, third, fourth, or subsequent DUI conviction.
RESCISSION OF REFUSAL UPON GIVING DEFICIENT SAMPLE
State v. May 220 P.3d 1114, 2009 WL 5206248 (12/31/09) Rev. granted (6/24/10)
***UNPUBLISHED***
Defendant was involved in a traffic crash resulting in her receiving a large gash on her head. She refused treatment. The officer, fearing a head injury, did not give SFSTs but did request a PBT. The defendant was able to provide a valid sample and was arrested. Upon requesting an evidentiary test, the defendant failed to provide a sufficient sample and received a deficient reading of 0.156. After hearing the results the defendant immediately requested to try again. The officer denied her request. The defendant requested suppression of her refusal and the evidence of the deficient sample test result. The court determined everything should be suppressed. The State appeals. The appellate court relied heavily on Standish v. KDOR 235 Kan. 900 (1984) stating a refusal is a deficient sample; however if the defendant rescinded her ―refusal‖ then the following factors must be reviewed 1) within a very short and reasonable time after the prior first refusal 2) when a test administered upon the subsequent consent would still be accurate 3) when testing equipment is still readily available 4) when honoring the request will result in a no substantial inconvenience to the police and 5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest. In this case all factors were ruled in favor of the defendant so the appellate court determined her initial refusal was essentially cured and therefore could not be used against her. As for the deficient sample results the court cited Gray 270 Kan. 793 (2001) stating: When a finding has been made that a person charged with DUI properly rescinded his or her initial refusal to take a chemical test and the arresting law enforcement officer does not give the test, the proper remedy is to suppress any reference to testing procedures and not to dismiss the charges where other evidence is alleged to exist sufficient to substantiate the DUI charge.
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4TH AMENDMENT-USE REFUSAL OF EVIDENTIAL TEST AS A DEFENSE AND REFUSING THE P.B.T.
State v. Weaver Slip Copy, 2009 WL 2242420 (07/24/09) Rev. Den.(2010)
***UNPUBLISHED***
The defendant argued the admission of his refusal to take the Intoxilyzer 5000 is prohibited by the 4th amendment. The court reiterated their opinion in State v. Bussart-Savaloja 40 Kan.App.2d 916 (2008): Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. Due to K.S.A. 8-1001 the State was allowed to argue as reasonable inference from that evidence that the defendant was DUI. The defendant also suggested because Miranda was not read his refusal to submit was not admissible. The court noted State v. Zabrinas 271 Kan. 422 (2001) where defendant willingly allows admission of a statement at trial and uses it as part of defense mere fact that such trial strategy proves unsuccessful does not allow defendant to then challenge admission of the statements on appeal. In this case the defendant argued in closing he was a simple person who did not trust the technical innovations of modern society. Also the court noted State v. Wahweotten 36 Kan.App. 2d 568 (2006) and Pennsylvania v. Muniz 496 U.S. 582(1990) making it clear a breath test refusal does not implicate the 5th amendment. Defendant also refused to take the P.B.T. and defendant claimed the court admitted it in error. The court concluded the admittance of the P.B.T. was error it was harmless. There was also a juror misconduct and BIDS argument.
JURORS FAILURE TO DISCLOSE-4TH AND 5TH AMENDMENT
State v. Musick 209 P.3d 764, 2009 WL 1858242 (06/26/09)
***UNPUBLISHED***
The defendant appealed on the basis of a claim of juror misconduct. It was determined after the trial a juror was a former sheriff‘s deputy. This fact was not disclosed by the witness. The record was reviewed and it was determined the juror was never specifically asked any questions about her employment history. She was asked a number of questions where she disclosed she knew a number of law enforcement and she had worked at the courthouse. Juror misconduct must be on more than failure to volunteer information a potential juror speculates or surmises is important to counsel. The denial of a motion for new trial was affirmed. The defendant also claims the doctrine of unconstitutional conditions; forced to choose between his 4th and 5th amendment rights in taking or refusing the breath test. The court cited State v. Wahweotten 36 Kan.App. 2d 568 that a defendant‘s breath test refusal does not implicate the 5th amendment privilege against self-incrimination. There is no impermissible form of coercion when a law enforcement officer asks a suspect to take a breath test and the suspect then refuses. Therefore the doctrine does not apply. Conviction affirmed.
―TESTS‖-WHETHER PASSED/FAILED-4TH AND 5TH AMENDMENTS
State v. Seymour 207 P.3d 288, 2009 WL 1499161 (05/22/09)
***UNPUBLISHED***
The defendant challenged the term tests when talking about SFST and the fact the defendant ―passed or failed‖ them. The defendant argued the court erred in admitting the refusal to take a blood test after taking the intox evidentiary test with a reading of 0.00.
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The defendant admitted to taking several medications. Lastly, the defendant argued ―doctrine of unconstitutional conditions‖ All these issues were never objected to during trial. The court cited State v. Hawkins 37 Kan.App.2d 195 to determine if there was an exception to the contemporaneous objection rule. The appellate court found none. The court also indicated all these issues had been raised in other cases and been thoroughly analyzed. Affirmed.
FEIGNING ILLNESS-OBSTRUCTION CHARGE
State v. Smith 196 P.3d 1232, 2008 WL 5234531 (12/12/08)
***UNPUBLISHED***
The defendant was arrested for DUI and refused to take the breath test. The defendant stated he was a diabetic and needed his medication. The defendant fell to the floor and began flailing as if he were having a seizure. To the officer it appeared the defendant was faking however the defendant was taken to the hospital. The hospital drew blood and confirmed there were no problems except intoxication. The defendant was uncooperative throughout the entire event, which lasted three hours. The defendant was charged with DUI as well as obstruction. Medical records as well as the attending physician testimony were received into evidence without objection. The prosecutor‘s theory was the defendant faked his injuries to avoid prosecution for DUI. The court looked to the word ―obstruct‖ ―..to obstruct is to interpose obstacles or impediments to hinder, impede or in any manner interrupt or prevent by direct or indirect means.‖ State v. Merrifield 180 Kan. 267. The appellate court concluded a rational fact finder could have easily found the defendant feigned medical emergency substantially hindered the officer‘s performance of his official duty to complete the processing of the DUI arrest. Affirmed.
4TH AND 5TH AMENDMENTS-UNCONSTITUTIONAL CONDITIONS
State v. Henderson 192 P.3d 689, 2008 WL 4416025 (09/26/08)
***UNPUBLISHED***
The defendant was arrest for DUI and was transported to the jail. The implied consent was read to him and he refused to take the test. He was found guilty and appeals. The defendant claims his admission of his refusal to take the breath test forced him to consent to a search of his person or to waive his right against self-incrimination which violated the doctrine of unconstitutional conditions. The doctrine of unconstitutional conditions is the government may not grant a benefit on the condition the beneficiaries surrender a constitutional right even if the government may withhold that benefit altogether. The defendant‘s argument is premised on the fact his breath test refusal is subject to fourth and Fifth Amendment protections. The appellate court notes that a 5th amendment right only applies to communications or testimony of an accused but not to real or physical evidence derived from him. See South Dakota v. Neville 459 U.S. 553. Therefore, because his fifth amendment rights were never implicated he was not faced with the decision to choose between his Fifth Amendment right against self-incrimination and his Fourth Amendment right against unreasonable searches and seizures when asked to take the breath tests. Affirmed.
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5TH AMENDMENT RIGHT-APPRENDI
State v. Keller 192 P.3d 184, 2008 WL 4291600 (09/19/08)
***UNPUBLISHED***
The defendant was convicted of felony DUI as a 4th offense. The defendant appeals the admission of his refusal to take a breath test indicating it violates his 5th amendment right. The court notes K.S.A. 8-1001(i) as well as Compton 233 Kan 690 (1983) and Wahweotten 36 Kan.App.2d 568 (2006) and rejects his argument. The defendant also objects the court erred in considering his prior convictions for sentencing without proof of those convictions beyond a reasonable doubt. The court again cites Ivory and denies this. Affirmed.
HANDCUFFEDIN HOSPITAL
State v. Brown 196 P.3d 1232, 2008 WL 5234533 (12/12/08)
***UNPUBLISHED***
Brown was involved in a single –vehicle accident. The defendant was found slumped over in the driver‘s seat and wearing a Bud Light wristband on his left wrist. The Officer smelled a very strong odor of alcohol coming from the defendant. The officer asked about the odor and Brown responded he probably drank ―way too much‖ that evening. Brown was transported to the hospital. While there the officer began asking Brown about the collision. Miranda was not given. Brown made several incriminating statements during this time. While at the hospital, Brown became more belligerent and eventually was handcuffed to the hospital bed. Implied consent was read to Brown and Brown stated he would submit to a blood test and a breath test. Brown again became obstructive and blood was not taken. The officer arrested Brown after being released from the hospital that evening. Brown was transported to the jail and again the officer read the implied consent form to Brown and he agreed to a breath test which indicated 0.159. Brown made no further requests and was placed in jail. Brown contends the results of his breath test should be suppressed because he was denied a reasonable opportunity to have additional testing completed after submitting to the breath test. The court noted the State must make a ―reasonable opportunity‖ to obtain additional testing. The State cannot unreasonably interfere with attempts to secure additional testing. In this case Brown failed to request a blood test after he completed the breath test; therefore Brown‘s rights were not violated. Brown next states his statements at the hospital should be suppressed. The officer asked Brown (1) what caused the accident (2) where Brown had been; (3) whether Brown had been drinking. Miranda is required when an accused is subjected to a custodial interrogation. Custody is determined on the ―objective circumstances of the interrogation, not on the subjective views by either the interrogating officers or the person being interrogated. The Kansas Supreme Court set out the following factors to be considered in analyzing the circumstance of interrogation: When and where the interrogation occurred; How long it lasted; How many police officers were present; What the officers and the defendant said and did; The presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; Whether the defendant is being questioned as a suspect or a witness; How the defendant got to the place of questioning; What happened after the interrogation-whether the defendant left freely, was detained, or was arrested. The Court notes these eight things are not exclusive generally the two questions that must be reviewed are: First, what were the circumstances surrounding the interrogation?
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Second, under the totality of the circumstances would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? Looking at all the circumstances surrounding Brown‘s questioning, the court found under the totality of the circumstance no reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. The statements at the hospital should be suppressed.
UNEQUIVOCAL CONSENT-ANYTHING LESS IS REFUSAL
State v. Fritzemeier 162 P.3d 66, 2007 WL 2080481 (2007)
***UNPUBLISHED***
The State is appealing the Reno District Court‘s decision to suppress a blood test in a prosecution for DUI. Fritzmeier was given a blood test at a hospital after being involved in a one car accident. He was charged with DUI, and moved to suppress the blood test which was taken. Trooper Tauer went to the hospital, and told the Defendant he was there to request a blood test. Fritzmeier responded with profanity. Tauer placed a copy of the implied consent advisory on Fritzmeier‘s chest, and read the advisory from a separate copy. Tauer asked the Defendant if he would submit to a blood test, and the Defendant replied, ―blah, blah, blah.‖ Tauer responded he would take that as a ―yes,‖ and proceeded to request the blood test. The Court of Appeals notes in its history, a rather minimal showing was all that was required for a refusal. In the instant case, the Court says, ―[v]irtually any words or conduct indicating anything but unequivocal consent has been deemed a refusal.‖ While the Defendant was ambiguous, disrespectful, and uncooperative, his words still constitute a refusal. The Court of Appeals upheld suppression of the blood draw.
BLOOD TEST—PROBABLE CAUSE—KSA 8-1001(H)
State v. Befort 103 P.3d 993, 2005 WL 81499 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed suppression of blood test evidence in a DUI case. The Court held the officer did not have probable cause the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. Defendant was asked to take a breath test after the implied consent advisory was read to him and defendant refused this test. Defendant was then taken to a hospital where a blood sample determined defendant‘s BAC to be .14. Trial court suppressed the evidence of the blood test. On appeal, the State argued the trial court erred in suppressing the evidence because the officer had probable cause to conduct a warrantless search and the officer could have Befort's blood drawn without a warrant. The State further argued the court should strike K.S.A. 8-1001(h), in that the legislature was encroaching on the executive branch's ability to investigate the crime of DUI by impermissibly restricting the law enforcement. KSA 8-1001(h) states if a suspect refuses to submit to testing under K.S.A. 8-1001, additional testing shall not be administered unless there is probable cause to believe the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. The Court of Appeals stated KSA 8-1001(h) applies and the officer did not have probable cause the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. The Court also refused to strike the statute, noting the State did not provide law in support of its argument. The suppression was affirmed.
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BAT REFUSAL—INVALID SAMPLE
Werth v. Ks. Dept. of Revenue 101 P.3d 740, 2004 WL 2848886 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a driver's license suspension. The Court held the actions of the driver in producing an invalid sample on breathalyzer test amounted to a refusal. The driver, after being arrested for DUI, verbally consented to a breath test. However, the driver did not blow hard enough to produce a valid sample. The officer regarded this as a refusal of the test. The driver's license was subsequently suspended and the driver appealed district court ruling affirming suspension. On appeal to Court of Appeals, the driver claimed since he verbally consented to the test, the "refusal" was based on the failure of the breath machine and not any act of the defendant. The Court noted a breath alcohol test refusal does not have to be an intentional refusal. A refusal may be a conditional response such as a driver's request to speak to an attorney, silence when requested to submit to a chemical test for blood alcohol concentration, inability to produce an adequate sample not due to a medical condition, or inability to meet the preparatory steps required for a breathalyzer test. The Court found the driver's inability to produce a valid sample amounted to a refusal in this case. The suspension was affirmed.
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A. Refusal
i. Deficient Sample
***PUBLISHED CASES***
RECIND A REFUSAL
McIntosh v. Ks. Dept. of Revenue --- P.3d ----, 2010 WL 3273500 (08/20/10)
McIntosh was stopped for DUI. Upon arrival at the jail, McIntosh was searched and then the implied consent was read. McIntosh refused and was then moved to the booking area for processing. The arresting officer personally served McIntosh with the DC-27. At that time McIntosh stated he wanted to take the test. The arresting officer refused to administer the test because McIntosh had ample opportunity to take the test earlier. The district court on appeal claimed the licensee appropriately recind his refusal and he should have been able to take the test basing the ruling on Standish v. Ks. Dept. of Revenue 235 Kan. 900 (1984) The appellate court gives more insight into the 5 criteria for rescission: (1) within a very short and reasonable time after the prior first refusal (here defendant was in custody the entire time and a bright line rule of 30 minutes is not required—but the facts and circumstances of the case) (2) when a test administered upon the subsequent consent would still be accurate (here it was determined there was no opportunity for McIntosh to have consumed alcohol, and the fact he was handed off to other jail personnel –he was in ―police custody‖ the entire time) (3) when testing equipment is still readily available (there was no question the instrument was available-it was at the jail) (4) no substantial inconvenience or expense to the police in honoring the request (no inconvenience—the officer was still at the jail) (5) has been in the custody of the arresting officer and under observation for the whole time since arrest (again the arresting officer was there ..the fact he was not under observation the entire time by the arresting officer was not key..the court opined the defendant you would assume would not have been able to access alcohol since his person was searched and he was in a jail facility the entire time). The court noted the purpose of our implied consent laws is to encourage a person arrested to submit—to further that coercive purpose the person should be given every reasonable opportunity to submit to testing including the opportunity to rescind if it is reasonable under the circumstances.
ALTERNATE MEANS/MULTIPLE ACTS—UNANIMITY OF VERDICT—
JURISDICTION—CONFESSION
State v. Stevens 285 Kan. 307, 172 P. 3d 570 (2007)
Officer saw a Jeep parked in the street with two people sitting in its front seat. Officer saw Stevens exit the driver‘s side and stumble toward the rear of the Jeep. Officer noticed strong odor of alcohol, Steven‘s admitted to drinking, and refused to explain why he got out of the drivers side of the Jeep. Steven‘s initially agreed to the field sobriety tests and officer attempted the HGN test. Stevens refused all further testing. Officer arrested Stevens. Stevens was read the implied consent and took the test. The test indicated a deficient sample of .205. The State charged Stevens with both theories, DUI, operating or attempting to operate under K.S.A. 8-1567(3). The deficient sample was admitted into evidence and Stevens was convicted. Stevens‘s appeals claiming the trial court erred in failing to require the State to elect its theory of prosecution thus depriving him of his right
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to a unanimous jury verdict. The court held the DUI statute provides alternative means of committing the same crime. Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. The court must determine whether a rational trier of fact could have found each means was proved beyond a reasonable doubt. The court must also review all the evidence in the light most favorable to the prosecution. In this case the appellate court found there was sufficient evidence for both. (There is a court of appeals dissenting opinion –Judge Johnson did not believe there was substantial evidence Stevens attempted to operate) The Supreme Court found there to be sufficient evidence. As for the Deficient sample, the court stated Stevens was prosecuted under the correct subsection of DUI law (3) ―as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013 and amendments thereto, is .08 or more.‖ Another claim by Stevens was there was no proof the acts occurred in Crawford County. It appears the question of jurisdiction was not asked however the officer testified he was with the Pittsburg PD in Crawford County and there was no evidence the officer was called outside his jurisdiction or he had no authority to make an arrest. Stevens also contends his ―confession‖ should not have been admitted however he never made an objection or a motion to suppress. The court noted confessions must be challenged prior to or during the trial or not at all. The Supreme Court noted his ―confession‖ was properly admitted. There was no cumulative error. There was discussion about BIDS.
BAT DEFICIENT SAMPLE—―OTHER COMPETENT EVIDENCE‖
State v. Herrman 33 Kan.App.2d 46, 99 P.3d 632 (2004)
The Court of Appeals vacated a DUI conviction and held a deficient breath sample was not "other competent evidence" of intoxication under KSA 8-1567(a)(1). Herrman was stopped for driving a vehicle with a defective muffler. He was arrested for DUI and submitted to a breath test. The test result indicated a "deficient sample" (reading 0.119). Herman waived a jury trial, and the entire matter was submitted to the district court on a motion in limine. If the trial court admitted as competent evidence the deficient breath sample, the parties agreed there was sufficient evidence to find Herrman guilty. If inadmissible, the parties agreed, there was insufficient evidence, and Herrman would be acquitted. The trial court convicted Herrman of driving under the influence of alcohol in violation of KSA 8-1567(a)(1), suspended his sentence, and allowed him to post an appeal bond. The Court asked the question of whether a deficient breath sample can be admitted as "other competent evidence" in a prosecution under subsection (a)(1) of our DUI statute (K.S.A. 8-1567). An examination of the legislative history of the statute and the application of the legal maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another) led them to conclude that such evidence is not admissible. Court vacated Herrman's conviction for DUI.
DUI—SELF INCRIMINATION—SUSPENSION—DOUBLE JEOPARDY
State v. Maze 16 Kan.App.2d 527, 825 P.2d 1169 (1992)
The Court of Appeals affirms a conviction of DUI, holding sobriety testing, including recitation of the alphabet, is not testimonial communication, and a Miranda warning is not required. In reaching its decision, the Court considers the U.S.
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Supreme Court decision of Pennsylvania v. Muniz 496 US 582 (1990), and determines that while the decision considered recitation of the alphabet, it did not exclude it from sobriety testing. The CA also considers numerous decisions from other jurisdictions in reaching its decision. The Court also finds no error in admission of a BAT even where the sample was deficient, due to defendant‘s refusal to furnish a sufficient sample. The Court then holds administrative suspension of a license for the initial refusal of the test and the present criminal action do not violate the double jeopardy clause. (Sedgwick, 66286, 2/14/92)
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***UNPUBLISHED CASES***
4TH AMENDMENT-METHOD OF PAYMENT
State v. Crawford 231 P. 3d 1085, 2010 WL 2503003 (2010)
***UNPUBLISHED***
Officer watched a vehicle run a stop sign. The vehicle continued to a house and pulled into the driveway. Only one person was observed in the vehicle. The officer spoke with the driver and could detect: odor of alcohol, slurred speech and bloodshot eyes. The driver became combative and had to be handcuffed. The driver was asked to take a PBT and refused by not speaking. The implied consent was read and the driver again remained silent. At trial the defendant stated he was not the driver and he did not consent to sobriety testing because he was not the driver. The State during trial referred to the defendant‘s refusal. The defendant appeals claiming the admission of his refusal to submit to BAC testing with the PBT and the evidentiary breath test violated his 4th Amendment right to search and seizure. The Court noted the US Supreme Court has held there is no constitutional right to refuse to take a BAC test and therefore there can be no constitutional right to bar the admission of evidence of any such refusal. The case was remanded in part because the court did not determine what method the defendant was able to pay the minimum mandatory fine on a 4th offense by cash or community service-citing State v. Copes 290 Kan. 209 (2010).
FRYE STANDARD
State v. Urban 230 P.3d 461, 2010 WL 2044945 (05/24/10)
***UNPUBLISHED***
The defendant gave a deficient sample. The defendant filed a motion to suppress this test because it did not meet the Frye Standard. This was denied and the defendant was found guilty and appeals. The appellate court noted State v. Stevens 285 Kan. 307 (2007) which equated a deficient breath test with a partial alcohol concentration test as used in K.S.A. 8-1013(f)(2). The Stevens court concluded the plain language of the statute compelled this result. The court also noted and adopted reasoning in State v. Ward No. 89, 917, unpublished opinion filed November 26, 2003, rev. denied 277 Kan. 927 (2004). The court also recognized the Frye standard is for new or novel techniques. The defendant confuses the testing technique with the testing results. Certainly no new scientific technique or experimental procedure was tried in this case. The Defendant expelled his breath into a breath testing machine as thousands have done before in the multitude of drunk driving cases tried in our courts. The question concerning this deficient breath test evidence is what weight should be attributed to it when deciding defendant's guilt or innocence, which is a question of law. This is not a question of whether the breath testing machine is generally accepted in the appropriate scientific discipline.
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RESCISSION OF REFUSAL UPON GIVING DEFICIENT SAMPLE
State v. May 220 P.3d 1114, 2009 WL 5206248 (12/31/09) Rev. granted (6/24/10)
***UNPUBLISHED***
Defendant was involved in a traffic crash resulting in her receiving a large gash on her head. She refused treatment. The officer, fearing a head injury, did not give SFSTs but did request a PBT. The defendant was able to provide a valid sample and was arrested. Upon requesting an evidentiary test, the defendant failed to provide a sufficient sample and received a deficient reading of 0.156. After hearing the results the defendant immediately requested to try again. The officer denied her request. The defendant requested suppression of her refusal and the evidence of the deficient sample test result. The court determined everything should be suppressed. The State appeals. The appellate court relied heavily on Standish v. KDOR 235 Kan. 900 (1984) stating a refusal is a deficient sample; however if the defendant rescinded her ―refusal‖ then the following factors must be reviewed 1) within a very short and reasonable time after the prior first refusal 2) when a test administered upon the subsequent consent would still be accurate 3) when testing equipment is still readily available 4) when honoring the request will result in a no substantial inconvenience to the police and 5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest. In this case all factors were ruled in favor of the defendant so the appellate court determined her initial refusal was essentially cured and therefore could not be used against her. As for the deficient sample results the court cited Gray 270 Kan. 793 (2001) stating: When a finding has been made that a person charged with DUI properly rescinded his or her initial refusal to take a chemical test and the arresting law enforcement officer does not give the test, the proper remedy is to suppress any reference to testing procedures and not to dismiss the charges where other evidence is alleged to exist sufficient to substantiate the DUI charge.
NONCOOPERATION-WOULD NOT SEAL LIPS AROUND MOUTHPIECE-LACK OF OBJECTION
State v. Wilson 220 P.3d 593, 2009 WL 4931243 (12/11/09)
***UNPUBLISHED***
Defendant was read the implied consent and requested to take a test. During testing he did not seal his lips around the mouthpiece and only a portion of his breath apparently entered the testing equipment. He had a deficient sample of 0.105. An expert testified the defendant‘s BAC might have been more than indicated but it could not possibly be less than indicated. On appeal the defendant states all evidence surrounding his testing should be suppressed and not admissible. The State notes the defendant never objected at trial and therefore the merits of the appeal should not be decided. The appellate court agreed and affirmed the courts findings.
TWO DIFFERENT TESTS-NO EXCEPTION TO PROTOCOL
State v. Davis 180 P.3d 623, 2008 WL 1722284 (2008)
***UNPUBLISHED*** Davis had been arrested for DUI. An officer administered the Intoxilyzer 5000 breath test. Before the breath test was given Davis was read the implied consent advisory and agreed to
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submit to the test. The officer conducted a 20-minute observation before the first test. The officer testified Davis was initially uncooperative. He stalled in giving the breath sample and the Intoxilyzer 5000 produced a deficient sample reading of .197. The officer told Davis the insufficient sample could be a refusal. The officer explained to Davis he would be given a second chance to take the test and if he did not cooperate it would be considered a refusal. During the second Intoxilyzer 5000 test Davis produced a sufficient breath sample resulting in a reading of .195. At the Trial Court level Davis moved to suppress his Intoxilyzer 5000 breath test because the officer failed to follow the KDHE protocol of giving Davis a 20-minute deprivation period between the first and second breath tests. The officer testified he did not conduct a 20-minute deprivation period before administering the second test. There was no information provided at District Court level the officer‘s failure to conduct a 20-minute deprivation period before the second test met an exception to the KDHE protocol. The Trial Court denied Davis' motion to suppress stating the officer substantially complied with the procedures when he observed the defendant for the required 20 minutes before giving him the first test. The second sample provided by the defendant produced a complete sample considerably over the legal limit. The officer did not even have to allow defendant to take the second test. The Court noted due to the fact officer Shoemate did not conduct the required 20 minutes and there was no exception in the KHDE protocol for the administering of a second test, the State cannot establish a sufficient foundation for submission of the second test. It should be suppressed. Davis was charged in the alternative he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. The Supreme Court has held a deficient sample breathtest along with other evidence was sufficient to uphold a conviction for DUI under subsection (a) (3) of K.S.A. 8-1567. The Court noted if the State is able to establish a sufficient foundation for the admissibility of Davis's first breath test and if the State decides to retry him for DUI it appears Davis will be more appropriately tried under K.S.A. 8-1567 (a)(3).
BAT—IMPLIED CONSENT—ADVISORY NOTICE
Shields v. Ks. Dept. of Revenue 95 P.3d 135, 2004 WL 1812660 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a license suspension for refusal to take a breath test. The Court held Shields‘ request for a lawyer amounted to a refusal of the breath test and the further explanation by the officer, although not entirely correct, did not cause the refusal because Shields had already refused. On October 30, 2001, Shields was contacted by Officer Clinton Ross after an accident and was later asked to take a breath test. Shields was given the written and oral implied consent advisory and, when Officer Ross asked Shields if he would submit to a breath test, Shields responded he would like to speak with an attorney. Shields had been arrested for DUI on six prior occasions. Shields argued he was not provided with proper implied consent advisory notices and his driver's license was improperly suspended. The Court noted a driver's consent to have the State perform one or more tests to determine the presence of alcohol or drugs in the driver's body is implied by their decision to operate a vehicle upon public highways. Consent to take a chemical test is implied but not mandatory. A licensee has a statutory right to refuse to take a chemical test of blood, breath, or urine. However, before a blood, breath, or urine test may be administered, the person requesting the chemical test must give an oral and written implied consent advisory. Once an implied consent advisory is read, if a licensee requests to speak with an attorney, this conditional response is not consent to take the test but is a
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refusal. The Court held Shields did not demonstrate Officer Ross's statements caused the refusal since he refused to take the test prior to the officer's further explanation. Even if inaccurate, the officer's statements after the first refusal would be harmless error. Shields was provided the proper oral and written implied consent advisory prior to his refusal to take the breath test. He was informed his license would be suspended upon refusal to take the test.
BAT—DEFICIENT RESULT—ADMISSIBILITY—JURY INSTRUCTIONS
State v. Dang 100 P.3d 628, 2004 WL 2659066 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held DC-27 form, which showed evidence of deficient BAT result, was admissible at trial for State's prosecution of defendant for DUI under KSA 8-1567(a)(3), but not for prosecution of defendant under KSA 8-1567(a)(1); however, the trial court's admission of DC-27 form was harmless error, and a new trial was not required. The Court also held the jury instruction describing deficient test result as "other competent evidence" was not reversible error. After defendant's arrest for DUI, defendant blew a deficient result on the BAT. The trial court allowed admissibility of DC-27 form showed defendant's deficient result for the BAT. There also was a general verdict form in jury instructions, which did not distinguish between guilt based on KSA 8-1567(a)(1) and 8-1567(a)(3). On appeal, the Court of Appeals stated deficient breath samples are inadmissible to support a conviction under 8-1567(a)(1), citing Hermann (2004). However, the Court furthered since a "deficient sample breath test is included within the meaning of other competent evidence under KSA 8-1013(f)(2) and because other competent evidence can be admitted in criminal proceedings under KSA 8-1005 and 8-1006, defendant's deficient test result was statutorily admissible in the prosecution under KSA 8-1567(a)(3). The Court noted with the general verdict form, the trial court's admission of the DC-27 form normally would require a new trial. However, the Court found substantial competent evidence showed the error was harmless. The Court reasoned that the DC-27 form is just one way to lay foundation for the BAT results, and the State had otherwise met the foundational requirements to introduce the BAT results. The Court also addressed the jury instruction regarding the deficient result, and affirmed the use of an instruction that read: "A partial alcohol concentration test on an Intoxilyzer 5000 constitutes other competent evidence of the concentration of alcohol in a person's blood, but evidence must be considered together with all other evidence to determine whether the Defendant's blood or breath alcohol content while operating a vehicle was .08 or greater." Affirmed.
INTOXILYZER 5000—DEFICIENT SAMPLE—ADMISSIBILTY—FRYE
State v. Ward 79 P.3d 795, 2003 WL 22831698 (2003)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held a deficient sample breath test is included within the meaning of other competent evidence under KSA 8-1013(f)(2), and because other competent evidence can be admitted in criminal proceedings under KSA 8-1005 and 8-1006, Ward's test result was statutorily admissible. The Court also held the deficient result met the Frye standard, noting a distinction between the testing technique and the testing result. After his arrest,
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Ward took an Intoxilyzer 5000 breath test which indicated a deficient sample of 0.151. Based on the sample and the circumstances of the traffic stop, the State of Kansas charged Ward with DUI of alcohol. In a motion in limine, Ward argued his deficient sample did not meet the Frye standards for admissibility. Ward asserted the State was required to prove the deficient sample breath test result was generally accepted as a reliable measure of breath alcohol content before it was admitted into evidence. After considering the motion, the trial court admitted the deficient sample evidence. The trial court found there was a statutory basis under KSA 8-1013(f)(2) for admitting a deficient breath sample as other competent evidence. The trial court noted once the evidence is admitted, it is not conclusive, and a defendant is free to argue the relative weight of it. On appeal, the Court of Appeals affirmed the trial court‘s ruling. The Court noted the fact the result indicates a deficient sample does not mean the testing technique is unreliable. Instead, that information goes to the weight of the evidence. Affirmed.
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B. Implied Consent
***PUBLISHED CASES***
RECIND A REFUSAL
McIntosh v. Ks. Dept. of Revenue --- P.3d ----, 2010 WL 3273500 (08/20/10)
McIntosh was stopped for DUI. Upon arrival at the jail, McIntosh was searched and then the implied consent was read. McIntosh refused and was then moved to the booking area for processing. The arresting officer personally served McIntosh with the DC-27. At that time McIntosh stated he wanted to take the test. The arresting officer refused to administer the test because McIntosh had ample opportunity to take the test earlier. The district court on appeal claimed the licensee appropriately recind his refusal and he should have been able to take the test basing the ruling on Standish v. Ks. Dept. of Revenue 235 Kan. 900 (1984) The appellate court gives more insight into the 5 criteria for rescission: (1) within a very short and reasonable time after the prior first refusal (here defendant was in custody the entire time and a bright line rule of 30 minutes is not required—but the facts and circumstances of the case) (2) when a test administered upon the subsequent consent would still be accurate (here it was determined there was no opportunity for McIntosh to have consumed alcohol, and the fact he was handed off to other jail personnel –he was in ―police custody‖ the entire time) (3) when testing equipment is still readily available (there was no question the instrument was available-it was at the jail) (4) no substantial inconvenience or expense to the police in honoring the request (no inconvenience—the officer was still at the jail) (5) has been in the custody of the arresting officer and under observation for the whole time since arrest (again the arresting officer was there ..the fact he was not under observation the entire time by the arresting officer was not key..the court opined the defendant you would assume would not have been able to access alcohol since his person was searched and he was in a jail facility the entire time). The court noted the purpose of our implied consent laws is to encourage a person arrested to submit—to further that coercive purpose the person should be given every reasonable opportunity to submit to testing including the opportunity to rescind if it is reasonable under the circumstances.
REASONABLE GROUNDS TO BELIEVE-CRASH-MEDICAL PERSONNEL STATEMENTS
Poteet v. Ks. Dept. of Revenue 222 P.3d 564, 2010 WL 198510 (01/15/10)
Trooper arrived at the scene of a crash. The driver was being loaded onto a helicopter for transport to the hospital. Looking over the scene the trooper concluded the driver had driven through a field and a barbed wire fence before it rolled and rested on its passenger side. The trooper had another trooper go to the hospital to obtain blood which was taken and indicated 0.17. The trooper indicated it is the Highway Patrol‘s policy to get blood when a serious crash occurs. The trooper testified he suspected she was driving under the influence of alcohol based solely on the medical personnel‘s statements. The defendant claimed the trooper did not have reasonable grounds to believe she was under the influence. The Certification (DC-27) sent to the DMV indicated only ―an odor of alcohol‖. The court cites Angle v. KDOR 12 Kan.App.2d 756(1988) the facts contained in the certificate may be supplemented by testimony and all of the factual information available to officers when the test was requested may be considered when determining whether the officers had a sufficient basis for the request. Also
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noted—probable cause determinations may be made based upon reliable hearsay information and information provided by on-the-scene emergency personnel is sufficiently reliable. State v. Landis 37 Kan.App.2d 409 (2007). The trooper never cited the facts of the crash as a basis for his suspicion but the facts (although not cited on the certification) do not eliminate those facts from proper consideration. Reversed and remanded with directions.
EFFECTS ON CDL-OFFICER MISSTATEMENT OF LAW
Cuthbertson v. Ks. Dept. of Revenue 42 Kan. App 2d 1049, 220 P.3d 379 (12/04/09)
Defendant was not driving a commercial vehicle however he held a commercial license. Pursuant to statute the officer had no duty to read the penalties for CDL licenses because the defendant was not operating a commercial vehicle at the time of the DUI arrest. While being read the implied consent the defendant asked the officer how this DUI would effect his CDL. The officer misstated the law by claiming ―It‘s going to affect your license the same way‖ The defendant‘s results were 0.105. The defendant‘s license was suspended for one year however his CDL was suspended for life. He appeals. Was the defendant‘s due process rights violated? It was clear the defendant was given and read the correct forms provided by statute. The court has previously held the officer is NOT required to provide notice to the defendant for CDL license when he is not operating a commercial vehicle. However, if the officer decides to provide other information he must provide correct statements of law. It was noted the punishment for either a refusal or failure of the test would affect his CDL in the same way. The appellate court noted there was no prejudice to the defendant because no substantive right was violated. A harmless error argument. The only way the defendant could avoid a lifetime disqualification from driving a commercial vehicle was to take the test and post a BAC of less than 0.08. Since his BAC was over 0.08 it was no fault but his not the officers. Affirmed.
REFUSED TESTING BEFORE READ IMPLIED CONSENT-2ND REFUSAL AFTER BEING READ
State v. Bradley 42 Kan. App. 2d 104, 208 P.3d 788 (2009)
The Defendant was arrested for DUI. When the officer placed her in his patrol car he asked her if she would take a breath test. He gave her no implied consent warnings. She refused. Later at the station, he read her the implied consent warnings and again asked her to take the breath test. She again refused. Her attorney moved to suppress both ―refusals‖ on the grounds the first one was given without the statutorily required implied consent warnings, and the second one was tainted by the initial request and refusal and should also be suppressed. The COA held the first refusal must be suppressed for failure to comply with the implied consent warnings, but the second one should not be suppressed. K.S.A. §8-1001(f) requires implied consent advisories before a test is administered. Here the proper advisories were given before a test was administered. The Court did say the results of a second or subsequent test may be suppressible as fruit of the poisonous tree if it can be shown the results were obtained ‗as a result‘ of the first test or leads obtained from the first test. This did not occur in this case. Affirmed in part, reversed in part and remanded.
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NO 4TH AMENDMENT RIGHT BASED ON PC
State v. Bussart-Savaloja 40 Kan.App.2d 916, 198 P.3d 163 (12/05/08)
The defendant was placed under arrest and requested to take a breath test in which she consented. During the observation period the defendant claimed she was going to vomit and the officer decided to change his request to a blood test. The officer went over the implied consent again and she refused. Upon appeal the defendant argued the implied consent law, K.S.A. 8-1001(i) violates her fourth amendment right to be free from unreasonable searches and seizures. The court found no constitutional right to avoid a search conducted upon probable cause. Therefore refusal to consent to such a search has absolutely no constitutional significance regarding the reasonableness of the search and is not an invocation of any right at all. The defendant also raised an Apprendi issue.
OLD FORM-HARMLESS ERROR
State v. Kogler 163 P.3d 330, 2007 WL 2066509 (2007)
Kogler was arrested for DUI, and moved to suppress evidence of a breath test due to his informed consent not being properly administered. The implied consent form that was given to the Defendant and read by Walker was an old implied consent form. The old form contained the 5-year look-back period that was the old Kansas law. The implied consent advisory Trooper Walker gave to Kogler was different from the implied consent advisory the trooper was required to give under K.S.A.2005 Supp. 8-1001(D), and thus, the notice requirement of K.S.A.2005 Supp. 8-1001(f) was violated. Because the implied consent advisory given was different from the one mandated by statute, the Court of Appeals upheld the suppression of the breath test. The Court of Appeals was not convinced this was a technical irregularity, as the two implied consent forms were substantially different. The State also argued because Kogler had no previous DUIs, the error was harmless. The Court of Appeals also quashed this argument, stating the Kansas Supreme Court has not had any cases where insufficient notice constituted only harmless error.
PRIOR CONVICTIONS –FAILED TO GIVE IMPLIED CONSENT
State v. Shaw 37 Kan.App.2d 485, 154 P.3d 524 (2007)
Shaw was stopped for a traffic infraction. After stopping Shaw, the trooper smelled an odor of alcohol coming from Shaw and noticed Shaw‘s eyes were watery and bloodshot. Shaw admitted he had been drinking and agreed to undergo field sobriety testing. Shaw failed the field sobriety tests and took a PBT. Shaw was arrested for DUI and transported to the police department for further testing. The trooper failed to give Shaw either oral or written implied consent advisories as required by KSA 8-1001(f) prior to Shaw‘s submitting to a breath alcohol test on the Intoxilyzer 5000. After realizing he had not given Shaw the required advisory, he asked Shaw if he would submit to a second breath alcohol test. Shaw said he would take the test and the trooper then gave Shaw both the oral and written implied consent advisories pursuant to KSA 8-1001(f) prior to the second test. After the advisory, Shaw agreed to perform the breath alcohol test on the Intoxilyzer 5000 and the second test indicated a .109 BAC. Shaw was charged with felony DUI in violation of K.S.A. 8-1567(f) as a third-time offender. After a preliminary hearing, Shaw moved to dismiss the complaint and moved to suppress the results of both
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breath tests. The trial court denied Shaw‘s motions. Shaw was found Shaw guilty of felony DUI. On appeal, Shaw first argued his motion to dismiss should have been granted due to the State‘s failure to prove at the preliminary hearing that he had two prior DUI convictions. At the preliminary hearing, the State presented only the certified driving record as evidence of Shaw‘s prior DUI convictions. The court found the State did present ―some evidence‖ of Shaw‘s prior DUI convictions and this evidence was sufficient for purposes of the preliminary hearing to establish probable cause Shaw had committed a felony. Shaw also argued the trial court should have suppressed the results of his second breath test on the Intoxilyzer 5000 because the trooper requested the second test before giving the implied consent advisories. The appeals court found the trial court properly admitted the results of the second test on the Intoxilyzer 5000, because Reed gave Shaw the implied consent advisories before Shaw submitted to the second test. Finally, Shaw argues the results of the second breath test on the Intoxilyzer 5000 should have been suppressed as fruit of the poisonous tree of both the preliminary breath test and the inadmissible first test on the Intoxilyzer 5000. The court found the probable cause justified administering both Intoxilyzer breath tests came from the evidence that was obtained before Shaw even arrived at the police station. The trooper performed the second Intoxilyzer test only because he realized he had not given the implied consent advisories before administering the first Intoxilyzer test. The results of the second Intoxilyzer test were not obtained ―as a result‖ of the first Intoxilyzer test ―or any leads obtained therefrom.‖ Therefore, the results from the second Intoxilyzer test were not the fruit of the poisonous tree. Affirmed.
COMMERCIAL DRIVERS LICENSE-NONCOMMERCIAL VEHICLE-DUE PROCESS
Robinson v. Ks. Dept. of Revenue 37 Kan.App.2d 425, 154 P.3d 508 (2007)
A State Trooper initiated a stop of a noncommercial vehicle driven by Robinson. Robinson held a commercial driver‘s license issued by the State of New Mexico. After observing Robinson and conducting field sobriety tests and a PBT, the trooper placed Robinson under arrest for DUI. The trooper provided Robinson with the oral and written notice required by KSA 8-1001(f) that is on the front side of the DC-70 form. The trooper did not advise Robinson as to how a test failure, test refusal, or DUI conviction would affect his commercial driver‘s license. Following receipt of the implied consent notices, Robinson took a breath alcohol test, which he failed. Based on the test results, Robinson was issued a notice of suspension of his driver's license. At KDR administrative hearing, Robinson challenged the trooper‘s failure to advise him the results of the breath alcohol test would affect his commercial driver‘s license. The administrative hearing officer affirmed the suspension of Robinson's driving privileges. Robinson filed a petition for judicial review claiming the failure to notify him of the effect on his commercial driver‘s license pursuant to KSA 8-2,142(a)(2) was a due process violation. The district court affirmed his suspension. On appeal, Robinson claims the DC-70 form did not accurately reflect the law pertaining to him. Robinson seeks a reversal of the district court's decision and reinstatement of his commercial driver's license. The Court of Appeals held the trooper who stopped Robinson, who was driving a noncommercial vehicle, on suspicion of DUI was not required, under the implied consent law, to advise Robinson that if he failed a sobriety test or if he refused testing, his commercial driver‘s license could be administratively suspended for one year, in contrast to 30-day suspension of noncommercial driver‘s license. The court also found Robinson‘s procedural due process rights were not violated as Robinson received all of the notice to which he was statutorily entitled and he was afforded the
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opportunity to be heard at both the administrative hearing and the de novo review before the district court. Affirmed.
COMMERCIAL DRIVERS LICENSE
State v. Becker 36 Kan.App.2d 828, 145 P.3d 938 (2006) Rev. Den. (2/13/07)
While driving a noncommercial vehicle, Becker was arrested for driving under the influence and transported to the law enforcement center. Becker had a commercial driver‘s license. Prior to submitting to a breath test on the Intoxilyzer 5000, the officer read Becker the implied consent notice and provided Becker with a copy of the notice. The notice had the applicable provisions for commercial driver‘s license on the back of it, but such provisions were not read to Becker. The notice the officer read to Becker did not inform him his commercial driver‘s license would be suspended for one year if he failed the breath test. Becker failed the breath test. At his trial, Becker moved to suppress the breath test results because the notice ―misinformed him of the law,‖ violating his due process rights. The trial court denied Becker‘s motion and Becker was subsequently convicted of DUI. On appeal, Becker argued his substantive due process rights were violated because the notice read to him prior to the breath test ―misstated the law.‖ The court noted because Becker was not driving a commercial vehicle at the time of the stop, the officer was only statutorily required to advise him of the ramifications the test would have on his noncommercial driver‘s license. Notice of consequences to commercial driver‘s licenses are only statutorily required when an officer has reasonable grounds to believe a person has been driving a commercial vehicle. The court noted it is reluctant to impose on officers requirements that are not contained in the statute. The court found the notice provided to Becker was in accordance with the law and Becker suffered no violation of his substantive due process rights. Affirmed.
PBT—FOURTH AMENDMENT SEARCH—CONSENT
State v. Jones 279 Kan. 71, 106 P.3d 1 (2005)
Jones was found guilty of DUI with a BAC of .08 or higher. He appealed based on denial of his motion to suppress alleged involuntary PBT and resultant blood test. The Court of Appeals affirmed. Sole issue is whether he gave voluntary consent. The case was tried on stipulated facts. Officer responded to an accident, where Jones was injured and admitted to being the driver. No field tests were done, except the properly conducted PBT. The officer read the warnings under KSA 8-1012 before giving the PBT. As a result of the PBT, Jones was transported to the Department of Health for a blood test. He asserted he did not voluntarily, knowingly, or intelligently consent to the PBT. He argued the PBT requires deep lung air, which constitutes a search for which there must be consent or probable cause. He then argued the accident itself was not probable cause for a search, and his consent, if any, was involuntary because he would have been given a citation for refusing. The Court found the taking of deep lung air was a search. Further, the state has the burden of proving consent by a preponderance of the evidence, which requires more than the defendant‘s mere acquiescence to take the test. The Court ruled the implied consent provisions of KSA 8-1001 do not supply adequate consent for PBT testing. As for probable cause, the Court found an officer must have at least two of three predicates listed in KSA 8-1012 before he/she can request a PBT: ―the
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officer has reasonable grounds to believe the person: (a) has alcohol in the person‘s body; (b) has committed a traffic infraction; or (c) has been involved in a vehicle accident or collision.‖ Here, two of the three were not established, so the officer did not have probable cause to administer the PBT. Furthermore, because the PBT was the only grounds for the additional blood tests, all evidence must be suppressed. Jones‘ conviction was therefore reversed.
IMPLIED CONSENT—NON-DUI CASES—SEARCH INCIDENT TO ARREST
State v. Conn 278 Kan. 387, 99 P.3d 1108 (2004)
The Supreme Court affirmed in part and reversed in part a Court of Appeals opinion which reversed convictions for possession of various drugs and drug paraphernalia, obstruction of legal process, and having no proof of insurance. The Court held (1) troopers lacked statutory authority for warrantless search of defendant's automobile to discover evidence of obstruction of official duty because defendant was not arrested for that crime; (2) warrantless search of automobile driven by defendant for evidence of defendant's identification was justified under probable cause with exigent circumstances exception to search warrant requirement; (3) defendant's consent to a drug investigation urinalysis was coerced, making results of that testing inadmissible; and (4) trial court's error in admitting urinalysis test results was not harmless. After defendant had given officer fake name, defendant was arrested for driving without a valid driver's license in his possession and failing to provide proof of insurance. Officers then searched vehicle for defendant's ID. The Court held this was not a proper search incident to arrest. However, the Court allowed the search based on exigent circumstances, reversing the Court of Appeals. The Court stated the officers had probable cause defendant committed offense of obstruction of official duty when defendant falsely provided information regarding having a valid Texas driver's license, and thus defendant's identification would have been evidence defendant had provided false name. Defendant was also suspected of possessing drugs in the vehicle. Officers asked defendant to take a urine test, and defendant was threatened with implied consent advisory usually given to those arrested for DUI. Defendant consented, and tested positive for meth. This evidence was introduced at trial on charge of possession of meth. Court of Appeals reversed trial court, holding that the consent to the test was coerced. The Supreme Court affirmed the Court of Appeals on this issue, noting none of the requirements of KSA 8-1001 were met regarding implied consent. The case was remanded for a new trial.
PROBABLE CAUSE—BAT ADMISSIBILITY—MISTRIAL—PHOTOS—SENTENCING
State v. Hobbs 276 Kan. 44, 71 P.3d 1140 (2003)
The Supreme Court affirmed convictions for involuntary manslaughter, aggravated battery, and leaving the scene of an injury accident. The Court held: (1) results of defendant's blood alcohol test were admissible (despite being below .08); (2) exchange during recess in trial between juror and state witness did not warrant mistrial; (3) autopsy photograph of victim was admissible; (4) report of death form completed by district coroner, showing manner of death as "accidental," was admissible as an official court record, but improper exclusion of evidence was harmless; (5) prosecutor's rebuttal closing argument, there was no evidence of a malfunction of defendant's vehicle at time of fatal collision, was proper response to defense counsel's closing argument and did not improperly shift burden of proof; and (6) trial court could take judicial notice of a defendant's presentence report filed
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in a previous case without objection instead of requiring state to produce evidence to establish disputed portion of criminal history by a preponderance of the evidence. Hobbs challenged the constitutionality of KSA 2000 Supp. 8-1001(f)(1), which supplies probable cause to believe the defendant operated a vehicle under the influence of alcohol or drugs "if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to another person.‖ The Supreme Court held a defendant to whom a statute may constitutionally be applied cannot challenge the statute on the ground it may conceivably be applied unconstitutionally in circumstances not before the court. The Court noted there was probable cause of DUI absent the use of KSA 8-1001(f)(1). Hobbs also complained the district court erred by admitting the results of his blood alcohol test into evidence, specifically because the results were not above .08. See (State v. Schow 287 Kan. 529 (2008) concerning PSI). The Court held the admission or exclusion of evidence lies within the sound discretion of the trial court. A defendant asserting the trial court abused its discretion bears the burden of showing the trial court's action was arbitrary, fanciful, or unreasonable, which was not done by Hobbs.
ACCIDENT—BAC—CONSENT
State v. Murry 271 Kan. 223, 21 P.3d 528 (2001)
The Supreme Court reversed the district court‘s suppression of BAC evidence in a DUI trial.
The Court held arrest is not required prior to warrantless extraction of blood to test BAC, so long as extraction is based on probable cause sufficiently strong to have justified arrest; disapproving of, State v. Brunner, 211 Kan. 596 (1973), and requirements for taking of sample of defendant's blood following vehicle accident were met. Murry crashed his vehicle into a culvert embankment. He was taken to the hospital, where an officer suspected Murry had been DUI of alcohol. At the hospital, the officer asked Murry to consent to a blood alcohol test. Murry replied, "I don't know what's going on, I'm starting to fade." A sample of blood was taken from Murry, despite the lack of consent and despite the fact he was not under arrest at the time. Murry filed a motion to suppress the blood sample evidence, arguing he had not consented and he had not been under arrest at the time the blood sample was taken. The trial court granted the motion. On appeal, the Supreme Court applied a three-part test in order to determine whether blood alcohol evidence can be taken from a suspect without a warrant. The three requirements are: (1) there must be exigent circumstances in which the delay necessary to obtain a warrant would threaten the destruction of the evidence, (2) the officer must have probable cause to believe the suspect has been DUI, and (3) the procedures used to extract the blood must be reasonable. The Court held the test was met, which is also the same test for taking BAC sample following an accident.
BAT—CONSENT ADVISORY—PERSONS UNDER 21
State v. Wick 28 Kan.App.2d 888, 24 P.3d 158 (2001)
The Court of Appeals reversed the suppression of BAT results for a trial on a charge of involuntary manslaughter while operating a motor vehicle with a BAC exceeding 0.08. The Court held preponderance-of-the-evidence standard is required of the government in establishing a defendant was read the applicable implied consent advisory when obtaining a breath or blood alcohol test; prosecution failed to carry its burden of
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establishing defendant was read the implied consent advisory applicable to persons under age 21; and defendant was not prejudiced by arresting officer's failure to inform him of the implied consent advisory applicable to persons under age 21. Upon defendant‘s motion, the district court suppressed defendant‘s BAT results. The State filed an interlocutory appeal. The defendant was under age 21 at time of the stop. The arresting officer testified at preliminary hearing she read the advisory from the form containing only the general advisory applicable to any person who operates a vehicle. The officer did notify the defendant of the consequences applicable to any driver who tests above the .08 limit on blood or breath alcohol concentration, and the defendant's blood alcohol level exceeded .08. The Court of Appeals noted had the defendant‘s test results shown a BAC between .02 and .08, suppression of such results would have been required.
DC-27—ERRORS—CORRECTED FORM
Enslow v. Ks. Dept. of Revenue 26 Kan.App.2d 953, 996 P.2d 361 (2000)
The Court of Appeals reversed the district court and reinstated a driver‘s license suspension for failure of a breath test. Enslow failed a breath test under K.S.A. 8-1001 et seq. Immediately thereafter, the arresting officer personally served Enslow with the DC-27 as required under K.S.A.1998 Supp. 8-1002. Shortly after Enslow had been released from custody, the arresting officer realized errors were made in completing the form. Specifically, he failed to complete paragraph four of the certification, which indicates whether the licensee failed or refused the test, and he mistakenly entered Enslow's birth date as December 16, 1998, instead of the correct date of December 16, 1957. The arresting officer completed another DC-27 and personally served Enslow at his residence, explaining to him the first form was not properly completed. The officer destroyed the original DC-27 and forwarded the properly completed DC-27 to the division of vehicles. The Court of Appeals held driver's license suspension statute does not prohibit preparation and service of second certification of an alcohol or drug test failure to correct errors or omissions before mailing to Division of Vehicles to commence proceedings to suspend motorist's driver's license. K.S.A. 8-1002(b, f).
BAT—MARGIN OF ERROR—RESTRICTED LICENSE—NOTICE
Ruble v. Ks. Dept. of Revenue 26 Kan.App.2d 1, 973 P.2d 213 (1999)
The Court of Appeals affirmed a driver‘s license suspension and reinstated a driver‘s license restriction. The Court held the district court was not required to apply the margin of error inherent in breath test in favor of motorist, and the police officer was not required to inform motorist his driving privileges could be restricted for failing breath test. Ruble was placed under arrest for DUI and was asked to take a DUI breath test. The officer provided Ruble a written and oral implied consent advisory as required under K.S.A.1994 Supp. 8-1001(f). However, the officer did not advise Ruble his driving privileges would be restricted for 330 days following the 30-day suspension period if he failed the test. Ruble agreed to take the breath test which revealed his BAC was .087. Ruble‘s license was suspended for 30 days and restricted for another 330 days. On appeal, the district court affirmed the suspension and reversed the restriction. The district court found Ruble should have been notified of the 330-day restriction before taking the breath test even though such a notice is not required by K.S.A.1994 Supp. 8-1001(f)(1). On appeal to the Court of Appeals, the suspension was again affirmed, and the restriction was reinstated. The Court found the district court is not required to apply the margin of
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error of the breath test, and police officers are not required to inform drivers being tested for alcohol concentration their driving privileges can be restricted for 330 days for failing the test. The district court was affirmed in part and reversed in part.
IMPLIED CONSENT—DEAF/MUTE—BREATH TEST—ADMISSIBILITY—FOUNDATION—
SELF INCRIMINATION
State v. Bishop 264 Kan. 717, 957 P.2d 369 (1998)
The Supreme Court affirmed convictions for DUI and failure to maintain a single lane of traffic. The Court held (1) failure of motorist, who was deaf and mute, to understand the statutorily-required oral implied consent advisory did not render the motorist's breath test result inadmissible; (2) administering the breath test was not "interrogation" and thus the Fifth Amendment privilege against self-incrimination was inapplicable; (3) state was not required to appoint an interpreter to give the informed consent advisory; and (4) evidence established foundation for admission of breath test result. Bishop, who was deaf and mute, was arrested for DUI. The arresting officer provided Bishop with a written copy of the implied consent advisory, and despite knowledge that Bishop was deaf; the trooper also read the implied consent advisory out loud to Bishop. Bishop failed the breath test. At trial, the State introduced original log book of calibrations for the breath test machine, machine's original certification document, copy of certified monthly standard report for the machine, copy of document certifying calibration solution, and trooper's testimony he was certified to conduct breath tests at the time he administered the motorist's breath test. Defendant was convicted after jury trial and his appeal was transferred to the Supreme Court. The Supreme Court noted the breath test was admissible even if the defendant could not understand the implied consent advisory. The State was not required to provide an interpreter during this warning, and the breath test was not ―interrogation‖ for Fifth Amendment purposes. Finally, the Court stated there was sufficient foundation admission of the breath test at trial. Affirmed.
BAT ADMISSIBILITY—ONE TEST IS SCIENTIFICALLY RELIABLE
Campbell v. Ks. Dept. of Revenue 25 Kan.App.2d 430, 962 P.2d 1150 (1998)
The Court of Appeals affirmed a district court judgment granting the Department of Revenue's motion for involuntary dismissal of the appeal of a driver‘s license suspension. The Court held results from a single breath test authorized by implied consent statute had sufficient scientific reliability to be admitted into evidence, and police officer had probable cause to arrest motorist for DUI when officer asked motorist to perform field sobriety tests. The officer observed motorist speeding in early morning hours and smelled liquor on motorist's breath when he approached motorist; motorist admitted having a few drinks, and his eyes appeared glazed and blood shot. The district court granted KDR‘s motion for involuntary dismissal after Campbell had presented his evidence. On appeal, the Court of Appeals held as a matter of law the testing procedure used to determine the alcohol concentration in Campbell's breath was reliable. The Court also refused to decide whether probable cause to arrest for DUI must be shown before field sobriety tests are to begiven, but the Court did conclude the arresting officer in this case did have probable cause before administering the tests. Affirmed.
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IMPLIED CONSENT—FAILURE TO SPEAK ENGLISH
Kim v. Ks. Dept. of Revenue 22 Kan.App.2d 319, 916 P.2d 47 (1996)
The Court of Appeals affirmed KDR‘s suspension of motorist‘s driver's license for refusing to submit to BAT. The Court held driver's due process rights were not violated by KDR‘s failure to furnish him with interpreter at administrative refusal hearing, and implied consent statute was constitutional. The Court stated in an appeal from administrative agency decision, person is limited to issues he or she raises at administrative hearing, and noted motorist failed to raise issues of providing an interpreter and effective assistance of counsel at the administrative hearing. The Court held motorist‘s due process rights were not violated in that driver had several opportunities to request interpreter and driver's form requesting administrative hearing did not indicate he did not understand English. On the implied consent issue, the Court stated person's failure to understand or speak English shall not be defense person did not understand written or oral notice required by implied consent statute. Also, because implied consent statute was remedial law and was to be liberally construed to promote health, safety, and welfare of public, statute would be construed as constitutional
REASONABLE GROUNDS—PROBABLE CAUSE TO ARREST—IMPLIED CONSENT
State v. Counseller 22 Kan.App.2d 155, 912 P.2d 757 (1996)
The Court of Appeals reversed a district court suppression of BAT results in a DUI prosecution. The Court held (1) implied consent statute is remedial legislation and is to be liberally construed; (2) officer may have reasonable grounds to believe person was operating vehicle under influence, allowing officer to perform test under implied consent statute, while not having probable cause required to arrest under statute; and (3) reasonable grounds to believe motorist was operating vehicle under influence may be formulated after person is in custody for any offense arising from operation or attempted operation of motor vehicle, and may be formulated before or after arrest, or without any arrest. Counseller was arrested for reckless driving and transported to the sheriff‘s department. The arresting officer smelled liquor on Counseller's breath and requested he submit to a breath test to determine the presence of alcohol. Counseller was provided a copy of the implied consent advisory pursuant to K.S.A.1995 Supp. 8-1001(f)(1). He gave consent, and a breathalyzer test was then administered that produced a test result of .197. In the prosecution for DUI, the district court suppressed the BAT results, noting since defendant was not arrested for an alcohol-related offense, the implied consent warning was coercive. On appeal, the Court of Appeals held the implied consent statute does not apply solely to per se alcohol offenses; it may apply to any offense that was alcohol or drug related. Also, the determination of whether an offense is alcohol or drug related may be made subsequent to arrest. Reversed and remanded.
NOTICE—CHANGE OF LAW—SUBSTANTIAL COMPLIANCE
State v. Branscum 19 Kan.App. 2d 836, 877 P.2d 458 (1994)
In a case involving two deaths and one serious injury, the State appeals suppression of BAT results, based on the written notice form incorrectly stating the alcohol was .10 instead of .08 (the incident occurred July 2, one day after the law changed). The oral notice correctly stated the percentage. In reversing, the Court of Appeals distinguishes
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the facts from Meigs, and finds where defendant was not misled concerning his rights concerning a BAT, there was substantial compliance with 8-1001(f). The Court then finds the trial court did not actually rule on the sufficiency of the oral notice (even though it relied on the oral notice to reach its decision), and remands for the trial court to make the determination. If proper notice is found, the trial court is directed to find substantial compliance and admit the evidence. (Cowley, 70857, 7/8/94)
NOTICE
Meigs v. Ks. Dept. of Revenue 261 Kan. 677, 840 P.2d 448 (1992)
The Supreme Court affirms the Court of Appeals decision holding the officer‘s advising the petitioner refusal of a BAT would result in a suspension of her driver‘s license for a period of 180 days, when 16 days earlier the legislature had increased the period to one year, was not substantial compliance with 8-1001. McFarland dissents, and would hold since this is a civil case, the state should be estopped from suspended the license beyond the 180 day period of the warning. (Johnson, 66476, 10/30/92)
RIGHT TO COUNSEL—SUPPRESSION—COLLATERAL ESTOPPEL
Ostmeyer v. Ks. Dept. of Revenue 16 Kan.App.2d 639, 827 P.2d 780 (1992) Rev. Den. 4/27/1992
The Court of Appeals affirms summary judgment granted to a driver who was refused the right to consult with an attorney after completion of a BAT. In so doing, the Court approves the admission of a transcript of the companion criminal case in which the driver successfully suppressed the BAT due to the officer‘s refusal to allow her to call an attorney after the test. The Court is careful to note the transcript was not offered in support of collateral estoppel. Finally, the Court holds there is no distinction between criminal and administrative proceedings when suppression is required for failure to honor a request for counsel, as required by 8-1001. (Russell, 66194, 3/6/92)
FAILURE TO INFORM—RETROACTIVITY
State v. Luft 248 Kan. 911, 811 P.2d 873 (1991)
The Supreme Court reverses a conviction of DUI for failure to inform the defendant of his statutory rights under 8-1001(f). In reaching its decision, the Court follows the holding in State v. Kelly, 14 Kan. App. 2d 182 (1990), even though it was not decided until 16 days after the defendant‘s trial. Applying the retroactivity rule of State v. Choens, 224 Kan. 402 (1978), the Court rules a decision applies retroactively to all cases pending at the time, included those pending appeal or rehearing. Since the time for defendant‘s appeal had not expired when Kelly was issued, the decision was applicable and defendant‘s breath test should have been suppressed. The conviction was for aggravated vehicular homicide instead of DUI. The legal principles are the same, however. (Pawnee, 65502, 5/24/91)
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BAT REFUSAL—NOTICE OF CONSEQUENCES
Barnhart v. Ks. Dept. of Revenue 243 Kan. 209, 755 P.2d 1337 (1988)
The Supreme Court holds the notice provisions of 8-1001(f) are mandatory, rather than directory, and expressly overrules portion of the Court of Appeals decision in State v. Doeden, 12 Kan App. 2d 245, which holds otherwise. The Court holds in this case, however, the warning given substantially complied with the statute and did not mislead the appellant. (Ed. Note: While not a criminal case, it is likely defendant will raise the same issue when attempting to suppress the BAT results. It would seem even though there is a violation of the statutory requirement, there has not been an exclusionary rule established for such violations. And even if there were, a good faith exception could be argued, since 8-1004 specifically requires suppression if an additional test is not allowed.) (Thomas, 60419, 6/3/88)
WARNING REQUIREMENT—SANCTIONS
State v. Doeden 12 Kan. App. 2d 245, 738 P.2d 876 (1987)
The State appealed suppression of BAT results. The officer did not read the Standish form requirements since the defendant had been injured and was being treated at the time of the conversation. As a result, the trial court suppressed the results because defendant was not under arrest. The Court of Appeals holds under 8-1001(b)(2) the test was authorized because of the defendant‘s involvement in an accident, and failure to provide the defendant with the notices required under 8-1001(f)(1) does not require suppression of the test results either under the Fifth Amendment or 8-1001. (Meyer dissents) (Barton, 59741, 6/25/87)
AFFIDAVIT OF REFUSAL—NOTARY
Dewey v. Ks. Dept. of Revenue 11 Kan. App. 2d 72, 713 P.2d 490 (1986)
The Court of Appeals reverses the district court and holds where it is affirmatively established the chemical test refusal report was not sworn to in accordance with 54-101 et seq., there is no jurisdiction for prosecution of the suspension proceeding. The officer had simply signed the report in the presence of a notary, who did not require him to swear to the statement in the report. (Dickinson, 57934, 1/30/86)
POLICE CUSTODY—AGGRAVATED VEHICULAR HOMICIDE
State v. Louis 240 Kan. 175 727 P.2d 483 (1986)
The Supreme Court affirms the convictions and sentences for six counts of aggravated vehicle homicide, DUI, and numerous traffic offenses. The Court holds where defendant, who was transferred to the hospital for emergency treatment, was accompanied at all times by police, where the blood sample was taken for police purposes, and where defendant was immediately arrested upon release by the hospital, there was sufficient custody at the time the sample was taken to comply with 8-1001, and the trial court did not err in admitting the BAT results. The Court also holds, analogous to the felony murder rule, there is not requirement for the defendant to be convicted of the underlying traffic offense, in this case reckless driving and DUI, for
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him to be convicted of aggravated vehicular homicide, 21-3405a. (The SC does not rule on whether or not the separate conviction of DUI is multiplicitous with the agg vehicular homicide convictions) Finally, the SC can find no abuse of discretion in the trial court‘s sentencing defendant to six consecutive one to five terms for each of the homicide convictions, although it hints that under 21-4603(4) the court could reduce the minimum terms if recommended by the Secretary of Corrections. (Shawnee, 58951, 10/31/86)
FAIR TRIAL—MEDIA COVERAGE—SPECTATORS—INTOXILYZER—SENTENCING
State v. McNaught 238 Kan. 567, 713 P.2d 457 (1986)
The Supreme Court affirms convictions of vehicular homicide, and DUI, which resulted from an incident in which defendant, a Topeka psychiatrist, struck a cyclist, and then drug her bicycle several miles before an officer noticed sparks coming from beneath defendant‘s vehicle. The Court first holds defendant fails to show any adverse effects from the media coverage; likewise, the wearing of MADD and SADD buttons by spectators is not, as a matter of law, a denial of a fair trial, but is a matter within the discretion of the trial court. The SC also holds 8-1001 does not require the arresting officer to actually perform the intoxilyzer test. The Court also holds visibility tests made on victim‘s bicycle reflectors after defendant‘s voir dire exam were properly admitted. The Court does, however, agree with defendant‘s contention where defendant was sentenced to the maximum imprisonment for both offenses, concurrent, without probation or suspension of sentence, the additional sentence of restitution and alcohol treatment program were in violation of 21-4603. The trial court can, however, determine an amount of restitution in the event the defendant would be paroled, at which time an order of restitution may become a condition of probation. (Shawnee, 58052, 1/17/86)
PHYSICIAN/PATIENT PRIVILEGE
State v. Pitchford 10 Kan. App. 2d 293, 697 P.2d 896 (1985)
The Court of Appeals upholds the trial court‘s suppression of blood test results on the basis of the physician-patient privilege, K.S.A. 60-427. The defendant was involved in a one-car accident, and was apprehended in a field some distance from the scene. He refused to stop, had to be chased down, and then struggled when caught. He was wheezing and bleeding badly from a head wound, and his breath smelled of alcohol. He continued to struggle against medical assistance and was so violent; the doctor ordered a blood test to determine what was in the defendant‘s system. The test results, showing a BAC of .226, were turned over to law enforcement officers, and a DUI charge resulted. The results were suppressed by the trial court, and the State appeals. The CA then notes the implied consent statute, 8-1001, does not apply, since the defendant was not arrested, was not asked to take the test, and did not consent. The physician-patient privilege, 60-427, had three requirements: (1) There must be a patient, holder of the privilege, and a physician; (2) there must be a confidential communication between the two; and (3) either the physician or patient must have reasonably believed the communication necessary or helpful to treat or diagnose the patient. The CA summarily finds both (2) and (3) are met Relying on State v. George, 223 Kan. 507 (1978), the Court concludes information obtained by examination is a confidential communication, hence the blood test results, as part of an examination, were also confidential communication. The purpose of the statute is ―to encourage persons needing medical aid to seek it without fear of betrayal, not
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to disqualify physicians as witnesses. ―The Court decides the issue is not controlled by the patient‘s voluntary actions, but the purpose for the treatment, which in this case was for medical treatment, and not for gathering BAT evidence. The case had been dismissed, so no Petition for Review will be filed. (Butler, 57430, 4/11/85) See State v. Weilert 43 Kan. App 2d 403 (5/5/10)
IMPLIED CONSENT
State v. Compton 233 Kan. 690, 664 P.2d 1370 (1983)
Based upon K.S.A. 8-1001, the implied consent statute requiring a person to submit to the breath or blood test of the alcohol content in their body, there is no provision either statutory or otherwise requiring the police officer to explain the consequences of the refusal to submit to such test.
DRIVER MUST BE ARRESTED BEFORE IMPLIED CONSENT APPLIES
State v. Williams 4 Kan. App.2d 651, 610 P.2d 111 (1980)
The provisions of K.S.A. 8-1001 concerning implied consent only becomes operative after a person is arrested or taken into custody. Although a driver may voluntarily agree to take a blood test before he is arrested, he may not be compelled to take such a test until he has been placed under arrest. The mere seizing of a person to take him to the hospital is not an arrest unless the defendant is specifically informed he is under arrest. In this case the defendant was not verbally informed he was under arrest. The blood sample taken from him was not voluntarily given. The burden is upon the State to prove the consent, absent arrest, was freely and voluntarily given. Since the defendant was semi-conscious, the State could not meet burden and the blood test was suppressed.
IMPLIED CONSENT IS INAPPLICABLE TO AN UNCONSCIOUS DRIVER
State v. Garner 3 Kan. App. 2d 697, 600 P.2d 1166 (1979)
Although a driver has a statutory right to refuse to take a breath test, the investigatory process of the State would be frustrated if the State was not able to take blood from the unconscious driver. Frustration of this investigatory process could deprive the benefit of a favorable test result to the unconscious driver who has the appearance of being under the influence but whose conduct is explainable by other facts or conditions. Therefore, K.S.A. 8-1001 dealing with implied consent does notapply to an unconscious driver. The results of a blood alcohol test taken from the unconscious driver may be used in court.
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***UNPUBLISHED CASES***
PASSENGER ADMITS DRIVING AND DRINKING
State v. Dillon 231 P. 3d 1085, 2010 WL 2503000 (2010)
***UNPUBLISHED***
Officers were dispatched to a crash. During the investigation the passenger indicated he and the defendant had consumed a couple of beers but that the defendant was not intoxicated. The defendant was transported to the hospital where the implied consent was read and agreed to by the defendant. BAC indicated 0.13. The District Court found the officer had reasonable suspicion to request a blood draw because of the information the defendant had been involved in a crash and the information provided by the passenger. The defendant appeals claiming LEO lacked reasonable grounds to request testing. The Court of Appeals looked to Poteet v. Ks. Dept. of Revenue 222 P.3d 564 (2010) in which medical personnel informed the officers of alcohol use by the driver. In this case Officers knew the defendant had been in a crash and the passenger indicated they had been drinking. These facts would lead any reasonably prudent law enforcement officer to believe that drinking may have contributed to the crash. SFSTs were not warranted because of the driver‘s injuries and therefore there was reasonable information to request the test. Affirmed.
―DON‘T LIE TO ME‖-SOLUTION CHANGED EVERY 7 DAYS-DC-70 LOST
State v. Sigg 231 P.3d 587, 2010 WL 2245601 (05/28/10)
***UNPUBLISHED***
Trooper arrived at the scene of a crash and spoke with the defendant who claimed she was the driver. While speaking with her the Trooper could detect an odor of alcohol coming from her. Later a Deputy arrived at the scene and was asked by the Trooper to investigate further the possibility of alcohol use by the defendant. The defendant denied to the Deputy any use of alcohol. The Deputy stated she should not ―lie to him‖ and again asked her if she had been drinking. The defendant claimed she had one drink earlier. No Miranda was read to the defendant during this entire process. SFSTs indicated impairment and the defendant‘s BAC was .136. During trial the defendant argues her statement should be suppressed because she was in custody and no Miranda was read. There are two things to look at to determine if custodial or investigative First: court looks at the circumstances surrounding the interrogation and Second: court decides whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation. Under K.S.A. 8-1611 and K.S.A. 8-1612(a) a LEO has a duty to make a detailed written report which would require speaking with the driver to get relevant information. However in this instance the Deputy had begun speaking to her as a suspect and not an ordinary witness involved in the crash. The court determined the questioning was interrogation and however the evidence was so overwhelming the use of the statements she gave was harmless error. The defendant also argued since the DC-70 that was read to her was lost or destroyed and not available to the state her breath test should be suppressed. The court noted in State v. Alfrey unpublished No. 93890 ―there is no language in the statute requiring the State to establish by written documentation that it complied with K.S.A. 8-1001. The defendant also argued the solution on the Intox 5000
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had not been changed ever 7 days. The defendant failed to show any authority for the claim. The court also noted Lincoln v. Ks Dept. of Revenue to lay a foundation for the admissibility of breath test results; the KDHE is not required to establish certification of the standard solution used to calibrate breath testing equipment. There was an order by the court specifically not to mention the results of the PBT at trial. The Deputy was questions about his reasons stated on the DC-27 form showing his belief she was under the influence. The Deputy stated ―failed PBT‖ along with other indicators. There was a request for Mistrial which was denied. The Court of Appeals stated the mention of the PBT was inadvertent, the state did not follow up with any other questions about the PBT and no attention was drawn to the mistake. Conviction upheld.
REASONABLE GROUNDS TO BELIEVE-CLAIM OF CONSUMPTION AFTER COLLISION
Schepmann v. Ks. Dept. of Revenue 222 P.3d 1019, 2010 WL 445887 (01/29/10)
***UNPUBLISHED***
Deputy found defendant passed out in the driver seat of a pickup truck. Deputy smelled alcohol and asked defendant if he had consumed alcohol. The defendant did not reply. The defendant claimed he hit a deer. The Defendant failed SFSTs and was arrested. Subsequent BAC was determined to be 0.177. Defendant at the DL hearing claimed he had one beer two hours before he drove. He then claimed after the collision he consumed 5-7 beers. The defendant claimed the deputy based his observations on the post-driving alcohol and his ―intervening alcohol‖ consumption could not be considered in determining the existence of reasonable grounds. The hearing officer and court suspended his license and defendant appeals. The appellate court states the deputy‘s question concerning his alcohol consumption was ignored by defendant – the defendant‘s subsequent claim he consumed alcohol after driving cannot negate the reasonableness of the officer breath test request. Even if the defendant had responded to his consumption after the fact the appellate court stated we still would confirm the courts suspension order because the district court did not believe the defendant when he stated he had consumed only one beer an hour before the crash. The district court noted: ―he must have consumed a lot more than (one beer) before.‖ See also Swank v. KDOR 2010 WL 446036 (1/29/10) Suspension affirmed.
HOLDER OF A COMMERCIAL LICENSE-NOT IN A CMV
Tubbs v. Ks. Dept. of Revenue 222 P.3d 1019, 2010 WL 445895 (01/29/10)
***UNPUBLISHED***
The defendant was driving and Non-CMV but held a CDL. The defendant was read the implied consent notices but not the CDL notices. The defendant tested over a 0.08 and this was his second occurrence which would disqualify him for CDL eligibility for LIFE. He was not told this at the time he was requested to take the test. Until such time as the legislature chooses to amend the required implied consent notices in such a manner there is no requirement an individual possessing a CDL but driving a noncommercial motor vehicle must be advised of the potential ramifications under K.S.A. 8-2,142 of failing or refusing a chemical breath test. Suspension affirmed.
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BURDEN ON LICENSEE TO SHOW LACK OF REASONABLE GROUNDS TO REQUEST
Horton v. Ks. Dept. of Revenue 217 P.3d 66, 2009 WL 3270833 (10/09/09)
***UNPUBLISHED***
Officer observed three minor traffic infractions. The vehicle was stopped and the defendant had an odor of alcohol coming from her, admitted to drinking and her eyes were bloodshot. On the SFST‘s there was only one clue on the walk and turn, and three clues out of four on the one-leg stand. She was arrested; her BAC was 0.142. The defendant claimed there were no objective facts to establish reasonable grounds to request the test. One who challenges an administrative action suspending their license has the burden to show the officer lacked reasonable grounds to request the test. In this case, the defendant argued Wonderly. The appellate court along with the district court determined the facts were not similar and determined the officer had reasonable grounds.
REASONABLE GROUNDS TO REQUEST
Eller v. Ks. Dept. of Revenue 216 P.3d 731, 2009 WL 3172805 (10/02/09)
***UNPUBLISHED***
Defendant was speeding, admitted to having a few beers, had two open 30 packs of beer in his car, was unable to stand and claimed he could not perform the SFST‘s because of an old football injury. The defendant was arrested. The defendant‘s license was suspended. The only issue on appeal is whether the officer had reasonable grounds to request the defendant to take the Intox test. The defendant compares his case to Wonderly. The KDOR argues Campbell. The appellate court finds the district court‘s ruling was supported by substantial, competent evidence and uphold the suspension of the defendant‘s license.
P.B.T. ADVISORIES
Luea v. Ks. Dept. of Revenue 209 P.3d 764, 2009 WL 1858260 (06/26/09)
***UNPUBLISHED***
The officer observed bad driving and stopped the defendant‘s car. Perfomance of the SFST indicated impairment and the defendant was placed in the patrol car. The officer informed the defendant he was not under arrest but his investigation was continuing. The officer then read the implied consent advisory to him and requested he take a PBT. The defendant took the test. He was then placed under arrest and transported to take the formal Intoxylizer test. Again the officer read the implied consent advisory and requested he take the Intoxylizer test. His test indicated 0.195. The defendant argues he was not given the advisories provided in K.S.A. 8-1012 and therefore was mislead. The defendant claimed this was a ―blatant misuse and violation of the Kansas Implied Consent Law‖ The defendant provided no authority for this argument. The court noted the defendant could not have been prejudiced by getting more advisories than the abbreviated PBT notices. The court found the officer substantially complied with the notices of K.S.A. 8-1012 and there was no evidence the defendant was induced to take the Intoxylizer test. It was noted the only issue during the licensing hearing is whether or not the defendant failed or refused the Intoxylizer test after being given the appropriate implied consent advisories. There was no challenge to the advisories given before the intoxylizer test. Suspension affirmed.
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4TH AND 5TH AMENDMENTS-UNCONSTITUTIONAL CONDITIONS
State v. Henderson 192 P.3d 689, 2008 WL 4416025 (09/26/08)
***UNPUBLISHED***
The defendant was arrest for DUI and was transported to the jail. The implied consent was read to him and he refused to take the test. He was found guilty and appeals. The defendant claims his admission of his refusal to take the breath test forced him to consent to a search of his person or to waive his right against self-incrimination which violated the doctrine of unconstitutional conditions. The doctrine of unconstitutional conditions is the government may not grant a benefit on the condition the beneficiaries surrender a constitutional right even if the government may withhold that benefit altogether. The defendant‘s argument is premised on the fact his breath test refusal is subject to Fourth and Fifth Amendment protections. The appellate court notes that a 5th Amendment right only applies to communications or testimony of an accused but not to real or physical evidence derived from him. See South Dakota v. Neville 459 U.S. 553 (1983). Therefore, because his Fifth Amendment rights were never implicated he was not faced with the decision to choose between his Fifth Amendment right against self-incrimination and his Fourth Amendment right against unreasonable searches and seizures when asked to take the breath tests. Affirmed.
CDL LICENSING-NON-COMMERCIAL VEHICLE
State v. Griffin 191 P.3d 363, 2008 WL 4140644 (09/05/08)
***UNPUBLISHED***
The defendant was charged and convicted of DUI as a 2nd offense. During trial the defendant moved to suppress the breath test due to the failure of the officer to read the implied consent advisories pertaining to CDL licensing. The defendant was driving a pickup truck i.e., A non-commercial vehicle. Pursuant to K.S.A. 8-1001(g) a person does not need to be read the CDL licensing provisions if they are not in a commercial vehicle. The appellate court citing Becker 36 Kan.App.2d 828(2006) indicated the notice at issue was a procedural right rather than a substantive right. The defendant suffered no violation of his substantive due process rights. Therefore proper notice was given. Affirmed.
COMMERCIAL DRIVER‘S LICENSE—NON-COMMERCIAL VEHICLE
State v. Farrell 174 P.3d 936, 2008 WL 217051 (2008) ***UNPUBLISHED***
Ferrell was stopped in a DUI check lane. He was stopped driving a non-commercial vehicle. At the time Ferrell was a holder of a Kansas CDL. He was arrested for DUI and he was read the oral and written notices required under K.S.A. 8-1001 (f). The officer did not tell Ferrell what consequences a test failure, a test refusal, or a DUI conviction would have on his commercial driving privileges. Ferrell agreed to take the test and his breath test indicated .142. In the District Court Ferrell moved to suppress the breath results because he was not told of the consequences of a test failure or a test refusal would have on his CDL. He claimed a due process argument. It is noteworthy a person who fails a breath test for a second time is disqualified from driving a commercial vehicle for life pursuant to K.S.A. 8-2,142 (c). K.S.A. 8-2,145 states an officer must inform a
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driver believed to be driving a commercial vehicle the driver's CDL will be suspended for one year if the driver submits to and completes a breath test and the test results show an alcohol concentration of .04 or greater. This only is required if the officer believes the driver is driving a commercial vehicle. Ferrell in this case was not. Pursuant to Kansas law even if a person is stopped while driving a commercial vehicle, Kansas law does not require a law enforcement officer to notify the driver that the driver's CDL will be permanently revoked upon failing a breath test for a second or subsequent time. Ferrell had a statutory right to receive only the notices found at K.S.A. 8-1001 (f) due to the fact he was not operating a commercial vehicle at the time. The Court also noted Ferrell had an opportunity based on his receipt of the DC-27 that he could dispute his test failure and he was afforded the opportunity to do so in an administrative hearing. As a result Ferrell's procedural due process rights were not violated in this case.
NON-CDL VEHICLE- NO NOTICE
State v. Griffin 191 P.3d 363, 2008 WL 4140644 (2008)
***UNPUBLISHED***
Officer observed vehicle make repeated displays of acceleration. The vehicle was stopped and driver was found to be DUI. The defendant had a CDL license but the officer did not read the CDL advisory to Griffin. Griffin was not driving a commercial vehicle and K.S.A. 8-1001(g) does not require reading the advisory if no commercial vehicle is involved. Griffin claimed his substantive due process rights were violated because he ws not advised of the test's impact on his CDL, even though the applicable statute did not require such notice. The court adopted its prior ruling in State v. Becker 36 Kan.App2d 828 (2006) and affirmed.
COMMERCIAL DRIVER‘S LICENSE—FRUIT OF POISONOUS TREE
Hillburn v. Ks. Dept. of Revenue 177 P.3d 1011, 2008 WL 624594 (2008) ***UNPUBLISHED***
An officer observed Hillburn swerve and drive on to the shoulder of the road three separate times and then observed the car drive through a ditch before stopping. When the officer approached the car he asked Hillburn if he had been drinking. Hillburn replied he had a few beers. Hillburn was arrested. Hillburn initially complained concerning the implied consent advisory, however the Court noted the officer is not required to put Hillburn on notice Hillburn's CDL and privileges might suffer more severe sanctions than his individual driver‘s license. Hillburn also complained because he did not consent to a search of his deep lung air and because the officer did not have a warrant authorizing to conduct the PBT the results of the Intoxilyzer 5000 must be suppressed as fruit of the poisonous tree. The officer clearly had independent probable cause to arrest Hillburn without the PBT results. The court noted they did not need to address Hillburn's claim the exclusionary rule should apply in civil driver‘s license suspension hearings.
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UNDER 21—SUBSTANTIAL COMPLIANCE
Hoover v. Ks. Dept. of Revenue 168 P.3d 614, 2007 WL 2992427 (2007) ***UNPUBLISHED***
Hoover first contends the Trial Court erred in finding the law officer had reasonable grounds to believe she operated her motor vehicle. In this case it is uncontroverted Hoover failed the breath alcohol test. It is interesting to note Hoover is 16 years old. The Trial Court summarized the evidence as the car was running the lights were on, she was the only one in the car and she admitted she was driving. The Appellate Court concluded the substantial competent evidence supported the Trial Court's finding the officers had reasonable grounds to believe Hoover had operated her motor vehicle while intoxicated we find no error. Hoover also argued a jurisdictional defect. The Court determined this argument was without merit. Lastly Hoover contends the Trial Court should have suppressed the results of her breath test because the implied consent notice pertaining to drivers under 21 years of age did not meet the mandate of K.S.A. 8-1567(a). In K.S.A. 8-1001(g) states if a law enforcement officer has reasonable grounds to believe the person has been driving or attempting to drive a vehicle while having alcohol or other drugs in such person's system and such person was under 21 years of age the person also shall be given the notices required by K.S.A. 8-1567(a). Any failure to give the notices required by K.S.A. 8-1567(a) and amendments thereto shall not invalidate any action taken as a result of the requirements of this section. Hoover complains she was told if she provided a breath sample in excess of .02 she would lose her drivers privileges for 30 days. She was earlier told if she provided a breath sample in excess of .08 she would lose her driving privileges for one year. These are clearly inconsistent and confusing warnings. She was never told what would happen if she provided a breath sample between .02 and .08. The Appellate Court cited Batliner, unpublished, 90 P.3d 378 (2004). Hoover was informed of the actual risk if she submitted to a breath test and tested .02 or greater or tested .08 or greater. The omission of the phrase but less than .08 was not material in light of the fact Hoover was also informed the penalty for testing .08 or greater under K.S.A. 8-1001(f)(F). Accordingly the Court of Appeals held the implied consent notices Hoover received substantially complied with statutes. The Court however went on to state they must determine whether or not there was actual prejudice to the driver. The Court noted Hoover's penalty would have been the same whether she refused the breath test or failed the breath test with a reading in excess of .08. Secondly, as previously noted any failure to give the notices shall not invalidate any action. The lack of prejudice to Hoover is apparent given these facts and the statutory language the Appellate Court affirmed the suspension.
COMMERCIAL DRIVER
Felder v. Ks. Dept. of Revenue 166 P.3d 1087, 2007 WL 2695846 (2007)
***UNPUBLISHED***
Felder was pulled over and arrested for DUI on March 26, 2005. He was read the required implied consent advisories, and consented to a breath test. He is licensed as a commercial driver, but was driving a non-commercial vehicle. He blew over .08. The officer involved did not read Wright the commercial driver portion of the implied consent advisory, and therefore, Wright was not made aware of the one year suspension given to commercial driver‘s who blow over .08. The KDOR held a hearing, and suspended Felder‘s CDL for one year, based on K.S.A. 8-1001(f). Felder appealed, and the Ellis District Court upheld the suspension.
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This appeal is based on the District Court‘s failure to reverse the decision of the KDOR. Felder‘s appeal is based on a claim his substantive due process rights were violated because the implied consent notices don‘t distinguish between commercial and non-commercial licenses and that creates a misstatement of law. The instant court cites to State v. Becker, 36 Kan.App.2d 828 (2006) when deciding this issue. In Becker, the court stated driving is a privilege given by the state, and not a fundamental right. The State fulfills all procedural due process requirements by providing notice under the statute. Second, the defendant has not provided any adequate case law to show a substantive due process claim. Felder‘s appeal was rejected.
COMMERCIAL DRIVERS LICENSE
Garrison v. Ks. Dept. of Revenue 163 P.3d 385, 2007 WL 2239298 (2007)
***UNPUBLISHED***
Garrison appeals the Trego District Court‘s decision to uphold the KDOR‘s decision to suspend Garrison‘s commercial license for failing a breath test. Garrison holds a commercial driver‘s license, but was arrested for DUI while driving a non-commercial vehicle. After being taken to the police station, Garrison was read his DC-70 implied consent notices, but was not read the notice regarding commercial driver‘s license holders. Due to this, Garrison asserts his procedural and substantial due process rights were violated as a result of the officer not reading the CDL implied consent advisory. The first statute cited by the instant court is K.S.A. 8-1001(g), which includes the phrase, ―if a law enforcement officer has reasonable suspicion to believe that the person has been driving a commercial vehicle…‖ Due to the language of this statute, the Court of Appeals stated this advisory is inapplicable to a person driving a non-commercial vehicle while holding a CDL. The Court of Appeals rejected Garrison‘s procedural due process claim, as he had an administrative hearing, and the appeal itself was heard de novo. As to the substantive due process claim, the court stated substantive due process protects an individual from arbitrary action, and driving is a privilege, but a privilege subject to reasonable regulation. The court went further to state the Legislature crafted a comprehensive statute to provide notice to a driver before he submits to a breath test. Affirmed.
REASONABLE GROUNDS TO SUBMIT TO TESTING
Fleming v. Ks. Dept. of Revenue 162 P.3d 845, 2007 WL 2178261 (2007)
***UNPUBLISHED***
The KDOR is appealing this case from a Barton District Court decision not to revoke the Defendant‘s license for failure to submit to a breath test. Fleming was involved in a rollover accident at approximately 3:18 a.m. on November 7, 2004. Police arrived on the scene, and Fleming told the officer he lost control of the vehicle because a deer ran out in front of his vehicle, and he hit it. While speaking to Fleming, the officer smelled a moderate odor of alcohol coming from his breath, he had bloodshot eyes, and he had a single beer during the evening. Fleming refused a field sobriety test, stating he was too shaken up from hitting the deer and being in the accident. Fleming also refused the PBT and the Intoxilyzer. The question under review is whether the officer had ―reasonable grounds‖ to ask the driver to submit to a breath test. The Court of Appeals cites to K.S.A.2006 Supp.
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8-1001(b), which governs when an officer must request a driver submit to testing. One of those criteria is when the driver has been in a vehicle accident, or collision resulting in property damage, personal injury, or death. The instant court stated it has held reasonable grounds are synonymous with ―probable cause.‖ The evidence is sufficient for probable cause when it would lead a reasonable officer to believe guilt is more than a possibility. The Court of Appeals went on to say the Kansas Supreme Court ―has cautioned against evaluating each suspicious factor in isolation and asking whether there was an innocent explanation for the activity. Therefore, under Kansas law, just because the defendant provides an innocent excuse for refusing to submit to testing, the officer should not turn a blind eye to a probable criminal explanation. The Court of Appeals reversed the District Court decision, and remanded the case.
COMMERCIAL DRIVERS LICENSE-DUE PROCESS
State v. Felder 158 P.3d 375, 2007 WL 1530259 (2007)
***UNPUBLISHED***
Mr. Felder has a lot in common with Becker. Felder posed the same arguments to the court of appeals reference his driving a non-commercial vehicle while DUI. Felder has a commercial driver‘s license and claimed his substantive due process rights were violated when he received an ―incorrect explanation of the law as part of the implied consent advisories.‖ These issues were addressed in both State v. Becker, 36 Kan.App.2d 828 (2006), and Becker v. KDOR, unpublished, 2007 WL 1461395 (2007). Hopefully, at this time Becker and Felder are sharing a cab.
COMMERCIAL DRIVERS LICENSE
State v. Becker 157 P.3d 1129, 2007 WL 1461395 (2007)
***UNPUBLISHED***
It would appear Mr. Becker has two convictions for DUI under similar circumstances in Ellis County which Becker was driving a non-commercial vehicle and was stopped for DUI. As in the published opinion ruled on 3 months earlier See State v. Becker, 36 Kan.App.2d 828 (2006). Becker‘s argument concerning his substantive due process rights continues to be denied.
COMMERCIAL DRIVERS LICENSE-DUE PROCESS
Flying Out v. Ks. Dept. of Revenue 157 P.3d 670, 2007 WL 1413141 (2007)
***UNPUBLISHED***
Flying Out contends his substantive due process rights were violated when he was not provided the implied consent advisories relating to commercial drivers‘ licenses even though he was not driving a commercial vehicle at the time of his arrest. During the hearing, the officer testified Flying Out was driving a noncommercial vehicle at the time of the stop but Flying Out did hold a CDL. The arresting officer read and provided a copy of the DC-70 which contained the advisories in K.S.A. 8-1001(f). Flying Out took and failed a breath test. Flying Out‘s driver‘s license was suspended. At the administrative hearing the hearing officer affirmed the suspension.
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Judicial review was filed based on Flying Outs claim of due process violation. Flying Out maintains the officer explained a test failure would result in a 30-day suspension of his driving privileges but in actuality because he had a commercial driver‘s license, either a test refusal or test failure would result in privileges being suspended for a minimum of one year. Flying Out claimed the DC-70 was incorrect and misleading as it applied to a CDL. The appellate court reviewed K.S.A. 8-2,142(l) along with K.S.A. 8-1001. Flying Out‘s claim of due process violation is misplaced. Notice is a procedural rather than a substantive right. Basic elements of procedural due process are notice and opportunity to be heard. Flying Out does not assert a violation of his procedural due process rights nor does such a violation appear evident.
NOT FREE TO LEAVE-RESTRAINT
Fox v. Ks. Dept. of Revenue 155 P.3d 744, 2007 WL 1110544 (2007)
***UNPUBLISHED***
Fox was driving 85 mph on I-70 in Russell County. Trooper pulled the car over, and upon speaking with Fox, smelled alcohol. After an initial search of Fox‘s vehicle, Trooper saw an open bottle of alcohol. Fox performed field sobriety tests, and was placed in the patrol car. Trooper read Fox the implied consent advisory while Fox was inside the patrol car, and Fox consented to the breath test. Fox‘s appeal contends he was not under arrest or in custody when the implied consent advisories were given. The Court stated ―Even though there was not a statement made he was under arrest at the time the officer gave the implied consent notices, it is clear he was in custody and was not able to leave.‖ The Court also cites to State v. Louis, 240 Kan. 175, 727 (1986) in regards to the argument Fox makes about not being in custody, ―Instead the court stated the test to be applied in determining whether a person who has not been arrested us in police custody is, ‗whether at that time there were some significant restraints on his freedom of movement which were imposed by some law enforcement agency.‘‖
REASONABLE GROUNDS TO REQUEST TESTING
Rodenhouse v. Ks. Dept. of Revenue 153 P.3d 570, 2007 WL 806024 (2007)
***UNPUBLISHED***
A State Trooper observed a vehicle driven by Rodenhouse with an inoperable brake light driving on Interstate 70. The trooper pursued the vehicle and activated his emergency lights. The vehicle traveled an additional one-quarter to one-half mile before pulling over at an exit ramp. Upon approaching the vehicle, the trooper noticed a faint odor of alcohol. The trooper observed Rodenhouse's eyes were bloodshot and glassy, and he had ―a slight problem with his speech.‖ Rodenhouse denied he had been drinking but admitted he had an open container containing an alcoholic beverage inside the vehicle. The trooper asked Rodenhouse to exit his vehicle, at which point the trooper smelled an odor of alcohol on Rodenhouse's person and noticed Rodenhouse was ―unsteady‖ while exiting his vehicle. Rodenhouse refused to take either field sobriety tests or a PBT. The trooper placed Rodenhouse under arrest for DUI, driving while suspended, and transporting an open container. Rodenhouse was then transported to the county jail, where he refused to take an evidentiary breath test. After an administrative hearing, KDR suspended Rodenhouse‘s driver‘s license. Rodenhouse filed a petition for judicial review with the district court, which affirmed the suspension, finding the trooper had reasonable grounds to request the breath test. On appeal, Rodenhouse asserts at the time the trooper requested Rodenhouse submit to the evidentiary breath test, the trooper did not have reasonable
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grounds Rodenhouse was DUI. The court noted while Rodenhouse exhibited no signs of impaired driving, he smelled of alcohol, had at least some difficulty communicating, was unsteady while exiting his vehicle, had bloodshot and glassy eyes, and was irritated and emotionally volatile while answering questions. In addition, the court noted two open containers were found in Rodenhouse's vehicle, one he admitted to possessing. Accordingly, the court found the trooper had reasonable grounds to request Rodenhouse submit to the chemical breath test and upheld the administrative suspension. Affirmed.
BLOOD TEST OF HOSPITAL-CUMULATIVE WITH KBI TEST
State v. Wilson 143 P.3d. 701, 2006 WL 2936592 (2006) Rev. Den. (2007)
***UNPUBLISHED***
Wilbert Wilson appealed his convictions for involuntary manslaughter while under the influence and reckless aggravated battery from the Wyandotte District Court. Wilson was driving in Kansas City, Kansas at about 1:40 a.m. He entered into an intersection, and struck a vehicle driven by the two victims, both victims died as a result of the injuries sustained in the accident. Wilson was transferred to Truman Medical Center in Missouri at about 2:30 a.m., and was given a blood test at 3:30 a.m. This test was ordered by the doctor and revealed a BAC of .136. Afterwards, Officer Garrett of the Kansas City, Kansas Police Department requested the nurse do a second blood draw. Garrett advised Wilson of whom he was and he was there for a blood sample. Garrett complied with all implied consent requirements and the Defendant allowed the blood draw. KBI testing reveals the BAC of the second blood test to be .12.
The appeal was based on four grounds. The first ground was the second blood test was illegally obtained due to Officer Garrett not being authorized in Missouri, and therefore could not legally request the blood draw. The Court refused to address the issue, as the first test, combined with the second, was cumulative, and the first test was admitted into evidence. The second argument was he was not allowed to argue his theory of the case in closing argument. The Court stated there was argument of causation proffered by defendant. The third ground of appeal was no lesser included instruction of DUI was included. Again the Court of Appeals finds error, but it again finds the jury‘s verdict would not have been changed had the lesser included instruction been given. The final argument is he was improperly impeached, and his post-arrest silence safeguard was nullified. Again, the Court of Appeals found there was error, but it again found the error was inconsequential.
DC-70-REFRESH MEMORY
Wolfe v. Ks. Dept. of Revenue 142 P.3d 752, 2006 WL 2716060 (2006) ***UNPUBLISHED***
Wolfe is appealing a decision of the Ford District Court to affirm an administrative order of the Ks. Dept. of Revenue suspending his license. At the revocation hearing, Wolfe stated the implied consent notices were not read to him. Deputy Duncan, who did not have the certification required to give a breath alcohol test, arrested Wolfe. Assistant Chief Spooner gave Wolfe the test, and he blew higher than .08. The administrative hearing officer found Wolfe was provided the requisite written and oral notices. At trial, Spooner said he could not independently recall whether he gave the implied consent advisories to the Defendant, but it was his
237
practice to read the DC-70 to an arrestee. Spooner went on to indicate he placed his handwritten notes on another copy of the DC-70 and next to paragraph three, which indicates oral and written notices were given to the Defendant, his handwritten initials appeared. Spooner indicated he would only have initialed the form had he given the notices. The Court of Appeals stated there upon refreshment of his recollection, he explained his actions and identified his initials, and his testimony conformed to the police report written by Deputy Duncan. Affirmed.
REFUSAL-ADMISSIBILITY OF FST
State v. Weber 142 P.3d 338, 2006 WL 2661487 (2006)
***UNPUBLISHED***
Weber was pulled over after another driver noticed erratic driving. Deputy had Weber perform field sobriety tests, and Weber failed the alphabet test, the walk-and-turn test, the finger to nose test, and the horizontal gaze nystagmus test. Weber refused a blood test. Jury found Weber guilty of felony DUI. Weber appealed, and his main issue on appeal is suppression of the field-sobriety tests and refusal to take the blood test. Weber also claims reasonable suspicion was not present when the officer stopped his vehicle. The court claims a ―traffic violation alone gives an officer reasonable suspicion for an initial stop, even if the stop is pretextual.‖ On the main issue of appeal, Weber contended the Deputy did not comply with implied consent parameters when asking for the blood test. The Court of Appeals stated, ―Immediately after this initial request, however, McBride arrested Weber, provided the advisories, and again requested a blood test. Weber refused both requests. Based upon these facts, McBride substantially complied with K.S.A. 2005 Supp 8-1001(b) and (f).‖ In regards to the suppression of the field sobriety tests, the State argued the conducting of field-sobriety tests is an issue of weight, and not one of admissibility. The Court agrees, stating, ―A defendant‘s ability to perform field sobriety tests is obviously relevant to a DUI charge.‖ The Court also states, ―Weber has failed to establish the field sobriety tests were not performed in a reliable manner. The probative value of the field sobriety tests was not substantially outweighed by the risk of unfair prejudice.‖
WRITTEN DOCUMENT—BEST EVIDENCE
State v. Alfrey 137 P. 3d 1093, 2006 WL 1976517 (2006)
***UNPUBLISHED***
An Atchison Police officer was dispatched to a restaurant in response to a complaint a man was harassing employees. As the officer drove around the restaurant, he saw a truck matching the description provided by several customers concerning the disturbance. While following the truck, the officer observed it being driven erratically. The truck stopped at the side of the road and the officer pulled in behind it. The officer approached Alfrey, the driver, and saw several empty beer cans in the bed of the truck. The officer also noticed an odor of alcohol coming from the Alfrey, Alfrey had trouble getting out of the truck, had to steady himself, his speech was slurred and he was unable to get his driver‘s license out of his wallet. When asked if he would perform some filed sobriety tests, Alfrey put his hands in front of him and told the officer to go ahead and take him to jail because he was drunk. Alfrey agreed to perform several field sobriety tests. The officer reported Alfrey appeared to be extremely intoxicated and arrested Alfrey for DUI. The officer gave Alfrey a copy of
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the DC-70 form and read the form to Alfrey by using another copy of the form. After reading the form, the officer put it in Alfrey‘s pocket and did not keep a copy of the completed form he had given to Alfrey. Blood was obtained from Alfrey and KBI test results showed a BAC of .31. Prior to trial, Alfrey moved to suppress the results of the blood tests. The court denied the motion finding while better practice would have been for the officer to have kept a copy of the form he read to Alfrey, the officer was not required by statute to produce written documentation he had provided written notice to Alfrey regarding implied consent. Alfrey was subsequently convicted. Alfrey appealed his felony conviction of DUI alleging the trial court erred in denying his motion to suppress the results of his blood test. The court affirmed the trial court‘s decision finding there is no statutory requirement the State establish by written documentation it complied with the implied consent statute. The court found the officer‘s oral testimony he had given Alfrey oral and written notice was substantial competent evidence to support the court‘s decision.
BILLED FOR TESTING
Earley v. Ks. Dept. of Revenue 130 P.3d 1247, 2006 WL 851309 (2006)
***UNPUBLISHED***
Earley was driving in Saline County when he saw a DUI checklane. He turned down a dirt road, and then decided to go back, and he entered the lane. When approached by a trooper, he stared straight ahead and did not respond to the trooper. Earley initially said he wasn‘t drinking, and then admitted he had been. He was removed and asked to perform field sobriety tests. On the walk and turn, he stepped off the line, failed to touch heel to toe several times, and turned improperly. On the one-leg stand he swayed and put his foot down twice. The trooper also smelled alcohol on Earley‘s breath and felt he was DUI and could not safely operate the vehicle. There were also unopened beer cans found in his car. Earley would not blow properly into the PBT, but it showed .07 anyway, so Earley was arrested. Earley agreed to a blood test. At thehospital he was told he would have to pay for it, however, he was later instructed by both hospital staff and the trooper he would not. He still refused the test. His license was suspended for one year. He appealed; claiming there was not PC that he was DUI and had refused to submit to testing. The court found there was ample evidence to suspect Earley of DUI. On the issue of his refusal, the court found he was clearly told he would not be billed for the tests, therefore the fact he had been initially told he would have to pay for the test did not interfere with the reading of the implied consent form. Affirmed.
IMPLIED CONSENT – DC27 - DISMISSAL
State v. Jones 114 P.3d 190, 2005 WL 1561437 (2005)
***UNPUBLISHED***
The Court sustained the State‘s appeal arguing because there was no prosecutorial misconduct; the mere granting of a new trial to the defendant does not implicate double jeopardy. Jones was charged and tried for failure to maintain a single lane, transporting an open container, and DUI. During the trial, the State introduced evidence of an Intoxilyzer 5000 test but failed to produce either the DC-27 or DC-70 form. The trial court overruled the defendant‘s objection and the breathalyzer results were admitted into evidence. At the conclusion of the trial, the jury returned a verdict of guilty on each charge. Prior to sentencing, Jones filed a motion for acquittal and a motion for a
239
new trial. The trial court granted his motion based on the state‘s failure to introduce either the DC-27 or DC-70 form at trial. The trial court ordered a new trial. Prior to the second trial, Jones filed a motion to dismiss on the grounds a second prosecution would violate the Double Jeopardy Clauses of the Kansas and United States Constitutions. The trial court agreed and dismissed the charges against Jones with prejudice. Upon inquiry by the prosecutor the court expressly stated it made no finding of prosecutorial misconduct. The Court noted there are generally no double jeopardy implications to a second prosecution for the same offense when an initial conviction has been invalidated at the behest of the defendant. The Court stated when a new trial is granted on the motion of the defendant in a criminal prosecution the defendant is in the same position as if no trial had been had. The only exception is more prosecutorial misconduct designed to provoke a motion for a new trial, which is not present in this case. The Court therefore concluded the district court erred in dismissing the charges against Jones. There is no double jeopardy implications in this case to a second prosecution for the same offenses due to the absence of prosecutorial misconduct specifically intended to provoke the defendant's motion for new trial.
BLOOD TEST—PROBABLE CAUSE
State v. Befort 103 P.3d 993, 2005 WL 81499 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed suppression of blood test evidence in a DUI case. The Court held the officer did not have probable cause the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. Defendant was asked to take a breath test after the implied consent advisory was read to him and defendant refused this test. Defendant was then taken to a hospital where a blood sample determined defendant‘s BAC to be .14. Trial court suppressed the evidence of the blood test. On appeal, the State argued the trial court erred in suppressing the evidence because the officer had probable cause to conduct a warrantless search and the officer could have Befort's blood drawn without a warrant. The State further argued the court should strike K.S.A. 8-1001(h), in that the legislature was encroaching on the executive branch's ability to investigate the crime of DUI by impermissibly restricting the law enforcement. KSA 8-1001(h) states if a suspect refuses to submit to testing under K.S.A. 8-1001, additional testing shall not be administered unless there is probable cause to believe the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. The Court of Appeals stated KSA 8-1001(h) applies and the officer did not have probable cause the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. The Court also refused to strike the statute, noting the State did not provide law in support of its argument. The suppression was affirmed.
DC-70 FORM—ADMISSIBILITY AT TRIAL
State v. Atkins 86 P.3d 1025, 2004 WL 719292 (2004)
***UNPUBLISHED***
The Court of Appeals held admission into evidence of the implied consent advisory form, or "DC-70" form, intended for presentation to suspect in advance of breath, blood, or urine tests, was not abuse of discretion in a prosecution for DUI, where
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the form did not disclose criminal penalties facing defendant, but merely set forth administrative consequences of refusal to be tested and failure of tests proposed, form did not suggest or imply defendant had criminal history, and form was admissible as reflection of defendant's refusal to submit to blood test.
BAT—IMPLIED CONSENT—ADVISORY NOTICE
Shields v. Ks. Dept. of Revenue 95 P.3d 135, 2004 WL 1812660 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a license suspension for refusal to take a breath test. The Court held Shields‘ request for a lawyer amounted to a refusal of the breath test and the further explanation by the officer, although not entirely correct, did not cause the refusal because Shields had already refused. On October 30, 2001, Shields was contacted by Officer Clinton Ross after an accident and was later asked to take a breath test. Shields was given the written and oral implied consent advisory and, when Officer Ross asked Shields if he would submit to a breath test, Shields responded he would like to speak with an attorney. Shields had been arrested for DUI on six prior occasions. Shields argued he was not provided with proper implied consent advisory notices and his driver's license was improperly suspended. The Court noted a driver's consent to have the State perform one or more tests to determine the presence of alcohol or drugs in the driver's body is implied by their decision to operate a vehicle upon public highways. Consent to take a chemical test is implied but not mandatory. A licensee has a statutory right to refuse to take a chemical test of blood, breath, or urine. However, before a blood, breath, or urine test may be administered, the person requesting the chemical test must give an oral and written implied consent advisory. Once an implied consent advisory is read, if a licensee requests to speak with an attorney, this conditional response is not consent to take the test but is a refusal. The Court held Shields did not demonstrate Officer Ross's statements caused the refusal since he refused to take the test prior to the officer's further explanation. Even if inaccurate, the officer's statements after the first refusal would be harmless error. Shields was provided the proper oral and written implied consent advisory prior to his refusal to take the breath test. He was informed his license would be suspended upon refusal to take the test.
UNDER 21-ACTION OF COURT REVIEW
Batliner v. Ks. Dept. of Revenue 90 P.3d 378, 2004 WL 1176606 (05/21/04)
***UNPUBLISHED***
Deputy Rushmeyer stopped Batliner for speeding and failing to maintain a single lane. Batliner was later placed under arrest for DUI. He was read the implied consent advisory along with the under 21 advisory and agreed to take the test. The test indicated a BAC of .182. The KDR suspended Batliner's driving privileges for a period of one year. Upon appeal Batliner stated the notice was improper for under 21 years of age because the phrase "but less than .08" was not read or in print. The Court determined 8-1001 (g) any failure to give the notice is required by K.S.A. 8-1567a and amendments shall not invalidate any action as a result of the requirements of that section. The Court noted Batliner was given written and oral notification of the following: (1) if he tested .08 or greater, his license would be suspended for one year (2) if he tested .02 or greater his license would be suspended for thirty days on his first occurrence and for
241
one year on his second). The Court determined the DC-70 document Batliner was clearly informed the actual risk to him if he submitted to the breath test. Batliner was adequately informed of the law under K.S.A. 8-1001(f)(F) and K.S.A. 8-1567a (b)(2). The Court stated substantial compliance with statutory provisions was sufficient. The Court stated they must review whether or not Batliner suffered actual prejudice because of the omitted language of the implied consent. The Court was unable to find prejudice. The Court indicated the trial Court could either sustain the revocation order of the Department or reverse the revocation order and direct a reinstatement of the license. The statute did not authorize the trial Court to modify or change the order of the Department revoking a license.
BAT—IMPLIED CONSENT ADVISORY
State v. Caudill 92 P.3d 1147, 2004 WL 1542495 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction, holding the officer substantially complied with notice requirements of the implied consent statute. The relevant fact is the arresting officer gave Caudill a written copy of the Implied Consent Advisory form and directed Caudill to read the form out loud. The Court answered the question of whether the statutory requirement of an oral recitation of the advisories may be accomplished by the driver's reading the implied consent form aloud in the presence of the arresting officer. Under the facts of this case, the Court found Caudill's audible recitation substantially complied with the statute. The Court stated they do not endorse the method employed to provide the oral notice and, under different facts, they might have determined the driver's reading aloud was not substantial compliance with the oral notice requirement. However, Caudill made no claim he misread the form or he did not understand the advisories. Caudill admitted he told both the arresting officer and the deputy who administered the breath test he understood the advisories; Caudill initialed the consent form certifying he understood his rights. And this was Caudill's third offense, so one might presume he had previously heard the advisories.
IMPLIED CONSENT FORMS—SUBSTANTIAL COMPLIANCE
Dye v. Ks. Dept. of Revenue 86 P.3d 1025, 2004 WL 720118 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a driver‘s license suspension. The Court of Appeals held substantial compliance with oral and written notice provisions of implied consent law is sufficient. The court stated although the advisory sheet was not physically transferred to the defendant prior to her refusal to submit to the test, Dye's testimony indicates the advisory was presented to her for her consideration. Thus, the police officer substantially complied with notice requirements under implied consent law and Dye‘s driver‘s license was appropriately suspended.
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IMPLIED CONSENT—REASONABLE GROUNDS
Larkins v. Ks. Dept. of Revenue 102 P.3d 503, 2004 WL 2977481 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a suspension of a driver's license. The Court held the arresting officer had reasonable grounds to request testing under the implied consent law. The Court stated an officer can request a blood or breath test when the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both. Reasonable grounds equates with probable cause. The Court stated the officer had reasonable grounds to request the test, and the suspension was affirmed.
BAT—CHECKPOINT—KSA 8-1001
State v. Davenport 78 P.3d 1202, 2003 WL 22697579 (2003)
***UNPUBLISHED***
The Court of Appeals reversed a district court‘s suppression of blood alcohol test results and remanded. The Court held defendant had been "in custody," as statutory element for requiring blood alcohol test. Davenport initially came into contact with law enforcement officers at a DUI sobriety checkpoint established by the Sedgwick County Sheriff's Department. Two officers approached Davenport's vehicle in the checklane, made contact with Davenport, and noticed an odor of alcohol. They also ascertained Davenport had consumed "a few drinks", accepted Davenport's voluntarily proffered driver's license, and ordered Davenport to exit the vehicle for field sobriety tests. One detective escorted Davenport to a separate area being used to conduct and videotape field sobriety tests, while the other officer drove Davenport's vehicle to a separate parking lot. The other officer delivered Davenport's car keys to the detective. The detective directed Davenport to a store-front area where the Breathalyzer equipment was located. After receiving the implied consent warnings, Davenport agreed to take the breath test, which he failed, resulting in his DUI arrest. Davenport moved to suppress the breath test results, claiming an illegal stop and arrest. At the hearing, Davenport was permitted to raise the additional argument, at the time the test was performed; he was not under arrest or in custody for the purpose of KSA 8-1001(b). The district court eventually ruled the DUI checkpoint was lawfully conducted and Davenport's initial stop was valid. However, the district court suppressed the breath test results based upon its finding Davenport had not been arrested or otherwise taken into custody when the detective requested the test. The State appealed the ruling on the basis Davenport was in custody, albeit he was not arrested, when the detective requested the test. The Court of Appeals held defendant had been "in custody," as statutory element for requiring blood alcohol test. Reversed and remanded.
REASONABLE SUSPICION—PROBABLE CAUSE—IMPLIED CONSENT
Mayes v. Ks. Dept. of Revenue Slip opinion, 2003 WL 21948325 (2003)
***UNPUBLISHED***
The Court held the officer had reasonable suspicion to stop driver; officer had probable cause to arrest driver for DUI of alcohol; evidence supported finding driver was in custody for purposes of implied consent law; and evidence supported
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finding officer gave driver proper notice under implied consent law. Originally, a Pratt police officer was following Mayes' vehicle. There were two vehicles in front of Mayes, and a Jeep was between the officer and Mayes. The officer testified the Jeep was properly in its lane, but that he could see Mayes' vehicle go left of center and continue left of center for two and one-half blocks. There was no centerline on the road, but the officer stated he could tell Mayes was left of center in relation to the Jeep, the overhanging lights, and from where traffic use had discolored the brick surface on the road. The officer pulled Mayes over for driving left of center. The officer testified Mayes used the doorframe to balance himself while exiting the car. Mayes took a preliminary breath test, and the results indicated a blood alcohol level of .157. The officer put Mayes in the front passenger seat of the patrol car. He gave Mayes written and oral notices of the implied consent advisory and then Mayes refusedto take a blood test. He then arrested Mayes for DUI. Mayes sought review of decision of Dept. of Revenue suspending his driver's license following refusal to take blood test. Affirmed.
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B. Implied Consent
i. Additional Testing/Right to an Attorney
***PUBLISHED CASES***
NO RIGHT UNTIL AFTER TAKING POLICE REQUEST
State v. Tedder 38 Kan.App2d 141, 163 P.3d 311 (2007)
This is an interlocutory appeal made by the State based on the Reno District Court‘s decision to suppress breath test results. Tedder was found sleeping behind the wheel of his truck with his vehicle still in gear. The officer smelled a strong odor of alcohol coming from Tedder, and there was an open beer can in the truck‘s console. Tedder was taken to the station, and before being read his implied consent notices, requested an attorney. The implied consent notices were then read. Tedder asserts he has a constitutional and statutory right to an attorney prior to blowing in a breath test. The Court of Appeals held there is no constitutional right to an attorney prior to being given a breath test, and that asking for a breath test does not constitute a custodial interrogation. In regards to Tedder‘s statutory right to an appeal under K.S.A. 8-1001(f)(I), the Court of Appeals ruled Tedder has a right to consult with an attorney, but only after taking the breath test. The court held there can be no violation of a defendant‘s right to consult an attorney unless the defendant asks for one after successful completion of the breath test, and is not allowed one.
APPEARANCE BOND—REASONABLE OPPORTUNITY
City of Dodge City v. Ibarra 35 KanApp2d 643, 133 P.3d 159 (2006)
Ibarra was arrested for DUI. Ibarra did not speak much English and the arresting officer had difficulty communicating with him. After Ibarra submitted to a breath test, the officer informed him he had a right to obtain a blood test from the hospital at his own expense. Ibarra nodded his head indicated he wanted the blood test, but the officer did not believe Ibarra understood was being said. An independent blood test was not taken and Ibarra was transported to jail. Ibarra was tried and convicted in municipal court for DUI and other traffic infractions. Ibarra filed a timely notice of appeal to the district court but did not sign the ordered appearance bond document or pay any money to the district court. The district court dismissed the appeal for lack of jurisdiction. The Court of Appeals held in the interests of fundamental fairness, the Ortiz exception to jurisdictional requirement for appeal to district court from conviction in municipal court should be applied and even though the defendant failed to file and personally sign an appearance bond, the district court erred in by refusing to accept jurisdiction. Before the district court dismissed the case, Ibarra filed a motion to suppress the breath alcohol test results based on the argument he had requested a blood test but was denied. The court held the defendant did not clearly request independent blood tests after being arrested for DUI. The Court of Appeals affirmed the trial court‘s denial of Ibarra‘s motion to suppress, reversed the municipal appeal dismissal and remanded the case to the district court.
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BAT—RESCISSION OF REFUSAL—RIGHT TO ATTORNEY
City of Dodge City v. Wipf 33 Kan.App.2d 51, 99 P.3d 635 (2004)
The Court of Appeals affirmed the trial court‘s suppression of blood test results because of the officer‘s failure to allow the defendant to consult with an attorney after the blood test was performed. The Court also held the defendant effectively rescinded his initial refusal of the test. After Wipf was initially arrested for DUI, the arresting officer transported him to the police station for the purpose of administering the Intoxilyzer 5000. Wipf initially refused to consent to any blood alcohol testing at the police station, asking that he be able to call an attorney. The officer told him he could do so after the testing. After the officer finished reading the implied consent advisory, he again asked Wipf to submit to a breath test. Wipf again refused but requested a blood test. The officer acquiesced. The officer transported Wipf to the hospital, where his blood was drawn. While enroute back to the detention center, Wipf asked to call his attorney. The officer told him the jailers would let him use a phone at the detention center. Wipf testified at trial the jailer told him he could not call anyone from the detention center. The jailer testified Wipf was uncooperative during the booking process and Wipf refused to sign documents because "he wanted to speak to an attorney." The Court held under the plain language of KSA 8-1001(f)(I) which must be construed in Wipf's favor, Wipf had the right to consult with an attorney after completion of the testing. The remedy for a violation of KSA 8-1001(f)(I) is suppression of the evidence. The Court affirmed the district court‘s suppression of Wipf‘s blood test results.
INDEPENDENT BAC TEST-HOSPITAL REFUSED
Mitchell v. Ks. Dept. Of Revenue 32 Kan.App.2d 298, 81 P.3d 1258 (2004)
The Court of Appeals upheld a driver‘s license suspension. The Court held police officer did not violate the statute allowing a person to have an additional test for alcohol or drugs conducted by a physician of their own choosing, and the trial court‘s admission of commercial truck driver's BAC test results was not an abuse of discretion. Mitchell was arrested by the trooper and taken to the sheriff's department where he failed a BAC test. After the test was administered, Mitchell requested he be taken to a hospital for an independent BAC test. At the hospital, the trooper was told the test could not be performed unless the highway patrol could be billed for it. The highway patrol could not be billed for it, and the hospital would not allow Mitchell to pay for his own test. Mitchell did not request to be taken anywhere else for an independent test. Because Mitchell failed the BAC test, the KDR suspended his commercial driver's license for 1 year. Mitchell's driving privileges were also suspended for 30 days with restrictions in place for the remainder of one year. In his appeal to the district court, KDR's rulings were affirmed. On appeal, the Court of Appeals held the trooper did not violate the statute allowing a person to have an additional test for alcohol or drugs conducted by a physician of the person's own choosing, because the hospital staff refused to administer an additional BAC test to Mitchell and Mitchell failed to request that he be taken to a different testing site. The Court also held admitting the State‘s BAC into evidence was not an abuse of discretion in the proceeding to suspend Mitchell‘s license.
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BREATH TEST—CONSENT—EXCLUSIONARY RULE—SUFFICIENCY OF EVIDENCE
State v. Hartman 26 Kan.App.2d 928, 991 P.2d 911 (2000)
The Court of Appeals affirmed a DUI conviction. The Court held the results of breath test administered to defendant by arresting officer were admissible even though defendant's consent to breath test was based upon officer's mistaken assurances defendant could subsequently obtain blood alcohol test at his own expense, and defendant's conviction was supported by evidence. Hartman agreed to submit to a breath test if the arresting officer would transport Hartman to a nearby hospital for a blood test at Hartman's expense. At the hospital, emergency personnel refused to administer a blood test without a doctor's consent, and Hartman was ultimately unable to obtain a test. Both the officer and Hartman testified they had expected the hospital to administer the test and were surprised when the hospital personnel refused--in fact, Hartman had obtained a similar blood test at the same hospital in the past. Hartman moved to exclude the results of the breath test prior to trial. The district court denied the motion. On appeal, the Court of Appeals ruled this was not the type police misconduct the exclusionary rule sought to prohibit. The Court upheld the use of the breath test and found the failed test, along with the other evidence, was sufficient to guarantee a conviction of the defendant.
BAC—INDEPENDENT TEST—HGN TEST—FRYE—DISCRETION
State v. Chastain 265 Kan. 16, 960 P.2d 756 (1998)
The Supreme Court affirmed a DUI conviction. The Supreme Court held (1) defendant retained right to secure independent testing for BAC after blowing inadequate sample for breath test; (2) officer's statement to defendant that blood test would register higher than breath test did not deprive defendant of his right to additional testing; (3) evidence of HGN testing could not be admitted without establishing requirements of Frye; and (4) decedent's contributory negligence was circumstance to be considered in determining whether defendant's conduct was proximate cause of decedent's death for purposes of involuntary manslaughter. Following defendant‘s arrest, defendant was unable to blow a sufficient sample on the breath test, although the machine registered a .210 concentration of alcohol. Defendant requested a blood test. The officer told the defendant the blood test would register higher, so the defendant decided against the blood test. Defendant was convicted of DUI as lesser-included offense of charge of involuntary manslaughter. On appeal, the defendant claimed the results of his breath test should have been suppressed and the trial court abused its discretion in the sentence imposed. The State cross-appealed on two questions reserved: (1) the exclusion of horizontal gaze nystagmus testing and (2) instructions on involuntary manslaughter. The Court agreed with the trial courts resolutions of both questions reserved and affirmed the conviction and the sentence. The Court explained the officer‘s statement to the defendant concerning the blood test was not unreasonable interference with suspect's right to additional testing for BAC, and that defendant‘s sentence was within the statutory guidelines, where judges receive much discretion. The Court also stated HGN testing was scientific evidence which had not achieved general acceptance within relevant scientific community, and therefore evidence of such testing could not be admitted without establishing requisite foundation under Frye. The Court also stated victim‘s contributory negligence is a circumstance to be considered along with all other evidence to determine whether defendant's conduct was or was not the proximate cause of decedents' deaths.
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ADDITIONAL TEST—RIGHT TO COUNSEL—EXCLUSIONARY RULE
State v. Kelly 14 Kan. App. 2d 182, 786 P.2d 623 (1990)
The Court of Appeals reverses a conviction for DUI, and remands for a new trial. The Court holds where defendant was repeatedly denied the right or opportunity to consult with an attorney before taking a second test, 8-1001(f)(1)(e) requires suppressing the admission of the results of the first test. The Court acknowledges under the implied consent statute there is no right to counsel prior to submitting to the first test, State v. Bristor, 236 Kan 313, (1984), but holds the Legislature clearly intended that a right to counsel attaches once a defendant submits to the first test. The Court then holds the statutory sanction for failing to allow an independent test (second test) under 8-1004, and the constitutional sanctions for Miranda violations should be extended to cover this situation, and the results of the first BAT should be suppressed. (The implications of this case are great: if a statutory proceeding fails to impose sanctions, the Court may impose sanctions from other statutes, and impose constitutional sanctions where no constitutional rights exist. The case may even be argued for the proposition that if a second interrogation or second search is illegal, the results of a legal first interrogation or first search may also be suppressed.) (Sedgwick, 63598, 1/26/90)
INDEPENDENT TEST—WRITTEN RECORD
State v. Kristek 14 Kan. App. 2d 77, 781 P.2d 1113 (1989)
The Court of Appeals reverses suppression of a BAT, holding while 8-1001 gives a right to a second test, it does not require defendant to be asked if he desires a second test, nor is there a requirement that the answer be recorded. Absent a constitutional reason, the trial court did not have authority to impose such an additional requirement. (Sedgwick, 63433, 11/9/89)
UNREASONABLY INTERFERE-IN JAIL
State v. George 12 Kan.App.2d 649, 754 P.2d 460 (1988)
George was stopped and eventually arrested for DUI. George was taken to the Sheriff's office. He refused to perform any coordination tests or answer certain questions; however he agreed to take a breath test. The officer read the implied consent advisory to George. George had difficulty understanding the meaning of statement number six, which informed George he had a right to an attorney and to additional testing if he agreed to take the State's breath test. The breath test was administered at 7:15 p.m. indicating George had a BAC of .15. After the breath test George went through the jail procedures at approximately 7:45 - 7:50. After being processed George requested to talk to an attorney. He was permitted to do so. George was then placed in an isolated holding cell until the bondsman or his wife came to pick him up. Another officer was walking near George's cell when George asked if he could be taken for an independent blood test. The arresting officer was still at the jail completing George's paperwork and refused the request for an additional test. The arresting officer testified he refused because one, they would have to transport George to the hospital, two, they would have had to have either the doctor on call or the lab tech come down and draw blood. The arresting officer said the second test would have occurred two hours and ten minutes after he saw George driving his car. George stated he had not been permitted to obtain a blood
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test after having submitted to the State's breath test and consequently the State's test should be excluded. The Court stated the right of a reasonable opportunity to have additional testing when arrested for DUI is secured by statute, K.S.A. 8-1004. The issue before the Court is whether the arresting officer provided George with a reasonable opportunity to have additional testing. The Court looked at the factors of the arresting officer was still at the jail working on George's case. The Court noted there is no specific time within which an additional alcohol concentration test must be given. What is a reasonable opportunity will depend on the circumstances of each case. While the State is not required to provide a DUI suspect with a free additional test, it may not unreasonably interfere with a suspect's reasonable attempt to secure an additional test at his own expense. Reversed and remanded.
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***UNPUBLISHED CASES***
HANCUFFED IN HOSPITAL
State v. Brown 196 P.3d 1232, 2008 WL 5234533 (12/12/08)
***UNPUBLISHED***
Brown was involved in a single–vehicle accident. The defendant was found slumped over in the driver‘s seat and wearing a Bud Light wristband on his left wrist. The Officer smelled a very strong odor of alcohol coming from the defendant. The officer asked about the odor and Brown responded he probably drank ―way too much‖ that evening. Brown was transported to the hospital. While there the officer began asking Brown about the collision. Miranda was not given. Brown made several incriminating statements during this time. While at the hospital, Brown became more belligerent and eventually was handcuffed to the hospital bed. Implied consent was read to Brown and Brown stated he would submit to a blood test and a breath test. Brown again became obstructive and blood was not taken. The officer arrested Brown after being released from the hospital that evening. Brown was transported to the jail and again the officer read the implied consent form to Brown and he agreed to a breath test which indicated 0.159. Brown made no further requests and was placed in jail. Brown contends the results of his breath test should be suppressed because he was denied a reasonable opportunity to have additional testing completed after submitting to the breath test. The court noted the State must make a ―reasonable opportunity‖ to obtain additional testing. The State cannot unreasonably interfere with attempts to secure additional testing. In this case Brown failed to request a blood test after he completed the breath test; therefore Brown‘s rights were not violated. Brown next states his statements at the hospital should be suppressed. The officer asked Brown (1) what caused the accident (2) where Brown had been; (3) whether Brown had been drinking. Miranda is required when an accused is subjected to a custodial interrogation. Custody is determined on the ―objective circumstances of the interrogation, not on the subjective views by either the interrogating officers or the person being interrogated. The Kansas Supreme Court set out the following factors to be considered in analyzing the circumstance of interrogation: When and where the interrogation occurred; How long it lasted; How many police officers were present; What the officers and the defendant said and did; The presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; Whether the defendant is being questioned as a suspect or a witness; How the defendant got to the place of questioning; What happened after the interrogation-whether the defendant left freely, was detained, or was arrested. The Court notes these eight things are not exclusive generally the two questions that must be reviewed are: First, what were the circumstances surrounding the interrogation? Second, under the totality of the circumstances would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? Looking at all the circumstances surrounding Brown‘s questioning, the court found under the totality of the circumstance no reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. The statements at the hospital should be suppressed.
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COMMENTS OF OFFICER
State v. Holguin-Ocon 150 P.3d 926, 2007 WL 316808 (2007)
***UNPUBLISHED***
A County Deputy observed a tag registration violation on a vehicle driven by Holguin-Ocon and initiated a traffic stop. Upon approaching the vehicle, the deputy smelled alcohol coming from inside the vehicle and noted Holguin-Ocon's bloodshot, watery eyes and slurred speech. Holguin-Ocon admitted he had consumed three or four beers. After Holguin-Ocon failed two field sobriety tests, he was arrested and transported to the jail where the deputy read to him the implied consent advisory regarding the implications of taking a breath test. Holguin-Ocon consented and his BAC registered at .08. On a second attempt, the machine registered a .081 BAC. Holguin-Ocon was charged Holguin-Ocon with alternate counts of DUI in violation of KSA 8-1567(a)(2) or (a)(3). Prior to trial, Holguin-Ocon filed a motion to suppress the breath test result. At the hearing on the motion to suppress, Holguin-Ocon testified he had requested a blood test on the night of his arrest after he learned he had failed the breath test. According to Holguin-Ocon, the deputy told him he would take him to the hospital for the blood test, but the blood test would show a higher blood alcohol level than the breath test and also the blood test would cost him additional money. Upon learning this information, Holguin-Ocon decided against taking the blood test. The deputy did not recall any of the conversation with Holguin-Ocon about taking the blood test. The district court denied the motion to suppress the breath test result and a jury subsequently found Holguin-Ocon guilty of DUI. On appeal, Holguin-Ocon argues the district court should have suppressed the result of his breath test because the deputy unreasonably interfered with his right to take an additional blood test. First, the court points out it was improper for the deputy to advise Holguin-Ocon a blood test would show a higher blood alcohol level than a breath test. However, based upon Chastain, 265 Kan.16 (1998) the court found this statement alone did not establish Holguin-Ocon was deprived of his right to further testing. The court noted the deputy did not apply any additional pressure on Holguin-Ocon not to take the blood test. The court found the deputy‘s statement the blood test would be at Holguin-Ocon's own expense did not amount to unreasonable interference or coercion. Accordingly, the court found the court did err in denying Holguin-Ocon‘s motion to suppress the result of the breath test. Affirmed.
RIGHT TO ATTORNEY-JAIL PERSONNEL
State v. Nodgaard 149 P.3d 547, 2007 WL 92683 (2007)
***UNPUBLISHED***
A police officer stopped Nodgaard for unsafe starting of a parked vehicle and speeding. After a conversation with Nodgaard, field sobriety testing, and a PBT, Nodgaard was arrested for DUI. At the county jail, Nodgaard was given a copy of the implied consent advisories and the officer read also read the advisories to him. During the reading of that portion of the implied consent that says there is no constitutional right to a lawyer regarding whether to submit to testing, Nodgaard ―mentioned a lawyer,‖ and the officer told Nodgaard, ―[N]o, [you] cannot have a lawyer‖ and continued to read the implied consent. At one point during the advisories, Nodgaard asked for a blood test, which the officer responded he was offering a breath test. The officer concluded reading the implied consent advisories and a breath test was taken yielding a result of .17. Nodgaard did not ask about a blood test after the breath test had been taken, and the officer did not take Nodgaard to get a blood test. The officer did not allow Nodgaard to contact an attorney while he was
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in his custody and did not advise any jail detention officer that Nodgaard wanted to talk with an attorney. Prior to trial, Nodgaard filed a motion to suppress the breath test results, arguing the officer violated his rights to consult an attorney and obtain additional testing. The court denied Nodgaard‘s motion and he was subsequently convicted of DUI. On appeal, Nodgaard argues the district court improperly denied his motion to suppress. The court notes suppression of alcohol test results is the remedy where an officer denies a defendant the right to consult counsel after completion of the required testing. Additionally, the court noted ―the person tested shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing,‖ and the officer's refusal to permit the additional testing renders the testing administered not competent in evidence. However, a person does not have the right to consult with an attorney before submitting to testing or to secure additional testing until after completion of the requested testing by the law enforcement officer. The court noted rather than stating ―no, you cannot have [an attorney]‖ when Nodgaard asked for one, the officer shouldhave stated either ―there is no constitutional right to consult an attorney regarding whether to submit to testing‖ in conformity with the KSA 8-1001(f)(C) or simply ―no, you do not have the right to an attorney at this time.‖ But, the officer did not prevent Nodgaard from attempting to contact an attorney. The court found the mention of an attorney and a blood test during the reading of the implied consent advisories does not trigger an affirmative requirement on the part of law enforcement officers to see that such rights are exercised after testing is completed. The court pointed out Nodgaard made no request for either an attorney or a further test after he learned of the .17 results of the breath test, accordingly the officer did not violate Nodgaard‘s right to obtain an additional test after the completion of the requested testing.
RIGHT TO ATTORNEY
Nelson v. Ks. Dept. of Revenue 117 P.3d 907, 2005 WL 2001738 (2005) ***UNPUBLISHED***
The Court of Appeals affirmed the decision to suspend the defendant‘s driver‘s license. The defendant argued the breath test should be excluded because the officer violated his right to counsel. Nelson was properly stopped for suspicion of DUI. When the trooper asked Nelson to perform field sobriety tests, Nelson made multiple requests to speak with an attorney or his father. The trooper told Nelson he could not speak with an attorney at that time. At the law enforcement center, the trooper gave Nelson a copy of the implied consent form and read the entire form to him, including a notification Nelson had a right to talk with an attorney after completion of the testing. The trooper also read Nelson his Miranda rights and asked Nelson to take a breath test. Nelson blew a .210 on the breath test. After completing the test, Nelson did not request to talk with an attorney or his father. There was a telephone in the room where Nelson was located that Nelson could have used. The Trooper admitted after the testing was completed, he did not ask Nelson directly if he now wanted to use the phone to call an attorney. Nelson testified he did not believe he could use the phone and he did not think to ask for an attorney again because he had been told he basically had no rights and he could not talk to anybody until he was through. The Court found Nelson did not sufficiently invoke his right to counsel because he never made a request for an attorney after the test. The Court held Nelson was not denied the opportunity of consulting an attorney after completing the breath test. The Court also held the police have no affirmative duty to ask the defendant if he or she wished to contact an attorney.
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OFFICERS DUTY—INTERFERENCE
State v. Anderson 123 P.3d 212, 2005 WL 3289431 (2005)
***UNPUBLISHED***
After single car accident, Anderson was transported to hospital. While there, in presence of family and friends, Trooper questioned him. Trooper detected alcohol on his breath and observed bloodshot eyes. He consented to a PBT, and based on the result, a blood test was requested. During reading of implied consent, Anderson twice asked for an attorney and was denied, and a sample was taken. He was charged with DUI, and moved to suppress blood sample arguing his right to an attorney had been denied. Motion was denied and he was convicted at bench trial. He appeals for error in denying his motion. Anderson argues it was the officer‘s duty to provide him with the means of contacting an attorney. K.S.A. 8-1001(f)(1) does not require affirmative obligations on law enforcement officers to procure counsel of a second test, rather it prohibits denial or interference of a person‘s right to counsel or further testing after completion of the requested test. There is no evidence Anderson had his rights denied or interfered with. Further, his friends and family were present and could have assisted him. In the absence of a claim the trooper hindered his desire for counsel, his argument must fail.
AFFIRMATIVE OBLIGATION BY DEFENDANT
State v. Eichem 122 P.3d 42, 2005 WL 2949404 (2005)
***UNPUBLISHED***
Deputy stopped Eichem for no taillights. Eichem took a long time to stop, was unsteady when he exited vehicle to check lights, had strong smell of alcohol on him, and performed field sobriety tests poorly. Deputy transported him to jail and read implied consent form. Eichem indicated he would prefer a blood test instead of breath test. The deputy said he was only talking about a breath test, so Eichem took the breath test, which indicated a BAC of .288. No other tests were done, and Eichem was charged with DUI. Eichem moved for the court to suppress the results because he was denied additional test. District court denied the motion because he did not ask for additional test, he only asked for a blood test in the place of breath test. The statute, K.S.A. 8-1004, places an affirmative obligation upon a criminal defendant to articulate a clear intent to seek additional testing. This was not done by the defendant‘s statement of a preference for a blood test instead of a breath test. The State‘s test results must be suppressed ONLY when a defendant has made a request for ADDITIONAL testing to an officer who refuses to permit such testing. In this case, the question is whether, under the circumstances, a reasonable person in the deputy‘s position would have deemed the defendant‘s statements as a request for additional testing. The court was correct in denying Eichem‘s suppression motion of the test results.
INDEPENDENT BLOOD TEST—INTERFERENCE WITH OPPORTUNITY TO OBTAIN
State v. Huston 86 P.3d 1025, 2004 WL 720126 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held the State did not unreasonably interfere with Huston's right to have an additional blood test. Huston was initially stopped by the Kansas Highway Patrol at approximately 8:38 a.m. for speeding and
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was then arrested for DUI. The DUI arrest occurred at approximately 9:05 a.m. Huston, after his arrival at the detention center, consented to and submitted to a breath test administered by the arresting patrolman. The breath test took place at 9:40 a.m. At some point after Huston submitted to the breath test, he spoke with his mother, and she suggested he request an additional blood test. He followed her advice and made such a request. The officer responded by informing Huston he could get the blood test "on his own time" after he was released. He was released at 10:50 a.m., some 45 minutes after he requested a blood test. Huston testified after being released, he immediately went to the hospital and requested a blood test. Huston claimed he spoke with a nurse who told him he could not get a blood test because the arresting officer was not with him. As a result, no additional blood test was administered. Prior to trial, Huston filed a motion to suppress the results of the breath test based on the fact the detention officer refused to proceed with an additional blood test. The trial court denied the motion to suppress. The matter went on trial to the bench, and Huston was convicted. Huston appealed, and the Court of Appeals affirmed the trial court. The Court held the State did not unreasonably interfere with Huston's right to have an additional blood test.
INDEPENDENT BLOOD TEST—DIVERSION
City of Dodge City v. Turner 85 P.3d 228, 2004 WL 421969 (2004)
***UNPUBLISHED***
Turner was charged with DUI. There was negotiation for diversion. An agreement was prepared and signed by all parties but was not dated. There were negotiations on-going to determine when the diversion would go into effect. Turner was told not to consume alcohol. Turner was observed drinking alcohol. The diversion was never processed and the case wasset for trial. Turner was convicted in municipal court of DUI. Turner appealed the conviction to district court and was found guilty. Turner was not sentenced under the city code but under the state statutory penalties. The City of Dodge City appeals on a question reserved pursuant to K.S.A.2003 Supp. 22-3602(b)(3), claiming Turner should have been sentenced under the municipal ordinance, which had a stiffer penalty. Turner appealed requesting the court enforce the diversion agreement. The Court stated they would not enforce the diversion that did not meet full compliance with the statute i.e., Filing with the city court and forwarding copy to DMV. The court also noted it was improper for the court to sentence under state statute. Stricter penalties set out by municipalities are allowed by state statute. Lastly, Turner appealed claiming his request for an additional test was denied. Turner was arrested at 1:59 a.m. and was first advised of his right to an independent test at 2:17 a.m.; he did not request the test until after his phone conference with an attorney at 3:05 a.m. He was released 50 minutes later and could have procured the independent test at that time, still within approximately two hours of his arrest. Given Turner's own failure to assert his right at the first opportunity and his release in time to have procured an admissible test, the court declined to find his statutory right was denied.
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C. Protocol
***PUBLISHED CASES***
OPERATOR‘S MANUAL—MINIMUM FINE
State v. Wenzel 39 Kan.App.2d 194, 177 P.3d 994, Rev. granted (5/28/08)
Wenzel challenges the adequate evidentiary foundation for the admission of the Intoxilyzer test. K.S.A. 8-1002(a)(3) requires an officer be certified and the testing procedures are done in accordance with KDHE requirements. The officer testified he was trained and certified by KDHE to operate the machine. The officer testified he followed the KDHE procedures in conducting Wenzel's test. Another officer testified the machine had been certified by KDHE and the machine had been regularly tested under KDHE procedures to ensure it was maintained properly. Wenzell contends the State also must show the testing machine was operating in accordance with the manufacturer's operating manual. Wenzel cited Bishop and Lieurance citing the testing procedures were used in accordance with the manufacturer's operational manual and the requirements set out by the KDHE as part of its foundation for the admission of the test results. There was no testimony to indicate any officer reviewed the manufacturer's manual prior to giving the test. The Appellate Court stated this language should be read merely to affirm KDHE has the obligation to prepare testing procedures that are consistent with proper machine usage, which would certainly require KDHE to consider any manufacturer's issued manuals regarding the operation of the testing instruments. In cases after Bishop the Kansas Supreme Court and our Court have each specifically held the testing officers are not required to read the operating manual for themselves, but may instead rely upon KDHE's statement of the required procedures (see Hemple v. KDOR 270 Kan 83 (2000) and State v. Maroney Unpublished decision 2006 WL 3877558 (2006)). The Court noted it would make no sense to require several hundred-law enforcement officers to separately review the manufacturer's manual each week to decide how to perform breath tests using the Intoxilyzer 5000 machine. We are not required to ignore common sense here because the legislature has clearly provided it is KDHE's obligation to distill any important requirements from those manuals into a set of testing protocols and it is KDHE's obligation then to certify each officer's ability to run these machines after appropriate training. There was also a challenge against the District Court for imposing a minimum fine without first considering the defendant's financial resources. Clearly under K.S.A.8-1567 there is a minimum requirement for a fine. The Appellate Court noted it is only when a Court imposes more than the minimum fine under the DUI statute the District Court is required to consider the defendant's financial resources. There was also a challenge to the assessment of the BIDS application. That portion of the case was vacated and remanded with directions. (Review granted only on bid and fine issue)
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INTOX DOCS-CRAWFORD-NOT TESTIMONIAL
State v. Dukes 231 P.3d 558, 2010 WL 1792999 (05/06/10)
Duke's sole argument on appeal is the admission of both the records of the breath test machine certification and Duke's driving record violated his constitutional right to confront the witnesses against him. For the purposes of the Appellate Court reviewing they needed only to determine whether the statements contained in these exhibits were testimonial under Crawford. The custodian for the Intoxilyzer 5000 produced records containing the machine was properly certified. The officer who tested Dukes was certified to run the machine and the standard solution used had the required known value. The Court noted 14 other jurisdictions have held proof of the breath test machine's calibration or certification is not testimonial evidence and thus not subject to confrontation clause restrictions under Crawford. It noted other States determined the routine certification of an operator of a breath test machine is not testimonial. Courts generally upholding admission of these records have emphasized that these records are routinely generated to ensure accurate testing on an on-going basis, not to establish the facts of a specific case. Although they are prepared in anticipation of criminal litigation in a general sense, they are not prepared in anticipation of litigation in a particular case. Appellate Court agreed with the vast majority of Courts. It determined records showing certification or calibration of breath testing machines and operators are not testimonial and thus not subjected to Crawford's requirement a witness be produced for cross-examination. In looking at driving records concerning the confrontation clause the Court noted four jurisdictions have upheld the admission of a driving record through documentary evidence against a Crawford challenge. The Court found a driving record's analogous to the Intoxilyzer-certification documents, and concluded the proof of a defendant's driving record is not testimonial evidence under Crawford. The Court noted this does not preclude a defendant from issuing a subpoena to gain the attendance of a witness who may be examined regarding any legitimate concerns reference these documents. The Court also looked at fines imposed and attorneys fees imposed in this case. In 38 Kan. App 2d 958, the court stated the Supreme court noted the issue was not preserved on appeal and the CA ruling is affirmed.
INTOXILYZER 5000—ADMISSIBILITY—COLLATERAL ESTOPPEL
Schoen v. Ks. Dept. of Revenue 31 Kan.App.2d 820, 74 P.3d 588 (2003)
The Court of Appeals affirmed a driver‘s license suspension. The Court held substantial competent evidence supported the finding the sheriff's deputy substantially complied with KDHE protocol for using breath testing machine, and the fact results from breath test were suppressed in motorist's criminal prosecution for DUI of alcohol did not collaterally estop the district court from admitting evidence in driver's license suspension case. Following his arrest, the Intoxilyzer 5000 test revealed Schoen had a blood alcohol level in excess of .08. Following an administrative hearing February 20, 2002, the KDR suspended Schoen's driving privileges based upon the test failure. Schoen filed a petition for review in Osborne County District Court, and a bench trial was held July 22, 2002. At the bench trial, the deputy testified he failed to visually check the tubing running from the simulator solution to the Intoxilyzer 5000 to make sure it was properly attached. Schoen argued to the court this violated KDHE protocol and, accordingly, the Intoxilyzer results should be inadmissible at trial. The district court rejected the argument, finding the deputy had "substantially complied" with KDHE protocol. The district court admitted the evidence and upheld the driver's license suspension. Schoen was also prosecuted in Osborne County
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District Court for driving under the influence of alcohol arising from the same incident. In the criminal case, the same district judge sustained Schoen's motion to suppress the Intoxilyzer results, finding that the State failed to meet its burden that the evidence was admissible. Schoen appealed. The Court of Appeals affirmed the district court. They held the sheriff's deputy substantially complied with KDHE protocol for using breath testing machine, despite the deputy's failure to visually check tubing running from simulator solution to machine to make sure it was properly attached. They noted the deputy testified he could hear the machine was operating normally, he would have heard difference if tubing were not properly attached, and machine would not even operate if tubing were not properly attached. The Court also held the fact the district court suppressed evidence regarding Schoen‘s breath test in the criminal prosecution for DUI did not collaterally estop the district court from admitting the evidence in driver's license suspension case. They noted the record on appeal in the license suspension case contained nothing from related criminal case, precluding meaningful appellate review of issue, and the state in license suspension case was not in privity with the state in DUI prosecution so as to invoke collateral estoppel doctrine.
MAGISTRATE JUDGE—DE NOVO—IRREGULAR PROCEDURE
State v. Rose 29 Kan.App.2d 355, 28 P.3d 431 (2001) Rev. Den. (9/26/01)
Rose was arrested for DUI and submitted to an Intoxilyzer 5000 test. The machine did not register a reading when he blew into the hose, so the trooper pinched the hose around the mouthpiece, and then it read a BAC of .145. In a hearing before a magistrate judge, Rose moved to suppress the results based on the irregular procedure. The motion to suppress was granted and the State did not appeal the ruling. He was convicted and appealed. The district court heard the case de novo, and the State presented evidence of the BAC test results over Rose‘s objection. The court found the State had failed to establish his BAC was .08 or more. The court also found without the test results, the evidence was inadequate to support his conviction. However, after considering the test results with the other evidence, the court convicted Rose of DUI. He appealed, claiming the court erred by admitting the BAC results after the State failed to appeal the order of the magistrate judge. This court ruled, based on Black‘s Law Dictionary, the magistrate judge is a judge of limited jurisdiction and it is wholly illogical his or her order should bind the general jurisdiction of the district judge. When Rose appealed his conviction before the magistrate judge, it became the obligation of the district judge to try the case de novo, as if it had not been heard and a decision had not been rendered. The evidence was sufficient to convict.
DC-27- FAILURE TO CHECK BOX
State v. Baker 269 Kan.383, 2 P.3d 786 (2000)
Scott Baker was arrested and charged with DUI. The officer failed to check the box on the KDOR form DC-27 certifying the officer had probable cause to believe the defendant was DUI. The defendant submitted to a blood test indicating a BAC of .199. Question: Whether the officers failure to check the box on the DC-27 form which indicated the officer had reasonable grounds to believe the defendant was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs or both mandates suppression of the blood test upon criminal prosecution of
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the defendant for DUI. The Court of Appeals stated the provisions of K.S.A. 8-1001(f)(1) are mandatory. The failure to provide such notice will result in suppression of the test results in a criminal prosecution of the operator. The Court of Appeals stated it has never held failure to properly check the box on the DC-27 form, which certified the notice requirements have been given mandates suppression. The failure to check the box on the DC-27 form requires the State use actual competent testimony to meet the foundational requirements of K.S.A. 8-1002 in order for the blood alcohol test results or refusal to be admissible into evidence. The Court of Appeals held in a criminal prosecution the results of the defendant's BAC or refusal to take the same will be admissible where the State meets the requirements for admissibility contained in K.S.A. 8-1001 and 8-1002. Reversed and remanded.
BAT—MARGIN OF ERROR—RESTRICTED LICENSE—NOTICE
Ruble v. Ks. Dept. of Revenue 26 Kan.App.2d 1, 973 P.2d 213 (1999)
The Court of Appeals affirmed a driver‘s license suspension and reinstated a driver‘s license restriction. The Court held the district court was not required to apply the margin of error inherent in breath test in favor of motorist, and the police officer was not required to inform motorist his driving privileges could be restricted for failing breath test. Ruble was placed under arrest for DUI and was asked to take a DUI breath test. The officer provided Ruble a written and oral implied consent advisory as required under K.S.A.1994 Supp. 8-1001(f). However, the officer did not advise Ruble his driving privileges would be restricted for 330 days following the 30-day suspension period if he failed the test. Ruble agreed to take the breath test which revealed his BAC was .087. Ruble‘s license was suspended for 30 days and restricted for another 330 days. On appeal, the district court affirmed the suspension and reversed the restriction. The district court found Ruble should have been notified of the 330-day restriction before taking the breath test even though such a notice is not required by K.S.A.1994 Supp. 8-1001(f)(1). On appeal to the Court of Appeals, the suspension was again affirmed, and the restriction was reinstated. The Court found the district court is not required to apply the margin of error of the breath test, and police officers are not required to inform drivers being tested for alcohol concentration their driving privileges can be restricted for 330 days for failing the test. The district court was affirmed in part and reversed in part.
BAT—DUE PROCESS—EXPERT TESIMONY
Meehan v. Ks. Dept. of Revenue 25 Kan.App.2d 183, 959 P.2d 940 (1998)
The Court of Appeals affirmed KDR‘s suspension of a driver‘s license following failure of a breath test for alcohol concentration. The Court held statutory and regulatory provisions provided adequate due process protection against erroneous deprivation of driver's license, and expert opinion different test for alcohol concentration or different protocol for test would be more reliable was not relevant to issues involved in proceeding. The Court noted breath testing was sufficiently reliable, and motorists had statutory right to obtain independent test for alcohol concentration. The Court also stated expert opinion that different test for alcohol concentration or different protocol for test would be more reliable was not relevant to issues involved in proceeding concerning suspension of driving privileges and, therefore, was properly excluded by the district court. Affirmed.
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BAT—FOUNDATION—MISTRIAL—PROSECUTORIAL MISCONDUCT
State v. Muck 262 Kan. 459, 939 P.2d 896 (1997)
The Supreme Court affirmed the district court‘s grant of a mistrial but did not uphold the dismissal with prejudice. The Court held (1) officer's testimony regarding his certification to operate breath testing machine was hearsay, violated best evidence rule, and failed to satisfy statutory foundational requirement of K.S.A. 1996 Supp. 8-1002(a)(3) for admission of breath test results; (2) State's intentional conduct in putting on testimony about breath test while aware of its foundation problems supported declaration of mistrial; and (3) remand was required for supplemental findings on whether prosecutor acted with intention of goading defendant into requesting mistrial so as to trigger double jeopardy bar to retrial. At trial, the State failed to produce the arresting officer's certification card for using the Intoxilyzer 5000 breath test instrument for the year of the offense. The officer had his current card and testified he was certified to use the equipment. The officer also testified regarding the results of the test given to the defendant. The district court, relying on Rohr, 19 Kan.App.2d 869 (1994), ruled the officer‘s current Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck's BAT given in the previous year. The district court granted a mistrial with prejudice. The BAT results had been proffered to a magistrate judge prior to appeal to the district court. On State‘s appeal to the Supreme Court, the Court stated the mistrial was not an abuse of discretion, and noted the foundation requirements for a BAT was not met by the officer‘s testimony and current certification card. The Court also held the BAT results were preserved for appeal by the proffer to the magistrate. On the issue of dismissal with prejudice, the Court held when defendant's counsel moves for mistrial, it is generally presumed defendant consented to mistrial, and thus double jeopardy would not preclude another trial, although prosecutorial misconduct can, under some narrow circumstances, preclude further prosecution even though defendant requested mistrial. The Court then remanded to the district court to determine if the prosecutor‘s acts were intentional, and whether the prosecutor goaded the defense into requesting a mistrial.
BAT DEVICE—REPAIRS—HOUSE ARREST
State v. Strand 261 Kan. 895, 933 P.2d 713 (1997)
The Supreme Court affirmed a jury‘s conviction for having BAC greater than .08 within two hours of operating a vehicle, but vacated the sentence issued by district court. The Court held there was no requirement state reinspect breath testing device following repairs in order to maintain certification, and trial court failed to recognize that DUI sentencing scheme permitted alternative disposition of house arrest following minimum 48 consecutive hours of imprisonment. The Court noted there is no requirement State reinspect breath testing device following repairs in order to maintain certification so long as device continues to meet specifications required by the KDHE. Thus, defendant's conviction was supported by substantial competent evidence. Regarding the defendant‘s sentence, the Court stated K.S.A.1996 Supp. 8-1567(g) permits alternative disposition of house arrest following minimum 48 consecutive hours of imprisonment. The statute does not require sheriff of county to implement a house arrest program before court may order such sentence; trial courts may establish individualized programs for defendants, regardless of whether Secretary of Corrections or individual counties have implemented such programs. Thus, the conviction was affirmed and sentence vacated, and remanded for resentencing.
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CERTIFICATION—HEARSAY—BEST EVIDENCE RULE
State v. Rohr 19 Kan.App.2d 869, 878 P.2d 221 (1994)
Defendant appeals DUI conviction, contending that admitting printed evidence of BAT results without proper certification was error. The Court of Appeals considers the issue and reverses on slightly different grounds. While finding testimony the officer and machine were certified was sufficient to establish a foundation, the Court holds admission of oral testimony of the certification alone, without admission of the actual certification documents, violated both the prohibition against hearsay and the best evidence rule. Since the erroneous evidence went to core of the State‘s case, the conviction is reversed. (Ellis, 70663, 7/22/94)
QUESTIONS RESERVED—CONTEMPORANEOUS OBJECTION—SPECIFICITY—FOUNDATION
City of Overland Park v. Cunningham and Dahn 253 Kan. 765, 861 P.2d 1316 (1993)
City brings an appeal on a question reserved after the trial court refused to admit BAT results at two separate trials. The issue is whether an objection of ―lack of foundation‖ is sufficient when a request for more specific objection is made. In one case, since the city voluntarily told the court no further inquiry would be made; there was no foundation to reserve the question for appeal. In the other however, the Court first finds the trial court‘s requesting defense counsel‘s specific written objections, viewing the written objections, then ruling on them, without giving the city a copy or advising of their content, was in violation of Rule 601 of the Canons of Judicial Ethics. The Court then holds an objection for lack of sufficient foundation is a specific objection, and holds the degree of specificity is a matter of judicial discretion. In this case, the foundation for admission of a BAC measured by the Intoxilyzer 5000 was properly laid, and the trial court erred in excluding the results. (Johnson, 68899, 10/29/93)
TESTING SOLUTION
Lincoln v. Ks. Dept. of Revenue 18 Kan.App.2d 635, 856 P.2d 1357 (1993)
In reversing the district court‘s reversal of a driver‘s license suspension, the Court of Appeals holds while the testing equipment, the testing procedures and the operator must be certified, there is no such requirement for the standard solution used to calibrate the equipment. (Shawnee, 68462, 8/4/93)
ADMISSIONS—ACCIDENT INVESTIGATION
State v. Almond 15 Kan. App.2d 585, 811 P.2d 529 (1991)
The Court of Appeals holds a pre-arrest inquiry during an accident investigation in which defendant admitted to drinking does not rise to the level of custodial interrogation requiring a Miranda warning. The Court cites Berkemer v. McCarty, 468 U.S. 420 (1984), for the proposition there is no custody until after an arrest, and statements made prior to that time are admissible. Further, the Court notes under 8-1604, 1611 and 1612 defendant had a duty to provide information about
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the accident. The Court also finds sufficient foundation for admission of the breath test where the officer and the machine were certified, even though the officer had not actually read the operator‘s manual. The fact the officer did not wait 20 minutes after defendant had belched was not critical, since the Intoxilyzer 5000 would have indicated a high mouth alcohol content. The Court also finds no deficiency in the fact there was no testimony equating his breath test result with the statutory definition, finding the statutory presumption in 8-1005 of .10 was met by defendant‘s test results of .172. (Shawnee, 65429, 5/24/91)
INTOXILYZER—COMPLAINT—OATH—ARREST—BOND—VENUE
State v. Lieurance 14 Kan. App. 2d 87, 782 P.2d 1246 (1989)
The Court of Appeals affirms a conviction of DUI, holding the only requirement of swearing to a complaint is in 22-2202(8) which requires an oath. Under 54-101, and oath may be administered by a notary, mayor, clerk of the court, county clerk, register of deeds, as well as a judge. The Court holds the language in Fraker requiring a complaint sworn to before a judge merely means it must be sworn. The Court also takes notice of the post-Fraker amendments to 8-2104 and 8-2106 which allow an unsworn notice to appear in any misdemeanor, but declines to apply the amendments retrospectively. The Court also holds as long as a defendant is promptly released on bond, the failure to take him before a judge under 8-2104 is not prejudicial. The Court also notes an illegal arrest by itself does not void a subsequent conviction. The Court also holds the failure to object to lack of venue at trial, waives the issue. Testimony by a deputy sheriff of matters that occurred while on routine patrol, as well as mention of prominent streets within the county was sufficient evidence of venue to support the finding of venue. Finally, various attacks on the Intoxilyzer, including the 20-minute observation period, certification of the machine and the operator, the standard testing solution, and the failure to express the results as grams of alcohol per 210 liters of breath were considered and rejected by the Court. (Sedgwick, 63290, 11/22/89)
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***UNPUBLISHED CASES***
PAPER JAM-BEST EVIDENCE RULE-LOGBOOK
State v. Ayala 220 P.3d 594, 2009 WL 5063262 (12/18/09)
***UNPUBLISHED***
When operating the Intoxilyzer 5000 the testing result printout got jammed in the printer. No printout was obtained but the officer observed the results on the digital readout of the instrument and recorded the BAC as 0.154 in the logbook. The defendant filed a motion to suppress the testing due to the paper malfunction. The defendant claimed K.S.A. 8-1001(p)(2006) requires ―upon the request of any person submitting to testing,..a report of the results of the testing shall be made available to such person.‖ The district court denied the suppression. There was a stipulation of facts, a plea and the defendant files this appeal. The appellate court states the legal requirements in place to assure a breath test is sufficiently reliable to be admitted had been met. The officer was certified by the KDHE, as was the Intoxilyzer 5000 that was used. Additionally, the test was administered according to KDHE's protocol. Because the proper foundation was laid for the admission of the test result, the fact a printer jam prevented a printout of the result merely goes to the weight of the evidence. Although the printout was not available to verify the breath test result, the stipulated facts included the officer observed the test result displayed was 0.154 grams of alcohol and defendant's breath test result was properly recorded into the subject test logbook. Although the statute requires a ―report of the results‖ it does not specify the type of report. The defendant was given a copy of the logbook where the results were reported and that was sufficient. Affirmed.
HGN ADMITTED-MARGIN OF ERROR-ALCOHOL STANDARD
State v. Ruth 217 P.3d 1018, 2009 WL 3428611 (10/23/09)
***UNPUBLISHED***
A trooper stopped the defendant for speeding and found her to be intoxicated. At trial to the court, the trooper indicated he administered the HGN test and saw nystagmus in both eyes. The defendant was arrested and taken to the jail where she took the Intox 5000 breath test. During the protocol the external standard solution indicated a 0.074 reading which was within the protocol. The defendant‘s breath sample showed her BAC to be .08. The judge found her guilty. The defendant appealed the case based on the admission of HGN citing the Witte case. The appellate court indicated this case is distinguishable from Witte. This case was heard by a judge and not a jury. The fact the judge in ruling on the objections of the defendant concerning HGN stated the actual results of the test were questionable but the trooper could testify as to his own observations. The defendant also claimed as in Witte the HGN evidence could have a disproportionate impact on the decision-making process of the fact finder in light of the fact the external standard was on the low side of its 0.08 true content. The court indicated even if the court had erred with the HGN evidence the State is not required to prove the driver‘s intoxication level has reached the 0.08 threshold within a certain margin of error. The margin of error is just one factor to be considered by the fact finder. The 0.08 reading was sufficient to uphold the conviction.
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MARGIN OF ERROR-WEIGHT GIVEN
State v. Miller 209 P.3d 214, 2009 WL 1766150 (06/19/09)
***UNPUBLISHED***
The defendant was charged with DUI. He was charged in the alternative with 0.08 or greater as well as impaired. The officer testified the instrument was operating properly during the defendant‘s testing which indicated 0.081. As expert testified the Intoxilyzer has a margin of error between 12 and 13 percent which would have made his results as high as 0.89 or as low as 0.070. The defendant was convicted of the 0.08 violation. He was acquitted of the alternate charge of impaired to operate. On appeal, he argued he could have only been convicted of the per se charge if the jury ignored the uncontradicted testimony of his expert. The defendant relies on City of Hutchinson v. Minor 2003 WL 22831740 (2003). The appellate looked to Minor as well as Ruble v. KDOR 26 Kan.App.2d 1 (1999) and determined a jury is free to give whatever weight it wants to an expert witness. Opinion testimony is to be weighed just like any other testimony. It is up to the jury/judge to determine the weight and credibility to give such evidence. There were also charges of jury misconduct and coerced verdict.
OFFICER CERTIFICATION CARD-COMPETENT EVIDENCE
State v. Martens 205 P.3d 791, 2009 WL 1036120 (04/17/09)
***UNPUBLISHED***
The state did not introduce the actual document indicating the Officer was certified to operate the intoxilyzer. The officer did testify he was certified to operate the instrument and had passed all recertification and proficiency tests. The defendant objected to this and appealed the courts overruling it. The appellate court reviewed the inconsistent rulings in the past State v. Rohr 19 Kan.App.2d 869 (1994), State v. Muck 262 Kan. 459 (1997), and State v. Bishop 264 Kan. 717 (1998). The court noted in Baker 296 Kan 383 (2000) the DC-27 form would be sufficient to show the officer was properly certified. The Baker court noted ―State may seek to establish a foundation for admission through the use of the completed DC-27 form, through competent testimony or through a combination of the two‖ strongly suggests COMPETENT evidence alone can be sufficient even in the complete absence of the written document. Ironically in defendant‘s case the DC-27 was never presented. However this appellate court found the information provided by the officer was ―competent‖ evidence and the ruling of the trial court will stand. Affirmed.
MANUFACTURER'S MANUAL-SIMULATOR CHECK
State v. Patterson 203 P.3d 739, 2009 WL 863111 (03/27/09)
***UNPUBLISHED***
The defendant in this case argued the state failed to lay a proper evidentiary foundation for the results of his breath test. The defendant stated the officer did not follow the procedure in the manufacturer‘s operational manual and the officer charged with maintaining the Intoxilyzer 5000 did not verify he had separately checked the simulator portion of the machine. The court indicated State v. Wenzel 39 Kan.App.2d
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194 (2008) is law. The officer who is certified by KDHE to administer breath tests and conduct tests according to KDHE protocol are not required to show the testing machine was also operated in accordance with the manufacturer‘s operational manual. This is because ―the legislature has clearly provided it is KDHE‘s obligation to distill any important requirements from those (manufacturer‘s) manuals into a set of testing protocols, and it is KDHE‘s obligation then to certify each officer‘s ability to run these machines after appropriate training. As far as checking the simulator portion of the machine, the court indicated there is no requirement the State establish each separate component is regularly tested when the machine as a whole is properly maintained and certified. There was also argument made concerning the mandatory fine-no inquiry of defendant‘s ability to pay is required UNLESS the court imposes more than the minimum mandatory fine. Affirmed.
NHTSA STANDARDS-DC-27-‖EXPERT‖ NOT HELPFUL
Hower v. Ks. Dept. of Revenue 200 P.3d 38, 2009 WL 248231 (01/30/09)
***UNPUBLISHED***
Defendant complains the SFSTs were administered ―in an irregular or non-standardized fashion‖ FIELD SOBRIETY TESTS: Appellate court states: Field Sobriety tests must generally be performed in the field, under conditions which may not always comport with NHTSA standards.‖ PROTOCOL: The defendant claimed the DC-27 was not filled out correctly. Specifically the box indicating SFSTs were failed was not marked. The appellate court mentioned State v. Baker 269 Kan. 383 (2000) in which the ―mere failure to check the appropriate box does not require suppression of the test results or refusal where implied consent are met.‖ The State may establish foundation for admission through the use of the DC-27 through competent testimony or through a combination of both. EXPERT: Expert testified in order to obtain reliable results from SFSTs, the test must be performed under NHTSA standardized conditions without deviation. Expert inspected the area in which the SFSTs were done and testified the area was not flat, level, and smooth. The trial court found the physical condition of the street and the NHTSA standards was neither helpful nor necessary to aid the court in understanding the facts and excluded his testimony. Citing Witte 251 Kan. 313 (1992) the appellate court found no error in the exclusion. Affirmed.
DC-27-CERTIFYING OFFICER
Klassen v. Ks. Dept. of Revenue 196 P.3d 1232, 2008 WL 5234545 (12/12/08)
***UNPUBLISHED***
Officer Adams stopped the defendant for drunk driving. Chief Gonzales arrived and began the field sobriety tests while Officer Adams observed. Klassen was taken to jail where he refused the breath test. Officer Adams filled out the DC-27 and signed it. An administrative hearing was held. The defendant argued at the hearing the police officer did not have reasonable ground to believe he was operating a vehicle while under the influence of alcohol as required by K.S.A. 8-1020(h)(1)(A). The suspension was affirmed. The defendant appealed to the district court. During trial de novo the defendant asserted Officer Adams was not qualified to administer the tests nor to draw conclusions from observing Chief Gonzales. Chief Gonzales was neither the arresting officer nor the one that completed the DC-27. The district court concluded ―not being certified to administer the tests, Court finds his (Adams) certification and notice of
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suspension is void‖. The KDOR appeals. The appellate court noted the grounds on which appeal was brought to the district court was not made at the administrative hearing. The district court did not address the underlying issues identified by the defendant the case must be reversed and remanded. The appellate court did give the district court a heads up on its findings: It is not necessary that all information be communicated to the arresting officer. The focus is on all of the investigating officers as a whole. See K.S.A. 8-1001(b) and Angle v. KDOR 33 Kan.App.2d 254 (1988)
CRAWFORD-CALIBRATION CERTIFICATION
State v. Benson 192 P.3d 689, 2008 WL 4416028 (09/26/08)
***UNPUBLISHED***
Benson was charged and convicted of felony DUI. Benson claimed the court violated his constitutional right to confront witnesses (6th Amendment) when it admitted a calibration certificate for the Intoxilyzer 5000. The Court stated ―A calibration certificate is prepared as a routine administrative matter required by the state and is not prepared in anticipation of any particular criminal proceeding. The certificate is non-testimonial in nature and the defendant possessed no constitutional right to confront the individual who performed the calibration test.‖ The court also looked at all the other states that have determined the confrontation clause violation is without merit. Apprendi was also discussed.
DC-27—REPAIRS—NON-ENGLISH SPEAKING
State v. Hernandez 174 P.3d 936, 2008 WL 217046 (2008) ***UNPULISHED***
Hernandez's first challenge is the officer conducting the test did not complete the DC-27 form. Hernandez contends absent a DC-27 form the breath test was inadmissible under the statute. The District Court disagreed. The Appellate Court stated if a DC-27 form is inadmissible to prove facts omitted from its certification, it makes little difference whether the form is completed at all. While the DC-27 form is indispensable in administrative proceedings, in a criminal trial it is only one means of proof for the factors listed in K.S.A. 8-1002(a) (3). During the trial through competent testimony the factors that are listed in the statute were presented and therefore based on the DC-27 that in of itself does not preclude the admission of the breath test. Hernandez also complains of gaps in the maintenance log for the machine on which he was tested, specifically a failure to record the type of repairs made on certain dates in 2003. Hernandez counsel conducted extensive cross-examination of the records custodian and the officer in charge of maintenance regarding the gaps. While some question remains regarding the precise maintenance conducted on certain dates in 2003 both the officer who performed the testing and the officer in charge of maintenance tests find the machine in question was operating properly when Hernandez was tested. The fact the machine received unknown repairs at other times went to the weight of the evidence, not its admissibility. Hernandez next argues the results of the field sobriety tests were unreliable and tainted because the officer did not fully demonstrate each test and also he gave instructions in English. The officer did testify he had not fully performed the tests for Hernandez such as the walk and turn because he would have been required to walk into traffic or turn his back on Hernandez. The officer also stated he did not hold his foot up for thirty seconds while demonstrating the one leg stand but explained to Hernandez he must hold his foot up until I told him the test was
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completed. These explanations were reasonable and do not suggest a deprivation of fundamental rights. Lastly Hernandez argues a false premise of the fact there was no proof at trial Hernandez could not understand English. The officer who conducted the testing said he assumed Hernandez had a limited understanding of English, but Hernandez did exactly what he had explained him to do. Hernandez never claimed to not understand the officer's instructions. Hernandez and the passenger spoke to each other in English. Lastly it was noted by the officer Hernandez did converse in English outside the courtroom during the proceedings. Hernandez also believed that was irrelevant evidence. The Court disagreed this testimony was irrelevant. Hernandez's use of the English language at the Courthouse would have some tendency and reason to prove he sufficiently understood the SFST instructions. Affirmed.
MOUTHPIECE—PRINTER ERROR
State v. Nelson 170 P.3d 922, 2007 WL 4158192 (2007) ***UNPUBLISHED***
Nelson's complaints deal with the failure on the part of the officer to follow the protocol of the KDHE. Nelson first argues since there was no specific reference to the requirement an unused mouthpiece be placed on the breathing tube for the test the foundation for admitting the results of the test was inadequate. The Trooper testified he was certified to operate the Intoxilyzer 5000 and it was current at the time of Nelson's arrest. The Trooper stated he did follow KDHE's protocol. The Court cited City of Overland Park v. Cunningham 253 Kan 765 (1993) stating when a Trial Court has before it evidence of the administrating officer's training and certification on the Intoxilyzer 5000 and the officer's unrefuted testimony he followed the prescribed protocol that is sufficient foundation to admit breath test results. In this case Nelson did not even question the Trooper about the mouthpiece on the test machine; therefore the Appellate Court found the first challenge to the breath test fails. Nelson's second challenge is the instrument did not print the test result as required by paragraph seven of the protocol. Paragraph seven states, "after the final air blank cycle the instrument will print the test result." The Trooper testified the machine's paper printout was difficult to read so the Trooper wrote on the paper printout the result displayed on the screen. The result was .146. A second breath test using the same procedure yielded a result of .146. All according to the Trooper's unrefuted testimony Nelson declined a follow up blood test. It is interesting to note the Trial Court correctly observed paragraph seven of KDHE is not a directive to the person administering the test, but merely a statement the machine will print the test result. The failure of the printer to print a legible test score was not the result of the Trooper's failure to follow the KDHE protocol. Affirmed.
MANUFACTURE‘S OPERATING INSTRUCTIONS-LEARNED TREATIES
State v. Moroney 149 P.3d 25, 2006 WL 3877558 (2006)
***UNPUBLISHED***
Moroney was arrested and subsequently convicted of felony DUI. On appeal, Moroney first argues the trial court erred in refusing to give the defendant‘s proposed jury instructions. Upon his arrest, Moroney submitted to a breath test of which the result was .188. At trial, the police officer who administered the test on an Intoxilyzer 5000 testified he did not observe Moroney take anything in his mouth, smoke, belch, burp, or vomit
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during the 20-minute observation period before the test was given. During trial, Moroney testified he was burping during the observation period. Defendant‘s doctor testified Moroney suffers from acid reflux and Moroney was taking medication for the condition on the day of his arrest. The defendant's expert regarding the protocol for administering a breath test testified if an individual burps or belches before a breath test is given the test result would be inaccurate. Moroney proposed jury instructions instructed the jury about acid reflux and the possibility of error in a breath test if the person belches during the test. The trial court refused to give the instruction. The Court of Appeals noted a defendant has a right to an instruction on his theory of defense supported by evidence. However, the court found Moroney‘s proposed instructions did not appropriately instruct on the law, addressed disputed factual issues, and were not neutral in tone or content. Accordingly, the court found the trial court did not err in refusing to give Moroney's proposed instructions because they were argumentative and dealt with disputed evidence regarding the reliability of the breath test reading. Moroney also argues the trial court abused its discretion by allowing certain evidence to be introduced by the State. First, Moroney contends the State‘s expert was not qualified to testify regarding the absorption rate of alcohol in the human digestive system. The court reviewed all of the foundational evidence as to the State‘s expert and found the expert had the prerequisite education, knowledge, experience, and training to give her opinion as to an absorption rate. Therefore, the court found the trial court did not err in allowing her opinion testimony. Second, Moroney argues trial court erred in admitting an article under the learned treatise exception to the hearsay rule. However, none of the trial exhibits, including the article, were in the record on appeal and the court was precluded from reviewing the trial court‘s decision as to the relevancy of the article. Finally, Moroney argues the lack of evidence as to the manufacturer‘s protocol prevents the admission of the breath test results. The court disagreed; noting the officer who administered the test was certified to operate the testing equipment and testified to following the procedures required by KDHE. Accordingly, the court held it was not a fatal defect the testing officer was not familiar per se with the manufacturer‘s operating instructions.
Affirmed.
WRONG DATE ON INTOX PRINTOUT
State v. Corder 143 P.3d 102, 2006 WL 2806692 (2006)
***UNPUBLISHED***
After observing a traffic infraction, a police officer stopped a car driven by Corder. The officer noticed a strong odor of alcohol coming from Corder and Corder‘s eyes were bloodshot and watery. Corder refused field sobriety tests and a PBT. Coder was arrested for DUI and transported to the police station for further testing. At the police station, Corder agreed to submit to a breath test. The machine used for the breath test was an Intoxilyzer 5000. The officer was certified to operate that machine and the machine was also certified by the State for 2002. The breath test began at 12:18 a.m. on July 21, 2002. The machine registered a 0.19 BAC. The printout prepared by the machine showed a test date of July 21, 2000. The officer responsible for keeping the records for the Intoxilyzer explained at trial the date difference occurs when there is a power failure when the machine is on because the date will revert to a default year, which is 2000. The officer further explained at some point prior to the defendant‘s test, the Intoxilyzer 5000 defaulted to 2000 and he had not yet changed it back to 2002 before the test took place. The officer also testified the log book for the Intoxilyzer 5000 showed Corder was tested in 2002. Ultimately, Corder was
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charged, tried and convicted of felony DUI. The trial court found Corder guilty based solely on the Intoxilyzer 5000 test results. On appeal, Corder argued his conviction for DUI should be reversed because the machine analyzed his breath printed out an incorrect test year. The court noted the record reveals the breath machine reverts to a default year after a power interruption without compromising the accuracy of the test results and the written logbook filled out at the time of the test clearly indicates the test was performed in 2002 and not 2000. Therefore, the court affirmed Coder‘s conviction. In addition, Corder argued the State failed to present evidence at his trial about his prior convictions. The court noted proof of a prior conviction is not an element of DUI to be proved at trial and held the trial court did not error when it did not require such proof. Affirmed.
INTOXILYZER 5000—MARGIN OF ERROR—SUFFICIENCY OF EVIDENCE
City of Hutchinson v. Minor 79 P.3d 795, 2003 WL 22831740 (2003)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held the evidence was sufficient to support the conviction, despite an alleged .010 margin of error in breath test, and, in a matter of apparent first impression, the alleged .010 margin of error in breath test was fact question for jury to consider. Minor was administered an Intoxilyzer 5000 breath test which produced a reading of 0.084 BAC. Minor was convicted by jury trial of DUI in violation of Hutchinson City Code § 23-401(a) (2000), which corresponds to KSA 8-1567(a)(2). On appeal, Minor claimed his breath test result of 0.084 BAC was insufficient to convict him beyond a reasonable doubt. He argued the margin of error inherent in the Intoxilyzer 5000 meant his alcohol level could have been below the legal limit. The Court of Appeals found the test result was sufficient to sustain Minor's conviction. The Court noted the statute criminalizing driving with blood or breath alcohol concentration did not require the breath test result to be above margin of error. The alleged .010 margin of error in breath test was a factual question for the jury to consider. Once the city had established its foundation for admissibility of defendant's breath test result, which indicated his breath alcohol level was .084, it was up to defendant to attack accuracy of test result, and it was a question for the jury to determine weight and credit to be given to the breath test result and the margin of error testimony.
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C. Protocol
i. 20 Minutes
***PUBLISHED CASES***
REVOKED REGULATIONS-CERTIFICATE ISSUED UNDER OLD REGS
State v. Ernesti No. 101,925 (08/27/10)
Lawrence Police Department (LPD) received certification for their Intox 8000, Jan. 18, 2008. The certificate indicated LPD ―has met the requirements of K.A.R. 28-32-4 for testing…‖ The certification issued had an expiration date of December 31, 2008. KDHE on March 14, 2008 revoked all regulations pertaining to the Intox certification (including K.A.R. 28-32-4) and replaced them with K.A.R. 28-32-8 thru K.A.R. 28-32-14. In September 2008 approximately 6 months after the new regulations were adopted and approximately 2 months after Ernesti‘s breath test KDHE issued a new certificate indicating LPD certification was obtained pursuant to K.A.R. 28-32-9 and backdated it stating it was effective from March 14, 2008 to its expiration December 31, 2008. Ernesti was charged with DUI and he filed a motion to suppress the test results based on LPD and the KDHEs failure to properly certify the Intox 8000 on Ernesti‘s test date. The district court determined LPD did not follow the regulations pertaining to application to obtain the certification under the new regulations and suppressed the breath test. The State appeals. The Supreme Court reviewed K.S.A. 8-1002(a)(3) establishing minimal foundation requirements for the state to show a proper breath test-- one of which is ―the testing equipment used was certified by the KDHE‖. It also reviewed the saving clause K.S.A. 77-425. The Supreme Court stated: LPD sought and obtained a certification from the KDHE which operators relied upon in performing breath testing. The certificate protected important interests and vested an accrued right and suspension of the issued certificate would involve state action that adjudicates important interests. As such, the certificate cannot be taken away without the procedural due process required by the Fourteenth Amendment to the United States constitution. Consequently, a certificate issued pursuant to K.A.R. 28-32-4 remains valid until its original expiration date even though the regulations were revoked. Therefore the State can and did meet its requirements showing the instrument was certified when Ernesti took the test and the results should not have been suppressed. Case was reversed and remanded.
USE OF THE RESTROOM-CLAIM OF DRINKING WATER
Mitchell v. Ks. Dept. of Revenue 41 Kan.App.2d 114, 200 P.3d 496 (02/13/09)
About 10 minutes into the observation period the defendant testified he asked for and received a cup of water to drink. He also testified he received permission to use the restroom. The defendant claimed he was allowed to close the door. He was alone in the room for 2-4 minutes. The defendant claimed he may have belched or burped but he honestly could not remember. The officer stated he did let the defendant use the restroom but he would not have given him any water because this was a violation of the protocol. The DOR relied on Martin v. KDOR 38 Kan.App.2d 1 (2008), which indicated ―strict compliance‖ to the testing procedures is not required ―where there is no evidence indicating the Intoxilyzer malfunctioned or the breath sample was contaminated. The District Court found the defendant was not in the immediate presence and the defendant had consumed water during the deprivation. Appellate court: ―substantial
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compliance is the standard in which the review will be done for a driver‘s license hearing. There is no requirement for the petitioner to come forward with affirmative evidence the Intox malfunctioned or the breath sample was contaminated in order establish the testing procedures did not substantially comply with the protocol. The procedures used in testing failed to substantially comply with the protocol. The agency‘s decision should be set aside and the district court erred in upholding the agency ruling.
DELEGATE DUTIES OF OPERATOR
Ashley v. Ks. Dept. of Revenue 38 Kan. App. 2d 421,166 P.3d 1060 (2007)
Defendant Ashley appeals the Johnson County District Court decision which affirmed the KDOR administrative hearing which suspended the defendant‘s driver‘s license. Ashley contends he was not properly served with notice of his license suspension because the officer who served the notice was not the officer who administered the Intoxilyzer test. Defendant was arrested by Officer Glaser for DUI. Glaser transported Ashley to the Overland Park police station, where he contacted Officer Doherty. Glaser contacted Doherty because Glaser was not qualified to run the Intoxilyzer 5000. Glaser then asked Ashley to take the breath test, read Ashley the implied consent notices, and monitored the 20 minute deprivation period. Doherty operated the Intoxilyzer device, and performed the breath test. Afterwards, both Doherty and Glaser filled out the DC-27 form, and Glaser handed it to Ashley. Ashley contends because Glaser was not ―the officer directing administration of the testing‖ as required by K.S.A. 8-1002(c). The court cites to K.S.A.2006 Supp. 8-1001(b) which states, ―The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.‖ The instant court states the quoted language includes not only the officer operating the Intoxilyzer, but also the officer who investigates the DUI. The court found both Doherty and Glaser were qualified to serve the DC-27 on the defendant.
INTOXILYZER—COMPLAINT—OATH—ARREST—BOND—VENUE
State v. Lieurance 14 Kan. App. 2d 87, 782 P.2d 1246 (1989)
The Court of Appeals affirms a conviction of DUI, holding the only requirement of swearing to a complaint is in 22-2202(8) which requires an oath. Under 54-101, and oath may be administered by a notary, mayor, clerk of the court, county clerk, register of deeds, as well as a judge. The Court holds the language in Fraker requiring a complaint sworn to before a judge merely means it must be sworn. The Court also takes notice of the post-Fraker amendments to 8-2104 and 8-2106 which allow an unsworn notice to appear in any misdemeanor, but declines to apply the amendments retrospectively. The Court also holds as long as a defendant is promptly released on bond, the failure to take him before a judge under 8-2104 is not prejudicial. The Court also notes an illegal arrest by itself does not void a subsequent conviction. The Court also holds the failure to object to lack of venue at trial, waives the issue. Testimony by a deputy sheriff of matters occurred while on routine patrol, as well as mention of prominent streets within the county was sufficient evidence of venue to support the finding of venue. Finally, various attacks on the Intoxilyzer, including the 20-minute observation period, certification of the machine and the operator, the
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standard testing solution, and the failure to express the results as grams of alcohol per 210 liters of breath were considered and rejected by the Court. (Sedgwick, 63290, 11/22/89)
BREATH TEST OPERATOR MUST OBSERVE THE DEFENDANT FOR 20 MINUTES PRIOR TO ADMINISTERING A BREATH TEST
City of Shawnee v. Gruss 2 Kan. App. 2d. 131, 576 P.2d 239 (1978)
The officers testified they followed the manufacturer‘s instructions and procedures prior to administering the breath test to the defendant. The defendant‘s breath test revealed a .11 percent blood alcohol content. The officers testified although they did not visually inspect the defendant‘s mouth for a foreign substance they observed him for 20 minutes and did not see him belch, regurgitate, or ingest any substance. The officer‘s testimony the defendant did not do any of these things creates a prima facia showing he had no foreign substance in his mouth at the time of testing. If the officer had not been able to show that this procedure was followed, the result of the breath test would have been inadmissible. In addition, both the operator and the breath testing machine must be currently certified at the time the defendant is tested.
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***UNPUBLISHED CASES***
―DON‘T LIE TO ME‖-SOLUTION CHANGED EVERY 7 DAYS-DC-70 LOST
State v. Sigg 231 P.3d 587, 2010 WL 2245601 (05/28/10)
***UNPUBLISHED***
Trooper arrived at the scene of a crash and spoke with the defendant who claimed she was the driver. While speaking with her the Trooper could detect an odor of alcohol coming from her. Later a Deputy arrived at the scene and was asked by the Trooper to investigate further the possibility of alcohol use by the defendant. The defendant denied to the Deputy any use of alcohol. The Deputy stated she should not ―lie to him‖ and again asked her if she had been drinking. The defendant claimed she had one drink earlier. No Miranda was read to the defendant during this entire process. SFSTs indicated impairment and the defendant‘s BAC was .136. During trial the defendant argues her statement should be suppressed because she was in custody and no Miranda was read. There are two things to look at to determine if custodial or investigative First: court looks at the circumstances surrounding the interrogation and Second: court decides whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation. Under K.S.A. 8-1611 and K.S.A. 8-1612(a) a LEO has a duty to make a detailed written report which would require speaking with the driver to get relevant information. However in this instance the Deputy had begun speaking to her as a suspect and not an ordinary witness involved in the crash. The court determined the questioning was interrogation and however the evidence was so overwhelming the use of the statements she gave was harmless error. The defendant also argued since the DC-70 that was read to her was lost or destroyed and not available to the state her breath test should be suppressed. The court noted in State v. Alfrey unpublished No. 93890 ―there is no language in the statute requiring the State to establish by written documentation that it complied with K.S.A. 8-1001. The defendant also argued the solution on the Intox 5000 had not been changed ever 7 days. The defendant failed to show any authority for the claim. The court also noted Lincoln v. Ks Dept. of Revenue to lay a foundation for the admissibility of breath test results; the KDHE is not required to establish certification of the standard solution used to calibrate breath testing equipment. There was an order by the court specifically not to mention the results of the PBT at trial. The Deputy was questions about his reasons stated on the DC-27 form showing his belief she was under the influence. The Deputy stated ―failed PBT‖ along with other indicators. There was a request for Mistrial which was denied. The Court of Appeals stated the mention of the PBT was inadvertent, the state did not follow up with any other questions about the PBT and no attention was drawn to the mistake. Conviction upheld.
OFFICER'S REPORT INCONSISTENT WITH INTOX PRINTOUT
Bryant v. Ks. Dept. of Revenue 198 P.3d 784, 2009 WL 112821 (01/16/09)
***UNPUBLISHED***
The sole issue is whether or not the officer followed the protocol of the KDHE when administering the breath test specifically the 20 minute deprivation. The officer stated he used the intoxilyzer 5000 clock to record the deprivation time. The officer stated
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he began at 12:40 am and the printout indicated the testing of the defendant was at 1:09am. However according to the officers written report he recorded the testing was at 1:00am. The officer testified he did not know why he had written down the test having occurred at 1:00am. The hearing officer determined the protocol was followed. The Defendant appealed. The Court stated the defendant failed to offer positive proof in the form of undisputed evidence the officer had not conducted the 20-min deprivation. The hearing officers ruling stands.
WRISTWATCH-INTOXILYZER INTERNAL CLOCK
State v. Betschart 197 P.3d 906, 2008 WL 5428189 (12/24/08)
***UNPUBLISHED***
The defendant was arrest for DUI. The officer read the implied consent advisory and requested the defendant to take an evidentiary breath test. The defendant agreed to take the test. The officer began the observation period at 2:54 and the defendant gave a sufficient sample according to the intox printout at 3:13am. It appears only 19 minutes had transpired. The officer however testified he used his wristwatch to note the beginning of the observation period. The officer indicated his watch was not synchronized with the intoxilyzer‘s internal clock which caused the discrepancy. The officer did not indicate he tested his watch to determine if it ran fast or slow. The court found the officer complied with the protocols of the KDHE requiring an officer to observe a person for 20-minutes prior to administering the breath test. The district court found the protocol had been satisfied and allowed for the admission of the breath test. The defendant was convicted and appeals. The appellate court notes the officer‘s testified he did watch the defendant for 20 minutes constituted substantial competent evidence supporting that finding of fact and therefore it should not be disturbed on review. In the record there was sufficient legal and relevant evidence in the case to allow a reasonable person to conclude the 20-minute waiting period was properly observed.
TWO DIFFERENT TESTS-NO EXCEPTION TO PROTOCOL
State v. Davis 180 P.3d 623, 2008 WL 1722284 (2008)
***UNPUBLISHED*** Davis had been arrested for DUI. An officer administered the Intoxilyzer 5000 breath test. Before the breath test was given Davis was read the implied consent advisory and agreed to submit to the test. The officer conducted a 20-minute observation before the first test. The officer testified Davis was initially uncooperative. He stalled in giving the breath sample and the Intoxilyzer 5000 produced a deficient sample reading of .197. The officer told Davis the insufficient sample could be a refusal. The officer explained to Davis he would be given a second chance to take the test and if he did not cooperate it would be considereda refusal. During the second Intoxilyzer 5000 test Davis produced a sufficient breath sample resulting in a reading of .195. At the Trial Court level Davis moved to suppress his Intoxilyzer 5000 breath test because the officer failed to follow the KDHE protocol of giving Davis a 20-minute deprivation period between the first and second breath tests. The officer testified he did not conduct a 20-minute deprivation period before administering the second test. There was no information provided at District Court level the officer‘s failure to conduct a 20-minute deprivation period before the second test met an exception to the KDHE protocol. The Trial
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Court denied Davis‘ motion to suppress stating the officer substantially compied with the procedures when he observed the defendant for the required 20 minutes before giving him the first test. The second sample provided by the defendant produced a complete sample considerable over the legal limit. The officer did not even have to allow defendant to take the second test. The Court noted due to the fact officer Shoemate did not conduct the required 20 minutes and there was no exception in the KHDE protocol for the administering of a second test, the State cannot establish a sufficient foundation for submission of the second test. It should be suppressed. Davis was charged in the alternative he was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. The Supreme Court has held a deficient sample breath test along with other evidence was sufficient to uphold a conviction for DUI under subsection (a) (3) of K.S.A. 8-1567. The Court noted if the State is able to establish a sufficient foundation for the admissibility of Davis's first breath test and if the State decides to retry him for DUI it appears Davis will be more appropriately tried under K.S.A. 8-1567 (a)(3).
IMMEDIATE PRESENCE-SUBSTANTIALLY COMPLIED
State v. Anderson 131 P.3d 570, 2006 WL 903168 (04/07/06)
***UNPUBLISHED***
Officer Stanley checked defendant‘s mouth and started the 20-min deprivation period at 7:42pm. Fifteen (15) minutes into the deprivation the defendant requested to go to the restroom. Officer Wayland accompanied the defendant to the restroom. The defendant was returned to Stanley‘s presence approximately 2 min later. Approximately 5 minutes after the defendant was returned. Officer Stanley asked the defendant if he had belched, burped, vomited or brought any fluids up from his stomach at any time during the deprivation period. The defendant stated he did not. The breath test was administered at 8:40pm-BAC 0.133. Defendant filed a motion to suppress claiming the State failed to show the officer did not substantially comply with KDHE protocol. Wayland did not testify at the trial. Defendant claimed there was no admissible evidence proving there was no burping, belching etc. The appellate court citing Schoen v. KDOR 31 Kan.App.2d 820 (2003) indicating the standard for admission of a breath test is ―substantial compliance.‖ There was also no indication from the defendant he alleges he did bring up stomach content and in fact the defendant admitted to the officer he had done none of those things. The results of the test were properly admitted.
IMMEDIATE PRESENCE—NO HEADLIGHTS
Martin v. Ks. Dept. of Revenue 139 P.3d 787, 2006 WL 2337235 (2006)
***UNPUBLISHED***
A Cloud County Sheriff‘s Deputy observed Martin leave a bar and drive without using his headlights. The Deputy activated his emergency lights and attempted to pull Martin over for the traffic infraction. As the Deputy followed Martin, he turned into an alleyway without using his signal, parked behind his place of business, and walked quickly toward the business‘ back door. The Deputy made contact with Martin as he entered his business and followed him into the store. Martin was swaying, stumbling, and staggering, said he had been drinking, and the Deputy detected a strong odor of alcohol on Martin‘s breath as well as bloodshot eyes. The Deputy had Martin perform field sobriety tests, including the HGN, and then placed him under arrest for DUI. Martin‘s BAC was measured by the Intoxilyzer at
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.235. After an administrative hearing, KDR suspended Martin‘s license for one year. Martin appeals the district court‘s judgment affirming KDR‘s suspension of his driver‘s license. Martin argued the officer lacked reasonable suspicion for the traffic stop, lacked probable cause to arrest Martin for DUI, and failed to comply with the KDHE protocol requiring officers to keep test subjects within their ―immediate presence‖ during the deprivation period. The court found the traffic infraction provided reasonable suspicion for the traffic stop. The court also found Martin‘s actions, his admissions, and the strong odor of alcohol emanating from his breath provided probable cause to arrest Martin for DUI. Finally, the court found while the officer stepped out of the testing room several times for only a few seconds at a time during the deprivation period, there was no evidence from the videotape Martin belched, burped, vomited, regurgitated, or otherwise introduced substance into his mouth from his stomach during the testing period. Therefore, the testing procedures substantially complied with the KDHE‘s ―immediate presence‖ requirement.
MANUFACTURE‘S OPERATING INSTRUCTIONS-LEARNED TREATIES
State v. Moroney 149 P.3d 25, 2006 WL 3877558 (2006)
***UNPUBLISHED***
Moroney was arrested and subsequently convicted of felony DUI. On appeal, Moroney first argues the trial court erred in refusing to give the defendant‘s proposed jury instructions. Upon his arrest, Moroney submitted to a breath test of which the result was .188. At trial, the police officer who administered the test on an Intoxilyzer 5000 testified he did not observe Moroney take anything in his mouth, smoke, belch, burp, or vomit during the 20-minute observation period before the test was given. During trial, Moroney testified he was burping during the observation period. Defendant‘s doctor testified Moroney suffers from acid reflux and Moroney was taking medication for the condition on the day of his arrest. The defendant's expert regarding the protocol for administering a breath test testified if an individual burps or belches before a breath test is given the test result would be inaccurate. Moroney proposed jury instructions instructed the jury about acid reflux and the possibility of error in a breath test if the person belches during the test. The trial court refused to give the instruction. The Court of Appeals noted a defendant has a right to an instruction on his theory of defense supported by evidence. However, the court found Moroney‘s proposed instructions did not appropriately instruct on the law, addressed disputed factual issues, and were not neutral in tone or content. Accordingly, the court found the trial court did not err in refusing to give Moroney's proposed instructions because they were argumentative and dealt with disputed evidence regarding the reliability of the breath test reading. Moroney also argues the trial court abused its discretion by allowing certain evidence to be introduced by the State. First, Moroney contends the State‘s expert was not qualified to testify regarding the absorption rate of alcohol in the human digestive system. The court reviewed all of the foundational evidence as to the State‘s expert and found the expert had had the prerequisite education, knowledge, experience, and training to give her opinion as to an absorption rate. Therefore, the court found the trial court did not err in allowing her opinion testimony. Second, Moroney argues trial court erred in admitting an article under the learned treatise exception to thehearsay rule. However, none of the trial exhibits, including the article, were in the record on appeal and the court was precluded from reviewing the trial court‘s decision as to the relevancy of the article. Finally, Moroney argues the lack of evidence as to the manufacturer‘s protocol prevents the admission of the breath test results. The
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court disagreed; noting the officer who administered the test was certified to operate the testing equipment and testified to following the procedures required by KDHE. Accordingly, the court held it was not a fatal defect the testing officer was not familiar per se with the manufacturer‘s operating instructions. Affirmed.
FAILURE TO VISIBLY INSPECT SUSPECT‘S MOUTH PRIOR TO BREATH TEST
State v. Perry 118 P.3d 178, 2005 WL 2076580 (2005)
***UNPUBLISHED***
The Court of Appeals held the district court did not err in suppressing the results of a breath test based upon the examining officer's failure to visually inspect the inside of the defendant‘s mouth prior to administering the Intoxilyzer 5000 test. Perry was arrested for DUI and offered an Intoxilyzer 5000 test. Prior to the test, the officer asked the defendant if he had any foreign objects in his mouth. The defendant said he did not. The officer believed he could rely on a suspect‘s statement that there was nothing in his mouth and only visually inspected a suspect's mouth if he suspected the person of having something in his mouth. The Court of Appeals upheld the District Court‘s determination the State failed to meet its burden of presenting evidence that the officer followed the proper protocol for the Intoxilyzer 5000 breath test. The State failed to show the protocol permits an officer to rely on a suspect‘s statement instead of visually inspecting the suspect‘s mouth. Since the state failed to proffer an officer could rely on the suspect‘s statement and still comply with the protocol, the Court held the State had failed to meet its burden the protocols were strictly complied with.
INTOXILYZER 5000-20 MINUTE OBSERVATION PERIOD
***UNPUBLISHED***
Shaddy v. Ks. Dept. of Revenue 95 P.3d 135, 2004 WL 1784606 (2004)
The Court of Appeals upheld a driver‘s license suspension. The Court held the officer conducting the Intoxilyzer 5000 was allowed to use his wristwatch to measure the 20 minute observation period in lieu of the internal clock on the Intoxilyzer. The Court also noted the question of whether the appellant actually was observed for 20 minutes is a question of fact to be resolved by the trial court. Shaddy sought reversal of the trial court that affirmed the Kansas Department of Revenue's suspension of his driving license. He claimed the exact testing protocol for the Intoxilyzer was not followed in his case, and since his observation period was just 18 minutes instead of 20, according to the internal clock of the Intoxilyzer, the breath test results were not reliable. The officer transported Shaddy to Fredonia in order to administer a breath test using the Intoxilyzer 5000. The test revealed Shaddy's breath alcohol content was .081. The testing officer testified he relied upon his wristwatch to time the observation period and not the clock on the testing machine. The Court held substantial competent evidence supported the trial court's determination the officer substantially complied with the applicable breath testing protocol. Shaddy also contended he was entitled to a new trial because the trial court would not let him examine the officer about alcohol metabolism rates contained in the training manual. The Court held the trial court‘s ruling not to be an abuse of discretion.
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REASONABLE SUSPICION—20 MINUTE OBSERVATION PERIOD—FOUNDATION
State v. Criswell 95 P.3d 135, 2004 WL 1784614 (2004)
***UNPUBLISHED***
Criswell was stopped in the early hours of the day. A state trooper observed a car driven by Criswell drifting from side to side within its lane. Criswell was then seen driving on the shoulder. The trooper pulled over Criswell, cited her for failure to maintain a single lane, a violation of KSA 8-1522, and placed Criswell in the front passenger seat of the patrol car to escort her to jail. Upon arriving at the jail, the trooper read Criswell the implied consent advisory and she agreed to take a breath test. Criswell was subsequently charged with DUI and failure to maintain a single lane. Criswell's observation period for the breath test began at 3:39 a.m. as the trooper was driving her to the station. While driving, the trooper "continually look[ed] over at (Criswell)" to ensure she did not belch, vomit, or put anything in her mouth. They arrived at the jail at approximately 4:10 a.m. Criswell remained in the trooper's immediate presence the entire time with the exception of when they exited the car upon arriving at the jail. The breath test was administered at 4:23 a.m. Criswell argued the trial court erred in finding Turner had reasonable suspicion to initiate a traffic stop and in denying her motion to suppress evidence of the breath test. The Court held there was reasonable suspicion to stop Criswell‘s car, noting articulate specific facts the trooper witnessed prior to the stop and the training and experience of the trooper regarding impaired drivers. The Court also stated there is no requirements an officer actually observe the commission of a traffic violation to have reasonable suspicion to stop a car. Lastly, the Court also held that trooper‘s testimony constituted substantial competent evidence the observation period requirement was satisfied and an adequate foundation was laid at trial.
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C. Protocol
ii. Per Se / Two Hours
***PUBLISHED CASES***
PRESERVATION OF BREATH SAMPLE-TEMPERATURE-FIELD NOTES
State v. Johnson 233 P.3d 290 (5/28/10)
Prior to trial, the defendant Johnson filed a motion to suppress the evidence of the warrantless search, a motion to dismiss based on the destruction of Officer‘s field notes, and the failure to save the breath sample contained in the tox trap in the Intoxilyzer. He also filed a motion in limine to exclude evidence of the breath test based on improper calibration of the Intoxilyzer. CHECKLANE: Sobriety checkpoints have been found to be constitutional under the Fourth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights § 15. See Davis v. KDOR, 252 Kan. 224, Syl. 1, 843 P.2d 260 (1992). DESTRUCTION OF FIELD NOTES: The officer testified he accurately and completely transcribed his field notes onto his final report. There was a finding of no bad faith. The court agreed with the State: the only thing that can be said was the field notes may have contained something that may have exonerated Johnson, however, that does not translate into evidence that was exculpatory. SAVE BREATH SAMPLE: Defendant proffered his right to confront witnesses was violated because a portion of his breath sample was not ―preserved‖ for further testing. The court previously held the results from a single breath test are scientifically reliable and, therefore, should be admitted into evidence. See Meehan v. KDOR, 25 Kan. App. 2d 183, 192-94, 959 P.2d 940, rev. denied 365 Kan. 885 (1998). Court also noted the defendant could have requested a separate independent test and did not do so. PROTOCOL NOT FOLLOWED: The Intoxilyzer 5000 required a reading of the external standard temperature to be within the acceptable range of 33.8 degrees and 34.2 degrees Celsius. Officer testified the temperature was 34. The defendant argued there was no indication the thermometer that measured this was accurate. The trial court indicated this goes to the weight not the admissibility and the appellate court agreed. They indicated: At some point the foundation is sufficient. Should we follow Johnson's argument, we might then be asked a third thermometer also be certified. This could go on forever.
INTOX DOCS-CRAWFORD-TESTIMONIAL
State v. Dukes 231 P.3d 558, 2010 WL 1792999 (05/06/10)
In State v. Dukes 38 Kan.App.2d 958 (2008) the Court of Appeals held the defendant‘s constitutional rights were not violated because it determined the admission of the breathalyzer certification and the certified driving records were not testimony and therefore not subject to the requirements of Crawford v. Washington 541 U.S. 36 (2004). The defendant appealed that ruling to the Supreme Court. The Supreme Court found the issue was not properly preserved by defendant and affirmed the ruling of the Court of Appeals. SEE State v. Dukes on page
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BAT—ADMISSIBILITY—SUFFICIENCY OF EVIDENCE
State v. Sliva 25 Kan.App.2d 437, 962 P.2d 1146 (1998)
The Court of Appeals affirmed a DUI conviction. The Court held the results of breath test taken four and one-half hours after defendant had driven were admissible without expert testimony as to how the delay affected defendant's alcohol concentration, and the evidence was sufficient to support conviction. The defendant was found in a parked vehicle that was blocking both lanes of traffic, admitted having three beers earlier, failed field sobriety test, and had a breath alcohol level of .114 four and one-half hours after driving. The Court of Appeals stated the result of alcohol concentration test is admissible even though the delay in giving the test was in excess of two hours. K.S.A. 8-1013(f), 8-1567. The Court also held there was sufficient evidence to conclude the defendant was guilty of DUI. The district court was affirmed.
ALTERNATIVE CHARGING—PER SE—TWO HOUR RULE—LEGISLATIVE INTENT
State v. Pendleton 18 Kan.App.2d 179, 849 P.2d 143 (1993)
The Court of Appeals reverses a conviction of DUI, holding while a DUI may be charged in the alternative under the subsections of 8-1567, when the charge is under subsection 2, the per se violation, the State is required to show the BAC was tested within the two hours of operating the vehicle. The Court notes evidence of a BAC taken later than two hours is admissible to show driving under the influence in subsection 1 (and possible 3), however, where the specific language of the per se section provides the two-hour limit (as in subsection 2), it must be strictly construed against the State. The Court examines several court decisions and amendments to the statute to reach its conclusion. The opposite conclusion in Podrebarac v. Department of Revenue, 15 Kan.App.2d 383 (1991), is reconciled by the fact that the standard of proof in civil cases is less strict. (Atchison, 68390, 3/26/93)
STOP—DELAY—ADMINISTRATIVE SANCTIONS
Podrebarac v. Ks. Dept. of Revenue 15 Kan. App.2d 383, 807 P.2d 1327 (1991)
The Court of Appeals holds the two-hour limitation in 8-1567 for use of BAT results does not apply to administrative sanctions imposed for failing the test. A test failure has two sanctions: automatic suspension of license and possibility of admission into evidence at a criminal trial. The criteria for suspension are set out, and the Court finds a long delay between observation of the vehicle and administration of the test goes to the issue of the reasonableness of the stop. (Lyon, 65454, 3/22/91)
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***UNPUBLISHED CASES***
EXTERNAL STANDARD CHECK
State v. Prater 230 P.3d 461, 2010 WL 2044925 (05/14/10)
***UNPUBLISHED***
Following the presentation of the evidence, defendant argued the State had failed to prove officer complied with the KDHE protocol. Specifically, defendant argued there was no evidence officer had conducted an external standard check to verify the machine was operating properly. The State countered the officer had testified he was familiar with the KDHE requirements and the Intoxilyzer 5000 was operating within the prescribed standards. The district court ruled the officer had testified he followed the protocol, and if the defense wanted to delve any deeper into that issue, it had the opportunity to do so during cross-examination. Appellate court noted: K.S.A. 22-3216 requires a motion to suppress to ―state facts showing wherein the search and seizure were unlawful.‖ Here, defendant's written motion did not specify how officer failed to comply with the KDHE protocol before administering the breath test. At the suppression hearing, officer testified he was familiar with the protocol and he operated the Intoxilyzer 5000 in conformity with the proper procedure to determine defendant's blood alcohol level. Defendant did not establish through cross-examination the officer failed to comply with the protocol in any specific way. Affirmed
OFFICER DID NOT LIST EACH STEP IN THE PROTOCOL
State v. Lukens 223 P.3d 323, 2010 WL 481281 (02/05/10)
***UNPUBLISHED***
The arresting officer was certified to run the Intoxilyzer 5000. Testimony was the officer followed the proper protocol and administered the test. The test indicated the defendant was 0.135. There was extensive cross-examination however defense counsel did not inquire as to any of the protocols. On appeal defendant claimed the proper protocol was not followed because the officer failed to enumerate each step of the protocol and affirmatively testify he performed each step. The officer‘s testimony lacked specificity. The court noted once uncontroverted evidence is admitted i.e., the officer followed the protocol, that evidence constituted substantial evidence. The appellate court does not re-evaluate the credibility of the witness. Affirmed.
WRONG DATE ON INTOX PRINTOUT
State v. Corder 143 P.3d 102, 2006 WL 2806692 (2006)
***UNPUBLISHED***
After observing a traffic infraction, a police officer stopped a car driven by Corder. The officer noticed a strong odor of alcohol coming from Corder and Corder‘s eyes were bloodshot and watery. Corder refused field sobriety tests and a PBT. Coder was arrested for DUI and transported to the police station for further testing. At the police station, Corder agreed to submit to a breath test. The machine used for the breath test was an Intoxilyzer 5000. The officer was certified to operate that machine and the machine was also certified by the State for 2002. The breath test began at 12:18 a.m. on July 21, 2002. The machine registered a 0.19 BAC. The printout prepared by the machine showed a test date of July 21, 2000. The officer responsible for keeping the records for the Intoxilyzer explained at trial
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the date difference occurs when there is a power failure when the machine is on because the date will revert to a default year, which is 2000. The officer further explained at some point prior to the defendant‘s test, the Intoxilyzer 5000 defaulted to 2000 and he had not yet changed it back to 2002 before the test took place. The officer also testified the log book for the Intoxilyzer 5000 showed Corder was tested in 2002. Ultimately, Corder was charged, tried and convicted of felony DUI. The trial court found Corder guilty based solely on the Intoxilyzer 5000 test results. On appeal, Corder argued his conviction for DUI should be reversed because the machine analyzed his breath printed out an incorrect test year. The court noted the record reveals the breath machine reverts to a default year after a power interruption without compromising the accuracy of the test results and the written logbook filled out at the time of the test clearly indicates the test was performed in 2002 and not 2000. Therefore, the court affirmed Coder‘s conviction. In addition, Corder argued the State failed to present evidence at his trial about his prior convictions. The court noted proof of a prior conviction is not an element of DUI to be proved at trial and held the trial court did not error when it did not require such proof. Affirmed.
BAT REFUSAL—VIDEO RECORDING—SUFFICIENCY OF THE EVIDENCE
State v. Crank 95 P.3d 135, 2004 WL 1784575 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a DUI conviction. Crank argued on appeal a video tape of his actions directly after his arrest should not have been allowed by the trial court in that it did not tend to prove at the time of driving he was incapable of driving safely. The Court ruled the trial court did not abuse its discretion in allowing in the videotape. After Crank was originally arrested for DUI, based on his driving, his behavior, and his refusal to submit to sobriety tests, Crank was taken to the sheriff's department after waiting approximately 15 minutes for a tow truck. At the sheriff's department, a video camera recorded Crank's behavior of cursing, not paying attention, and repeating himself. Crank also refused testing by the Intoxilyzer 5000. Crank was charged and convicted of DUI. The jury was allowed to see the video tape, which had been redacted to remove references to Crank‘s previous DUIs. On appeal, Crank argued the evidence was insufficient to establish he was incapable of safely driving a vehicle and that the trial court committed reversible error by allowing into evidences the videotape made at the sheriff's office. Crank argued his condition after his driving was not relevant because it does not tend to prove at the time of driving he was incapable of driving safely. The Court ruled the trial court did not abuse its discretion in allowing in the videotape. The Court noted the videotape was recorded approximately 15 to 20 minutes after his arrest and was relevant to his demeanor, condition, and ability to safely operate a vehicle. Based on the tape, and all the other evidence, the Court denied Crank‘s appeal.
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D. Blood/Urine
***PUBLISHED CASES***
HIPPA-PHYSICIAN/PATIENT PRIVILEGE-STATEMENTS OF DEFENDANT
State v. Weilert 43 Kan. App. 2d 403, 225 P.3d 767 (03/05/10)
Defendant was taken to the hospital due to injuries he received in a motorcycle crash. The officer suspected DUI and requested a blood draw. The defendant refused. The officer went to the hallway to finish his paperwork and overheard the defendant request a blood draw for his own medical purposes. He also heard him state he had consumed six hard-alcohol drinks prior to the crash. A court order was eventually obtained for the blood results. The defendant requested the blood results be suppressed as well as his statement to doctors based on the physician/patient privilege and HIPPA. The court suppressed; the State appealed. The court found K.S.A. 60-427(b) provides the physician-patient privilege would not be available in DUI cases. It also determined HIPPA does not prohibit the disclosure of information by court order and even if HIPPA prohibited disclosure Kansas does not apply the exclusionary rule to preclude admitting the information into evidence citing State v. Yenzer 40 Kan.App.2d 710(2008) The court went on to say by eliminating the physician-patient privilege in DUI cases the legislature has indicated its intention to leave no hurdle to admitting test results that provide evidence of a driver‘s alcohol consumption. See State v Mendoza 20 Kan.App.2d 541 (1995). As to the statements since the physician-patient privilege does not apply these statements are also admissible.
FORENSIC LABORATORY CERTIFICATE-HEARSAY
State v. Laturner 289 Kan. 727, 218 P.3d 23 (10/09/09)
This is not a DUI case however it impacts the presentation of KBI DUI blood result evidence. The Supreme Court held forensic laboratory certificate concluding a substance tested was cocaine was testimonial under Confrontation Clause and thus defendant was entitled to be confronted by forensic analyst at trial. Statute governing admissibility of forensic laboratory certificate K.S.A. 22-3437(3) imposed too heavy a burden on defendant‘s confrontation Clause rights and thus was unconstitutional overruling State v. Crow 266 Kan 690 (1999) The court also cited Melendez-Diaz v. Massachusetts 129 S.Ct. 2527 (2009) SEE SB 386 presented to Governor for signature (4/5/10)
MEDICALLY REASONABLE-TECHNOLOGIST LACKED RECALL
State v. Davis 41 Kan. App. 2d 1034, 207 P.3d 281 (05/22/09)
The defendant challenges the blood draw saying it was not drawn in a medically reasonable manner. A medical technologist who testified she completed and signed the blood draw form could not recall working on the date the blood was drawn nor any recollection of the defendant. The district court stated: drawing blood by a medical technologist who regularly works in that capacity at the local hospital
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using the equipment described is appropriate and reasonable.‖ The appellate court noted the defendant did not object at the time the blood was drawn nor during the suppression hearing. The defendant noted the State could not satisfy the third prong in Murry 271 Kan. 223 (2001), which indicates the procedure was reasonable. The officer did testify where the blood was drawn; a blood tube was used; the sample was given to the officer after it was drawn and sealed to be transported to the KBI. The fact the technologist could not specifically remember the defendant; such inability is not unexpected when a routine blood draw is taken by someone who performs such draws on a daily basis. Reasonableness in the 4th Amendment context must be considered by the totality of the facts and circumstances. There was no evidence presented suggesting the blood was drawn in anything but a medically reasonable manner. Affirmed.
MEDICAL ASSISTANT-STIPULATION OF FACTS
State v. Stegman 41 Kan. App. 2d 568, 203 P.3d 52 (03/20/09)
Defendant was arrest for DUI. He was read the implied consent and consented to a blood draw. A ―medical assistant‖ withdrew the blood using a kit provided by the KBI. The sample indicated the defendant was over the legal limit. The court found the ―medical assistant‖ did not fit the definition and suppressed the evidence. The case was appealed to determine if ―medical assistant‖ fit within the list of persons authorized under K.S.A. 8-1001(c) to draw blood. The entire case was submitted on stipulation of facts. K.S.A. 8-1001(c) indicated the legislature wanted to ensure blood withdraws would be performed in such a way as to protect the health of the individual whose blood was being withdrawn ―to guard against infection and pain, and to assure the accuracy of the test. The court went through a lengthy dissertation concerning definitions of many of the occupations listed in the implied consent. Unfortunately the ―stipulations of facts‖ were devoid of indications of the medical assistants training, experience or skills in drawing blood. The state is held to the stipulation of facts. It was determined the State failed to meet its‘ burden of proof. Affirmed.
BAC—ENZYME ANALYSIS—FRYE
State v. Graham 275 Kan. 176, 61 P.3d 662 (2003)
The Supreme Court reversed a district court ruling excluding expert testimony in a DUI trial. The Court held the enzyme analysis test used by the state to determine defendant's blood alcohol concentration met the requirements of Frye, and thus defendant's blood test results were admissible. A laboratory manager at the hospital testified at the hearing on behalf of the State. The witness stated the laboratory began using the Kodak Vitros 250 machine in January 2001, which employs an "enzyme analysis" method of testing plasma for BAC. He explained the machine employs an enzyme chemical reaction to test for the presence of ethanol in blood. He testified that proficiency tests performed using control samples for blood alcohol indicated the machine was functioning properly at the time of arrest. The witness also testified this type of machine was commonly used in other hospitals and labs and agreed the test results produced by the machine were generally accepted both by the hospital laboratory community and by physicians in treating patients. Graham‘s witness did not agree the enzyme analysis test was "generally accepted in courts of law for the purposes of ascertaining blood alcohol
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content" in criminal cases. Moreover, he testified it was his personal opinion the enzyme analysis method for testing blood alcohol content should not be accepted for the purposes of admission in criminal cases in Kansas. According to him, the standard deviation and percent of error rate for the enzyme analysis method of testing was "probably closer to 10 percent" and was not reliable. The trial court did not admit the expert testimony into evidence. On appeal, the Supreme Court took judicial notice of the enzyme analysis technique. After reviewing the evidence presented to the district court as well as the authority cited by the State and within the Briggs case, the Court concluded the enzyme analysis technique's validity was generally accepted as reliable within the scientific field of determining BAC, and therefore met the requirements of Frye, and the blood test results were admissible at trial. The Court also acknowledged that BAC in serum may differ from that in whole blood, and thus concluded evidence of the proper conversion from serum to whole blood concentrations was also admissible.
ACCIDENT—BAC—CONSENT
State v. Murry 271 Kan. 223, 21 P.3d 528 (2001)
The Supreme Court reversed the district court‘s suppression of BAC evidence in a DUI trial. The Court held arrest is not required prior to warrantless extraction of blood to test BAC, so long as extraction is based on probable cause sufficiently strong to have justified arrest; disapproving of, State v. Brunner, 211 Kan. 596 (1973), 507 P.2d 233; and requirements for taking of sample of defendant's blood following vehicle accident were met. Murry crashed his vehicle into a culvert embankment. He was taken to the hospital, where an officer suspected Murry had been DUI of alcohol. At the hospital, the officer asked Murry to consent to a blood alcohol test. Murry replied, "I don't know what's going on, I'm starting to fade." A sample of blood was taken from Murry, despite the lack of consent and despite the fact that he was not under arrest at the time. Murry filed a motion to suppress the blood sample evidence, arguing he had not consented and he had not been under arrest at the time the blood sample was taken. The trial court granted the motion. On appeal, the Supreme Court applied a three-part test in order to determine whether blood alcohol evidence can be taken from a suspect without a warrant. The three requirements are: (1) there must be exigent circumstances in which the delay necessary to obtain a warrant would threaten the destruction of the evidence, (2) the officer must have probable cause to believe the suspect has been DUI, and (3) the procedures used to extract the blood must be reasonable. The Court held the test was met, which is also the same test for taking BAC sample following an accident.
BAT—K.S.A.1997 Supp. 8-1001(c)—ADDITIONAL CONSENT—SUPPRESSION
State v. Beam 25 Kan.App.2d 735, 971 P.2d 752 (1998)
The Court of Appeals affirmed a DUI conviction. The Court held statute permitting medical personnel to rely on police officer's written statement that DUI suspect has consented to blood test does not require such personnel dispense with additional consent, and therefore hospital did not violate statute by requiring defendant to sign additional consent form. Beam filed a motion to suppress evidence of a blood test because the hospital required her to sign an additional consent or waiver in
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order for the blood to be drawn. The motion was denied by the trial court. The blood test results showed Beam's blood alcohol concentration was .15. On appeal, Beam argued the hospital's consent was contrary to K.S.A.1997 Supp. 8-1001(c) and the evidence should have been suppressed. The Court of Appeals rejected this rationale. The Court stated K.S.A.1997 Supp. 8-1001(c) does not require the persons or medical care facilities dispense with additional consent, only that it is not necessary. The statute directs civil or criminal liability will not attach if the consent is dispensed with due regard to the officer's statements. The trial court was affirmed.
SUFFICIENCY OF EVIDENCE—FAILURE TO INSTRUCT JURY—CRIMINAL HISTORY
State v. Briggs 24 Kan.App.2d 621, 950 P.2d 273 (1997)
The Court of Appeals affirmed a conviction and sentence for involuntary manslaughter committed while DUI of alcohol. The Court held (1) evidence that percentage of alcohol in defendant's blood serum was .155 met requirements for establishing alcohol level in defendant's blood was .08 or more; (2) jury instruction on DUI was not clearly erroneous in failing to require jury to find defendant's blood alcohol level exceeded .08 while, rather than after, he was driving; and (3) defendant's prior municipal nonselect class B nonperson misdemeanor for DUI could be used in criminal history scoring. At trial, the State presented evidence that percentage of alcohol in defendant's blood serum was .155 and testimony from medical technologist that alcohol concentration in whole blood "is pretty much the same" as that in blood serum. The district court instructed the jury the State had to establish Briggs was DUI of alcohol by proving that he had operated a vehicle with a BAC of .08 or more. The jury found Briggs guilty of involuntary manslaughter. On appeal, Briggs argued the evidence presented at trial was insufficient to support his conviction for involuntary manslaughter, the jury instruction on the elements of involuntary manslaughter was erroneous, and the district court erred in including his previous municipal conviction for DUI in his criminal history as a person felony. The Court held the evidence supported conviction for involuntary manslaughter committed while DUI of alcohol. The Court also held the jury instruction on involuntary manslaughter while DUI was not clearly erroneous in failing to require jury to find defendant's blood alcohol level exceeded .08 while, rather than after, he was driving. The instruction required the jury to find defendant killed victim "while in the commission of" DUI offense, and there was no evidence defendant consumed additional alcohol after the collision. Finally, the Court held the prior DUI conviction could be used in criminal history scoring, despite the general rule of K.S.A. 21-4710 that nonselect class B nonperson misdemeanors are not used in criminal history scores. The Court noted the specific statutes of K.S.A. 21-4711(c) and K.S.A.1996 Supp. 8-1567 control over the general rule pronounced in KSA 21-4710.
BAT—PHYSICIAN—PATIENT PRIVILEGE—LESSER INCLUDED OFFENSE
State v. Mendoza 20 Kan.App.2d 541, 889 P.2d 1147 (1995)
The Court of Appeals affirmed a conviction for vehicular battery. The Court held defendant's vehicular battery prosecution was also prosecution for DUI, and thus defendant's physician-patient privilege claim was barred by statute prohibiting such claims in DUI prosecutions. The Court noted the results of a blood alcohol test performed in a hospital at the request of a defendant's treating physician are not subject to the physician-patient privilege in a prosecution for a violation of KSA 8-1567. See KSA 60-427(b).
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The Court furthered that DUI, as defined by KSA 8-1567, is an included crime of vehicular battery as defined by K.S.A.1992 Supp. 21-3405b(a)(Repealed) and a crime "necessarily proved" if vehicular battery is proved. Thus, a prosecution for vehicular battery is, at the same time, a prosecution for the included crime of DUI. Such a prosecution is a prosecution for a violation of KSA 8-1567 and, under KSA 60-427(b), no physician-patient privilege exists with regard to blood alcohol test results requested by a defendant's treating physician. Affirmed.
BAT—MEDICAL TECHNICIAN—PHLEBOTOMIST
City of Salina v. Martin 18 Kan.App.2d 284, 849 P.2d 1010 (1993)
The city appeals the trial court‘s dismissal of a DUI case on the grounds the person drawing the blood was not authorized under 8-1006(c). The City contends the phlebotomist that drew the blood has the requisite training and experience under the guidelines in 8-1001(c); however, the Court of Appeals finds the statute lists only three categories of persons allowed to draw blood, and the real issue is whether the phlebotomist is a qualified medical technician. The Court then holds the determination is a question of fact and defers to the trial court‘s negative finding. (Saline, 68206, 4/30/93)
VEHICULAR HOMICIDE—LESSER OFFENSE—INSTRUCTIONS—PRIVATE SEARCH
State v. Hickey 12 Kan. App. 2d 781, 757 P.2d 735 (1988)
The Court of Appeals reverses convictions of six counts of aggravated vehicular homicide and DUI, but affirms a conviction of driving at a speed not reasonable and prudent. The Court holds it is the manner in which a defendant is driving which determines whether he can be convicted of vehicular or aggravated vehicular homicide. The instructions given by the trial court properly required the finding of causation required by Woodman, but also instructed the jury could not find defendant guilty of vehicle homicide if it also found him guilty of a DUI. Since there were other factors than defendant‘s DUI which could have cause the fatal accident, such instructions were inconsistent and precluded the jury from convicting on a lesser included offense if it also convicted on DUI. However, the Court finds no error in the admission of a BAT drawn by the hospital for medical purposes. The trial court suppressed a BAT drawn for law enforcement purposes for failure to give notice as required by 8-1001(f), but did not suppress the hospital‘s BAT because it was not done by the State. The CA agrees with both rulings, citing Barnhart for the suppression, and finding the sample drawn for medical purposes is not subject to 8-1001 nor the Fourth Amendment where the hospital was not acting as agent of the State (defendant never raised the physician-patient privilege). Finally, the CA also reverses the DUI conviction because it is duplicitous with aggravated vehicular battery, allowing the state to retry the case on the aggravated vehicular battery charges. (Sumner, 60249, 7/8/88)
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BAT—POLICE CUSTODY—AGGRAVATED VEHICULAR HOMICIDE
State v. Louis 240 Kan. 175, 727 P.2d 483 (1986)
The Supreme Court affirms the convictions and sentences for six counts of aggravated vehicle homicide, DUI, and numerous traffic offenses. The Court holds where defendant, who was transferred to the hospital for emergency treatment, was accompanied at all times by police, where the blood sample was taken for police purposes, and where defendant was immediately arrested upon release by the hospital, there was sufficient custody at the time the sample was taken to comply with 8-1001, and the trial court did not err in admitting the BAT results. The Court also holds, analogous to the felony murder rule, there is not requirement for the defendant to be convicted of the underlying traffic offense, in this case reckless driving and DUI, for him to be convicted of aggravated vehicular homicide, 21-3405a. (The SC does not rule on whether or not the separate conviction of DUI is multiplicitous with the agg vehicular homicide convictions) Finally, the SC can find no abuse of discretion in the trial court‘s sentencing defendant to six consecutive one to five terms for each of the homicide convictions, although it hints that under 21-4603(4) the court could reduce the minimum terms if recommended by the Secretary of Corrections. (Shawnee, 58951, 10/31/86)
PHYSICIAN/PATIENT PRIVILEGE
State v. Pitchford 10 Kan. App. 2d 293, 697 P.2d 896 (1985)
The Court of Appeals upholds the trial court‘s suppression of blood test results on the basis of the physician-patient privilege, K.S.A. 60-427. The defendant was involved in a one-car accident, and was apprehended in a field some distance from the scene. He refused to stop, had to be chased down, and then struggled when caught. He was wheezing and bleeding badly from a head wound, and his breath smelled of alcohol. He continued to struggle against medical assistance and was so violent; the doctor ordered a blood test to determine what was in the defendant‘s system. The test results, showing a BAC of .226, were turned over to law enforcement officers, and a DUI charge resulted. The results were suppressed by the trial court, and the State appeals. The CA then notes the implied consent statute, 8-1001, does not apply, since the defendant was not arrested, was not asked to take the test, and did not consent. The physician-patient privilege, 60-427, had three requirements: (1) There must be a patient, holder of the privilege, and a physician; (2) there must be a confidential communication between the two; and (3) either the physician or patient must have reasonably believed the communication necessary or helpful to treat or diagnose the patient. The CA summarily finds both (2) and (3) are met Relying on State v. George, 223 Kan. 507 (1978), the Court concludes information obtained by examination is a confidential communication, hence the blood test results, as part of an examination, were also confidential communication. The purpose of the statute is ―to encourage persons needing medical aid to seek it without fear of betrayal, not to disqualify physicians as witnesses. ―The Court decides the issue is not controlled by the patient‘s voluntary actions, but the purpose for the treatment, which in this case was for medical treatment, and not for gathering BAT evidence. The case had been dismissed, so no Petition for Review will be filed. (Butler, 57430, 4/11/85) See State v. Weilert 43 Kan. App. 2d 403 (3/15/10)
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DUE PROCESS-NO REQUIREMENT FOR PRESERVING BREATH SAMPLES
California v. Trombetta 467 U.S. 479, 104 S.Ct. 2528 (1984)
The Due Process Clause of the Fourteenth Amendment does not require law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial, and thus here the State's failure to preserve breath samples for respondents did not constitute a violation of the Federal Constitution.
OFFICER MAY UNARREST DEFENDANT
State v. Mezins 4 Kan. 2d 292, 605 P.2d 159 (1980)
When a highway patrolman arrived at the scene of an accident, he found the defendant to have a strong odor of alcohol, slurred speech and difficulty with coordination. The defendant was taken to the hospital and placed under arrest. A request was made to take a blood test. The defendant consented. When the hospital required the defendant be admitted for treatment, the highway patrolman unarrested the defendant and asked the hospital staff to notify the patrol when the defendant was released so charges could be filed. Since the blood sample was taken incidental to the defendant‘s lawful arrest and consent, the events of his unarrest which took place later had no bearing upon that arrest or the admissibility of the chemical test. The un-arrest does not reasonably or retroactively effect the validity of an otherwise lawful arrest at the accident scene.
WITHDRAWAL OF BLOOD DOES NOT VIOLATE FIFTH AMENDMENT
Schmerber v. California 384 U.S. 757, 16 L.Ed. 2d 908, 86 S.Ct. 1826 (1966)
The defendant was arrested at a hospital while receiving treatment for injuries he had sustained in an automobile accident. The police officer directed hospital personnel to take a sample of the defendant‘s blood for testing. The defendant, after checking with his legal counsel, refused to consent to the test. The defendant contended a blood test violated his Fourth Amendment rights against unreasonable search and seizure, and his Fifth Amendment right to counsel. The U.S. Supreme Court held the privilege against self-incrimination was not violated since the privilege protects an accused only from being compelled to testify against himself. The withdrawal of blood is physical evidence and non-testimonial. The privilege of self-incrimination does not exclude the use of the defendant‘s body as evidence when it may be material. As far as the right to counsel claim, the Court found the defendant was not denied his right to counsel by being required to submit to the test, even after his counsel told him not to. The Court found the defendant had no greater right simply because his attorney advised him incorrectly. The officer has probably cause to believe the defendant was under the influence of alcohol. Since the delay necessary to obtain a warrant would threaten the destruction of evidence and the extraction of blood sample for testing in commonplace and involves no virtue of risk, trauma or pain, the Court held the withdrawal of the defendant‘s blood taken by a physician according to acceptable medical practices was not an unreasonable search.
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***UNPUBLISHED CASES***
ENDORSE WITNESS-TOXICOLOGY ON URINE
State v. Marshall 228 P.3d 442, 2010 WL 1687856 (04/22/10)
***UNPUBLISHED***
Defendant was charged with 3 or more DUI‘s. During preliminary hearing the officer testified and the court admitted a KBI tox report with the results of a urine drug screen. The defendant was bound over. At trial the officer testified the defendant‘s BAC was 0.035. This surprised the officer due to the behavior and indicators he observed showing impairment. The officer requested urine and the sample was sent to the KBI. The State then sought to introduce a forensic toxicologist formerly with the KBI. The defendant objected based on the State‘s failure to timely endorse the toxicologist as a witness. The trial court overruled the objection and the defendant was found guilty. Defendant appeals. The appellate court reviewed K.S.A. 22-3201(g) dealing with endorsement of witnesses. The purpose of requiring the State to endorse witnesses at the time of filing the charging document is to prevent surprise and to give the defendant an opportunity to examine the State‘s witnesses before trial. The review of the court in deciding on ―late‖ endorsements is under abuse of discretion standard. In this case the court found the defendant was not ―surprised‖ by the request. It was a document admitted at the preliminary hearing. The court found also the defendant had some opportunity to interview the witness prior to trial and there was no request by defendant to request a continuance and therefore there was no abuse of discretion by the trial court.
INVERSION OF THE BLOOD TUBE-CLOTTING
State v. Eberhardt 206 P.3d 72, 2009 WL 1140266 (04/24/09)
***UNPUBLISHED***
The defendant was involved in a one car crash, pinning him in the vehicle. He was extricated. The officer followed the ambulance to the hospital because he had detected the odor of alcohol when speaking with the defendant. At the hospital the defendant consented to a blood test; which indicated a BAC 0.15. The defendant challenges the admission of the blood results. During the suppression hearing as well as the trial, the defendant indicated since the State failed to show the blood was drawn by a nurse or the fact the blood tube was inverted 5 times the blood evidence should not be admitted. During the suppression motion the state did not present the nurse-the officer testified the woman that drew the blood was dressed in scrubs; her name tag indicated she was a nurse and they were in a hospital. The officer stated if the nurse does not invert the tube he usually does and places it in the KBI envelope. The judge stated the State was in reasonable compliance at the suppression. During trial the nurse was present and testified. The toxicologist for the KBI indicated it does not matter if medical personnel or the police officer inverts the vial to mix the blood with the anticoagulant and preservative. It is only necessary the procedure be performed so the blood does not clot. That clearly was done here since there was no clotting of the blood when she received the sample. There was also an issue of speedy trial which was also reviewed using Barker v. Wingo 407 U.S. 514 factors. Affirmed.
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TESTING WITHIN TWO HOURS-TAKEN WITHIN TWO HOURS
Lambert v. State 195 P.3d 291, 2008 WL 4849633 (11/07/08)
***UNPUBLISHED***
The defendant was charged with DUI manslaughter. There were a number of issues raised on appeal the most significant was the defendant claimed the trial court should have suppressed the blood evidence in the case based on law enforcements failure to measure the alcohol concentration of his blood within 2 hours of operating his vehicle. The defendant claimed the TESTING should occur within two hours not just the taking. The appellate court reviewed the legislative history of the wording of the law and concluded the blood alcohol test that is administered, must be withdrawn, within 2 hours of operating can be used to prove a per se violation. The fact the actual lab analysis of the blood test might occur later does not defeat the legislative intent of the law. A blood sample can be properly sealed after extraction and a forensic toxicologist can later analyze the level of alcohol concentration in the blood. The court also looked into the definition of ―other competent evidence‖ and noted the definition includes ―samples taken two hours or more‖ after the operation, which would imply also the taking is what is important for the two hour requirement not the testing.
PACKAGING-PREJUDICE
State v. Mayhood 192 P.3d 184, 2008 WL 4291614 (09/19/08)
***UNPUBLISHED***
Defendant was arrested for DUI and requested to give a blood sample. A hospital technician took the blood and gave it to the officer. The officer sealed the tube with NON-tamper proof tape placed it in a sealed zip bag and taped the sealed bag with tamper-proof tape. The officer testified he either had it in his patrol car or his evidence locker prior to sending it to the KBI. The KBI testified upon receipt reviewed the packaging and it complied with KBI protocol ie. an intact seal between the sample itself and the packaging and the outside environment. The defendant objected citing an insufficient chain of custody. The trial court overruled and the evidence was admitted. The state must establish a reasonable certainty the defendant blood sample was not materially altered. Because the sample was properly sealed when the KBI received -- that requirement was complied with. The state was not required to show the officer kept the sample under lock and key. As mentioned in State v. Horton 283 Kan. 44 (2007) any deficiency in the chain of custody goes to the weight of the evidence and not its‘ admissibility. There was also a challenge to the Jury instructions. The instruction referred to the test result as not being conclusive in and ofitself of a violation of the statute but that it is part of the evidence. The jury inquired about this instruction. The court answered. The defendant failed to show the courts response prejudiced him in any way and therefore the defendant‘s argument fails. Affirmed.
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TEST-WITHDRAWN
State v. Frazier 176 P.3d 250, 2008 WL 440488 (2008) ***UNPUBLISHED***
Frazier's conviction for DUI was based on K.S.A. 8-1567 (a)(2) for operating a vehicle while the alcohol concentration in his blood as measured within two hours of operating a vehicle was .08 or more. Frazier argued under the statute the State had to prove his blood was tested within two hours of operating not simply drawn within two hours of operating a vehicle. In this case Frazier was observed driving at 2:52 p.m. December 2004. Medical staff withdrew a blood sample at approximately 4:24 p.m., clearly within two hours of the stop. Police officers sent the sample to the KBI. The analysis later determined Frazier's blood alcohol content was .22. Fletcher contends one cannot be guilty of violating the statute unless his or her blood is tested and "measured" within two hours of operating a vehicle not simply withdrawn within two hours of operating a vehicle. The Court noted a review of case law makes it apparent that when a blood test involved the term "as measured" clearly refers to the time the blood sample is drawn. The evidence in the case is undisputed Frazier's blood sample was drawn within the requisite two hour time period of his operation of the vehicle. The test results clearly demonstrated a blood alcohol concentration then in excess of the legal limit. In light of our construction of the term "as measured" in K.S.A. 8-1567 (a)(2) those results qualify as a crucial element of the offense. There was also determination concerning BIDS.
DRE-TOXICOLOGIST TESTIMONY
State v. Brown 174 P.3d 458, 2008 WL 142119 (2008) ***UNPUBLISHED***
During the early morning hours officers were conducting a sobriety check lane. Brown drove into the check lane and apparently had difficulty understanding the officer's instructions. The officer approached Brown's car and detected a chemical smell he recognized as cocaine being smoked through a pipe, an odor of alcohol was also detected. He had bloodshot eyes, slurred speech and swayed. The officer suspected he was DUI. As he was walking to the testing area the officer observed a piece of glass tubing, which made a clanging noise on the black top. The officer retrieved the item and identified it as a pipe used for smoking cocaine. The officer conducted SFSTs. He observed two clues during the walk and turn test. Brown had no difficulty with the one leg stand. Brown submitted to a breath test indicating a BAC of .075. The officer contacted a trooper who is DRE certified. The trooper performed the Romberg balance test, checked his pulse and blood pressure. The DRE testified non-uniform test results were an indication Brown was under the influence of both depressant and stimulant. The DRE concluded based on his observation of Brown, he was under the influence of more than one drug. The DRE asked Brown to submit to a urine drug screen, which he did. KBI toxicologist testified the Brown‘s urine contained marijuana, cocaine, and oxycodone, which was a result of the analysis, and those could adversely affect a person's ability to drive. On cross-examination KBI personnel acknowledged the presence of Metabolites only confirm the drug had been used at some point prior to the sample being produced. She admitted her discovery of drug metabolites did not demonstrate the subject was impaired. The toxicologist also could not confirm what quantity of drugs Brown had ingested or whether any of the drugs were actively affecting Brown at the stop. The only issue Brown raised in his appeal is whether the District Court admission of the toxicology report on the urine sample was in error. Brown claimed the toxicology report was irrelevant to the issue whether he was impaired at the checkpoint. The Court noted a necessary element of material fact is Brown had ingested drugs or alcohol. While
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not dispositive on the impairment issue the positive results of the drug screen establish Brown's intake of drugs and alcohol before he was driving and before he gave the sample. The jury is allowed to consider this evidence along with the evidence of impairment i.e., the observations of law officers. The Court noted K.S.A. 8-1001 (d) the results of qualitative testing [of urine] for drug presence shall be admissible in evidence in questions of accuracy or reliability shall go to the weight rather than the admissibility of evidence. Report on the urine sample provided by Brown did not conclusively prove the State's case because it did not establish his impairment, however the report provided relevant link in the chain of evidence leading to a DUI offense. Affirmed.
ONE INTACT SEAL-PACKAGING
City of Salina v. Dix 145 P.3d 945, 2006 WL 3257474 (2006)
***UNPUBLISHED***
Following Dix‘ involvement in a motor vehicle accident, an officer read him his implied consent warnings at the hospital. Dix consented to provide a blood sample for testing. A nurse drew blood from the defendant‘s arm using the officer‘s ―Becton-Dickinson‖ blood test kit provided by the KBI. The test kit included an instruction sheet for officers, with the first instruction requiring the officer to seal the tube of blood with tape after collection of the blood sample. After the nurse gave the officer the tube, he immediately placed it in a Ziploc bag, marked the bag with identification information and sealed the bag with evidence tape. The officer then placed the Ziploc bag inside a cardboard container and sealed the container with evidence tape. Finally, the officer placed the cardboard container in a manila-colored bag and sealed the bag with evidence tape and placed the bag in a refrigerator in the evidence locker, where the sample remained until mailed to the KBI laboratory. The officer did not seal the tube itself with evidence tape. When the sample arrived at the KBI laboratory for testing, the lab technician noted the tube containing the blood was not sealed with tamper-resistant evidence tape. The lab technician later testified although ―the tube itself did not have a piece of tamper-resistant tape across the top of it,‖ the packaging and sealing of the sample was not ―problematic to her testing in any way.‖ The technician explained, ―The bureau follows the protocol such there has to be one intact sealed between the outside environment and the evidence in question. In this particular case there were three intact seals between.‖ Dix was ultimately charged and convicted of DUI in municipal court. Dix appealed the conviction to the district court and filed a motion to suppress the results of his blood test. Following a hearing, the district court sustained the defendant's motion to suppress the blood test results. The City of Salina appealed from the district court's order which suppressed Dix‘ blood tests results. On appeal, the court noted when the prosecution seeks to admit blood tests results in a DUI case; it has the burden of proving the test was correctly administered. The court found the district court erroneously disregarded undisputed evidence the challenged blood sample had three seals between the sample and the outside world, and ―satisfactorily identified‖ the body fluid taken from the person whose intoxication is in question. The court found there is no reasonable doubt the defendant's blood sample was taken and sufficiently sealed in ―substantial compliance‖ with KBI laboratory protocol. Accordingly, the court reversed the district court‘s order suppressing the blood test results and remanded the case for further proceedings.Reversed and remanded.
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BLOOD TEST OF HOSPITAL-CUMULATIVE WITH KBI TEST
State v. Wilson 143 P.3d. 701, 2006 WL 2936592 (2006) Rev. Den. (2/13/07)
***UNPUBLISHED***
Wilbert Wilson appealed his convictions for involuntary manslaughter while under the influence and reckless aggravated battery from the Wyandotte District Court. Wilson was driving in Kansas City, Kansas at about 1:40 a.m. He entered into an intersection, and struck a vehicle driven by the two victims, both victims died as a result of the injuries sustained in the accident. Wilson was transferred to Truman Medical Center in Missouri at about 2:30 a.m., and was given a blood test at 3:30 a.m. This test was ordered by the doctor and revealed a BAC of .136. Afterwards, Officer Garrett of the Kansas City, Kansas Police Department requested the nurse do a second blood draw. Garrett advised Wilson of whom he was and he was there for a blood sample. Garrett complied with all implied consent requirements and the Defendant allowed the blood draw. KBI testing reveals the BAC of the second blood test to be .12. The appeal was based on four grounds. The first ground was the second blood test was illegally obtained due to Officer Garrett not being authorized in Missouri, and therefore could not legally request the blood draw. The Court refused to address the issue, as the first test, combined with the second, was cumulative, and the first test was admitted into evidence. The second argument was he was not allowed to argue his theory of the case in closing argument. The Court stated there was argument of causation proffered by defendant. The third ground of appeal was no lesser included instruction of DUI was included. Again the Court of Appeals finds error, but it again finds the jury‘s verdict would not have been changed had the lesser included instruction been given. The final argument is he was improperly impeached, and his post-arrest silence safeguard was nullified. Again, the Court of Appeals found there was error, but it again found the error was inconsequential.
QUALIFIED TECHNICIAN—JUDICIAL NOTICE
State v. Maxwell 130 P.3d 148, 2006 WL 619198 (2006)
***UNPUBLISHED***
Sheriff Deputy was dispatched to one-vehicle accident and observed a truck with the driver‘s side impacted head on with a tree. Maxwell confirmed he had been driving, and the Deputy noticed the odor of alcohol and a wet spot on Maxwell‘s clothing. Maxwell said he had three drinks, and had fallen asleep while driving. He was transported to the hospital for injuries and arrangements were made to draw blood. He was read the advisory and then consented to the blood test. He was charged with DUI for a BAC of .08 or higher, and in the alternative, for DUI to a degree rendering him incapable of driving safely. He filed a motion to suppress because the officer lacked PC, and also alleged the implied consent statute was not followed because the blood kit might have been expired and the person who took the blood might not have been qualified. The motions were denied and he was convicted. The trial court, although there was no evidence the person taking the blood was qualified, took judicial notice of his qualifications because he had testified on several prior cases over the years. This court REVERSED the trial court. KSA 8-1001(c) specifically states who may take a blood sample, and when the State fails to prove it was taken by a qualified person the evidence must be suppressed. KSA 60-409 governs the court‘s ability to take judicial notice, which does not include qualifications of a witness. Qualifications of a witness may
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change over time, so they must be established in each individual case. The evidence must be suppressed. Reversed and remanded.
BILLED FOR TESTING
Earley v. Ks. Dept. of Revenue 130 P.3d 1247, 2006 WL 851309 (2006)
***UNPUBLISHED***
Earley was driving in Saline County when he saw a DUI checklane. He turned down a dirt road, and then decided to go back, and he entered the lane. When approached by a trooper, he stared straight ahead and did not respond to the trooper. Earley initially said he wasn‘t drinking, and then admitted he had been. He was removed and asked to perform field sobriety tests. On the walk and turn, he stepped off the line, failed to touch heel to toe several times, and turned improperly. On the one-leg stand he swayed and put his foot down twice. The trooper also smelled alcohol on Earley‘s breath and felt he was DUI and could not safely operate the vehicle. There were also unopened beer cans found in his car. Earley would not blow properly into the PBT, but it showed .07 anyway, so Earley was arrested. Earley agreed to a blood test. At the hospital he was told he would have to pay for it, however, he was later instructed by both hospital staff and the trooper he would not. He still refused the test. His license was suspended for 1 year. He appealed; claiming there was not PC that he was DUI and had refused to submit to testing. The court found there was ample evidence to suspect Earley of DUI. On the issue of his refusal, the court found he was clearly told he would not be billed for the tests, therefore the fact he had been initially told he would have to pay for the test did not interfere with the reading of the implied consent form. Affirmed.
BLOOD TEST—PROBABLE CAUSE
State v. Befort 103 P.3d 993, 2005 WL 81499 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed suppression of blood test evidence in a DUI case. The Court held the officer did not have probable cause that the suspect was operating the vehicle in such a manner, which caused the death of, or serious injury to, another. Defendant was asked to take a breath test after the implied consent advisory was read to him and defendant refused this test. Defendant was then taken to a hospital where a blood sample determined defendant‘s BAC to be .14. Trial court suppressed the evidence of the blood test. On appeal, the State argued the trial court erred in suppressing the evidence because the officer had probable cause to conduct a warrantless search and the officer could have Befort's blood drawn without a warrant. The State further argued the court should strike K.S.A. 8-1001(h), in that the legislature was encroaching on the executive branch's ability to investigate the crime of DUI by impermissibly restricting the law enforcement. KSA 8-1001(h) states if a suspect refuses to submit to testing under K.S.A. 8-1001, additional testing shall not be administered unless there is probable cause to believe the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. The Court of Appeals stated KSA 8-1001(h) applies and the officer did not have probable cause the suspect was operating the vehicle in such a manner which caused the death of, or serious injury to, another. The Court also refused to strike the statute, noting the State did not provide law in support of its argument. The suppression was affirmed.
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BAT—PROCEDURE OF EXTRACTION
State v. Bliss 95 P.3d 1042, 2004 WL 1878357 (2004)
***UNPUBLISHED***
The Court of Appeals upheld a conviction of DUI where the defendant had challenged the method of the blood test as unreasonable because the expiration date of the blood vial was not listed. The Court held the vial did not have to list the expiration date where the officer and the lab technician both testified the hospital's collection tube was not expired. Following the arrest of Bliss for DUI, Bliss agreed to submit a blood sample for alcohol concentration testing. The law enforcement officer requesting the test possessed a collection tube that had expired. Therefore, the lab technician used one of the hospital's tubes. The officer packed and sent the tube to the KBI in accordance with KBI evidence protocol. A KBI forensic toxicologist tested the sample and determined the blood alcohol concentration exceeded the legal limit. Bliss contended the State failed to prove the procedure employed to extract his blood was reasonable, because the evidence did not establish the expiration date of the vial used to collect his blood. Specifically, Bliss noted at trial the officer requesting the test did not remember the expiration date of the hospital‘s collection tube. However, both the officer and the lab technician testified the hospital's collection tube was not expired. The Court held ―that testimony and all reasonable inferences to be drawn therefrom provided substantial competent evidence the blood sample was not contaminated by an expired collection tube.‖
WARRANTLESS BAT—EXIGENT CIRCUMSTANCES—PROBABLE CAUSE
State v. Espe 88 P.3d 807, 2004 WL 944248 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed convictions of aggravated battery and DUI. The Court held the blood test in this case to be constitutional under the Schmerber test, noting the delay of getting a warrant was a sufficient exigent circumstance that threatened destruction of the evidence, probable cause of DUI existed, and the test was performed reasonably. The Court also found there was sufficient evidence to sustain a conviction of aggravated battery based on recklessness. The Court did find the blood test to be a bodily invasion threatened the Fourth Amendment; thus, the taking must still be constitutionally sound. The warrantless seizure of blood from the defendant in absence of arrest was proper, even though officers physically restrained the defendant to permit the nurse to draw blood. The delay necessary to obtain a warrant would have threatened the destruction of blood alcohol evidence. Empty beer cans in defendant's car, odor of alcohol on defendant's breath, and defendant's belligerent attitude provided officers with probable cause to suspect defendant had been driving under the influence, and the blood draw was performed in a reasonable manner. For purposes of conviction for aggravated battery stemming from automobile collision, the Court found the evidence was sufficient to show the defendant acted in a reckless manner. The defendant's blood alcohol content measured .289, almost three times the legal limit, and defendant smelled of alcohol, was loud and uncooperative, had numerous beer cans in his vehicle, failed to yield to oncoming traffic, and turned in front of a car traveling 55 mph when it was almost on top of him. Thus, there was sufficient evidence to sustain a conviction of aggravated battery based on recklessness.
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5) Charges Filed
A. Complaint
***PUBLISHED CASES***
K.S.A. 8-1567a NOT A CRIME
A.G. OPINION #97-69
K.S.A. 1996 Supp. 8-1567a, making it unlawful for anyone less than 21 years of age to operate or attempt to operate a vehicle with a breath or blood alcohol content of .02 or greater, but less than .08, provides for a civil rather than a criminal proceeding for determining violation of its provisions. The only penalty for such violations is suspension of the individual's driver's license. The statute must be read in conjunction with K.S.A. 1996 Supp. 8-1001 and 8-1002 to determine the proceedings to be followed for notice, certification and hearing. The proceeding is administrative in nature and is to be conducted by the Division of Motor Vehicles. Nevertheless, the Division must file abstracts of court records of ―convictions‖ based on violations of K.S.A. 1996 Supp. 8-1567 a rather than substituting its judgment for that of the Court in determining the propriety of the Court's proceedings. See also State v. Schuster 273 Kan. 989 (2002)
CHILD IN CAR-CHILD ENDANGERMENT CHARGE
State v. Cott 288 Kan. 643, 206 P.3d 514 (05/01/09)
Cott was stopped on suspicion of DUI; her 4-year-old son was in the car. Cott failed SFST‘s and was arrested; she failed the breath test. Cott plead but later was allowed to withdraw her plea. The State dismissed the case and refiled it, adding a count of aggravated endangerment of a child. At prelim, the judge dismissed the aggravated endangerment charged ruling K.S.A. 8-1567(h) (30 day jail enhancement on sentence) would trump K.S.A. 21-3608a. The question before the court of appeals was whether the trial court erred in dismissing the aggravated endangering charge because the DUI statute is more specific. A review of a case out of Virginia was reviewed and adopted. Nothing in the statutes indicates the legislature intended to augment the DUI offense by including the felony child abuse and neglect elements within its ambit. K.S.A. 8-1567(h) and K.S.A. 21-3608(a) are compatible; choosing which statute to charge is a matter of prosecutorial discretion. The defendant appealed to the Supreme Court which reiterated the lower court. They also stated: The two statutes at issue in this case are aimed at preventing different types of behavior, and there is no evidence of legislative intent to preclude the State from holding the defendant responsible under both statutes when facts are present to support both crimes. Case was remanded back to the district court for a new preliminary hearing.
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FELONY ONLY-DUE PROCESS-NOTICE REQUIRED
State v. Moody 282 Kan. 181, 144 P.3d 612 (2006)
Moody was found guilty of DUI after entering a plea of guilty, and was then sentenced as a fourth-time offender. Moody appeals from the Kansas Court of Appeals because the complaint alleged only two priors, so the court was without jurisdiction to sentence as a fourth. The Kansas Supreme Court affirmed the Court of Appeals stating priors are not an element of the crime and do not affect jurisdiction and the defendant was properly charged and sentenced as a felon after receiving notice at the time of the plea as to what the possible penalties would be for a four-time offender. Masterson 261 Kan 158 (1996), states due process required notice of severity level of offense being charged. In this case, the court found the defendant was properly charged with a non-person felony and that is all that is required by Masterson.
STIPULATION—NOTICE
State v. Moore 35 KanApp2d 274, 129 P.3d 630 (3/10/2006)
Moore challenged his DUI conviction on grounds his motion to dismiss at the preliminary hearing should have been granted, and there was insufficient evidence at trial to convict. In March 2003, deputies responded to a noninjury accident on a dead end road. One deputy arrived and saw Moore standing in the road, and his truck in a field about 100 to 150 yards from the road. Speaking with Moore, he noticed a strong odor of alcohol and slurred speech. Moore said he was drinking at a nearby bar. Another deputy arrived and saw the truck and noticed Moore had slurred speech, difficulty communicating, and smelled like alcohol. Moore indicated he would pay for a sign that had been damaged near the road. He refused field sobriety tests and was arrested and charged with DUI third. At the preliminary hearing, the State asserted he had two priors, and defense counsel did not object ―for purpose of the preliminary hearing.‖ After being bound over, he filed a motion to dismiss for failing to assert a felony (his two prior DUIs). This court found defense counsel‘s statements were an effective stipulation to his two prior DUIs, for purposes of the preliminary hearing. After his conviction, he challenged the sufficiency of the evidence, claiming they failed to prove he had been operating a vehicle. Viewing the evidence in the light most favorable to the State, the court found his statements he had not drank since leaving the bar, and he would pay for the sign, was sufficient circumstantial evidence for the court to convict. His sentence was vacated however, because he was sentenced as a sixth time offender, after being charged and convicted as third time offender.
FAILURE TO OBJECT—WAIVER OF PRIORS AT PRELIMINARY HEARING
State v. Huff 33 Kan.App.2d 942, 111 P.3d 659 (2005)
Deputy stopped Huff for traveling 77 in a 55 mph zone. Before Huff‘s vehicle was stopped, the deputy observed it drift to the shoulder twice. The deputy smelled a strong odor of alcohol on Huff‘s breath, he had bloodshot eyes, slurred speech, would not look at the deputy, was speaking very softly, and had trouble getting his license from his wallet. Huff would not answer when asked if he had been drinking, and refused the HGN test. No other field sobriety tests were requested, and Huff refused the intoxilyzer after being read the implied consent. He was arrested for DUI, and he was charged with felony DUI. Huff claims there was insufficient evidence at the preliminary hearing, because there
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was no evidence of his prior DUIs. The court applied State v. Butler, 257 Kan. 1043 (1995), in which the court found sufficiency of a preliminary hearing may be challenged only by a motion to dismiss or grant appropriate relief filed in the district court, failure to do so amounts in a waiver. The court further stated when a person is found guilty beyond a reasonable doubt at trial; any error at the preliminary hearing is harmless error unless it appears the error caused prejudice at trial. Based on Butler, the court found Huff waived his challenge to the preliminary hearing. Huff also challenged the sufficiency of evidence at trial, to show he was DUI beyond a reasonable doubt. Viewing the evidence in a light most favorable to the state, the court found with all of the indicators listed above; there was sufficient evidence he was DUI. Affirmed.
CONSOLODATED CASES—TWO THIRD OFFENSES
State v. Jarrell 34 Kan. App. 2d 480, 109 P.3d 1290 (2005)
Jarrell pled guilty to two separate incidents of DUI occurring nearly one year apart. He entered pleas on both cases at the same time and was sentenced as a third in one and a fourth in the other. Jarrell argues because the convictions were simultaneously imposed, he should have been convicted as a third on both cases. The record reveals convictions were imposed under two separate complaints with two separate case numbers, and although the court referred to them as a consolidated proceeding, the pleas were entered separately according to case number and count. Because the cases were never officially consolidated into a single complaint or case number, the court properly sentenced the cases as a third and fourth.
PER SE/IMPAIRED—REFILE/DOUBLE JEOPARDY—LACK OF JURISDICTION
State v. Hanson 280 Kan 709, 124 P.3d 486 (2005)
Hanson was charged with DUI with alternative methods. State conceded at trial there was no evidence to show his BAC was measured within two hours. He was convicted by a magistrate judge for DUI to a degree that rendered him incapable of safely driving. On appeal, the district judge granted Hanson‘s motion to arrest judgment and dismissed without prejudice because the alternative language in the complaint lacked the phrase ―to a degree that rendered him incapable of safely driving a vehicle‖ and was therefore jurisdictionally defective. State re-filed the charge, charging only in the alternative with the proper language. Hanson filed motion to dismiss based on Double Jeopardy. Motion was denied by district judge and he was convicted. Court of Appeals affirmed, stating prosecution is not barred when former prosecution lacked jurisdiction, under K.S.A. 21-3108(4). The Supreme Court affirmed, holding ―Hanson‘s appeal from magistrate court mandates a trial de novo in district court and the magistrate decision is conditionally vacated. When the district court dismissed without prejudice, the magistrate decision was vacated…simply stated, the prosecution starts over and jeopardy does not attach.‖ Jeopardy did not attach, and his rights were not violated. Affirmed.
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FELONY DUI—PRELIMINARY HEARING
State v. Seems 277 Kan. 303, 84 P.3d 606 (2004)
The Supreme Court upheld the dismissal of a felony DUI charge. The Court held the state's failure to present any evidence of defendant's two prior DUI convictions at preliminary hearing required dismissal of felony DUI charge. The defendant was charged in the original complaint with one count each of transportation of alcohol in an open container, no proof of liability insurance, refusal of preliminary breath test, improper turn, and driving while license is canceled, suspended, or revoked. He was charged alternatively with one count of felony DUI committed pursuant to KSA 8-1567(a)(1), (2), or (3). The complaint listed the defendant's prior conviction dates as October 20, 1998, and January 4, 2000. The amended complaint deleted the dates of the prior convictions from the felony DUI alternative charges. At the preliminary hearing, the State presented evidence the defendant was driving while under the influence, but it presented no evidence of the defendant's two prior DUI convictions. The defendant argued the State's failure to present evidence of the prior convictions prevented the magistrate from finding a felony DUI had been committed. The magistrate agreed and dismissed the case. The State appealed and lost at both the District Court and the Court of Appeals. The Supreme Court held before a defendant so charged may be bound over for trial, the State must present sufficient evidence to establish a felony has been committed and there is probable cause to believe a felony has been committed by the defendant. Failure of the State to present evidence of two prior DUI convictions, as required to establish a felony under KSA 8-1567(f), required discharge of the defendant for there was no evidence presented a felony had been committed under K.S.A.2003 Supp. 22-2902(3).
DE NOVO APPEAL—DEFECTIVE COMPLAINT
City of Wichita v. Marlett 31 Kan.App.2d 360, 65 P.3d 547 (2003)
The Court of Appeals affirmed a district court decision that did not allow an amendment to a complaint upon defendant‘s appeal from municipal court. The Court held the complaint was not "defective" under the statute as that term is currently understood, and the district court's exercise of its discretion to deny the amendment was reasonable. Marlett was originally convicted of misdemeanor DUI in municipal court. The original complaint did not allege a severity level, as the city was not aware of a prior DUI conviction. Marlett appealed to district court. The State sought to amend the complaint to include the severity level. The district court did not allow the amendment, stating the complaint was not defective and the city should have a system in place to research prior convictions before filing a complaint. The State appealed. On appeal, the Court of Appeals stated KSA 22-3610 only allowed for amendment of a complaint on appeal to the district court if the original complaint is defective. The Court held the complaint was not "defective" under the statute as that term is currently understood, and the district court's exercise of its discretion to deny the amendment was reasonable. Affirmed.
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UNDERAGE DUI—NOT A CRIME – KSA 8-1567a
State v. Schuster 273 Kan. 989, 46 P.3d 1140 (2002)
The Supreme Court affirmed the dismissal of a charge of underage DUI of alcohol or drugs. The Supreme Court held that K.S.A. 8-1567a, providing it shall be unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or greater, does not establish a criminal offense, and thus one who violates the statute is not subject to criminal proceedings. Schuster, who was less than 21 years of age, was ticketed for operating a vehicle with a BAC greater than .02 but less than .08. Schuster filed a motion to dismiss the charge of underage DUI in violation of K.S.A. 8-1567a. Relying on Attorney General Opinion No. 97- 69, he argued the statute provides for administrative action by the Kansas Department of Revenue but does not establish a criminal offense. The district court dismissed the charge. The State appealed, and the Supreme Court transferred itself the case. The Supreme Court affirmed the district court, holding KSA 8-1567a did not establish a criminal offense, in that the only penalty recognized for violation of the statute was suspension of the defendant‘s driver‘s license.
APPEAL DE NOVO—COMPLAINT—MUNICIPAL COURT
City of Wichita v. Maddox 271 Kan. 445, 24 P.3d 71 (2001)
The Supreme Court affirmed DUI and other traffic convictions. The Court held the district court hearing an appeal from municipal court does not have to rearraign defendant on any of charges and may properly hold trial on basis of municipal court complaint, if it is not required to be amended as allowed by statute. The defendant entered a plea bargain in the municipal court that resulted in a DUI conviction and four other traffic offenses to be dismissed. The defendant appealed to the district court. The defendant was convicted of the DUI offense and the other traffic offenses had been dismissed at the municipal court as part of the plea. The Supreme Court upheld all the convictions, reversing the Court of Appeals in part, holding when an appeal is taken from a municipal court conviction and sentence where a plea bargain has resulted in some charges being dismissed, the district court on appeal has before it all of the charges of the original complaint without requiring refiling of the dismissed charges.
JURISDICTION—NOTICE PLEADING
City of Dodge City v. Wetzel 267 Kan. 402, 986 P.2d 353 (1999)
The Supreme Court reversed a district court ruling vacated a municipal court misdemeanor second-offense DUI conviction. The Court held a new conviction pursuant to a diversion agreement could not elevate the misdemeanor second-offense DUI charge into felony third-offense DUI, which would have deprived the municipal court of subject matter jurisdiction, and the rule of State v. Masterson 261 Kan 158 (1996), that a DUI complaint must specifically allege the severity level of the offense being charged, applies to charges and convictions arising in municipal courts or on appeal therefrom. The defendant was charged in municipal court with misdemeanor DUI. Following conviction, defendant entered into a diversion agreement for a new DUI charge while his de novo appeal of the municipal court misdemeanor conviction was pending in the district court. The district court vacated the conviction for misdemeanor
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DUI, noting the new DUI conviction from the diversion elevated the misdemeanor DUI charge to a felony third-offense DUI, meaning the municipal court did not have subject matter jurisdiction over the felony charge (because it was a felony). On appeal, the Supreme Court reversed the district court, reinstating the misdemeanor conviction. The Court noted, however, the defendant must be sentenced as a first-time offender, pursuant to Masterson, because the complaint never specified the offense was a second-offense DUI.
COMPLAINT—SEVERITY LEVEL—SENTENCE
State v. Larson 265 Kan. 160, 958 P.2d 1154 (1998)
The Supreme Court reversed the district court‘s grant of defendant‘s motion for arrest of judgment following defendant‘s DUI conviction. The Court held the State's failure to plead the crime severity level in the amended complaint charging defendant with DUI did not render defendant's conviction void, but instead restricted sentence to that appropriate to a B misdemeanor, the lowest crime severity level for the offense of DUI. Defendant was convicted in municipal court of first-offense DUI. Subsequent to de novo appeal to the district court, the State filed an amended complaint, but the State failed to include the crime severity level in the amended complaint. The district court convicted Larson of DUI, in violation of K.S.A.1997 Supp. 8-1567(a), but subsequently granted defendant's motion for arrest of judgment, finding the State's failure to plead the crime severity level in the amended complaint was fatal to the conviction. The Court noted severity level is not an essential element of DUI. The Court reversed the district court with instructions.
BIRTHDAY RULE—ADULT CHARGES—MULTIPLICITY—SENTENCING
State v. Wright 24 Kan.App.2d 558, 948 P.2d 677 (1997)
The Court of Appeals affirmed convictions for involuntary manslaughter, aggravated battery, and transporting an open container and reversed convictions for operating a car with a BAC above .08 and reckless driving. The Court also vacated the sentence for involuntary manslaughter. The Court held a person's age at the time he or she is alleged to have committed an offense controls whether he or she is under jurisdiction of juvenile code, and convictions for driving while having a blood alcohol level above .08 and for reckless driving were multiplicitous with conviction for involuntary manslaughter. The Court found sufficient evidence supported the jury‘s finding defendant was involved in accident after 12:00 a.m. on his birthday, and thus had turned 18 and could be tried as an adult. The Court also stated it was necessary for the State to prove the DUI or reckless driving in order to prove involuntary manslaughter under the facts of the case. Because it was unclear whether the jury determined Wright's guilt based on one or both of the misdemeanors, the misdemeanor convictions were multiplicitous with Wright's conviction for involuntary manslaughter. The Court also found the defendant‘s involuntary manslaughter sentence was illegal, as the defendant should have been sentenced under K.S.A.1993 Supp. 21-3404 instead of K.S.A.1994 Supp. 21-3404. This was because the crime was committed on June 26, 1994. Thus, the involuntary manslaughter, aggravated battery, and transporting an open container convictions were affirmed; the operating a car with a blood alcohol level above .08 and reckless driving convictions were reversed; the involuntary manslaughter sentence was vacated and remanded for resentencing.
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APPEAL BY STATE—AUTHORITY
State v. Nelson 263 Kan. 115, 946 P.2d 1355 (1997)
The Supreme Court dismissed the State‘s appeal of district court‘s discharge of defendant on aggravated battery count. The Court held the State lacked statutory authority to appeal. State originally filed three-count complaint charging defendant with aggravated battery, DUI, and consumption of alcohol by minor. The district court discharged defendant on aggravated battery count, and State voluntarily dismissed DUI count. State appealed discharge order while consumption of alcohol by minor count remained pending. The Supreme Court held there is no statutory authority for State to appeal from dismissal in criminal case of some of counts of multiple-count complaint, information, or indictment while case remains pending before trial court on all or portion of remaining counts which have not been dismissed and which have not been finally resolved.
MUNICIPAL JURISDICTION—FELONY DUI
City of Junction City v. Cadoret 263 Kan. 164, 946 P.2d 1356 (1997)
The Supreme Court affirmed the district court‘s dismissal of DUI complaint. The Court held the city, under authority of statute permitting municipalities to prosecute DUI offenses, may not omit severity classification of crime designated as felony in statute in order to prosecute and punish such offenders in municipal courts. City prosecuted defendant for third DUI violation in municipal court under ordinance that did not make third DUI offense a nonperson felony. The defendant was convicted and upon de novo appeal, the district court dismissed the complaint. Upon City‘s appeal, the Supreme Court held the ordinance conflicted with statute making a third DUI offense a nonperson felony and impermissibly permitted municipal court prosecution of felony offense. Municipalities do not have jurisdiction over and may not prosecute crimes designated as a felony by a state statute. Affirmed.
AGG BATTERY—MULTIPLICITY—PROSECUTORIAL MISCONDUCT
State v. Lafoe 24 Kan.App.2d 662, 953 P.2d 681 (1997)
The Court of Appeals affirmed two convictions of aggravated battery, one DUI conviction, and one conviction of failure to maintain a single lane. The Court held (1) legislature intended to distinguish between misdemeanor battery and aggravated battery based on use of weapon or level of harm inflicted, and thus, defendant was properly convicted of aggravated battery; (2) defendant's DUI conviction was not multiplicitous with his convictions for aggravated battery; and (3) prosecutor's comments during closing argument were not so gross and flagrant as to prejudice jury against defendant and deny defendant fair trial. The jury found defendant recklessly caused great bodily harm to one person in car he struck and caused bodily harm with a deadly weapon in a manner whereby great bodily harm, disfigurement or death could have been inflicted to other person in the car. On appeal, the Court of Appeals affirmed these findings, noting the legislature intended to distinguish between misdemeanor and aggravated battery based on use of weapon or level of harm inflicted. For the multiplicity argument, the Court used the common law test for determining whether charges were multiplicitous enunciated in Mason. The Court found defendant's convictions for operating a vehicle with blood alcohol concentration over .08 and for aggravated
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battery were not multiplicitous; state was not required to prove defendant's blood alcohol level, or even that he was intoxicated, to prove defendant was reckless. The Court also held the prosecutor's comments did not meet Green 254 Kan 669 (1994) gross and flagrant standard. Thus, the trial court's failure to sustain the objection did not constitute reversible error. Affirmed.
COMPULSORY JOINDER
State v. Todd 262 Kan. 916, 941 P.2d 1374 (1997)
The Supreme Court reversed the district court‘s dismissal of a DUI charge. The Court held earlier conviction did not require introduction of evidence defendant had driven under the influence, and thus did not operate to bar DUI prosecution under compulsory joinder clause of K.S.A. 21-3108(2)(a). Originally, defendant entered no contest plea for refusing to submit to PBT. The motorist then moved to dismiss DUI charge which arose from same incident. The district court dismissed the DUI charge. On appeal, the Court examined the three elements for compulsory joinder clause of statute establishing effect of former prosecution to bar subsequent prosecution: (1) prior prosecution must have resulted in conviction or acquittal, (2) evidence of present crime must have been introduced in prior prosecution, and (3) charge in second prosecution must have been one which could have been charged as an additional count in prior case. The Court stated evidence of the DUI was not introduced in the conviction for refusing to submit to a PBT. Reversed.
COMPLAINT—SEVERITY LEVEL—SENTENCING
State v. Masterson 261 Kan. 158, 929 P.2d 127 (1996)
The Supreme Court denied State‘s appeal of severity of the offense and the sentence imposed for a DUI conviction. The Supreme Court held 1) a complaint or information alleging DUI must specifically allege the severity level of offense being charged, but proof of the prior conviction is not an element of DUI to be established at trial and need not be brought out until the sentencing phase, and (2) if a defendant's time in jail in lieu of bond on a DUI charge exceeds the minimum jail time for parole eligibility for the offense of conviction, the defendant may be allowed credit for the jail time actually served so long as that time does not "reduce the minimum or maximum terms of confinement." The complaint had initially alleged the severity level as ―KSA 8-1567 Class A or B misdemeanor or Severity Level 9 Felony, to be determined at sentencing.‖ At the bond hearing, the judge asked if the State would be trying an A misdemeanor, B misdemeanor, or severity level 9 felony offense. When the State responded it would be trying a B misdemeanor, the complaint was amended by crossing out " 'A' " and " 'Severity Level 9 Felony, to be determined at sentencing.' " Masterson was convicted of DUI. Later, at sentencing, the State requested Masterson be sentenced as a second offender. The district court denied the request and sentenced Masterson as a first offender. The State appealed. On appeal, the Supreme Court held defendant charged with and convicted of class B misdemeanor for DUI may not be sentenced for higher severity level offense under governing statute. See State v. Larson 265 Kan 160 (1998).
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COMPLAINT—AMENDMENT—SPEEDY TRIAL—REASONABLE SUSPICION
State v. Brown 22 Kan.App.2d 560, 920 P.2d 460 (1996)
The Court of Appeals affirmed a DUI conviction. The Court held officer had ample grounds for stopping defendant's vehicle; trial court properly allowed state to amend its complaint; and defendant's right to speedy trial was not violated. The Court of Appeals noted the officer observing defendant's vehicle committing four left of center violations was ample reason to stop defendant‘s car. Prior to trial, the trial court allowed prosecutor to amend complaint. The Court held there was not an abuse of discretion in allowing prosecutor‘s amendment to complaint prior to trial. Defendant was initially charged with driving with blood alcohol concentration of .10 or above. To conform to change in the law, amendment to complaint reduced standard to .08 or above. The Court noted defendant‘s BAC was well above .10, and defendant was convicted under provision which did not contain any blood alcohol requirement. On the issue of speedy trial, the Court of Appeals held no violation occurred. The trial was brought with 170 days of arraignment; however three months passed between first and second days of trial, and approximately one month passed between second and third days of trial. The Court noted KSA 22-3402, which requires defendant be brought to trial within 180 days, does not require trial be concluded within that time frame. Thus, there was no speedy trial violation.
HABITUAL VIOLATOR—DIVERSIONS—DATE OF CONVICTION
State v. Knoff 22 Kan.App.2d 85, 911 P.2d 822 (1996)
The Court of Appeals reversed district court determination driver was a habitual violator. The Court held diversion agreement is considered "conviction" when it is first entered into, for purposes of determining whether person is habitual violator pursuant to statute. Defendant entered into unsuccessful diversion upon first offense of DUI. Upon failure to complete diversion, defendant entered no contest plea to DUI. Following two subsequent DUI convictions, State attempted to have defendant declared a habitual violator. For the date of first DUI offense, State used date of the no contest plea instead of the date diversion was entered. Defendant would not have three convictions in five years if the date of diversion was used. District Court found defendant to be habitual violator.On appeal, the Court of Appeals held State cannot choose to treat date of plea of nolo contendere, entered upon failure to successfully complete diversion, as date of conviction, for purpose of habitual violator statute relating to drivers' licenses. Reversed.
TRAFFIC CITATION—FACT PLEADING—NOTICE—PREJUDICE TO DEFENDANT
State v. Boyle 21 Kan.App.2d 944, 913 P.2d 617 (1996)
The Court of Appeals affirmed a DUI conviction. The Court held, on a matter of first impression, traffic citations must set forth offense charged, but need not allege facts constituting crime, as required for complaint. The Court further held the citation before them sufficiently apprised defendant of accusations against him to satisfy State and Federal Constitutions; and defendant failed to show prejudice from failure of citation to disclose which of five alternatives under DUI statute state would pursue. The defendant was issued a citation stating he was being charged with DUI. It did not state which of five alternatives of DUI offense State would pursue, but defendant never requested a bill of particulars.
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Defendant was convicted and appealed. The Court of Appeals denied the appeal stating a traffic citation need not give allege facts, that the citation gave proper notice to the defendant of the crime for which he was charged, and the defendant was not prejudiced by the citation's failure to disclose which alternative of DUI offense State would pursue. Affirmed.
INTOXILYZER—COMPLAINT—OATH—ARREST—BOND—VENUE
State v. Lieurance 14 Kan. App. 2d 87, 782 P.2d 1246 (1989)
The Court of Appeals affirms a conviction of DUI, holding the only requirement of swearing to a complaint is in 22-2202(8) which requires an oath. Under 54-101, and oath may be administered by a notary, mayor, clerk of the court, county clerk, register of deeds, as well as a judge. The Court holds the language in Fraker requiring a complaint sworn to before a judge merely means it must be sworn. The Court also takes notice of the post-Fraker amendments to 8-2104 and 8-2106 which allow an unsworn notice to appear in any misdemeanor, but declines to apply the amendments retrospectively. The Court also holds as long as a defendant is promptly released on bond, the failure to take him before a judge under 8-2104 is not prejudicial. The Court notes an illegal arrest by itself does not void a subsequent conviction. The Court holds the failure to object to lack of venue at trial, waives the issue. Testimony by a deputy sheriff of matters that occurred while on routine patrol, as well as mention of prominent streets within the county was sufficient evidence of venue to support the finding of venue. Finally, various attacks on the Intoxilyzer, including the 20-minute observation period, certification of the machine and the operator, the standard testing solution, and the failure to express the results as grams of alcohol per 210 liters of breath were considered and rejected by the Court. (Sedgwick, 63290, 11/22/89)
MUNICIPAL ORDINANCE—COMPLAINT
City of Tonganoxie v. Jack 13 Kan. App. 2d 718, 779 P.2d 34 (1989)
The Court of Appeals holds the holding of State v. Fraker does not rest on constitutional grounds but on statutory construction. The Fraker requirement is a complaint alleging a violation of K.S.A. 8-1567 must be verified does not apply to a complaint brought in municipal court under K.S.A. Chapter 12. (Leavenworth, 63218, 9/1/89)
HOMICIDE—FETUS NOT A HUMAN BEING—STATUTORY CONSTRUCTION
State v. Trudell 243 Kan. 29, 755 P.2d 511 (1988)
The State appeals dismissal of a charge of aggravated vehicular homicide, resulting from a fact situation in which the victim was a 25-week-old fetus which was killed due to a torn placenta, resulting from a vehicle accident attributed to defendant‘s DUI. The Supreme Court affirms the dismissal, holding while Kansas initially recognized fetal death; the revision of the criminal code in 1969 contains no such language, with all homicide statutes requiring the killing of a human being. Because of the strict construction of criminal statutes against the State, the Court declines to extend
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the definition of human being to a fetus. Such a move will have to come from the legislature. The Court also dismisses the State‘s argument the district court could not decide the motion to dismiss prior to the preliminary hearing, finding only the defendant, and not the State, has a right to a preliminary hearing. (Sedgwick, 60775, 4/29/88)
VALID COMPLAINT—WAIVER—NOTICE TO APPEAR
State v. Fraker 242 Kan. 466, 748 P.2d 868 (1988)
The Supreme Court holds a prosecution for DUI, driving while suspended, fleeing or eluding, and hit and run may no longer be filed on an unsworn notice to appear, because of the 1985 amendments to 8-2104(d). The Supreme Court disagrees with the Court of Appeals, however, and holds the defect is not jurisdictional, but merely a defective complaint, which must be raised prior to trial or it is waived. The Court hastens to add no warrant is required for a notice to appear. The practical effect is cases filed since 1985 on a notice to appear need not be vacated unless there is a showing defendant objected to the complaint. (Osage, 60307, 1/15/88)
VAGUENESS-CITY ORDINANCES
City of Overland Park v. Denning 12 Kan. App. 2d 375, 744 P. 2d 523 (1987)
The Court of Appeals holds a municipal DUI ordinance is sufficiently similar to 8-1567 as to survive a challenge of vagueness, citing State v. Larson 12 Kan. App. 2d 198 (1987). It is not necessary a person be able to determine his/her blood alcohol concentration to give fair warning and add to avoid arbitrary and discriminatory enforcement. (Johnson, 60252, 10/29/87)
LESSER OFFENSE—MULTIPLICITY—DUI—INVOLUNTARY MANSLAUGHTER
State v. Adams 242 Kan. 20, 744 P.2d 833 (1987)
The Supreme Court reverses a conviction of DUI, a part of the Court of Appeals decision, holding where DUI is the underlying misdemeanor alleged and proven in a prosecution for involuntary manslaughter, convictions of both offenses is multiplicitous. The fact the charge relied on both DUI and left of center, in the conjunctive, merely means the jury had to find both underlying offenses were committed. (Sedgwick, 59297, 10/30/87)
PLEA BARGAINING- RECKLESS DRIVING
A.G. OPINION #86-172
K.S.A. 8-1567(o) provides no plea bargaining agreement may be entered in to ―for the purpose of permitting a person charged with a violation of‖ K.S.A. 8-1567 or any parallel city ordinance ―to avoid the mandatory penalties established by that section‖. This provision precludes a DUI charged to be reduced to reckless driving even if it is possible to sentence under the DUI law because part of the ―mandatory penalties‖ established by K.S.A. 8-1567 is the fact the DUI conviction goes on the individual‘s
314
record and may be used in the future to enhance the sentence of a subsequent DUI conviction.
DOUBLE JEOPARDY—MULTIPLE PROSECUTIONS—COMPULSORY JOINDER
State v. Brueninger 238 Kan. 429, 710 P.2d 1325 (1985)
The State appeals dismissal of a DUI charge which the trial court found arose out of the same incident in which defendant had been charged and convicted in municipal court, and the DUI could have been charged there. The Supreme Court holds 21-3108 bars subsequent convictions under the compulsory joinder rule, and holds because evidence of defendant‘s alcohol consumption had been introduced at the previous trial (by defense counsel‘s cross-examination), the district court prosecution is barred. (Shawnee, 58291, 12/6/85)
JURISDICTION—NOTICE TO APPEAR—INVALID COMPLAINT
State v. Shofler 9 Kan. App. 2d 696, 687 P.2d 29 (1984)
Defendant was charged by a highway patrolman for obstructing legal process, in connection with a DUI arrest. The charge was made on a Uniform Notice to Appear and Complaint. The Court of Appeals reverses the conviction, finding 8-2106 applies only to misdemeanor traffic violations. The Notice to Appear did not recite the language of the statute and failed to allege any of the essential facts constituting the crimes charged. Where a complaint fails to allege a crime, it is fatally defective and the court lacks subject matter jurisdiction. (Kingsman, 56374, 9/6/84)
PROXIMATE CAUSE-SPECIFIC DEGREE OF INTOXICATION
State v. Spohr 171 Kan. 129, 230 P.2d 1013 (1951)
Spohr was convicted of 4th degree manslaughter after a jury trial was conducted in the Ford District Court. Spohr contends the trial court erred in overruling his motion to quash the information. On the information, Spohr was cited as killing the victim by driving a motor vehicle at a speed greater than was reasonable and proper, and while under the influence of intoxicating liquor. Spohr‘s argument is the statute at the time included the words ―proximate cause‖, and in order for the information to be accurately stated, the words proximate cause had to be included in the filed information. The Court disagreed, stating ―except where defined by law…the words used in the statute to define an offense need not be strictly pursued, but other words conveying the same meaning may be used.‖ Spohr next contends a confession given to an officer after the accident was not freely and voluntarily given. Spohr did not complain of any injury prior to, or during the conversation with the officer, but it was later found out Spohr had some broken ribs and a broken arm. Spohr later claimed he was in great pain while conversing with the officer, but the Court found in the end, Spohr did not contradict any statements made by himself during the conversation with the officer, and thus the statements were allowed. Spohr further contends in order to find him guilty of manslaughter, the State has to prove the negligence of the defendant is some unlawful act. The Court stated, ―[n]egligence is not merely conduct which fails to conform to the familiar,
315
common standard, the conduct of a reasonable man under like circumstances. Negligence is conduct which is induced by recklessness, and which involves undue risk of harm.‖ The Court ruled driving at a speed of 50 to 55 mph, on the other side of the center stripe, while being intoxicated, met the standard. Spohr finally contends the jury instruction regarding intoxication was inappropriate because it was overly broad, and evidence of a suspicion of intoxication does not rise to the level of reasonable doubt. The instruction stated the State did not have to prove any specific degree of intoxication, and the term ―under the influence‖ covered all of the well known and easily recognized conditions and degrees of intoxication but also any mental or physical condition which tended to deprive a driver of that clearness of intellect and control of himself which he would normally possess. The Court refused to listen to this argument, and pointed to State v. Ketter, 121 Kan. 516 (1926), and a few other cases as being the reason why. Pennsylvania v. Bruder 488 U.S. 9 (1988) ordinary traffic stops did not involve ―custody‖ for purposes of Miranda Rule. Spohr‘s appeal failed.
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***UNPUBLISHED CASES***
ENDORSE WITNESS-TOXICOLOGY ON URINE
State v. Marshall 228 P.3d 442, 2010 WL 1687856 (04/22/10)
***UNPUBLISHED***
Defendant was charged with 3 or more DUI‘s. During preliminary hearing the officer testified and the court admitted a KBI tox report with the results of a urine drug screen. The defendant was bound over. At trial the officer testified the defendant‘s BAC was 0.035. This surprised the officer due to the behavior and indicators he observed showing impairment. The officer requested urine and the sample was sent to the KBI. The State then sought to introduce a forensic toxicologist formerly with the KBI. The defendant objected based on the State‘s failure to timely endorse the toxicologist as a witness. The trial court overruled the objection and the defendant was found guilty. Defendant appeals. The appellate court reviewed K.S.A. 22-3201(g) dealing with endorsement of witnesses. The purpose of requiring the State to endorse witnesses at the time of filing the charging document is to prevent surprise and to give the defendant an opportunity to examine the State‘s witnesses before trial. The review of the court in deciding on ―late‖ endorsements is under abuse of discretion standard. In this case the court found the defendant was not ―surprised‖ by the request. It was a document admitted at the preliminary hearing. The court found also the defendant had some opportunity to interview the witness prior to trial and there was no request by defendant to request a continuance and therefore there was no abuse of discretion by the trial court.
FOUND GUILTY OF ALL ALTERNATIVES-ONE CRIME
State v. Ester 201 P.3d 775, 2009 WL 501000 (02/27/09)
***UNPUBLISHED***
The State in this case charged in the alternative. The defendant was found guilty of all three theories. The journal entry indicated sentence for the first alternative however for the other two the journal indicated no sentence imposed because they were ―charged in the alternative‖. The defendant appeals his second and third convictions of DUI. The appellate court notes: the State may charge a defendant under alternative theories of committing the same crime, and the jury may enter a verdict on all of the alternatives theories. But the defendant can only be convicted of one count when only one crime occurred. Regardless of whether there was sufficient evidence to sustain the verdicts on the other two theories the court is required to vacate both alternative convictions. The case was remanded for the court to prepare a corrected journal entry.
NO PROOF OF DRIVING—DWI
State v. Piper 185 P.3d 972, 2008 WL 2510435 (2008)
***UNPUBLISHED***
Park ranger found the defendant‘s vehicle at 3:26 a.m. The car was running, the brake lights weren‘t on but the headlights were and the car was in gear. The ranger determined her to be DUI and wrote a ticket with the words ―DWI‖ and ―8-1567‖. The
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defendant claimed the complaint was defective because it did not have the ―essential facts constituting the crime charged‖ and failed to identify which subsection she had specifically violated. The court noted a complaint can be challenged at any time but when the first time is on appeal the court will liberally construe it in favor of validity. The defendant did not request a bill of particulars; however the defense attorney seemed to understand the charge arguing in his closing argument about a two hour limit. Defendant failed to show she was surprised by the charge or was prevented from preparing her defense. The uses of DWI and DUI are commonly understood, and have the same meaning. The defendant also challenged the ―operate or attempt to operate‖ element. She claimed she had left her car running to charge her cell phone and use the air conditioning. The court stated they would not reweigh the evidence and upheld her conviction.
DUE PROCESS NOTICE-SEVERITY LEVEL
State v. Camara-Lopez 171 P.3d 285, 2007 WL 4246861 (2007) ***UNPUBLISHED***
Camara-Lopez appealed her sentence for DUI, a third conviction claiming the District Court violated her due process rights by failing to include her prior convictions in the charging document. She also claimed the District Court erred by basing her sentence on a criminal history without requiring the criminal history be proven to a jury beyond a reasonable doubt. A jury found Camara-Lopez guilty of DUI. During the sentencing hearing Camara-Lopez affirmed she had personally reviewed her criminal history worksheet and it was accurate. Immediately prior to sentencing the District Court addressed the fact the previous convictions would be used for sentencing purposes. Camara-Lopez did not object. The District Court sentenced Camara-Lopez to 90 days and imposed a $1,500 fine. Although Camara-Lopez did not claim a violation of her due process rights concerning the charging document at the District Court level, the Court did recognize an exception when dealing with a defendant's fundamental right. Kansas Supreme Court determined because prior DUI convictions are not elements of the offense of DUI a complaint, which fails to indicate each prior offense, is not jurisdictionally barred. However, the Court did determine the defendant is entitled under due process to notice in the information or complaint of the severity level of the DUI offense being charged. Here the complaint gave Camara-Lopez notice she was being charged with a felony either for driving with a BAC over .08 or for driving under the influence sufficient to render her incapable of safely operating a vehicle. The complaint alleged the alternative charges violated K.S.A. 8-1567 (f), which clearly applies to third time DUI offenders. At the preliminary hearing the defendant's two previous DUI convictions were entered into evidence with no objection. It was concluded by the Appellate Court the District Court did not violate Camara-Lopez's due process rights by failing to include her prior DUI convictions in the charging document. On the issue of criminal history not being proven to a jury beyond a reasonable doubt, the Appellate Court rejected Camara-Lopez's claim her sentence violated Apprendi based on State v. Ivory. Affirmed.
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DUE PROCESS-PLEA-NOTICE
State v. Lopez 160 P.3d 867, 2007 WL 1880957 (2007)
***UNPUBLISHED***
Lopez was convicted of a fourth offense of DUI in Finney District Court. He appeals on the ground he was not notified of the maximum penalty he could face. On May 25th, 2005, Lopez waived his right to preliminary hearing, and entered into a plea deal. The District Court stated, ―Now Mr. Lopez, I‘m going to go over the possible penalties in regard to both charges, even though there‘ll be just one that you‘ll be pleading to. The first one is driving under the influence, non-grid felony. You could spend up to 365 days in the custody of the Finney County Sheriff.‖ Lopez agreed to the deal, and the court accepted his plea. On June 21st, 2005, the court sentenced Lopez to 365 days in jail and a fine of $2,500.‖
Lopez argues he was denied due process of law because neither the complaint, nor the court informed him of the charges against him or the penalties. The State points to State v. Moody, 282 Kan. 181 (2006), as controlling. In the instant case, the State charged Lopez under K.S.A. 8-1567(g) which is the subsection of the statute for a fourth or subsequent offender. Though Lopez waived his preliminary hearing, the record indicates counsel for Mr. Lopez indicated to him it was his fourth DUI. The Court of Appeals ruled because the charging document notified Lopez of the penalty dictated by statute, he was provided due process for sentencing.
DEFECT IN COMPLAINT-OMISSION
City of Salina v. Sullivan 160 P.3d. 481, 2007 WL 1747905 (2007)
***UNPUBLISHED***
Sullivan was arrested for DUI in 1995. He filed for diversion, and was placed on diversion with the City of Salina. In 1996, the City filed a motion to revoke diversion, which was granted in 2005. Sullivan appealed to the district court, which found him guilty based on the diversion agreement‘s stipulated facts. Sullivan immediately filed a motion to arrest judgment based on a defective complaint. The complaint filed by the City was based on the City‘s municipal code, which included the element of ―influence was to the extent that he was incapable of driving a vehicle.‖ The complaint omitted this portion of the statute, only stating, ―He was under the influence of alcohol or drugs.‖ Due to this omission, the Court of Appeals affirmed the District Court‘s ruling the complaint was defective, and the motion to arrest judgment was sustained.
NOTICE OF PENALTIES-PSI-APPRENDI
State v. Hempler 157 P.3d 670, 2007 WL 1413095 (2007)
***UNPUBLISHED***
Hempler was charged as a third time offender, a felony. At the plea, Hempler was advised of the penalties for a fourth or more offense. Hempler did affirmatively respond he understood the possible sentences for a third and fourth offense. Hempler was also advised the court was not obligated to follow the plea agreement. Hempler pled guilty. A PSI was ordered. It indicated the defendant had four prior DUI convictions. The court sentenced Hempler to six months imprisonment with work release, $2,500 fine and one year post release with state parole.
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Hempler agues due process violation because he had pled guilty to a third and sentenced as a fourth. The appellate court found he had received notice and the opportunity to be heard. Hempler did not deny he knew about his four prior DUI convictions. The court had sufficiently advised Helmper of the possible penalties therefore there was no violation of his due process rights. Hempler also contends the trial court did not have jurisdiction to sentence him as a fourth because he had been found guilty of a third offense. The Court cited State v. Moody expressly rejecting this argument because prior DUI convictions are not an element of DUI. Hempler also raised the issue his criminal history had not been determined by jury. Appellate court stated this did not violate Apprendi and the Kansas Supreme Court had rejected this argument in State v. Ivory, and reaffirmed it in State v. Gonzalez. Lastly, Hempler argues the court abused its discretion when it refused his motion to withdraw his plea after he learned this conviction was his fifth. It was determined the defendant was well aware of his rights and knowingly and voluntarily entered his plea and therefore the motion was denied. Hempler also argues the trial court erred when ordering reimbursement of BIDS for attorney‘s fees.
HGN RESULTS-AMENDED COMPLAINT
State v. Hagen 157 P.3d 6, 2007 WL 1309737 (2007)
***UNPUBLISHED***
Officer Berg stopped Hagen‘s vehicle after observing her commit several traffic infractions. Hagens was given field sobriety tests consisting of HGN, and the walk and turn test. A video was made of these tests. Hagen was charged with third or subsequent offense of DUI. During the preliminary hearing Hagen‘s driving record indicated four prior convictions for DUI. The State subsequently amended the complaint to state Hagan had three or more prior convictions. A pre-sentence report showed Hagen had five prior convictions. Hagen filed a motion for a new preliminary hearing raising a due process argument. The trial court denied Hagen‘s motion. The Court of Appeals stated State v. Moody resolved this issue. Hagen was on notice she was charged with a felony, evidence presented at the preliminary hearing included the four prior convictions, she did not challenge her prior convictions at the prelim or at sentencing. Hagen was provided sufficient notice of the charges against her. During the trial the video was played of the stop. The judge allowed testimony from the officer of Hagen‘s inability to follow the instructions during the HGN. No results of the tests were permitted. On the video the Officer stated Hagen was being arrested for failing the two field sobriety tests. Hagan requested a mistrial due to the allowance of the ―results‖ of the HGN having been admitted. This was denied. The Court of Appeals indicated although it was possible for the jury to infer Hagan failed the HGN test Hagan had not shown the denial of the mistrial prejudiced her substantial right to a fair trial. Lastly, Hagan‘s argues her refusal to take the PBT could not be used to indicate she was DUI. The statute specifically does not allow for the admission of the PBT results if she had taken the test. She had requested a special instruction. Due to her refusal for the PBT as well as the evidentiary breath test the jury instruction requested by Hagen would not have supported a theory she had not hidden evidence from the jury. (See State v. Wahweotten for further information about limiting instructions for the use of PBT)
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PRELIMINARY HEARING—PRIOR CONVICTIONS—NO OBJECTION
State v. O‘Neill 122 P.3d 420, 2005 WL 3030330 (2006)
***UNPUBLISHED***
O‘Neill was bound over to stand trial for DUI as a third time offender. No evidence of prior DUI convictions was offered at the preliminary hearing. O‘Neill contended the district court had no jurisdiction under State v. Seems, 277 Kan 303 (2004), in which the court held to charge a felony, a determination of probable cause must be made pursuant to K.S.A.2002 Supp. 22-2902(3). This probable cause determination must be made after a preliminary hearing. Without a showing of necessary prior convictions, the court would lack jurisdiction to charge as a felony. However, in Seems, the defendant specifically objected during the preliminary hearing. In State v. Huff, 33 Kan.App.2d 942 (2005), the court found Seems did not apply when the defendant failed to raise the issue in a timely manner. In this case, O‘Neill failed to object to sufficiency of evidence in a timely manner. Affirmed.
SUBJECT MATTER JURISDICTION—LIFETIME DUI‘S—APPRENDI
State v. Barmann 121 P.3d 488, 2005 WL 2715657 (2005)
***UNPUBLISHED***
Barmann had DUI diversion in Haskell County in 2000, and DUI convictions in Finney County and Haskell County in 2000 and 2001. DEFECTIVE INFORMATION: Barmann was charged with unlawfully driving while under the influence of alcohol or while having a blood alcohol concentration of .08 or higher. No tests were administered to measure her BAC. She was convicted. She filed an arrest of judgment due to the fact the language ―to a degree that renders the person incapable of safely driving a vehicle‖ was omitted from the complaint. There is no doubt from the evidence her ability to drive safely was impaired. The sole issue is whether the absence of this specific allegation in the information deprived the district court of subject matter jurisdiction to try the case. The Court found since Barmann was charged with DUI unlawfully in a case in which her blood alcohol level was not determined, the information was sufficient to state the offense. PRIOR CONVICTIONS: She argued it was improper to use her convictions prior to 2001 amendment to K.S.A. 8-1567. Court found State v. Sedillos, 279 Kan 777 (2005), was controlling, in which the Supreme Court ruled the statute clearly included ALL lifetime convictions. PRIOR DIVERSION: She argued using her diversion to enhance her penalty violated Apprendi, which required any enhancing factor be submitted and proved to a jury. Court found using the diversion did not violate Apprendi because she was represented by counsel and entered the agreement voluntarily.
PENALTIES—FELONY NOTICE
State v. Wheeler 115 P.3d 794, 2005 WL 1719380 (2005) Rev. Den. (2005)
***UNPUBLISHED***
Wheeler appeals his third and fourth DUI convictions and sentences. In a six-count complaint, the State charged Wheeler with a DUI on August 1, 2002, and a DUI on August 26, 2002, in addition to other charges. It characterized both DUI charges as nonperson felonies since Wheeler had been ―previously convicted of DUI two or more times‖ and cited the prior convictions. At the plea hearing and before Wheeler entered his
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plea, the court explained if he pled to the two DUI charges, they would be considered his third and fourth convictions for purposes of sentencing. Wheeler pled no contest to two counts of DUI and one count of driving while a habitual violator and the State dismissed the other charges. On appeal, Wheeler argued the court could not use two prior convictions to enhance the current convictions. Specifically, Wheeler contended the prior convictions occurred before the 2001 amendment of K.S.A. 8-1567 and therefore should not be considered for sentence enhancement. The Court of Appeals rejected Wheeler‘s argument, finding a person‘s lifetime convictions shall be taken into account when determining the sentence to be imposed and the statute does not merely apply to those convictions that occurred after July 1, 2001. Wheeler also argued the court lacked jurisdiction to sentence him as a fourth time offender because the complaint did not specifically charge him with a fourth DUI. The court noted a defendant charged with DUI is entitled as a matter of due process to notice of the crime classification he is charged with and of the penalties that could result. The court found prior to entering into the plea, the district court informed Wheeler he would be sentenced for both a third and a fourth DUI and Wheeler then pled no contest to a fourth DUI knowing it carried increased penalties. Furthermore, the complaint fully advised Wheeler of the classification of the DUI crimes with which he was charged; therefore, there was no due process violation. The Court of Appeals affirmed.
DEFECTIVE COMPLAINT—SUFFICIENCY OF THE EVIDENCE
State v. Allen 114 P.3d 190, 2005 WL 1561049 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed the defendant‘s conviction for DUI and found the evidence was sufficient to support his conviction. The Court also rejected Allen‘s argument the complaint was defective. Allen was involved in a two-car accident where he rear-ended another vehicle. The Trooper who responded to the accident noted a strong odor of alcohol coming from Allen. Allen had a difficult time removing his driver's license from his wallet and had to be asked repeatedly for his insurance information. Allen admitted he had consumed two beers and was on his way home from a bar when the collision occurred. Allen's speech was slurred, and his eyes were watery and bloodshot. Allen submitted to and failed two field sobriety tests. He refused to take a breath test. At the conclusion of a bench trial, Allen was found guilty of DUI. The Court of Appeals rejected Allen‘s argument the evidence was insufficient. The Court also rejected Allen‘s argued he was improperly charged. Allen was charged with violating K.S.A.2004 Supp. 8-1567(a)(3), which deals solely with alcohol intoxication. According to Allen, the complaint should have charged him with violating K.S.A.2004 Supp. 8-1567(a)(5), which deals with intoxication from a combination of drugs and alcohol because he had taken several painkillers the day of the accident. Allen failed to file a motion to arrest judgment under K.S.A. 22-3502. The Court rejected Allen‘s argument since he raised it for the first time on appeal.
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SENTENCING
State v. Gardner 119 P.3d 19, 2005 WL 2209550 (2005)
***UNPUBLISHED***
The Court of Appeals found the trial court had jurisdiction to sentence the defendant as a fourth-time DUI violator even though the complaint recited only two or more prior DUI's. Gardner was charged with one count of felony DUI. The complaint alleged Gardner had previously been convicted of DUI "two or more times." Gardner entered a Brady plea to one count of felony DUI and signed an acknowledgment of rights which accurately advised him of the maximum sentence. Prior to sentencing, Gardner filed an objection arguing he should be sentenced as a third-time offender since the complaint specifically indicated two prior offenses and Gardner assumed he was facing penalties for a third DUI conviction. The district court overruled Gardner's objection and sentenced him as a fourth-time DUI offender and ordered Gardner to reimburse the Board of Indigents' Defense Services (BIDS) $385 for services and pay a $50 administrative fee according to K.S.A. 22- 4513. The Court stated the issue was not jurisdiction but notice. The Court concluded proof of prior convictions is not an element of DUI and noted the defendant's due process right was not violated, because the complaint properly charged the defendant with a nonperson felony, and the defendant received notice at the plea stage of the possible penalties to be imposed for a fourth offense. Gardner received notice in the information or complaint of the severity level of the DUI offense being charged. Because prior DUI convictions are not elements of the offense, it was not necessary the complaint list three prior offenses, rather than two or more, in order to sentence Masterson as a fourth-time offender. The Court held the district court had jurisdiction to sentence the defendant as a fourth offender. The Court also affirmed the trial court‘s decision to order the defendant to reimburse the Board of Indigents' Defense Services (BIDS) system for attorney fees. The Court found a consideration of a defendant's financial resources at the time the assessment is enforced, rather than at the time of assessment, provides an outcome consistent with the legislature's intent in the enactment of K.S.A.2002 Supp. 22-4513.
SENTENCING—WITHDRAWAL OF PLEA—DUI DISMISSAL
State v. Asberry 103 P.3d 993, 2005 WL 81493 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed district court's order denying defendant‘s motions in two cases to withdraw pleas pursuant to K.S.A.2003 Supp. 22-3210. The Court held trial court did not err in refusing to withdraw pleas of defendant. Defendant pled no contest to forgery in one case and to theft in another. As part of the plea bargain, the State dismissed three other cases pending against Asberry at the time. One of the three was a felony DUI and mention was made at the plea hearing it could not "be dismissed as a part of the plea agreement, unless the minimum sentence is served." Defendant agreed to serve the minimum penalties. The State also agreed to recommend a dispositional departure at the time of sentencing. The parties never reduced the plea bargain to writing. The court sentenced him to guideline terms of 19 months for the forgery and 14 months for the theft to run consecutively. On the issue of probation, defendant argued he pled to the two charges based upon his receiving a dispositional departure. The trial court noted the plea, but also noted the defendant‘s extensive criminal history. Trial court denied a dispositional departure. Defendant filed a motion to revoke his pleas. Defendant claimed the State refiled a DUI charge it had previously dismissed and the terms of the plea bargain precluded such a refiling. The trial court determined the DUI
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subsequently filed by the State was a totally separate offense. The Court of Appeals affirmed the trial court, noting it is important to note the refiled charge is not the same DUI charge that was pending at the time of the forgery and theft pleas for which defendant agreed to serve the minimum penalties as a part of the plea bargain. Affirmed.
ALTERNATE CHARGES—DOUBLE JEOPARDY—DEFECTIVE COMPLAINT
State v. Hanson 103 P.3d 993, 2005 WL 81505 (2005)
***UNPUBLISHED***
At first trial to magistrate, the defendant was charged in the alternative as follows: "That on or about April 7, 2002, the above named defendant, within the above named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully and intentionally operate or attempt to operate a motor vehicle while under the influence of alcohol, or while sustaining an alcohol concentration of at least .08 grams of alcohol per 210 liters of breath/100 milliliters of blood at the time or within two hours thereafter." Prior to submission of the case to the court, the State conceded it could not show the blood test was taken within two hours of the time Hanson drove his vehicle, and The defendant was convicted of DUI by the magistrate under the alternate charge of impaired driving. Defendant filed a motion to arrest judgment, arguing the complaint charging him with impaired driving was jurisdictionally defective. The district magistrate judge denied defendant's motion, but was reversed on appeal to district court. The district court judge found the complaint failed to allege an essential element of the crime, namely, the influence of alcohol was "to a degree that renders the person incapable of safely driving a vehicle." The district court judge dismissed the case without prejudice. The State added the missing element to the complaint and refiled the DUI charge. Defendant's motion to dismiss based on double jeopardy was denied. On appeal, the Court of Appeals held no double jeopardy problem existed because the original complaint was jurisdictionally defective, and thus, the first prosecution was held in a court lacking jurisdiction over the charge and was, therefore, void. The Court noted any double jeopardy concerns regarding the charge that was dropped by the State were not a factor in the analysis, because the State did not pursue that charge. Affirmed.
DOUBLE JEOPARDY—WITHDRAWAL OF ALTERNATIVE CHARGES
State v. Bowles 96 P.3d 695, 2004 WL 1965635 (2004)
***UNPUBLISHED***
The Court of Appeals reversed the district court‘s ruling prevented the state from reasserting alternative charges that were in the original complaint, but which the state removed at the municipal level prior to defendant‘s appeal. The Court held double jeopardy did not prevent the state from reasserting charges it had filed at the municipal level, but had later withdrawn, once the defendant filed for appeal to the district court. The facts in this case were not in dispute. Bowles was initially charged with a violation of K.S.A. 8-1567 by a uniform notice to appear. The State then filed an amended complaint charging Bowles with one count of DUI in violation of K.S.A.2003 Supp. 8-1567(a)(1) or, in the alternative, in violation of K.S.A.2003 Supp. 8-1567(a)(2) or, in the alternative, in violation of K.S.A.2003 Supp. 8-1567(a)(3), and with one count of speeding greater than reasonable and prudent under the conditions. After a
325
trial to a magistrate judge, Bowles was found guilty of DUI in violation of K.S.A.2003 Supp. 8-1567(a)(2) but acquitted of the speeding charge. For reasons not found in the record or appellate briefs, after Bowles' conviction the State withdrew the other two alternative charges of DUI. Bowles was sentenced and appealed to the district court. Before the district court, the State sought to reassert the withdrawn alternative charges against Bowles. Bowles argued jeopardy attached to all three alternatives of the DUI charge when the case was tried to the magistrate, and the subsequent withdrawal of the two DUI alternatives was "effectively a determination there was insufficient evidence to proceed on the other charges, after which the defendant had been placed in jeopardy." The District Court did not allow the State to use the alternative charges. On appeal, the Court reversed, stating, ―[i]t makes no difference whether the alternatives were withdrawn prior to or subsequent to the magistrate judge's ruling as under our statutory mandates once a defendant appeals the magistrate's decision, the district court is required to consider the matter based on the original complaint as is required by K.S.A. 22-3610(a). In our case, this is clearly the amended complaint setting forth the three alternative DUI charges.‖
SENTENCING—JURISDICTION
State v. Miller 98 P. 3d 304, 2004 WL 2238832 (2004)
**UNPUBLISHED***
The Court of Appeals held there was no jurisdiction for defendant‘s DUI sentence as a four-time offender, when the complaint only listed two prior DUI offenses for the defendant. The formal complaint charged Miller with two counts of felony DUI and stated Miller had been previously convicted of DUI two or more times. The complaint specified two dates on which he had been convicted of DUI. In entering into a plea agreement, the State agreed to drop one felony DUI count and recommend a sentence of one year in the county jail and a fine of $1,500 on the DUI count. This sentence was consistent with a three-time conviction for DUI. A presentence investigation revealed an additional DUI conviction the State had not considered in the original charges. Over Miller's objection and despite the State's adherence to its plea agreement, the district court sentenced Miller as a four-time felony DUI offender pursuant to KSA 8-1567(g), imposing a sentence of 180 days in county jail, a $2,500 fine, and one year of postrelease supervision. On appeal, Miller contended the district court lacked jurisdiction to sentence him as a four-time offender when he was never charged with being a four-time offender and when his guilty plea related to charges of being a three-time offender. The State filed no brief and agreed with this analysis. The Court also agreed there was no jurisdiction for Miller‘s sentence and remanded the case for resentencing.
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B. Alternative Charges
***PUBLISHED CASES***
DEFECTIVE VERDICT—POLLING JURY—VERDICT FORM
State v. Anderson 33 Kan.App.2d 607, 106 P.3d 89 (2005)
The Court of Appeals reversed a conviction for DUI and remanded for a new trial. The Court held the defective verdict form and trial court's attempt to clarify defective verdict by asking leading and suggestive questions to jury deprived defendant of fair trial. The Court held police officer's observation defendant committed illegal right turn provided sufficient legal basis for traffic stop and evidence was sufficient to support conviction for DUI to degree rendering person incapable of safely driving vehicle, but reversed and remanded for a new trial because of the defective verdict. State had charged defendant in the alternative for DUI that he was driving under the influence to the extent that it renders a person incapable of driving safely. The additional language for the alternative charge was never added to the verdict form, and it simply offered the jury a choice of finding "the defendant not guilty" or "the defendant guilty of driving under the influence of alcohol," without adding the language "to the extent that renders him incapable of safely driving." The defective form was returned by the jury marked with an "X" before the language finding guilt. To resolve the defective verdict, the trial court questioned the jury foreman in a leading manner. Ultimately, the jurors were polled as the theory of the verdict. On appeal, the Court of Appeals noted the court's questioning of the foreman was admitted by the court to be leading and suggestive; the responses of the jury foreman did not serve to clarify the verdict with any degree of certainty; the ultimate polling of the jurors was contaminated by the court's unfortunate misstatements that attempted to--but did not--clarify the defective verdict. Ultimately, the Court held defendant did not receive a fair trial. The case was remanded for new trial.
TRAFFIC CITATION—FACT PLEADING—NOTICE—PREJUDICE TO DEFENDANT
State v. Boyle 21 Kan.App.2d 944, 913 P.2d 617 (1996)
The Court of Appeals affirmed a DUI conviction. The Court held, on a matter of first impression, traffic citations must set forth offense charged, but need not allege facts constituting crime, as required for complaint. The Court further held the citation before them sufficiently apprised defendant of accusations against him to satisfy State and Federal Constitutions; and defendant failed to show prejudice from failure of citation to disclose which of five alternatives under DUI statute state would pursue. The defendant was issued a citation stating he was being charged with DUI. It did not state which of five alternatives of DUI offense State would pursue, but defendant never requested a bill of particulars. Defendant was convicted and appealed. The Court of Appeals denied the appeal stating a traffic citation need not give allege facts, the citation gave proper notice to the defendant of the crime for which he was charged, and the defendant was not prejudiced by the citation's failure to disclose which alternative of DUI offense State would pursue. Affirmed.
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ALTERNATIVE CHARGING—PER SE—TWO HOUR RULE—LEGISLATIVE INTENT
State v. Pendleton 18 Kan. App. 2d 179, 849 P.2d 143 (1993)
The Court of Appeals reverses a conviction of DUI, holding while a DUI may be charged in the alternative under the subsections of 8-1567, when the charge is under subsection 2, the per se violation, the State is required to show the BAC was tested within the two hours of operating the vehicle. The Court notes evidence of a BAC taken later than two hours is admissible to show driving under the influence in subsection 1 (and possible 3), however, where the specific language of the per se section provides the two-hour limit (as in subsection 2), it must be strictly construed against the State. The Court examines several court decisions and amendments to the statute to reach its conclusion. The opposite conclusion in Podrebarac v. KDOR, 15 Kan.App.2d 383 (1991), is reconciled by the fact the standard of proof in civil cases is less strict. (Atchison, 68390, 3/26/93)
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***UNPUBLISHED CASES***
PLEA-NO PROOF OF BAC
State v. Lee Slip Copy, 2010 WL 3211936 (08/06/10)
***UNPUBLISHED***
The defendant plead guilty to the charge in the complaint of alternative counts of BAC above 0.08 and/or ―to a degree that rendered him incapable of safely driving.‖ The defendant now claims there was an inadequate factual basis to establish the charge of DUI. During the plea hearing the prosecutor failed to mention the test results of the blood sample taken from Lee shortly after the incident. The state only presented the affidavit of arrest and the arrest report to support the conviction. The court reviewed the affidavit which indicated: Lee was driving on the sidewalk, had struck a gas meter and dragged it under his vehicle, failed to stop when ordered to do so, drove without headlights and admitted he was drunk when stopped. The court found this established ―ample evidence‖ of under the influence of alcohol to the extent he could not safely drive.
FOUND GUILTY OF ALL ALTERNATIVES-ONE CRIME
State v. Ester 201 P.3d 775, 2009 WL 501000 (02/27/09)
***UNPUBLISHED***
The State in this case charged in the alternative. The defendant was found guilty of all three theories. The journal entry indicated sentence for the first alternative however for the other two the journal indicated no sentence imposed because they were ―charged in the alternative‖. The defendant appeals his second and third convictions of DUI. The appellate court notes: the State may charge a defendant under alternative theories of committing the same crime, and the jury may enter a verdict on all of the alternatives theories. But the defendant can only be convicted of one count when only one crime occurred. Regardless of whether there was sufficient evidence to sustain the verdicts on the other two theories the court is required to vacate both alternative convictions. The case was remanded for the court to prepare a corrected journal entry.
MULTIPLE ACTS—ALTERNATIVE MEANS
State v. Woodward 138 P.3d 417, 2006 WL 1902512 (2006)
***UNPUBLISHED***
A Pratt County Sheriff‘s Deputy was dispatched to a report of a suspicious car in a pasture. Upon arrival, the Deputy found Woodward in the driver‘s seat of a car in a pasture; damage to the car was consistent with driving through a barbed wire fence. Upon the Deputy‘s approach to the car, Woodward got out of the driver‘s seat and staggered to the back of the car. The Deputy observed a large wet fecal stain on the back of Woodward‘s pants. When asked if he had ―messed himself when he crashed through the fence,‖ Woodward responded, ―Yeah.‖ Woodward had no explanation for how he had gotten in the field, but asked the Deputy how he could get out of the field. The keys to the vehicle were in Woodward‘s left front pocket and he admitted he had purchased the vehicle. Woodward claimed someone
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else had been driving the vehicle. Woodward was convicted of his 18th DUI. On appeal, Woodward challenged the sufficiency of the evidence arguing the State failed to prove beyond a reasonable doubt that he operated or attempted to operate a vehicle. When considering the sufficiency of circumstantial evidence to sustain a conviction, the question is whether there was a basis in the evidence for a reasonable inference of guilt. The court found there was more than a sufficient basis to support a reasonable inference Woodward operated and attempted to operate the vehicle. The court also found there was substantial evidence presented to establish Woodward was intoxicated. Woodward contended the case involved multiple acts and the trial court erred in failing to give a unanimity instruction at his trial. The court found the case did not involve multiple acts, but alternative means. The court noted in an alternative means case, a single offense may be committed in more than one way; while there must be unanimity as to the guilty for the single crime charge, unanimity is not required as to the means by which the crime was committed so long as each alternative means is supported substantial evidence. As there was sufficient evidence presented for the jury to convict Woodward beyond a reasonable doubt of both operating the vehicle and attempting to operate the vehicle while under the influence, the trial court did not error in failing to give a unanimity instruction.
ALTERNATE CHARGES—DOUBLE JEOPARDY—DEFECTIVE COMPLAINT
State v. Hanson 103 P.3d 993, 2005 WL 81505 (2005)
***UNPUBLISHED***
The Court of Appeals affirmed a DUI conviction. The Court held defendant's prior conviction was based on jurisdictionally defective complaint, and thus double jeopardy did not attach. At first trial to magistrate, the defendant was charged in the alternative as follows: "That on or about April 7, 2002, the above named defendant, within the above named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully and intentionally operate or attempt to operate a motor vehicle while under the influence of alcohol, or while sustaining an alcohol concentration of at least .08 grams of alcohol per 210 liters of breath/100 milliliters of blood at the time or within two hours thereafter." Prior to submission of the case to the court, the State conceded it could not show the blood test was taken within two hours of the time Hanson drove his vehicle, and the defendant was convicted of DUI by the magistrate under the alternate charge of impaired driving. Defendant filed a motion to arrest judgment, arguing that the complaint charging him with impaired driving was jurisdictionally defective. The district magistrate judge denied defendant's motion, but was reversed on appeal to district court. The district court judge found the complaint failed to allege an essential element of the crime, namely, the influence of alcohol was "to a degree that renders the person incapable of safely driving a vehicle." The district court judge dismissed the case without prejudice. The State added the missing element to the complaint and refilled the DUI charge. Defendant's motion to dismiss based on double jeopardy was denied. On appeal, the Court of Appeals held no double jeopardy problem existed because the original complaint was jurisdictionally defective, and thus, the first prosecution was held in a court lacking jurisdiction over the charge and was, therefore, void. The Court noted any double jeopardy concerns regarding the charge that was dropped by the State were not a factor in the analysis, because the State did not pursue that charge. Affirmed.
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DOUBLE JEOPARDY—WITHDRAWAL OF—ALTERNATIVE CHARGES
State v. Bowles 96 P.3d 695, 2004 WL 1965635 (2004)
***UNPUBLISHED***
The Court of Appeals reversed the district court‘s ruling, which prevented the state from reasserting alternative charges were in the original complaint, but which the state removed at the municipal level prior to defendant‘s appeal. The Court held double jeopardy did not prevent the state from reasserting charges it had filed at the municipal level, but had later withdrawn, once the defendant filed for appeal to the district court. The facts in this case were not in dispute. Bowles was initially charged with a violation of K.S.A. 8-1567 by a uniform notice to appear. The State then filed an amended complaint charging Bowles with one count of DUI in violation of K.S.A.2003 Supp. 8-1567(a)(1) or, in the alternative, in violation of K.S.A.2003 Supp. 8-1567(a)(2) or, in the alternative, in violation of K.S.A.2003 Supp. 8-1567(a)(3), and with one count of speeding greater than reasonable and prudent under the conditions. After a trial to a magistrate judge, Bowles was found guilty of DUI in violation of K.S.A.2003 Supp. 8-1567(a)(2) but acquitted of the speeding charge. For reasons not found in the record or appellate briefs, after Bowles' conviction the State withdrew the other two alternative charges of DUI. Bowles was sentenced and appealed to the district court. Before the district court, the State sought to reassert the withdrawn alternative charges against Bowles. Bowles argued jeopardy attached to all three alternatives of the DUI charge when the case was tried to the magistrate, and the subsequent withdrawal of the two DUI alternatives was "effectively a determination there was insufficient evidence to proceed on the other charges, after which the defendant had been placed in jeopardy." The District Court did not allow the State to use the alternative charges. On appeal, the Court reversed, stating, ―[i]t makes no difference whether the alternatives were withdrawn prior to or subsequent to the magistrate judge's ruling as under our statutory mandates once a defendant appeals the magistrate's decision, the district court is required to consider the matter based on the original complaint as is required by K.S.A. 22-3610(a). In our case, this is clearly the amended complaint setting forth the three alternative DUI charges.‖
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C. Dismissal
***PUBLISHED CASES***
PER SE/IMPAIRED—REFILE/DOUBLE JEOPARDY—LACK OF JURISDICTION
State v. Hanson 280 Kan 709, 124 P.3d 486 (2005)
Hanson was charged with DUI with alternative methods. State conceded at trial there was no evidence to show his BAC was measured within two hours. He was convicted by a magistrate judge for DUI to a degree that rendered him incapable of safely driving. On appeal, the district judge granted Hanson‘s motion to arrest judgment and dismissed without prejudice because the alternative language in the complaint lacked the phrase ―to a degree that rendered him incapable of safely driving a vehicle‖ and was therefore jurisdictionally defective. State re-filed the charge, charging only in the alternative with the proper language. Hanson filed motion to dismiss based on Double Jeopardy. Motion was denied by district judge and he was convicted. Court of Appeals affirmed, stating prosecution is not barred when former prosecution lacked jurisdiction, under K.S.A. 21-3108(4). The Supreme Court affirmed, holding ―Hanson‘s appeal from magistrate court mandates a trial de novo in district court and the magistrate decision is conditionally vacated. When the district court dismissed without prejudice, the magistrate decision was vacated…simply stated, the prosecution starts over and jeopardy does not attach.‖ Jeopardy did not attach, and his rights were not violated. Affirmed.
APPEAL DE NOVO—COMPLAINT—MUNICIPAL COURT
City of Wichita v. Maddox 271 Kan. 445, 24 P.3d 71 (2001)
The Supreme Court affirmed DUI and other traffic convictions. The Court held the district court hearing an appeal from municipal court does not have to rearraign defendant on any of charges and may properly hold trial on basis of municipal court complaint, if it is not required to be amended as allowed by statute. The defendant entered a plea bargain in the municipal court resulting in a DUI conviction and four other traffic offenses to be dismissed. The defendant appealed to the district court. The defendant was convicted of the DUI offense and the other traffic offenses that had been dismissed at the municipal court as part of the plea. The Supreme Court upheld all the convictions, reversing the Court of Appeals in part, holding when an appeal is taken from a municipal court conviction and sentence where a plea bargain has resulted in some charges being dismissed, the district court on appeal has before it all of the charges of the original complaint without requiring refiling of the dismissed charges.
UNLAWFUL DETENTION—DISMISSAL
State v. Cuchy 270 Kan. 763, 19 P.3d 152 (2001)
The Supreme Court reversed a district court dismissal of DUI charges against multiple defendants. On consolidated appeal, the court held a policy calling for 12-hour mandatory detention of DUI arrestees was unconstitutional, but dismissal of DUI charges was not warranted. The sheriff department's policy required all persons
334
arrested for DUI be jailed for 12 hours before being allowed to post bail. The Court held this to be unlawful absent an individualized determination by an officer the person arrested is intoxicated and dangerous to himself or herself or others. The individualized determination by an officer must be based upon the personal observations of the officer and be reasonable under the circumstances. The Court ruled dismissal of the DUI charges, was not an appropriate sanction. The general rule is an unlawful detention, absent a showing of specific prejudice to the defendant's right to a fair trial, is not sufficient to justify the dismissal of criminal charges.
PRELIMINARY HEARING—PROBABLE CAUSE—RECKLESSNESS
State v. Robinson 267 Kan. 734, 987 P.2d 1052 (1999)
The Supreme Court reversed the district court dismissal of information charging the defendant with reckless aggravated battery. The Court held (1) the State introduced sufficient evidence to bind defendant over for trial, (2) the State does not have to prove recklessness at the preliminary hearing stage; it must, however, present some evidence of recklessness to support a charge of reckless aggravated battery, and (3) although intoxication cannot be the sole evidence of recklessness, intoxication may, among other factors, be evidence of reckless behavior. At preliminary hearing, the State presented evidence defendant ran stop sign at major intersection and collided with automobile having right-of-way, that passenger in automobile driven by defendant sustained serious injuries, and defendant's blood alcohol level two hours after accident was over twice the legal limit. The Court noted intoxication of the defendant, although not exhaustive, was evidence of recklessness, and the State presented sufficient evidence of recklessness to bind the charge of reckless aggravated battery over for trial.
PROBABLE CAUSE—RECKLESSNESS—DUI AS EVIDENCE—DOUBLE JEOPARDY
State v. Huser 265 Kan. 228, 959 P.2d 908 (1998)
The Supreme Court affirmed the district court‘s dismissal of two counts of reckless aggravated battery at conclusion of preliminary hearing. The Court held there was no probable cause to bind the defendant over on the reckless aggravated battery charges. The defendant was bound over on two counts of DUI, but the district court dismissed two counts of reckless aggravated battery. The State subsequently dismissed the DUI charges and appealed the district court‘s dismissal of the aggravated reckless battery charges. On appeal, the Court held additional evidence, beyond evidence accused was driving under the influence of alcohol, is necessary to create probable cause for reckless aggravated battery charges; simply driving under the influence of alcohol does not, standing alone, amount to reckless behavior. The Court also noted the offense of reckless driving is a distinct offense and is established by different evidence than crime of DUI of intoxicating liquor, so conviction or acquittal of one offense will not bar prosecution for the other. The Court affirmed the district court, holding there was no probable cause defendant committed reckless aggravated battery.
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APPEAL BY STATE—AUTHORITY
State v. Nelson 263 Kan. 115, 946 P.2d 1355 (1997)
The Supreme Court dismissed the State‘s appeal of district court‘s discharge of defendant on aggravated battery count. The Court held the State lacked statutory authority to appeal. State originally filed three-count complaint charging defendant with aggravated battery, DUI, and consumption of alcohol by minor. The district court discharged defendant on aggravated battery count, and State voluntarily dismissed DUI count. State appealed discharge order while consumption of alcohol by minor count remained pending. The Supreme Court held there is no statutory authority for State to appeal from dismissal in criminal case of some of counts of multiple-count complaint, information, or indictment while case remains pending before trial court on all or portion of remaining counts which have not been dismissed and which have not been finally resolved.
COMPULSORY JOINDER
State v. Todd 262 Kan. 916, 941 P.2d 1374 (1997)
The Supreme Court reversed the district court‘s dismissal of a DUI charge. The Court held earlier conviction did not require introduction of evidence defendant had driven under the influence, and thus did not operate to bar DUI prosecution under compulsory joinder clause of K.S.A. 21-3108(2)(a). Originally, defendant entered no contest plea for refusing to submit to PBT. The motorist then moved to dismiss DUI charge, which arose from same incident. The district court dismissed the DUI charge. On appeal, the Court examined the three elements forcompulsory joinder clause of statute establishing effect of former prosecution to bar subsequent prosecution: (1) prior prosecution must have resulted in conviction or acquittal, (2) evidence of present crime must have been introduced in prior prosecution, and (3) charge in second prosecution must have been one which could have been charged as an additional count in prior case. The Court stated evidence of the DUI was not introduced in the conviction for refusing to submit to a PBT. Reversed.
BAT—FOUNDATION—MISTRIAL—DOUBLE JEOPARDY—PROSECUTORIAL
MISCONDUCT—PROFFER FOR APPEAL
State v. Muck 262 Kan. 459, 939 P.2d 896 (1997)
The Supreme Court affirmed the district court‘s grant of a mistrial but did not uphold the dismissal with prejudice. The Court held (1) officer's testimony regarding his certification to operate breath testing machine was hearsay, violated best evidence rule, and failed to satisfy statutory foundational requirement of K.S.A. 1996 Supp. 8-1002(a)(3) for admission of breath test results; (2) State's intentional conduct in putting on testimony about breath test while aware of its foundation problems supported declaration of mistrial; and (3) remand was required for supplemental findings on whether prosecutor acted with intention of goading defendant into requesting mistrial so as to trigger double jeopardy bar to retrial. At trial, the State failed to produce the arresting officer's certification card for using the Intoxilyzer 5000 breath test instrument for the year of the offense. The officer had his current card and testified he was certified to use the equipment. The officer also testified regarding the results of the test given to the defendant. The district court, relying on Rohr,
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19 Kan.App.2d 869 (1994), ruled the officer‘s current Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck's BAT given in the previous year. The district court granted a mistrial with prejudice. The BAT results had been proffered to a magistrate judge prior to appeal to the district court. On State‘s appeal to the Supreme Court, the Court stated the mistrial was not an abuse of discretion, and noted the foundation requirements for a BAT was not met by the officer‘s testimony and current certification card. The Court also held the BAT results were preserved for appeal by the proffer to the magistrate. On the issue of dismissal with prejudice, the Court held when defendant's counsel moves for mistrial, it is generally presumed defendant consented to mistrial, and thus double jeopardy would not preclude another trial, although prosecutorial misconduct can, under some narrow circumstances, preclude further prosecution even though defendant requested mistrial. The Court then remanded to the district court to determine if the prosecutor‘s acts were intentional, and whether the prosecutor goaded the defense into requesting a mistrial.
DOUBLE JEOPARDY—LICENSE SUSPENSION—PUNISHMENT
State v. Mertz 258 Kan. 745, 907 P.2d 847 (1995)
The Supreme Court reversed a district court order dismissing a DUI count on double jeopardy grounds. The Court held double jeopardy did not bar prosecution of defendant for DUI after defendant's driver's license was administratively suspended. The Court explained a civil sanction cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment. The Court then noted the driver's license suspension sanction in this case serves a purpose which is solely remedial in that the sanction's purpose is to protect the public. Similarly, a sanction which revokes a privilege is a remedial sanction, not a punitive sanction. Driving is considered a privilege, not a right. Thus, the revocation of a driver's license has a remedial purpose, and is therefore not punishment. Thus, the district court dismissal on double jeopardy grounds was reversed and remanded for further proceedings.
PER SE RULE—BAT—CONSTITUTIONAL
State v. Larson 12 Kan. App. 2d 198, 737 P.2d 880 (1987)
The Court of Appeals holds 8-1567(a)(1), driving with a BAT of .10 or above, is a separate crime, and not an unconstitutional presumption of guilt. At the trial, the court granted a directed verdict on the charge under 8-1567(a)(2) because the State failed to prove defendant was incapable of driving safely, but found defendant guilty of a violation of 8-1567(a)(1), having a BAT of .10 within two hours of driving. The CA holds the statute is a rule of law, not a presumption. As to the vagueness argument, the CA finds the statute more precise than 8-1567(a)(2). The CA also finds no error in the stop and ensuing arrest, even where defendant contended he had defective vision, which would have rendered the field tests invalid. (Shawnee, 59856, 6/4/87)
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***UNPUBLISHED CASES***
DOUBLE JEOPARDY-USE OF PRIOR IN ENHANCEMENT
State v. Green 213 P.3d 446, 2009 WL 2499288 (8/14/09) Rev. Den. (7/24/10)
***UNPUBLISHED***
The defendant was DUI and hit another car and severely injured the driver. The defendant was convicted of aggravated battery. During a hearing involving a request for a upward durational sentencing departure the State presented evidence of an incident with the defendant which occurred on October 29, 2004. The incident presented was the defendant was under the influence; he admitted to drinking, did poorly on the SFSTs and almost fell over. There were three other similar incidences presented. The jury found substantial and compelling facts to believe the defendant was a risk to the community and awarded the aggravated sentence. The state filed a DUI case under a separate complaint after the battery trial but before sentencing. After sentencing the defendant filed a motion to dismiss claiming double jeopardy. The judge denied it and the case proceeded on stipulated facts and a verdict of guilty was entered. The defendant appealed. The court cited Witte v. U.S. 515 U.S. 389 (1995) but held the Kansas courts had not adopted that rationale. Citing State v. Arculeo 29 Kan.App.2d 962 the prosecution must be careful that no significant evidence of the subsequent case is presented in the prosecution of the first case. Because the state failed to do so the defendant was subjected to double punishment for the DUI offense. Reversed.
PRELIMINARY HEARING-JUDGE‘S FUNCTION
State v. Ladd Slip copy, 2009 WL 2242434 (07/24/09)
***UNPUBLISHED***
The evidence at preliminary hearing indicated the following information: vehicle drove out of a parking lot at a high rate of speed, after emergency lights were activated the vehicle continued and turned and stopped at a green light finally pulling into a parking lot, defendant admitted to drinking, had bloodshot eyes, loud, slurred speech, with a moderate smell of alcohol, refused to take field sobriety tests, once arrested became profane and threatening lawsuits and refused to take the breath test. The judge dismissed the case and stated the State would ―go down in flames in front of a jury‖ The judge also indicated he did not think the officer‘s testimony would sustain a conviction as a matter of law. The State appealed. The appellate court indicated the judge‘s function at preliminary hearing must accept the version of the testimony which is most favorable to the state and because a person of ordinary prudence and caution could conscientiously entertain a reasonable belief of the defendant guilt the judge should have bound the defendant over. The case was remanded back with instruction to reassign to another judge for further proceedings.
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UCC- DUI STATUTE VAGUE
State v. Banks 181 P.3d 589, 2008 WL 1847707 (2008)
***UNPUBLISHED***
Michael Banks was arrested and convicted of DUI and improper turn. On a pro-se appeal the defendant essentially argued the District Court lacked jurisdiction over the charges against him since no one was injured and the DUI statute is unconstitutionally vague and ambiguous. Under his theory of defense he had reserved his right under common law by noting a reservation pursuant to UCC 1-207 under the signature on his license and therefore the State was required to come forth with the "damaged party". He contends adding a notation referencing the UCC under the signature of his driver's license he had reserved his rights under the common law to require the State to produce an injured person to support the complaint. Since penal offenses such as DUI are creatures of statute and not the common law he therefore cannot be punished under this statute. The Court reviewed the complaint and found it sufficient in charging Banks with DUI. Because of the sufficiency of the complaint the District Court acquired jurisdiction over the charges against Banks. The UCC had no application in this context. Affirmed. Shocking he lost. :)
FAILURE TO ADMIT EVIDENCE
State v. Doyle 122 P.3d 420, 2005 WL 3030328 (2005)
***UNPUBLISHED***
Doyle was charged with DUI and Driving While Revoked. He waived jury trial and requested a court trial. The State admitted evidence to the judge for consideration in the form of police reports and Doyle‘s driving record, which had been agreed to by both parties, in the place of actual testimony. After admitting the evidence and retiring to chambers to review the documents, the Judge noticed only the driving record had been admitted. Defense counsel admitted to knowing the police reports had been erroneously left out by the State. The judge refused to admit the police reports, holding it would be like reopening the case, and found Doyle not guilty. The Court of Appeals dismissed the State‘s appeal of the decision, holding such a decision was within the discretion of the district judge, and because the issue was so unusual, and the State presented no authority for its position, the issue was not ripe for appeal.
APPELLATE JURISDICTION—SUPPRESSION HEARING—DISMISSAL
City of Salina v. Mar 88 P.3d 807, 2004 WL 944022 (2004)
***UNPUBLISHED***
The Court of Appeals reversed the district court‘s dismissal of a DUI charge. The Court held it did not have jurisdiction to address dismissal of reckless driving and failure to stop at stop sign charges, and after district court granted motion to suppress and prosecutor indicated city was unprepared to go to trial, district court abused its discretion by dismissing DUI charge. The Court found they did not have jurisdiction to address the district court's dismissal of reckless driving and failure to stop at stop sign charges, because the city's notice of appeal indicated appeal was from district court order suppressing results of defendant's blood alcohol test and dismissing DUI charge and the suppression motion concerned only the DUI charge. The Court also held after the district court granted
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motion to suppress evidence of defendant's blood alcohol test and prosecutor indicated the city was unprepared to go to trial, the district court abused its discretion by dismissing the DUI charge, because of the circumstances and the fact that policy considerations favor resolution of criminal charges on the merits. After the district court granted the motion to suppress evidence of defendant's blood alcohol test and prosecutor indicated the city was unprepared to go to trial, the district court abused its discretion by dismissing DUI charge, because the defense counsel filed the motion to suppress one day prior to suppression hearing, the city exhibited some diligence in procuring witnesses for hearing, the prosecutor presented evidence that the jury clerk turned one witness away, the defendant did not contend she would have been negatively affected if additional continuance was granted to city, and policy considerations favor resolution of criminal charges on merits.
DE NOVO TRIAL—CONTINUANCE
City of Dodge City v. Soto 83 P.3d 1270, 2004 WL 292123 (2004)
***UNPUBLISHED***
The Court of Appeals affirmed the district court‘s dismissal with prejudice of DUI charge for the officer failing to appear at the de novo trial. The Court of Appeals held city was not entitled to a continuance. Defendant was originally convicted, in the Dodge City Municipal Court, of DUI. Defendant sought de novo review. When the arresting officer failed to appear for the bench trial, the District Court denied the city's motion for a continuance and dismissed the case with prejudice. City appealed. The Court of Appeals held the city was not entitled to a continuance of bench trial for distinct court's de novo review of municipal co