City of Leawood v. Puccinelli, 118,165

CourtCourt of Appeals of Kansas
Citation424 P.3d 560
Docket NumberNo. 118,165,118,165
Parties CITY OF LEAWOOD, Appellee, v. Robert PUCCINELLI, Appellant.
Decision Date22 June 2018

424 P.3d 560

Robert PUCCINELLI, Appellant.

No. 118,165

Court of Appeals of Kansas.

Opinion filed June 22, 2018.

Thomas J. Bath Jr. and Mitch E. Biebighauser, of Bath and Edmonds, P.A., of Overland Park, for appellant.

Marcia L. Knight, assistant city attorney, for appellee.

Before McAnany, P.J., Leben and Schroeder, JJ.

Leben, J.:

Robert Puccinelli appeals his conviction for driving under the influence of alcohol, raising two points. We do not find either of them persuasive.

First, 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.

Second, 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.


Before 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.

Puccinelli's 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

424 P.3d 563

following morning. Bacon pulled Puccinelli over for failing to signal a turn.

Puccinelli 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 hadn't.

Bacon 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.

Bacon 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.

Bacon first asked Puccinelli 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.

Bacon 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.

Puccinelli 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.

Bacon 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.

For the 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.

At that 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 let's—let's move on with this," Puccinelli said.

Bacon instead asked Puccinelli next to do the walk-and-turn test. Puccinelli again said, "Why can't we just do the breathalyzer?" But Bacon said "[w]e'll get to it." Bacon then began giving instructions, but Puccinelli had trouble understanding them and said, "I'm not going to do it. Give me the breathalyzer...." After a bit more discussion, Puccinelli did the walk-and-turn test.

Bacon then explained the one-leg-stand test. Puccinelli did it without objection.

In Bacon's opinion, Puccinelli failed both the walk-and-turn test (showing six of eight clues for impairment) and the one-leg-stand test (showing three of four clues of impairment). Bacon also had smelled an odor of alcohol coming from inside Puccinelli's car, had noticed Puccinelli's eyes were bloodshot, and had noticed that Puccinelli had not been able to follow simple instructions. Based on all of that, Bacon arrested Puccinelli.

After the arrest, Bacon took Puccinelli to a nearby police station and asked that he take either a breath or blood test for alcohol. Puccinelli refused.

The City of Leawood charged Puccinelli with one count of driving under the influence of alcohol and the separate traffic infraction of failing to signal a turn. Before trial, Puccinelli asked the court to suppress the evidence of the field sobriety testing. We don't have a copy of the motion he filed in the district court, but an earlier motion filed in municipal court had alleged "an unlawful search of Mr. Puccinelli's person." The district court denied the motion, concluding that field sobriety tests aren't a search under the Fourth Amendment. Even if they were, the court

424 P.3d 564

also concluded that Puccinelli had voluntarily consented to do the tests.

At the beginning of trial, Puccinelli also asked that the court preclude the City from presenting any evidence that Bacon had administered one specific test, the HGN test. The City said it didn't seek to introduce the HGN test results, and the court denied Puccinelli's motion.

The City's case was presented at a jury trial in district court. (Puccinelli had appealed after his initial conviction in municipal court.) Both Bacon and Puccinelli testified, and the jury also saw police recordings of their encounter.

Puccinelli told the jury that he had gone through the Taco Bell drive-through window and had eaten in his car. After that, he said he had stopped at the nearby bar Officer Bacon had mentioned during the traffic stop. Puccinelli admitted having one mixed drink there and a "couple" of beers earlier in the day. He told the jury, though, that he felt he had been sober enough to drive that night.

The jury convicted Puccinelli of DUI and the failure to use a turn signal. The district court sentenced him to serve 2 days in custody plus 12 months of probation. He also received fines of $1,000 for the DUI and $100 for the failure to signal a turn. If Puccinelli fails to satisfactorily complete his probation, there's an underlying 180-day sentence that would have to be served.

Puccinelli then appealed to our court.


I. The District Court Properly Denied Puccinelli's Motion to Exclude All Evidence of the Field Sobriety Tests.

Puccinelli's first argument is that his rights under the Fourth Amendment were violated through the admission of evidence about the field sobriety tests. The Fourth Amendment protects our right to be free from unreasonable searches and seizures. Generally a search may be conducted only with a warrant, issued on probable cause, or when a recognized exception to the warrant requirement applies. See State v. Ramirez , 278 Kan. 402, Syl. ¶¶ 2, 100 P.3d 94 (2004).

One of the warrant exceptions is a search by consent. Puccinelli argues that field sobriety tests "can be likened" to a consent-based search: If there's no consent, the search—here field sobriety tests—aren't proper.

Puccinelli contends that he didn't voluntarily take the field sobriety tests, citing statements he made like, "I'm not going to do it. Give me the breathalyzer...." Thus, he argues, he didn't consent to the field sobriety tests, and the court should have held the tests constituted an illegal search that violated the Fourth Amendment.

But there are two problems with his argument. First, field sobriety tests are not Fourth Amendment searches, so there can be no Fourth Amendment violation. Second, the district court concluded that he...

To continue reading

Request your trial
3 cases
  • State v. Richard
    • United States
    • Court of Appeals of Kansas
    • 10 Septiembre 2021
    ...21 home invasion. See State v. Davis, 312 Kan. 259, 276, 474 P.3d 722 (2020); City of Leawood v. Puccinelli, 56 Kan.App.2d 108, 118, 424 P.3d 560 (2018); State v. Otero, No. 114, 762, 2017 WL 4183208, at *6 (Kan. App. 2017) (unpublished opinion) ("Relevant evidence makes a disputed, materia......
  • State v. Richard
    • United States
    • Court of Appeals of Kansas
    • 10 Septiembre 2021
    ...21 home invasion. See State v. Davis, 312 Kan. 259, 276, 474 P.3d 722 (2020); City of Leawood v. Puccinelli, 56 Kan.App.2d 108, 118, 424 P.3d 560 (2018); State v. Otero, No. 114, 762, 2017 WL 4183208, at *6 (Kan. App. 2017) (unpublished opinion) ("Relevant evidence makes a disputed, materia......
  • State v. McAnally, 119,133
    • United States
    • Court of Appeals of Kansas
    • 26 Julio 2019
    ...decision was so off the mark that no reasonable person would agree with it. City of Leawood v. Puccinelli , 56 Kan. App. 2d 108, 118-19, 424 P.3d 560 (2018). We find no abuse of discretion here. The State presented six witnesses at the restitution hearing:• Roxanne Hollingsworth, a records ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT