 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Kendall12/6/2002
Affirmed.
Richard R. Kendall, Jr., appeals his felony conviction under K.S.A. 1999 Supp. 8-1567 of driving under the influence (DUI), his convictions of driving while license suspended and refusing a preliminary breath test, and his sentence. The issues are whether: (1) the trial court erred in its response to a jury question regarding the definition of driving and, if error, was the error harmless; (2) the trial court erred in allowing a witness to give an opinion as to whether Kendall was under the influence of alcohol; and (3) 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 violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
We hold that (1) although the trial court's response to the jury's question was incorrect, the error was harmless; (2) the trial court did not err in admitting the officer's testimony concerning Kendall's condition; and (3) the use of Kendall's two prior DUI convictions to change the classification of the DUI here from a misdemeanor to a felony does not violate Apprendi.
We affirm Kendall's convictions and his sentence.
FACTS
On April 8, 2000, Officer Ogburn found Kendall slumped over the steering wheel of his truck, which was resting in the middle of a public street in a residential neighborhood. The truck's motor was running, and Kendall was wearing his seat belt. The truck's headlights and brake lights were on. Kendall appeared to be asleep. He had one foot on the brake. Officer Ogburn testified that the truck was in neutral.
Backup officers arrived and Officer Ogburn reached into the truck, turned off the engine, and took the keys. Kendall did not wake up. The officer shook Kendall repeatedly. When Kendall woke up, he said, "I'm not driving." The officer smelled alcohol and asked Kendall to step out. Kendall tried to get out without unfastening his seat belt. Officer Ogburn testified that Kendall was having problems with balance and coordination.
Officer Ogburn asked Kendall to perform field sobriety tests. The officer testified that Kendall recited the alphabet to the letter Q. Kendall stopped and inquired if he should continue, then recited the rest of the alphabet. The officer testified that Kendall's speech was noticeably slurred and he could smell alcohol on Kendall's breath.
Officer Ogburn asked Kendall to: (1) stand on one leg for 15 seconds (Kendall tried twice but stood on one leg for only 1 second each time); (2) walk a straight line heel-to-toe with his hands at his side (the officer testified that Kendall used his arms to steady himself and he was staggering; the officer stood beside him throughout the test because he was afraid Kendall would fall); and (3) take a preliminary breath alcohol test (Kendall refused).
The officer placed Kendall under arrest. Kendall refused to turn around and put his hands behind his back, and another officer turned him around. Officer Ogburn described Kendall at that point as "not agreeable." Once taken to the law enforcement center, Kendall again refused to take a breath alcohol test.
Kendall was charged with DUI, driving while license suspended, and refusing a preliminary breath test. Kendall's defense at trial was that he had not been drinking and he did not drive the truck.
Kendall's Testimony at Trial
Kendall testified that the day he was arrested, he had worked 14 1/2 hours at his construction job, ate dinner, slept for a few hours, then went to a party with a woman who was his friend. The friend drove his truck to the party because hi
Page 1 2 3 4 5 6 7 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|