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City of Dodge City v. Ingram4/15/2005
Reversed and remanded for a new trial.
Eddie Ingram appeals from his jury trial conviction of driving under the influence of alcohol, his second offense, in violation of Section 30 of the Dodge City ordinance. This ordinance follows the wording of K.S.A. 2002 Supp. 8-1567. Ingram raises four arguments on appeal. First, Ingram argues that the officer's comments during the trial referring to the preliminary breath test violated the trial court's order on his motion in limine and required a mistrial. We find no abuse of discretion in the trial court's ruling. The officer's comment did not refer to the preliminary breath test or its results and, therefore, did not appear to violate the order in limine. Next, Ingram contends that his breath test results were improperly admitted into evidence as the foundational requirements for the Intoxilyzer breath testing machine were not met. The trial transcript in this case indicates that the certification for both the Intoxilyzer machine and the administering officer were admitted into evidence. Moreover, at oral arguments, Ingram conceded that these certification documents had been admitted at trial. Therefore, Ingram's argument on this issue lacks merit.
Next, Ingram asserts that the trial court erroneously refused to give his requested jury instruction concerning K.S.A. 8-1002(b). We determine that such an instruction was not warranted under the facts of this case. Finally, Ingram argues that reversible error was committed when the prosecutor submitted improper argument to the jury. The City concedes that two comments made by the prosecutor during closing arguments were improper. We determine that these comments substantially affected Ingram's right to a fair trial. Accordingly, we reverse and remand for a new trial.
During the early morning hours of November 7, 2002, Officer Michael Coil stopped Ingram after he noticed Ingram's truck change lanes very slowly, drift back into the other lane a couple of times, and nearly hit the curb. Upon stopping Ingram, Coil smelled a strong odor of alcohol and noticed that Ingram's eyes were red and watery and that his speech was slurred. When Coil asked Ingram if he had been drinking, Ingram responded that he had "had approximately two beers a little while previous."
Coil administered several field sobriety tests including an alphabet test, a walk-and-turn test, and a one-leg balance test. In Coil's opinion, Ingram failed the tests. Coil indicated that on the alphabet test, Ingram initially skipped several letters. After Coil asked him to repeat the test, Ingram then slurred some of the letters together. On the walk-and-turn test, Ingram started the test before Coil could finish demonstrating it, had to raise his hands to maintain his balance, and did not properly turn. On the one-leg balance test, Ingram lost his balance, almost fell, and then returned his foot to the ground. After the tests, Coil again asked Ingram how many beers he had consumed. This time, Ingram responded that he had 6, 8, or 10 beers. Ingram admitted to Coil that he had failed the field sobriety tests. Ingram further admitted that he was too intoxicated to drive. Ingram asked if Coil or another officer would give him a ride to the hotel where he was staying.
Coil arrested Ingram and took him to the police station where Coil administered a breath test. According to the times given by Coil, the breath test was given less than an hour after Ingram had been stopped. The results showed that Ingram had a breath alcohol concentration of .216, over two times the legal limit.
Ingram was convicted in municipal court of driving under the influence of alcohol. Ingram then appealed his conviction to the
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