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CITY OF DODGE CITY v. NORTON4/18/1997
The opinion of the court was delivered by:
Plaintiff City of Dodge City (City) appeals the district court's dismissal of the complaint charging defendant Norman
Norton with driving under the influence of alcohol (DUI), in violation of K.S.A. 1994 Supp. 8-1567, for lack of probable cause to arrest. Our jurisdiction is under K.S.A. 22-3602 (b)(1) (appeal by the prosecution as a matter of right from an order dismissing a complaint).
The issue is whether there was sufficient evidence to establish probable cause to arrest Norton for DUI. Was the dismissal of the complaint error? We hold that it was.
Norton appealed his municipal court conviction and sentence. After the appeal, the city prosecutor filed a notice of intent to proffer a certificate of analysis and laboratory report showing the results of a blood alcohol examination of Norton; the blood sample showed blood alcohol of .21 grams per 100 ml. of blood. Norton filed both an objection to the proffer and a motion to dismiss and/or suppress the blood test results, based in part on lack of probable cause for the arrest.
We summarize the testimony at the hearing on the motion to dismiss.
Late on the evening of May 1, 1995, Officer Rose received a radio transmission from another officer (Addison) investigating a complaint concerning someone knocking on a door trying to get somebody up late at night at a trailer park. Rose was alerted to look for an older model General Motors pickup being driven by Norton and to check the driver for intoxication. People at the trailer park who talked to the investigating officer described Norton and the vehicle. They thought Norton was intoxicated. Addison was possibly going to pursue the incident at the trailer park as a disorderly conduct charge. Rose observed a pickup and driver matching the description and began to follow. The street was under construction. There were two lanes of traffic in the south half of the street, one for each direction. Rose observed the pickup miss two construction barrels by inches. A check showed the pickup was registered to Norton. As Rose followed, the pickup veered to the left and went over the center line for a block to a block and a half, then came back into its own lane, missing some construction barrels on the right. The driver was having trouble driving straight in his lane. There were two double yellow street lines through the
construction zone. The pickup slowed down and turned into a vacant lot next to a bar.
Rose was getting ready to stop the pickup when it slowed down at the intersection near the bar, made the turn, and pulled into a driveway. Rose pulled up behind it. Rose met the driver, asked his name, and told Norton that he had been following because another officer had reported that Norton had possibly been drinking, and Rose needed to check him out for that. Rose was 3 or 4 feet from Norton and could not smell any odor of alcohol. There was a slight breeze, and it was misty. Rose asked Norton for his I.D. Norton identified himself and told Rose that he had been trying to find a friend at the trailer park. When the friend did not come to the door, Norton left. Norton told Rose that he then decided to "come back to the bar for a couple more drinks." Based on Norton's statement, Rose thought Norton had had a couple of drinks before. Also, Norton's eyes were "a little bit pink around the edges or blood shot." Rose pointed out that Norton was driving all over the road, had missed construction barrels by inches, and had been driving on the other side of the yellow lines for a block and a half. Norton's facial reaction registered surprise.
Rose asked Norton if he
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