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State v. O'Malley10/22/2004
Dan D. O'Malley appeals his conviction of felony DUI (fourth time conviction), pursuant to K.S.A. 8-1567(a)(3).
On October 19, 2001, at 1:30 p.m., O'Malley left his job of mixing and carrying cement at a construction site and went to McDonald's for something to eat. He then went to the Stepdown, a bar in Paola, and had one beer. After the Stepdown, he went to a bar in Spring Hill. He was there from 5:10 until 8:30 p.m. and consumed three beers.
O'Malley the left the Spring Hill bar to go to the Eagles Club located south of Paola. O'Malley stated he was not intoxicated when he got in his pickup truck. He traveled on Route 169 and 68 Highway heading west. His cell phone rang, and while he was reaching for the phone, he pulled the steering wheel and the truck went off the side of the road weaving onto the shoulder.
When O'Malley came to a roundabout, he was confused because he had never been there before. He stopped at the yield sign to figure out where to go. O'Malley started traveling south on Old Kansas City Road when he was stopped by Detective Mike Talcott who was working as a traffic enforcement officer. Talcott had seen a truck driving approximately a quarter to half mile east of Old Kansas City Road, heading west on 68 Highway. The truck had attracted Talcott's attention when it began weaving in its own lane and then drifted across the white line onto the gravel shoulder, causing the dust to stir. Talcott called dispatch to check the truck's registration. Talcott saw the truck come to the roundabout and the left turn signal activate. However, there was no left turn allowed on the roundabout, because it was one way for a counterclockwise turn. Talcott followed the truck after it made a complete stop for approximately 5 seconds at the yield sign.
After completing the roundabout, Talcott observed the truck cross over the center double yellow line with the driver's side front and rear tires. At this point, Talcott made a traffic stop of the truck. By then he had observed and followed the truck for 1 1/2 to 2 miles.
When Talcott approached the stopped truck, O'Malley was still talking on the cell phone. On Talcott's request, O'Malley hung up the phone and gave his driver's license to Talcott. Talcott smelled the strong odor of alcohol coming from O'Malley's person and asked him how much he had had to drink. O'Malley answered, "a few beers."
When O'Malley stepped out of the truck, he slipped on some loose gravel on an incline of the shoulder. He had to hold onto the door, because the door was missing the spring. Talcott noticed O'Malley's eyes were bloodshot and his speech was slurred. Talcott requested O'Malley perform some field sobriety tests.
O'Malley and Talcott walked to the back of the truck for the tests; for the first test, O'Malley successfully recited the alphabet. Next, Talcott instructed O'Malley to perform the one-leg stand test. Talcott picked the shoulder of the gravel surface which was "pretty level" for the test. When O'Malley told Talcott he had some problems with one leg, Talcott told him to use the one with problems to lift off the ground and use the other one to stand on.
**2 O'Malley could not maintain his balance on one leg for longer than a count of two, and he had to use his hands to keep the balance. Talcott observed three out of four clues for signs of intoxication: swaying back and forth, putting his foot down, and using his arms to keep balance.
Next, Talcott explained the instructions for a walk and turn test to O'Malley. The officers who had arrived at the scene watched the flow of traffic so that O'Malley could perform the test on the white line of the roadway. O'Malley was instructed to walk nine steps forward along the white line, make a three-point turn, and take nine steps back, heel to
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