DUI Law - Kansas Says Brights Stop is Illegal

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

In State of Kansas v. Peach, Slip Copy, 2011 WL 4440184 (Table) (Kan.App.), the driver passed a cop car parked on the side of the road. The police vehicle may have had its headlights on or just the parking lights. The defendant did not dim his brights as he passed, so the police officer stopped the defendant. The trial court found the stop illegal:

"The district court reasoned that the statute Hendricks asserted Peach violated requires that a driver dim his or her high-beam headlights when approaching “an oncoming vehicle within 500 feet....” K.S.A. 8–1725(a). (Emphasis added.) On the undisputed evidence, Hendricks' police cruiser was parked on the side of the road. It was stationary. Accordingly, the district court concluded it could not have been an oncoming vehicle within the meaning of the statute, and Peach, therefore, had no obligation to dim his headlights.

The appellate court affirmed:

In construing statutory provisions, the appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). It is not the courts' business or function to add to or take away from the language of a statute. And the courts should not impose some meaning on a statute beyond what the words themselves convey through their common and usual definitions. * * * *

The common meaning of “oncoming” entails movement forward. Webster's Third New International Dictionary Unabridged 1575 (1966) (Oncoming means “moving forward upon one.”); Oxford American Desk Dictionary and Thesaurus 575 (2d ed. 2001) (Oncoming means “approaching from the front” and may be considered synonymous with “advancing” or “arriving.”); The American Heritage College Dictionary 971 (4th ed. 2004) (Oncoming means “coming nearer [or] approaching.”). An oncoming army is one that is advancing rather than bivouacked. The same may be said of cars. Hendricks' police cruiser was not “oncoming” when Peach drove by.

The State also tried to advance a good-faith exception, which was also rejected:

"In Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 638–39, 176 P.3d 938 (2008), the court held that “an officer's mistake of law alone can render a traffic stop violative of the Fourth Amendment....” The court cited cases from the United States Court of Appeals for the Tenth Circuit and other federal authority supporting that principle. While the holding in Martin is not stated as rule without exception or to be invariably applied, the court certainly recognized a law enforcement officer's misunderstanding of the correct construction of a statute upon which he or she relied in making a stop and in seizing evidence would permit a formidable and likely successful Fourth Amendment challenge to those actions."

Editor's Note: Yes, this case is a real 'Peach' for the defense!

DUI Law - Kansas Jury Improperly Instructed on DUI

In State of Kansas v. Stieben, --- P.3d ----, 2011 WL 3209875 (Kan.) the defendant went to jury trial for DUI. 28 minutes into deliberations, the jury sent a note to the judge:

‘Did Defendant cross the fog line before the officer turned around?’  

Contrary to the defendant's recollection and objection, the judge answered the question:

“THE COURT: That's my recollection. I have it written down. I'm going to write yes. And, with no more explanation than that." 

Trooper Hemel's actual testimony was: “The vehicle had also drifted toward the fog line when it was coming at me.” On cross-examination, he testified that when he first encountered Stieben he did not see any traffic violations and saw no conduct that would have led him to stop her. 

The Supreme Court of Kansas found that the response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22–3420(3). K.S.A. 22–3420(3) explicitly allows the court to have the testimony read or exhibited to the jury, and where the parties were in disagreement about the testimony, such a direct showing to the jury would have excused the court from relying on its notes and memory. 

Second, it was held that the trial court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.

The Supreme Court distinguished the different functions a trial court must perform when there is a question of law and when there is a question of fact:

Where the jury is “obviously confused” on a point of law, the court has an obligation to provide further instruction, even if the original jury instruction would normally have been sufficient. The failure of the trial court to give the jury additional information was clearly prejudicial and denied the defendant a fair trial. See State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering questions “accurately”). We find that the statutory scheme similarly contemplates a clarifying answer when the jury is obviously confused on a point of fact, and K.S.A. 22–3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion. 

"The second point of error relates to the respective functions of the trial court and the jury. The jury asked the trial court to resolve a question of fact, and the court complied with the jury's request. The court could have directed the jury instead to rely on its collective memory, or the court could have read the testimony back to the jury. The court elected, however, to inform the jury that Stieben crossed the fog line as the trooper approached her. 

"The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995] ). The prosecution not only bears the burden of proving all the elements of the offense charged, it must also persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). 

"An instruction that includes a factual determination made by the trial court “invades the province of the jury as the factfinder” and violates the defendant's rights to have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772, 80 P.3d 1113. 

"It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. “ ‘ “Whatever probative force the government's proof possessed, the jury had the power to accept or reject it—or to find it insufficiently persuasive. The defendant had a correlative right to free and unhampered exercise by the jury of all its powers.” [Citation omitted.]’ ” Brice, 276 Kan. at 770–71, 80 P.3d 1113 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir.1988] ). 

"It is for the jury alone to determine the credibility of eyewitnesses. State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the weight or credibility of evidence because those matters belong strictly to the province of the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the court itself went where an expert witness may not go: it did not just “testify” about the credibility of certain evidence, it used its judicial authority to make the finding of fact for the jury.

Concluding that the error was significant, the Supreme Court stated": "This usurpation of the jury's role was especially egregious because the court provided the jury with an answer contrary to the only evidence presented."

A new trial was thereafter granted.

Looking for a Top Kansas DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Law - Kansas Finds Refusal Remarks of Prosecutor Improper

In State of Kansas v. Nye, --- P.3d ----, 2011 WL 3209855 (Kan.App.) the court was asked to decide whether a prosecutors comments about a refusal to submit crossed the threshold from fair comment on consciousness of guilt, into the improper area of shifting the burden to defendant to prove his innocence. The appeals court wrote:

"As a general rule, a prosecutor's comments in closing argument on the defendant's refusal to take a breath test, including the inference of intoxication that may be drawn from the evidence, are within the wide latitude that a prosecutor is allowed in discussing the evidence. Nevertheless, we perceive a distinction between the prosecutor's comments herein and those comments approved by this court in Wahweotten. We are particularly concerned with the following comments made by the prosecutor herein:

“We all know the result will be incriminating if he had taken it [the breath test]. Why is he now saying he's not guilty? He knew back then, 1st of February, 2009. Now he's saying he's not guilty. Does that make any sense to you?

....

“... The defendant is guilty. He knows it.”

We find that these comments go beyond a prosecutor's fair argument that intoxication may be inferred from the defendant's refusal to take a breath test. Nye's refusal to take the breath test does not justify the prosecutor's comment that Nye “knew back then” that he was guilty, and “[h]e knows it” now. We believe these particular comments crossed the line and placed a burden on Nye to take the breath test to prove his innocence. Moreover, the prosecutor's comments impugned Nye's right to contest the DUI charge and request a jury trial."

Nevertheless, the appeals court found this error, as well as several other improper comments, harmless. Save this case for your motion in limine.


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Attempt DUI Does Not Exist in Kansas

In State of Kansas v. Perkins, --- P.3d ----, 2011 WL 2732597 (Kan.App.), the Supreme Court of Kansas was asked to determine whether the definition of attempt found in the criminal code should be applied to a charge of "operating or attempting to operate a vehicle while under the influence of alcohol to the degree he could not do so safely." At trial, Perkins testified that the passenger, his stepson, had been driving the entire time and that the two of them switched places after parking the truck. According to Perkins, they had pulled over to clean up vomit he had deposited in the truck cab. In the course of doing so, they had gotten out of the truck, and Perkins had then sat down in the driver's seat. Perkins told the jury he didn't have much recollection of Trooper Henrickson or their interaction. Perkins' stepson testified that he had driven the pickup and parked on the shoulder.

Under K.S.A. 21–3301, an attempt is “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 is prevented or intercepted in executing such crime.” Perkins reasons that the jury concluded he drove the pickup truck and then parked on the shoulder of the highway. In turn, he could not have been guilty of an “attempt” to drive because he neither “failed” in that effort nor was he “prevented or intercepted” before he could and actually did drive.

Perkins argued there was insufficient evidence to support a conviction for attempting to operate or drive the pickup truck. The lynchpin of Perkins' legal argument was how he defined an attempt under the DUI statute. There is no language in K.S.A.2008 Supp. 8–1567 that supplies a specific definition. Perkins submitted that the failure to define "attempt" within the DUI statute allowed him to import the definition of attempt from the provision of the Kansas Criminal Code used to establish attempts as a distinct type of crime, K.S.A. 21–3301.
In rejectiong the defendant's argument, the Supreme Court stated:

"Applying the requirements of K.S.A. 21–3301 to an attempted DUI would undercut the purposes of K.S.A.2008 Supp. 8–1567. Driving under the influence, like many traffic offenses, falls in the no-bad-intent category. State v. Martinez, 268 Kan. 21, Syl. ¶ 3, 988 P.2d 735 (1999). If K.S.A. 21–3301 were to control, however, an attempted DUI would require proof of a specific intent to drive while drunk. Nothing indicates the legislature had that in mind. It would be a peculiar thought: The completed offense of DUI would require no criminal or bad intent, but an attempted DUI would require a specific state of mind to perform the prohibited act of driving drunk.

In turn, voluntary intoxication would be a defense to an attempted DUI if it negated that specific intent. What that would mean is someone really drunk—too drunk to get a car in gear, for example—could beat a charge of attempting to drive under the influence precisely because of his or her intoxication. Such a result might be the stuff of law school debate, but attributing it to the legislature is kind of loopy. And the courts refrain from seeing loopiness in legislative handiwork unless they have no other choice. State v. Barnes, 275 Kan. 364, Syl. ¶ 2, 64 P.3d 405 (2003) (“The legislature is presumed to intend that a statute be given a reasonable construction so as to avoid unreasonable or absurd results.”).

There is another, independent reason the legislature did not intend to incorporate the criminal attempts statute into the DUI statute. The inclusion of the phrase “attempt to operate” in the definition of the DUI offense in K.S.A.2008 Supp. 8–1567 would have been unnecessary and, thus, superfluous had the legislature meant the criminal attempts statute to govern. The provisions of K.S.A. 21–3301 apply to “the [failed] perpetration of a crime.” In turn, a “crime” includes an offense “created by statute other than in this code.” K.S.A. 21–3102(2). And a crime “is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine ... is authorized.” K.S.A. 21–3105. Read in tandem, K.S.A. 21–3102(2) and K.S.A. 21–3105 establish the offense of DUI, as set forth in K.S.A.2008 Supp. 8–1567, as a “crime.”

Had K.S.A.2008 Supp. 8–1567 contained no language regarding attempts at all, K.S.A. 21–3301 would have applied to criminalize an attempted DUI. Accordingly, the legislative decision to mention attempts specifically and to treat them identically to the completed crime must have been undertaken to change the default rule that would otherwise apply K.S.A. 21–3301 for that purpose. As we have said, the reference to attempts in K.S.A.2008 Supp. 8–1567 would be wholly unnecessary and entirely vestigial if the legislature wanted K.S.A. 21–3301 to control. The accepted rules of statutory construction run counter to that result. See Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 613, 124 P.3d 74 (2005); State v. Van Hoet, 277 Kan. 815, 826–27, 89 P.3d 606 (2004) (“The court should avoid interpreting a statute in such a way that part of it becomes surplusage.”).

We, therefore, believe the legislature both meant to act in a reasonable way when it referred to an attempt to operate a vehicle as being included in the offense of DUI outlined in K.S.A.2008 Supp. 8–1567 and wasn't simply littering the statute with extra words. Accordingly, we reject Perkins' argument that the nature and scope of an attempted DUI is controlled by K.S.A. 21–3301.

Thus, the conviction was affirmed.

Editor's Note: Unlike, Kansas, many other states do not include the word "attempt" in their specific DUI/DWI statute, although they do have such an offense in the criminal code.. According to Kansas' position, that would create a loophole - "[h]ad K.S.A.2008 Supp. 8–1567 contained no language regarding attempts at all, K.S.A. 21–3301 would have applied to criminalize an attempted DUI" said the Supremes - keep this opinion available on your next felony. It could get dropped to a misdemeanor if the "attempt" defense applies.....


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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."
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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.


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Kansas DUI Jury Wrongly Instructed - Hung Jury

In State of Kansas v. Torres, Slip Copy, 2011 WL 867602 (Table) (Kan.App.) the defendant proceeded to jury trial on his DUI and related charges. The challenged instruction to the jury was made after voir dire and before opening statements, where the judge gave the following Allen-type charge:

“Because this is an important case, if you should fail to reach a decision, the case is left open and undecided. Like ail cases, it must be decided. Another trial would be a heavy burden on both sides.

“There's no reason to believe that this case could be tried any better or more exhaustingly than it can at this time. There's no reason to believe any more evidence would be produced by either side, or also no reason to believe that, if the case were retried, it would be submitted to twelve people who are more intelligent, reasonable, or capable than you twelve, because any future jury is going to be selected in the same manner.”

Torres did not object to this statement. He was then convicted. On appeal, Torres contended that that it was improper and prejudicial to tell the jury: “Like all cases, it must be decided. Another trial would be a heavy burden on both sides.” The appeals court agreed that such a statement was improper:

Our courts have held that the statement “[l]ike all cases, it must be decided” is inaccurate because the case might not be retried and could be dismissed without prejudice and never decided. State v. Scott-Herring, 284 Kan. 172, 180-81, 159 P.3d 1028 (2007); State v. Turner, 34 Kan.App.2d 131, 134-35, 115 P.3d 776 (2005). Further, our Supreme Court has found the statement “ ‘[a]nother trial would be a burden on both sides' “ to be both misleading and inaccurate. State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).

However, since Torres failed to timely object, the court then had to determine whether the instruction was clearly erroneous, i.e., "whether we are firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred." the court found against the defendant, holding that "there is no real possibility that the jury would have returned a different verdict had the court's post-voir dire statement not been made to the jury."


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!