field sobriety tests are not searches under the Fourth
Amendment to the United States Constitution or Section 15 of
the Kansas Constitution Bill of Rights.
voluntariness of consent to a search is a factual question
that the district court determines. On appeal, we uphold its
finding if it is supported by substantial evidence.
this case, even if field sobriety tests were considered a
search under Fourth Amendment standards, the district
court's finding that the defendant voluntarily completed
them is supported by substantial evidence.
While the results of horizontal gaze nystagmus (HGN) tests
are not admissible in Kansas courts for any purpose unless a
proper foundation for their scientific validity is made,
evidence about the process of testing may be introduced if it
is otherwise relevant. Here, the defendant's ability to
follow simple instructions was relevant, so the district
court did not err in allowing evidence about-but not
including the results of-HGN testing.
from Johnson District Court; Thomas M. Sutherland, judge.
J. Bath Jr. and Mitch E. Biebighauser, of Bath and Edmonds,
P.A., of Overland Park, for appellant.
L. Knight, assistant city attorney, for appellee.
McAnany, P.J., Leben and Schroeder, JJ.
Puccinelli appeals his conviction for driving under the
influence of alcohol, raising two points. We do not find
either of them persuasive.
he argues that allowing a police officer to testify about how
Puccinelli did on field sobriety tests violated
Puccinelli's Fourth Amendment right to be free from
unreasonable searches. But field sobriety tests aren't
searches under the Fourth Amendment at all. For the most
part, the tests simply check for physical actions associated
with inebriation, something that a careful observer might
learn simply from watching the defendant.
he argues that the district court shouldn't have allowed
the officer to testify that he had given Puccinelli the
horizontal-gaze-nystagmus (HGN) test, a test that hasn't
been shown sufficiently based on science for its results to
be presented in Kansas criminal trials. But the test results
weren't admitted in Puccinelli's trial. Instead, the
sequence of the officer giving instructions about the HGN
test and Puccinelli's responses was admitted mainly
because of how much difficulty Puccinelli had in following
simple instructions. That evidence was relevant in
determining whether Puccinelli was drunk and was properly
admitted for that purpose.
and Procedural Background
we look in depth at the legal issues, we need to set out some
of the factual background. Because part of Puccinelli's
legal argument is based on his claim that he objected to
doing the field sobriety tests but was ordered to do them
anyway, we will include the facts related to the
voluntariness of his participation in those tests.
encounter with Leawood police officer Andrew Bacon began in
what we'd generally call late on a Monday night in April
2016, though it was actually 12:45 a.m. the following
morning. Bacon pulled Puccinelli over for failing to signal a
said he had come from a nearby Taco Bell and that he had
thrown his Taco Bell trash out the window. Bacon said he
didn't see Puccinelli come from the Taco Bell parking lot
and asked if he'd been anywhere else. Puccinelli said he
then said he'd seen Puccinelli come out of the parking
lot of a nearby bar, but Puccinelli denied having been there.
He also denied having had anything to drink that night.
said he was going to "have [Puccinelli] do a couple of
things in the window of the car to so [Bacon could] make sure
[Puccinelli was] alright to drive." Puccinelli agreed,
but again denied having had anything to drink.
first asked Puccinnelli to do a fingertip-counting test.
Although Bacon explained it, Puccinelli said he didn't
understand what Bacon wanted him to do. Then, after failing
to do the test correctly, Puccinelli said he wasn't going
to get out of the car and that he hadn't been drinking.
then asked Puccinelli to recite the alphabet from C to N and
to count backwards from 83 to 62. Puccinelli couldn't do
those tests correctly, either. At that point, Bacon told
Puccinelli to step out of the vehicle.
said he wasn't "comfortable with this." But
Bacon told him, "Okay, well, comfortable or not, you
need to get out of the car." Puccinelli complied.
then began to give Puccinelli three standard field sobriety
tests-the HGN test, in which the person visually follows a
moving object while the officer looks for involuntary eye
movements; the walk-and-turn test, in which the driver must
walk heel to toe in a line; and the one-leg-stand test, in
which the driver stands on one leg while counting out loud.
HGN test, Bacon told Puccinelli to stand with his feet
together, arms down at his side. Bacon told him to follow a
pen being moved back and forth in front of him without moving
his head-only moving his eyes. Shortly after starting the
test, Bacon asked, "What do you want me to do, look at
the pen?" Bacon again told Puccinelli to follow the pen
with his eyes, but Puccinelli quit doing that and looked
directly at the officer after only a short time. Bacon asked
whether he was looking at the pen or the officer. "You,
now," Puccinelli replied.
point, Puccinelli made the first of several references to a
desire to move on to taking a breath test (using a machine
called a "breathalyzer"): "Do you wanna give
me a breathalyzer, I mean 'cause I'm not drunk. So