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City of Overland Park v. Zabel8/13/2004
Affirmed.
In Overland Park Municipal Court, defendant Matthew Zabel was found guilty of speeding and driving under the influence of alcohol (DUI), each charge being a violation of the ordinances of the City of Overland Park. The defendant appealed to the district court and filed a motion to dismiss the charges. The district court overruled the motion to dismiss and affirmed the convictions. Zabel appeals. We affirm.
On June 14, 2002, at approximately 2 a.m., Overland Park Police Officer Andrew Black was on the inside shoulder of the southbound lanes of Interstate 35 monitoring the speed of the southbound traffic. All of the southbound traffic that Officer Black could see from his position was within the city limits of Overland Park. The Merriam city limits were approximately a quarter mile south of Officer Black's position.
The defendant was heading south on Interstate 35 in Overland Park. Officer Black measured the defendant's speed at 74 miles per hour within the 60-mile-per-hour zone. Officer Black immediately began pursuing the defendant's vehicle, activating the lights and sirens on his patrol car. Officer Black finally caught up to defendant's vehicle on the off-ramp to Johnson Drive, where the defendant was exiting Interstate 35. The location the defendant's vehicle exited the off-ramp was within the city limits of Merriam.
Officer Black approached the vehicle and made contact with the defendant with the intent of issuing a speeding citation. Immediately upon approaching the defendant, the officer detected an odor of alcohol on the defendant's breath and noticed that the defendant's eyes were extremely red and bloodshot. The defendant had difficulty producing his driver's license for Officer Black. Officer Black asked the defendant to exit his vehicle. The defendant staggered as he exited the vehicle and held onto the car door for support and eventually failed several field sobriety tests. Needless to say, Officer Black arrested the defendant for driving under the influence of alcohol (DUI).
After the arrest, the defendant was taken back to Overland Park for further testing. The defendant took a breath test, and the results showed his alcohol level to be .220. As a result of the investigation, the defendant was charged with speeding, refusal of a preliminary breath test, and DUI, each charge being a violation of the ordinances of the City of Overland Park. The defendant was convicted of each charge by the Overland Park Municipal Court and appealed those convictions to the district court.
The defendant filed a motion to dismiss, alleging that Officer Black had no right to make an arrest for DUI or conduct a DUI investigation in Merriam and then return the defendant to Overland Park to be charged.
The district court found that Officer Black was in fresh pursuit of the defendant at the time of the initial stop for speeding. The court further found there was no jurisdictional problem with the DUI charge because the officer had observed the defendant driving in Overland Park immediately prior to the stop and detection of his impaired state. Ultimately, the court dismissed the refusal of a preliminary breath test charge because such charge was an independent criminal offense which took place entirely within Merriam. The court found the defendant guilty of the DUI and speeding charges.
The defendant argues the Overland Park Municipal Court did not have jurisdiction to convict him of DUI because the conviction was the result of an illegal arrest.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (
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