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CITY OF DODGE CITY v. NORTON4/18/1997
dition of Norton's knees, the judge did not believe the field sobriety test used by Rose was valid. The judge concluded that "the only evidence that the officer had at the time he made the arrest was the observation of the defendant's driving, where he went left of center in a construction area where there was nobody coming, but his testimony was that he was doing so because of the barrels that were to his immediate right."
DISCUSSION
In a DUI case, the answer to the probable cause to arrest question will depend on the officer's factual basis for concluding that the defendant was intoxicated at the time of arrest. Thus, an appellate court's review of the trial court's determination of whether an officer had probable cause to make a warrantless arrest in a DUI case is a mixed question of law and fact. See State v. Hopper, 260 Kan. 66, 68-69, 917 P.2d 872 (1996).
The district court made a finding that probable cause to arrest was lacking. This amounts to a negative finding.
"When the findings are negative, however, there must be proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, since the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it." Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. 1, 679 P.2d 181 (1984). In State v. Clark, 218 Kan. 726, 731, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976), we said:
"`Probable cause . . . refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. It is only necessary the evidence lead the officer to believe that
guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information.' [Citations omitted.]"
Probable Cause for Warrantless Arrest
K.S.A. 22-2401 sets forth the statutory requirements for making a warrantless arrest. Because Norton was charged with a first DUI offense, a class B misdemeanor, K.S.A. 22-2401 (c)(2)(A) or (B) are applicable. Evidence of the crime (Norton's blood alcohol level) would be irretrievably lost unless Norton was immediately arrested and tested. If Norton were allowed to continue driving in his condition, he may have caused serious injury to himself or others. K.S.A. 22-2401 (d) is also applicable, in that the officer observed Norton's driving before the arrest. See State v. Press, 9 Kan. App. 2d 589, 592, 685 P.2d 887, rev. denied 236 Kan. 877 (1984) (applying those provisions of K.S.A. 22-2401 to a DUI warrantless arrest).
Although Clark concerned application of K.S.A. 22-2401 (c)(1) to a warrantless arrest for rape, this court's discussion of probable cause in that case is useful. See 218 Kan. at 731-32.
Probable cause to make a warrantless arrest under K.S.A. 22-2401 requires something more than a reasonable suspicion sufficient to justify a traffic stop under K.S.A. 22-2402. We discussed the distinction between probable cause to arrest and reasonable suspicion to stop in State v. Field, 252 Kan. 657, 659-60, 847 P.2d 1280 (1993). See City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997).
State v. Larson, 12 Kan. App. 2d 198, 737 P.2d 880 (1987), considered a defendant's argument that the results of a field sobriety test should be disregarded because of his physical impairment. Larson was stopped for going 72 mph on the inter
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