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CITY OF DODGE CITY v. HADLEY4/18/1997
The opinion of the court was delivered by
Robert Hadley was convicted of driving under the influence (DUI) and transportation of an open alcoholic beverage container and sentenced. Hadley filed a notice of appeal from the judgment of conviction. The Court of Appeals dismissed the appeal on the ground that the notice of appeal had not been filed within the 10-day limitation period of K.S.A. 22-3608(c). Hadley's petition for review was granted by this court on November 8, 1996. The parties were directed to brief the jurisdictional issue as well as the issues on appeal.
On December 6, 1994, the dispatcher sent Officer Ernest Mazza of the Dodge City Police to a convenience store on East Trail "in reference to a disorderly male, who they identified by the name of Robert Hadley." Before Officer Mazza got to the convenience store, his attention was diverted to a truck stop. At the truck stop, an employee told Officer Mazza that Robert Hadley had left in a red Ford pickup and had gone "over the overpass south." When Mazza got to the top of the overpass, he could see a red Ford pickup turning into the parking lot of the convenience store. A check of the license tag showed that it belonged to Robert Hadley.
Officer Mazza went over to the red truck. The driver, Hadley, rolled his window down and asked in a slurred manner what the officer wanted. Getting out of the truck at the officer's request, Hadley almost fell. Officer Mazza could smell a strong odor of alcohol on his breath. Hadley showed other indications of intoxication — a wooden expression and glazed eyes.
Officer Mazza asked Hadley to perform field sobriety tests. Hadley said he was stiff and unable to do the walk-and-turn because he was old. Mazza testified, "He had to keep holding himself up on a vehicle." According to Mazza, "Due to his obvious intoxication, I placed him under arrest."
In the meantime, Officer Schwearing arrived. After defendant was arrested, Schwearing searched the vehicle and found an open bottle of whiskey behind the driver's seat. The bottle was admitted into evidence.
Defendant was taken to the police station. After being read the implied consent advisory form, defendant refused to take a breath test. He was asked to repeat the sobriety tests. Defendant was able
to stand on one leg only 7 seconds, and he was unable to do the walk-and-turn properly or complete it. His attempts were videotaped, and 8 minutes of the videotape were admitted into evidence and viewed by the trial judge. When asked to recite a short segment of the alphabet beginning with a letter somewhere in the middle, Hadley started with A and went through Z. He also failed to follow instructions when asked to touch his finger to his nose with his head tilted back.
Officer Mazza had 8 1/2 years' experience in law enforcement, approximately 80 hours of DUI detection and apprehension training, and had made approximately 150 arrests. On this occasion, Officer Mazza observed Hadley driving his truck for a short distance and further observed him for approximately 30 minutes after stopping him. In Officer Mazza's opinion, Hadley was under the influence of alcohol and, as a result, was unable to operate a vehicle safely. His opinion testimony was admitted over defense counsel's objection.
Sergeant Robert Strader of the Dodge City Police was at the police station when Officer Mazza brought Hadley in. Strader testified that there was a strong odor of alcoholic beverage from Hadley's breath, his speech was slurred, and his eyes were bloodshot. He also testified that Hadley was unable to keep his balance while trying to do the sobriety tests. Al
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