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State v. Montgomery10/21/2005
Affirmed in part and reversed in part.
Before ELLIOTT, P.J., MALONE and McANANY, JJ.
Erma Jean Montgomery appeals her convictions of driving under the influence of alcohol, failure to maintain a single lane, transporting an open container, and leaving the scene of an accident. We affirm her transporting an open container conviction and reverse the remaining convictions.
The facts that led to the charges against Montgomery are not in dispute. At 2:25 p.m. on December 15, 2002, Shawnee County Deputy Sheriff Kyle Lang was dispatched to investigate a single-vehicle accident. When he arrived he found an unoccupied van sitting in the roadway. The van had hit a road sign and the side of a bridge. He found Montgomery on the ground in the woods approximately 100 yards from the van. Montgomery was able to talk to Lang and told him she had been driving the van. Lang could smell the odor of alcohol on her breath. Fire department personnel arrived, and Montgomery told them she had been in an accident, was walking home, and was "too drunk to feel anything." When asked how much she had consumed, Montgomery responded, "Too much." She said she had quit drinking about noon and had not had anything to drink after the accident.
Containers of an alcoholic beverage were found in Montgomery's van. She was given a breath test and was then transported to the hospital where she submitted to a blood test. Her blood-alcohol concentration was .21.
Montgomery conceded at trial that while operating her van she failed to maintain a single lane, that her vehicle contained an open container of alcoholic beverage, that she did not immediately report the accident but left the scene, that she had been given all appropriate notices before testing, and that the testing equipment was duly certified. Further, she did not challenge the test results.
Speedy Trial
Montgomery claims she was denied the speedy-trial guaranteed by K.S.A. 22-3402(2) with respect to the charges of DUI and failure to maintain a single lane. She does not challenge her convictions for transporting an open container and leaving the scene of an accident on speedy-trial grounds. Here is the procedural history upon which her claim is based.
On May 5, 2003, Montgomery was charged with misdemeanor DUI and failing to maintain a single lane. She was served with process on May 14, 2003. Her first appearance was scheduled for July 9, 2003.
On July 3, 2003, Montgomery's attorney filed a notice stating Montgomery waived arraignment, understood the penalties if convicted, pled not guilty, and requested a trial setting. The case was set for trial on October 15, 2003. Montgomery claims this July 3 notice from her attorney is the equivalent of her being formally arraigned, and that pursuant to K.S.A. 22-3402(2) the 180-day speedy-trial clock began to run on this date.
On October 14, 2003, the State moved for a continuance due to the unavailability of an officer. The motion was sustained and the trial was rescheduled to January 6, 2004.
On November 7, 2003, an amended complaint was filed which added charges of transporting an open container and leaving the scene of accident. Montgomery was never arraigned on these new charges.
On December 30, 2003, 180 days had passed since July 3, 2003, when Montgomery claims the speedy-trial clock started to run.
On January 2, 2004, Montgomery filed a tardy request for a jury trial. Consequently, the trial was continued from January 6 to March 22, 2004.
On March 17, 2004, Montgomery requested a continuance of the March 22 trial because she believed that a decision in sim
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