 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Penland11/5/2004
Michael D. Penland appeals his jury conviction of driving under the influence under K.S.A.2002 Supp. 8-1567. On appeal, Penland contends that the evidence was insufficient to support his conviction. We disagree and affirm.
On October 5, 2002, at approximately 7:30 p.m., A.J. Schmidt, an off-duty police officer, was driving his car to Pomona, Kansas. Schmidt saw a car in the ditch and stopped to see if anyone was injured. Schmidt did not actually see the accident. While walking toward the car, the person in the driver's seat was revving up the engine and spinning the car's tires in an attempt to get out of the ditch. As Schmidt approached the car, he saw the person in the driver's seat get out of the car. At trial, Schmidt identified Penland as the individual Schmidt saw in the driver's seat revving up the engine and spinning the tires.
Schmidt saw Penland holding onto the side of the car while walking toward the back of the car. Schmidt also saw Penland swaying; Schmidt detected a strong odor of alcoholic beverage on Penland's breath.
When Penland asked Schmidt to pull him out of the ditch, Schmidt told him that he did not have a rope but would go and get one. Schmidt called dispatch to tell them a car was in the ditch. Schmidt told the dispatcher that the individual was under the influence of alcohol. Schmidt spoke with Chad Bentley, a deputy who was dispatched to the scene. Schmidt pointed out the driver of the car and told Bentley of his observations.
When Deputy Jason Bryan got to the scene he noticed that Penland was under the influence of alcohol. Penland had difficulty standing, had bloodshot and watery eyes, slurred speech, and a strong odor of alcohol permeating from his person. Penland stated to Bryan that he was on his way to the store to buy a pack of Kools cigarettes but ended up in the ditch when he swerved to avoid hitting some deer.
At Bryan's request, Penland attempted to perform the walk and turn test but ultimately failed it because his balance was extremely affected. Bryan did not conduct any other test for safety reasons because Bryan was concerned that Penland would fall. Bryan took Penland into custody and administered a breath test.
In Penland's defense, Penland's wife, Tracy, testified that when Penland left the house with Darren Holstine, Holstine was driving the car. Although Penland's wife was not present when the accident occurred, she assumed that Penland was not the driver because he was not driving when he left the house. She further indicated that the place Penland and Holstine were going to was approximately 5 miles from her house.
Penland's brother, Gary McConnell, testified that just before the accident, he passed Penland's car on the road. Although he could not see very well because it was getting dark, McConnell noticed that the person driving was wearing glasses. Penland does not wear glasses.
Penland testified that he never told the officers that he was driving. Moreover, when asked on cross-examination about being in the driver's seat of the car when Schmidt arrived, Penland stated that he was getting out of the car. Penland testified that he could not get out of the passenger door and had to exit through the driver's side. Penland could not recall if Schmidt questioned or talked to him. Penland testified that he was going into town to buy cigarettes. Although he remembered talking to officers, Penland could not remember the contents of the conversation because he was drunk.
**2 When the accident occurred, Penland did not know the extent of the damage to the car. The car had a broken axle, which Penland discovered the next day. The car had to be towed from the ditch.
The State charged Penland with driving under the influence under K.S.A.2002 Supp. 8-1567. The jury found Penland gu
Page 1 2 3 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|