 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Seems8/8/2003
Affirmed.
The State appeals the district court's dismissal of a driving under influence of alcohol (DUI) case against Monty D. Seems. We affirm.
On March 16, 2002, Officer Timothy Greenwood stopped Seems for an improper left turn. According to Greenwood, Seems had watery eyes, slurred speech, and a strong odor of alcoholic beverages. Seems' performance on the sobriety tests showed impairment, and he refused to take a preliminary breath test. Greenwood arrested Seems and took him to the police station, where he refused to take a breath test. At the hospital, Seems' blood was drawn without his consent.
The laboratory results from the Kansas Bureau of Investigation showed that Seems had a blood alcohol concentration level of 0.22. He was charged with one count of felony DUI as well as other misdemeanors and a traffic infraction. The complaint listed Seems' prior conviction dates as October 20, 1998, and January 4, 2000. Later, the dates of the prior convictions were deleted and the amended charges excluded the specific dates.
At the preliminary hearing before the magistrate judge, Seems argued the case should be dismissed because the State had failed to present any evidence of prior convictions on his record necessary to make the DUI a felony. The court agreed and dismissed the case.
The State appealed to the district court. The district court affirmed the dismissal of the case by the magistrate judge.
K.S.A. 8-1567 provides in a pertinent part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
"(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. . . ."
"(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. . . ."
"(f) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500."
Seems was charged with a felony DUI in violation of K.S.A. 8-1567 (a)(1), (2), and (3) in the alternative and under (f), subject to the amended complaint.
The State maintained it was not required to present evidence of the prior convictions at the preliminary hearing. The State relies on State v. Rome, 269 Kan. 47, 5 P.3d 15 (2000), and State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996). In Masterson, the defendant was convicted of DUI on a complaint alleging a crime severity level B misdemeanor, but the State sought to have him sentenced for a severity level A misdemeanor. The Supreme Court agreed with the trial court, which had sentenced the defendant for t
Page 1 2 3 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|