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CITY OF DODGE CITY v. NORTON4/18/1997
state near Topeka. In talking to Larson, the officer noticed that his speech was slurred and he was slow in locating his driver's license. The officer asked Larson to perform several field sobriety tests. There was a strong odor of alcoholic beverage on Larson's breath. Larson was arrested for DUI. Larson testified that he told the officer at the time of the field sobriety tests he had a defect in his left eye and that he would not do well on any coordination or depth
perception test and would prefer another field sobriety test. In affirming Larson's DUI conviction, the Court of Appeals stated: " rivers who fail field sobriety tests due to impairments other than drunkenness will be protected by the results of the blood or breath testing performed following arrest." 12 Kan. App. 2d at 204. The Court of Appeals' reasoning applies here.
The better practice would have been for Rose to have required more than one field sobriety test. However, Rose believed Norton was intoxicated after administering the heel-to-toe test. That belief was further solidified when Rose got close enough to smell Norton's breath. Norton was getting out of his pickup to go into the bar when Rose encountered him. Rose could not independently verify the accuracy of what Norton told him about the condition of his knees or determine how that condition might have affected Norton's field sobriety test performance.
Norton argues that Rose did not smell alcohol until he had placed Norton under arrest. Rose's testimony showed that he smelled alcohol on Norton's breath when he approached Norton to place him under arrest after Norton performed the heel-to-toe test. Even if Rose had already decided that Norton was intoxicated before he smelled alcohol on Norton's breath, if his smelling of the alcohol occurred before the instant of arrest, it should be considered as part of the basis for the probable cause determination.
At the time of the arrest, Rose had the following undisputed information: (1) Norton had created a disturbance at a trailer park and was intoxicated and driving a pickup; (2) Norton's pickup narrowly missed construction barrels and weaved in his own lane; (3) Norton parked next to a bar, got out of his pickup, and told Rose he had been at the trailer park to arouse a friend and was going into the bar for a few drinks; (4) Norton's eyes were pink or bloodshot; (5) Norton told Rose he had problems with his legs and failed the heel-to-toe test; and (6) Rose smelled alcohol on Norton's breath as he approached him to place him under arrest. This information is sufficient to establish probable cause to arrest.
We sustain the City's appeal and remand the case for further proceedings.
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