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State v. Hobbs7/11/2003
clerk called the police.
A police officer who was dispatched from the accident to the motel later spotted Hobbs in the vicinity running near a fast-food restaurant and pursued him on foot. The officer lost sight of Hobbs. Two K-9 units were called in. While a foot search was being conducted with the dogs, Hobbs was located and arrested on K-7 highway going south. He was transported to a holding cell in Bonner Springs.
Additional facts are developed as necessary in the discussions of various issues.
Hobbs first challenges the admission of evidence of his blood alcohol content.
The first officer arrived at the scene of the accident at approximately 11:50 p.m. on June 5, 2000. He was advised by witnesses that the driver of the Ford Explorer had run away. At the scene, an inventory of the contents of the Ford Explorer revealed two Busch beer cans, wallets, pagers, a cooler with ice in it, and an unopened bottle of Rolling Rock beer. One of the wallets contained identification for Hobbs.
Hobbs, who initially gave his name as Jim Gaines, was located by Officer Bogart approximately 2 to 2 ½ miles from the accident scene. At approximately 2:50 a.m., Hobbs was taken into custody and transported to the Bonner Springs City Hall. He smelled of alcohol, and his eyes were bloodshot and watery.
Officer Ruhulessin read the implied consent form to Hobbs that informs a person of the consequences of refusing to submit to breath, blood, or urine tests for alcohol and/or drugs. Ruhulessin testified that Hobbs appeared to be intoxicated at the time. "His eyes were bloodshot, watery, glazed and droopy. His speech was slurred and mumbled. His there was a strong odor commonly associated with an alcoholic beverage emitting from his breath." After he refused to submit to a blood test, Hobbs was taken to a hospital for the purpose of having blood withdrawn. His blood was taken for testing by an emergency room nurse.
Hobbs filed motions to suppress the results of the blood test on the grounds that taking his blood constituted an unreasonable search and that K.S.A. 2000 Supp. 8-1001(f)(1) is unconstitutional. On appeal, Hobbs challenges the constitutionality of K.S.A. 2000 Supp. 8-1001(f)(1) on the ground that it supplies probable cause to believe defendant operated a vehicle under the influence of alcohol or drugs "if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to another person." The portion of the statute complained of by Hobbs has no application to this case because Hobbs' slurred and mumbled speech, bloodshot, watery, glazed, and droopy eyes, strong odor of alcohol, and the evidence linking him with operation of the Ford Explorer constituted ample bases for probable cause to believe that he operated a vehicle under the influence of alcohol or drugs. "A defendant to whom a statute may constitutionally be applied cannot challenge the statute on the ground that it may conceivably be applied unconstitutionally in circumstances not before the court." State v. Papen, 274 Kan. ____, ____, 50 P.3d 37, 46 (2002). In passing, we note that the current version of the statute does not include the complained-of clause. See K.S.A. 8-1001(h).
Hobbs also complains that the district court erred by admitting the results of his blood alcohol test into evidence. He contends that, because the test result was below the legal limit for DUI, it was irrelevant and confusing to the jurors. The admission or exclusion of evidence lies within the sound discretion of the trial court. A defendant asserting that the trial court abused its discretion bears the burden of showing that the trial court's ac
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