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State v. Herman

Court of Appeals of Kansas

May 16, 2014

STATE OF KANSAS, Appellant/Cross-appellee,
SHERRY K. HERMAN, Appellee/Cross-appellant

Page 1135

[Copyrighted Material Omitted]

Page 1136

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge.



1. The statutory provisions and rules relating to appeals by the State based on a question reserved under K.S.A. 2013 Supp. 22-3602(b)(3) and cross-appeals by a defendant therefrom are stated and applied.

2. The language in K.S.A. 2010 Supp. 8-1567(o)(2) relating to whet constitutes a prior conviction in a DUI prosecution was abrogated, deleted, and amended by the 2012 Kansas Legislature. See K.S.A. 2013 Supp. 8-1567(i)(3).

3. An opinion by this court at this time on the legal effect K.S.A. 2010 Supp. 8-1567(o)(2) would be (1) based on repealed language, (2) unlikely to govern any existing case, (3) in effect an advisory opinion of only academic interest, and (4) not a matter of statewide interest important to the correct and uniform administration of criminal law in Kansas.

4. When a question reserved by the State and presented to an appellate court is no longer of statewide interest, the State's appeal must be dismissed.

5. K.S.A. 22-3606 provides: " Except as otherwise provided . . ., the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases."

6. K.S.A. 2013 Supp. 60-2103(h) states: " When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which such appellee complains, the appellee shall, within 21 days after the notice of appeal has been served on such appellee and filed with the clerk of the trial court, give notice of such appellee's cross-appeal."

7. The right to cross-appeal is a part of the general statutory right of appeal in both civil and criminal cases.

8. The provisions of K.S.A. 22-3606 authorize a criminal defendant facing an appeal by the State to file a cross-appeal as allowed under K.S.A. 2013 Supp. 60-2103(h).

9. Under the facts in this case, the appellee's cross-appeal was timely filed and we have jurisdiction over the issues the cross-appeal raises.

10. Appellate review of the district court's ruling on a motion to suppress is bifurcated. The district court's findings are extended deference and reversed only when they are not supported by substantial competent evidence. The ultimate legal conclusion regarding suppression based on those facts is subject to unlimited review.

11. Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. Existence of probable cause must be determined by consideration of the information and fair inferences therefrom known to the officer at the time of the arrest. Probable cause is determined by evaluating the totality of the circumstances. As in other totality of the circumstance tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other.

12. Under the specific facts of this case, we hold there was substantial competent evidence to establish probable cause for the defendant's arrest for DUI under K.S.A. 2010 Supp. 8-1567.

13. K.S.A. 2011 Supp. 8-1567(j)(3) which became effective July 1, 2011, limits the prior convictions used to calculate the conviction level and the sentencing penalty for DUI convictions to those occurring on or after July 1, 2001, is not to be applied retroactively, and applies only to DUI violations committed on or after the 2011 effective date of the statutory amendment.

14. K.S.A. 2011 Supp. 8-1567(j)(3) does not apply to the appellee's 1991 DUI diversion agreement which was correctly counted as a prior conviction in determining the conviction level and sentencing penalty for appellee's current DUI conviction.

Michael C. Duma and Christopher Mann, assistant district attorneys, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellant/cross-appellee.

Edward C. Gillette and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellee/cross-appellant.

Before PIERRON, P.J., POWELL, J., and LARSON, S.J.


Page 1137

Larson, J.:

The State of Kansas appeals on a question reserved the district court's determination that Sherry Herman's 2004 conviction under Mo. Rev. Stat. (2003) § 577.010 for driving while intoxicated could not be counted as a prior conviction under Kansas law in determining the penalty for Herman's current conviction for driving under the influence of alcohol (DUI) under K.S.A. 2010 Supp. 8-1567.

Herman cross-appeals the district court's ruling on the suppression motion she filed, which was denied. She also argues the district court erred in refusing to apply the " look-back" provisions of K.S.A. 2011 Supp. 8-1567(j)(3) to her case and, therefore, improperly included a 1991 diversion for DUI in the sentence/penalty determination for her current DUI conviction.

We deny the State's appeal because the question reserved is not an issue of statewide interest important to the correct and uniform administration of criminal law in Kansas.

We accept jurisdiction of Herman's cross-appeal but hold probable cause existed to arrest Herman for violation of K.S.A. 2010 Supp. 8-1567. And, the district court correctly refused to give retroactive effect to the provisions of K.S.A. 2011 Supp. 8-1567(j)(3) limiting prior convictions to those occurring on or after July 1, 2001.

Factual Background and Legal Proceedings

At approximately 1:30 a.m. on March 11, 2011, Kansas City Police Officer Kenneth Garrett observed a vehicle speeding on Kaw Drive. Pulling behind the vehicle, Garrett clocked the vehicle moving at 62 mph in a 45-mph zone. He also observed the vehicle drift from side to side within its lane, although the vehicle did not leave the lane of traffic. Garrett activated his emergency lights to stop the vehicle. The vehicle traveled an additional 2 or 3 blocks before stopping, but Garrett attributed the driver's delay as an attempt to find a safe place to stop.

After the vehicle stopped, Garrett contacted the driver, later identified as Herman; he noted that Herman's eyes were glazed, bloodshot, and watery. When asked for her license and registration, Herman acted slowly and uncertainly. Garrett asked Herman whether she had been drinking and she admitted that she had consumed one drink. Garrett detected a strong odor of alcohol from Herman's person when she spoke. Herman's speech was thick and slurred.

Garrett requested Herman to exit her car. She complied with difficulty. Garrett performed the horizontal gaze nystagmus (HGN) test on Herman. Garrett asked Herman to perform the one-leg-stand test. Herman declined, stating that she would be unable to perform the test because she was not coordinated. Garrett decided not to pursue the walk-and-turn test because there was no good line to use, Herman was wearing high heels, and she claimed to lack coordination. Garrett then asked Herman to submit to a preliminary breath test (PBT), advising her that she could refuse but would then be subject to a fine and arrest. Herman took the PBT. The results indicated a breath-alcohol concentration above .08. Garrett arrested Herman for DUI.

Before driving to the jail, Garrett went to Herman's vehicle to retrieve her purse and discovered a QuikTrip cup containing a mixed drink and a half-full bottle of vodka. Garrett transported Herman to the Wyandotte County Jail where he reviewed the implied consent advisory with her, conducted the 20-minute deprivation period, and properly administered the Intoxilyzer breath test. The test result demonstrated a breath-alcohol concentration of .128 grams of alcohol per 210 liters of breath.

The State charged Herman with DUI (fourth or subsequent, nongrid, nonperson felony), transportation of an open container, and speeding.

Herman moved to suppress the results of both the PBT and the Intoxilyzer evidentiary breath test. After a hearing, the district court suppressed the PBT results but found sufficient evidence to support probable cause

Page 1138

to arrest for DUI and, therefore, refused to suppress the evidentiary breath test results.

The case went to a bench trial on the evidence presented at the preliminary hearing, the videos of the traffic stop, and the evidentiary breath test at the jail. The district court convicted Herman of all three charges.

At sentencing on October 11, 2012, the State presented evidence of three prior alcohol-related convictions; a 1991 diversion from a Kansas DUI charge (No. 91 TR 1118), a 1996 municipal court of Kansas City, Kansas, conviction of DUI citation (No. 2091621), and a 2004 State of Missouri conviction for driving while intoxicated in violation of Mo. Rev. Stat. § 577.010 (No. 03 CR 84580). Herman challenged by prior motion, responded to by the State, the inclusion of these three prior convictions as a part of her criminal history.

The district court excluded the 1996 municipal court conviction because Herman was clearly not represented by legal counsel during the legal proceedings. The court also excluded the 2004 Missouri conviction for driving while intoxicated, holding Mo. Rev. Stat. § 577.010 was not a comparable offense to the Kansas DUI statute, K.S.A. 2010 Supp. 8-1567. The court rejected Herman's request for retroactive application of K.S.A. 2011 Supp. 8-1567(j)(3) and included the 1991 DUI diversion in her criminal history " prior convictions" calculation.

Accordingly, after excluding the 1996 and 2004 convictions, the district court concluded that Herman's current DUI conviction should be counted as her second, a class A, nonperson misdemeanor under K.S.A. 2010 Supp. 8-1567(e). The court imposed 12 months' probation, including 20 days' jail time and a $1,500 fine. Herman was ordered to pay a $200 fine for transporting an open container and a $100 fine for speeding.

On October 22, 2012, the State filed a notice of appeal based on a question reserved pursuant to K.S.A. 2013 Supp. 22-3602(b)(3). Previously, upon learning of the court's ruling on the prior convictions issue, the State informed the court and the defendant that it intended to appeal.

The State's notice of appeal also states it appeals " from a final order of the lower court made on October 11, 2012, granting the defendant's motion objecting to the use of a prior Missouri DUI conviction in determining whether the defendant would be sentenced as a first, second, third, fourth or subsequent offender under K.S.A. 8-1567." This ruling is in effect the same legal question as that appealed from by the State as a question reserved under K.S.A. 2013 Supp. 22-3602(b)(3) and will be considered by our panel as such.

On November 22, 2012, Herman filed a notice of cross-appeal, stating it was filed " pursuant to Kan. S.Ct. Rule 2.02; K.S.A. 22-3606; & K.S.A. 60-2103(h)." The notice specifically stated the ...

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