Appeal from Logan District Court; GLENN D. SCHIFFNER, judge.
1. An appellate court exercises a de novo review when determining whether the evidence introduced at a preliminary hearing was sufficient to establish probable cause to believe that a defendant committed a charged crime.
2. A defendant charged with felony driving while under the influence under K.S.A. 2006 Supp. 8-1567(f) is entitled to a preliminary hearing. Before a defendant so charged may be bound over for trial, the State must present sufficient evidence to establish that a felony has been committed and that there is probable cause to believe that a felony has been committed by the defendant. Failure of the State to present evidence of two prior driving while under the influence convictions, as required to establish a felony under K.S.A. 2006 Supp. 8-1567(f), requires discharge of the defendant for there has been no evidence that a felony has been committed under K.S.A. 2006 Supp. 22-2902(3).
3. Under the facts of this case, a copy of the defendant's certified driving record, which showed that the defendant had previously been convicted for driving under the influence and that the defendant had previously entered into a diversion agreement for driving under the influence, was sufficient for purposes of the preliminary hearing to establish probable cause that the defendant had committed felony driving under the influence of alcohol as a third-time offender under K.S.A. 2006 Supp. 8-1567.
4. When the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.
5. Under the facts of this case, the officer administering the second test on the Intoxilyzer 5000 adequately complied with K.S.A. 8-1001(f) and (h) because he gave the defendant the implied consent advisories before the defendant submitted to the second test.
6. The exclusionary rule prohibits the admission of the fruits of illegally seized evidence, that is, any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom.
7. The question to be considered by a court in determining whether evidence is fruit of the poisonous tree is whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been obtained by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
8. Under the facts of this case, the results of the second test on the Intoxilyzer 5000 were not the fruit of the poisonous tree of either the preliminary breath test or the first test on the Intoxilyzer 5000.
The opinion of the court was delivered by: Green, J.
Before GREEN, P.J., ELLIOTT and MALONE, JJ.
Ryan Shaw appeals his conviction and sentence for felony driving under the influence of alcohol under K.S.A. 2006 Supp. 8-1567 as a third-time offender. First, Shaw argues that the trial court should have granted his motion to dismiss because the State failed to prove at the preliminary hearing that he had two prior convictions for driving under the influence of alcohol (DUI), a necessary element of felony DUI as a third-time offender. Because Shaw failed to include a record of the preliminary hearing, we cannot adequately review Shaw's argument. Moreover, even if the only evidence presented at the preliminary hearing of Shaw's two prior DUI convictions was a certified driving record that is contained as an exhibit in the record on appeal, this evidence was sufficient for purposes of preliminary hearing to establish probable cause that Shaw had committed a felony.
Next, Shaw contends that the trial court should have suppressed the results of his second breath test on the Intoxilyzer 5000 due to the officer's failure to comply with K.S.A. 8-1001(f) and (h) in giving the implied consent advisories. Nevertheless, we determine that results of the second test on the Intoxilyzer 5000 were properly admitted by the trial court because the officer adequately complied with K.S.A. 8-1001(f) and (h) in giving Shaw the implied consent advisories before Shaw submitted to the second test. Finally, Shaw argues that the results of the second breath test on the Intoxilyzer 5000 should have been suppressed as fruit of the poisonous tree of both the preliminary breath test and the inadmissible first test on the Intoxilyzer 5000. We disagree. The results from the second breath test on the Intoxilyzer 5000 were not fruit of the poisonous tree of either the preliminary breath test or the first test on the Intoxilyzer 5000. Accordingly, we affirm.
One early morning in June 2005, Trooper Douglas Reed stopped Shaw after he noticed that the right front headlight of Shaw's truck was not working. As Reed was attempting to stop Shaw, he saw Shaw drive over a curb and onto a sidewalk and nearly hit a sign post in a yard. After stopping Shaw, Reed smelled an odor of alcohol coming from inside the truck. In addition, Reed noticed that Shaw's eyes were watery and bloodshot. Reed asked Shaw to come with him to his patrol car while he wrote Shaw a warning for the headlight violation. While Shaw was in the patrol car, Reed smelled an odor of alcohol coming from Shaw. Reed asked Shaw if he had been drinking. Shaw stated that he had about four beers and that he had been at a social function.
Shaw agreed to undergo field sobriety testing. Reed testified that during the walk-and-turn test, Shaw exhibited four out of the eight clues of intoxication. According to Reed, Shaw failed the walk-and-turn test. During the one-leg stand test, Shaw showed no clues of intoxication. After ...