DUI Appeal - Kansas One-Legged Man Loses Preliminary Hearing

In State of Kansas v. Adams, Slip Copy, 2011 WL 1475976 (Table) (Kan.App.) the State appealed the dismissal of a complaint for DUI following a finding of no probable cause. Around 10:30 one evening in September 2008, Officer Jeffrey Browne, on duty as a Hoisington police officer, received a telephone call from his wife. She was driving toward town and reported a car had nearly sideswiped her as she passed it. Before that, the car had swerved back and forth in its lane. She also told him the car's bright lights came on and off as she was passing. Both his wife's car and the car she had passed drove by Officer Browne's location and he pulled in behind the car his wife had passed. The officer saw the brake lights come on several times and the car suddenly braked as it turned onto a different street. He noted the tag light was not working but saw no other infractions. Officer Brown stopped the car.
Officer Browne testified Adams was not unsteady while he exited the vehicle and his speech was fair. However, Adams had an odor of alcohol, his clothes were dirty, his eyes were bloodshot and glazed, he had trouble walking, and there was a slight slur to his speech. Officer Browne asked for Adams' driving license, but Adams did not have it with him. Adams gave Officer Browne his insurance papers without fumbling.

At some point, Officer Browne asked Adams about the swerving. Adams explained that he was running out of gas. Later, Officer Browne testified that he did not believe Adams told him he was trying to slosh gas residue in the tank so that he could get gas into the engine.

Officer Browne testified Adams walked with a limp and used the car for balance. Officer Browne admitted, however, that Adams told him he does not have much of a left leg. This was the leg Adams was having trouble moving. Officer Browne said Adams swayed slightly while standing. When Officer Browne asked Adams to perform field sobriety tests, Adams agreed but noted he had only one leg. Adams was unable to perform the walk-and-turn test and the one-leg test. Officer Browne testified Adams performed the horizontal gaze nystagmus test but provided no additional testimony on this subject as a result of defense counsel's objection to the evidence.

Officer Browne testified he asked Adams to take a preliminary breath test and Adams refused. The appeals court rationalized that since there were no findings indicating a lack of credibility, then the trial court was obligated to consider the four factors of which there was no dispute: Officer Browne's testimony about the braking by Adams, Adams' bloodshot and glazed eyes, his slurred speech, and his swaying while standing. The appeals court was critical of the fact that the trial court simply did not address those factors.

Kansas' law on preliminary hearings and probable cause is unusual (at least to this author):

"Because this was a preliminary hearing, the rules are somewhat different. When the district court evaluates the evidence presented at a preliminary hearing, the court must consider the defense and pass judgment on the credibility and competency of all witnesses. When there is a conflict in witness testimony that creates a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony that is most favorable to the State."

Concluding, the court stated:

"Here, there was a conflict between the testimony of Officer Browne's wife about Adams' erratic driving within his lane of traffic and Adams' explanation that he was almost out of gas. That created a question of fact for the jury and the court was required to accept the version of the testimony most favorable to the State. In this case, that would be evidence of impaired driving caused by alcohol consumption.* * * * To show probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to entertain a reasonable belief that the defendant is guilty. Corbett, 31 Kan.App.2d at 71. We find there was sufficient evidence here.* * * * We reverse the dismissal of all counts and remand the case to the district court."
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