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City of Wichita v. Bell11/5/2004
Terry D. Bell appeals his municipal conviction of driving under the influence of alcohol (DUI). The primary issue is whether there was sufficient evidence to support Bell's conviction of DUI based upon his "attempt to operate" his motorcycle. We affirm.
On September 30, 2002, at approximately 2 a.m., Officer Jamie Stinson-Cavitt, an off-duty police officer, was working security at Hotel Old Town in Wichita, Kansas. Stinson-Cavitt received a dispatch call reporting a stolen motorcycle. She observed a motorcycle fitting the description of the stolen vehicle and witnessed Bell approaching the motorcycle. As Bell was walking toward the motorcycle, he was swaying back and forth, stumbling, and fumbling with his keys.
According to Stinson-Cavitt, Bell sat down on his motorcycle and put the keys in the ignition. After about 2 to 3 minutes of fumbling around, Bell started the motorcycle. Stinson-Cavitt approached Bell and smelled alcohol from his person. She told Bell to turn off the motorcycle, get off the vehicle, and sit on the ground. Bell stumbled off the motorcycle and then fell backwards onto the ground as he sat down.
Stinson-Cavitt asked Bell for identification. Bell fumbled around in his pockets for identification until Stinson-Cavitt informed him that his wallet was in his back pocket. Bell then took out his wallet and produced a telephone calling card for identification. Stinson-Cavitt gave the calling card back to Bell, and he was able to produce valid identification.
Stinson-Cavitt asked Bell if he had been drinking, and he responded that he consumed two Long Island ice teas and two beers. Stinson-Cavitt confirmed that Bell was the owner of the motorcycle and that he had reported it stolen earlier in the evening. She testified it was not uncommon for individuals in that area to report their vehicle stolen and then find it later on, not remembering where they originally parked. Stinson-Cavitt testified she had prior training and experience in DUI recognition. Based upon her observations of Bell and her experience, she did not believe he could safely operate a vehicle due to his consumption of alcohol.
Officer Genaro Arroyo arrived at the scene about 5 minutes after Bell had sat on the curb. Stinson-Cavitt informed Arroyo that Bell had started his motorcycle and, based on his condition, she asked him to turn it off. Arroyo testified that he had made contact with Bell earlier in the evening when he was dispatched to a bar in response to a disturbance. When Arroyo arrived at the bar, the bouncers indicated Bell was trying to go behind the bar to make drinks and was refusing to leave. Arroyo told Bell to leave the bar and suggested that he call a cab. Arroyo stated that Bell was stumbling around, smelled of alcohol, and had glazed eyes while inside the bar.
When Arroyo made contact with Bell beside the motorcycle, he testified that Bell was just as intoxicated as when Arroyo saw him 2 hours earlier at the bar. Bell's eyes were still glazed over, and he still smelled like alcohol. Arroyo offered Bell field sobriety tests. During the testing, Arroyo had to continually repeat the instructions. Arroyo testified that while Bell performed the walk-and-turn test, Bell failed to walk heel to toe, stepped off the line, made the incorrect number of steps, used his arms for balance, and lost his balance. Bell scored seven out of eight clues, which indicated his intoxication was over the legal driving limit. Bell refused additional field sobriety testing and refused a breath test. Arroyo believed Bell could not safely operate a motor vehicle due to his consumption of alcohol, and he placed Bell under arrest.
**2 Bell was charged with DUI contrary to the Code of the City of Wichita § 11.38.150(a)(2) (2002). He was convicted in municipa
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