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State v. Huff5/20/2005
Affirmed.
Before McANANY, P.J., MALONE, J., and KNUDSON, S.J.
Dennis P. Huff, the defendant, appeals from his conviction for felony driving under the influence of alcohol. Finding no error, we affirm.
Deputy Sheriff Hamilton stopped Huff who was traveling 77 miles per hour in a 55 miles-per-hour zone. Hamilton observed Huff's vehicle drive onto the shoulder of the roadway at least two times before the stop. When he approached Huff's vehicle he smelled a strong alcoholic odor coming from Huff's breath. Huff would not look at him and Hamilton had trouble hearing what Huff said when Hamilton asked him questions. Hamilton also observed that Huff had bloodshot eyes and that his speech was somewhat slurred. Huff had difficulties finding his license in his wallet when asked to produce it.
Hamilton asked Huff if he had been drinking, and Huff responded that he preferred not to answer the question. Huff refused to take the horizontal gaze nystagmus test and was not asked to perform any other field sobriety tests. Hamilton later asked Huff to take an Intoxilyzer test and read Huff the implied consent advisory, but Huff refused. Based on his observations, Hamilton believed Huff was unable to safely drive his vehicle and arrested Huff for driving under the influence .
Huff asserts that the videotape of the stop establishes that he did not show signs of intoxication. Huff cites nothing in the record to support this, since the videotape was not included in the record on appeal. Consequently, we disregard this assertion, though we do note that Hamilton acknowledged that Huff did not stumble or stagger when stepping out of his car and later when he was handcuffed.
Huff was charged with felony driving under the influence of alcohol, due to having two or more prior convictions, and one count of speeding. Hamilton testified and the videotape was admitted into evidence at the preliminary hearing. No evidence of Huff's prior convictions was presented at the preliminary hearing. The district court found probable cause and bound Huff over for trial. Following a bench trial Huff was convicted on both counts. He now appeals his driving under the influence conviction.
Sufficiency of the Evidence at the Preliminary Hearing
Taken chronologically, Huff first claims there was insufficient evidence at the preliminary hearing to bind him over for trial and, therefore, the district court was without jurisdiction to proceed. Huff did not raise this issue before the district court. Generally, an issue not raised below cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). However, the issue of jurisdiction can be raised for the first time on appeal. State v. Hanks, 10 Kan. App. 2d 666, 670, 708 P.2d 991 (1985), rev. denied 238 Kan. 878 (1986).
Huff claims the State failed to present any evidence regarding his previous DUI convictions, a lapse he contends is fatal under State v. Seems, 277 Kan. 303, 84 P.3d 606 (2004). In Seems, as here, the State failed to present any evidence of the defendant's previous DUI convictions at the preliminary hearing. However, there is a crucial distinction between Seems and the facts of Huff's case. Here, Huff failed to object to being bound over for trial following the preliminary hearing. In contrast, the defendant in Seems moved to dismiss the charges at the close of the preliminary hearing, and the magistrate sustained the motion. The State appealed the dismissal, and both this court and the Supreme Court affirmed the dismissal. In doing so, the court referred to the trial court's "jurisdiction", which in the proper context clearly refers to a procedural defect tha
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