Thursday, March 24, 2011

DUI Appeal - Kansas DUI Arrest and Preserving Error after Denial of Motion to Suppress

The case of Kansas v. Adam, Slip Copy, 2011 WL 867608 (Table) (Kan.App.) gives DAD an opportunity to reiterate the importance of preserving errors. in several past DAD columns, appeals are brought where the defense counsel failed to object, causing the grounds for appeals to be lost, waived, forfeited, or reviewed under more onerous standards, such as 'plain error' or 'harmless error'. The below case involves a defendant who lost a motion to suppress evidence where he refused field tests, and had the pbt suppressed. However, at trial the defendant did not re-raise the denial of his motion to suppress. Under Kansas law, when the district court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. This rule is not much different than many other states in that regard. Kansas does have an exception to the above, however. The exception states:

“When the same judge who heard the testimony at a suppression hearing presides over the bench trial and is aware of the circumstances under which the State obtained the evidence and the defendant's objections to it, when the trial consists of a submission to the court of stipulated facts and a transcript of the suppression hearing, and when no witnesses are called or additional evidence presented, the contemporaneous objection rule does not apply and the issue of the admissibility of the evidence is preserved for appeal.”
The majority found that even though all of the testimony was admitted by stipulation from the motion and into the trial, and even though it was the same judge at both, since there were 5 additional Intoxilyzer exhibits introduced during the trial, then the above exception did NOT apply, and the denial of the motion to suppress was insufficiently preserved for appeal.

In a matter of apparent gratuity, the appeals court nevertheless stated that even though the matter was not preserved, it would have found sufficient probable cause anyways. Always, always raise objections contemporaneous to admission of evidence, and during motions at the close of the State's case, and in any written post-trial motion in order to ensure that it is preserved for appeal.

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