State v. Lieurance

Decision Date22 November 1989
Docket NumberNo. 63290,63290
Citation14 Kan.App.2d 87,782 P.2d 1246
PartiesSTATE of Kansas, Appellee, v. Vernon L. LIEURANCE, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. K.S.A. 22-2202(8) permits a complaint to be sworn to before anyone authorized to administer oaths pursuant to K.S.A. 54-101.

2. One who is promptly allowed to and does make bond after a warrantless arrest and who is not held in custody for an extended period of time suffers no prejudice from not being taken before a judge without unnecessary delay as required by K.S.A. 1988 Supp. 8-2104(d).

3. Absent prejudice, illegal arrest or detention does not void a subsequent conviction.

4. Venue may be established by circumstantial evidence.

5. In order to introduce into evidence the results of a breath test, a foundation must be established. As part of the foundation, the prosecution must show that the testing machine was operated according to the manufacturer's operational manual and any regulations set forth by the Department of Health and Environment.

6. Whether an adequate foundation for scientific evidence is laid is a question of fact for the trial court and largely rests in its discretion.

7. Issues not presented to the trial court will not be considered for the first time on appeal.

Mona Furst, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Leslie F. Hulnick and Geary N. Gorup, of The Law Offices of Leslie F. Hulnick, P.A., of Wichita, for appellant.

Before ABBOTT, C.J., DAVIS, J., and JOHN E. SANDERS, District Judge, assigned.

ABBOTT, Chief Judge:

This is a direct appeal by the defendant, Vernon L. Lieurance, from his conviction for driving under the influence, contrary to K.S.A.1987 Supp. 8-1567(a)(1). Defendant's breath test result was .234.

1. Verification by a Notary

Lieurance argues that the complaint, in this case, was not sufficient because it was not sworn to before a judge. The trial court held that State v. Fraker, 12 Kan.App.2d 259, 739 P.2d 940 (1987), modified 242 Kan. 466, 748 P.2d 868 (1988), does not require the complaint to be sworn to before a judge, that a notary is sufficient.

The language of the statutes does not require the complaint to be sworn to before a judge. K.S.A.1987 Supp. 8-2104(d) requires that the accused be taken before a judge without unnecessary delay. K.S.A. 22-2301(1) requires that the complaint be filed with a magistrate to commence prosecution. The only requirement as to swearing to the complaint is in K.S.A.1987 Supp. 22-2202(8), which merely requires the complaint to be "under oath." It does not say the oath needs to be taken before a judge. These statutes allow the complainant to swear to the complaint and then file it with the court.

Lieurance relies on the Supreme Court's statement in State v. Fraker that the citation/complaint failed because "it is not sworn to by the complainant before the judge." 242 Kan. at 468, 748 P.2d 868. He argues this requires that the complaint must actually be sworn to in the presence of a judge.

Fraker should not be interpreted as requiring the complaint to actually be verified before a judge. K.S.A. 54-101 allows oaths to be administered by "[n]otaries public, judges of courts ..., mayors ..., clerks of courts of record, county clerks, and registers of deeds." In Fraker, the court also said a "DUI must be commenced with the filing of a verified complaint." 242 Kan. at 467, 748 P.2d 868. There simply was not a sworn complaint in Fraker. "[S]worn to ... before the judge" (242 Kan. at 468, 748 P.2d 868) merely means that the complaint needs to be sworn to and then filed with the court.

Lieurance also argues that the notary who took the deputy's oath was also a deputy and that this should invalidate the complaint. The record does not show the notary to be a deputy. It would not matter, however, whether the notary was a deputy as the statutes do not preclude a notary who is a deputy from administering an oath.

Shortly after Fraker was decided, the legislature again amended 8-2104 and 8-2106. See K.S.A.1988 Supp. 8-2104(a); 8-2106(a) and (e). K.S.A.1988 Supp. 8-2104 still requires a person charged with a DUI to be taken before a judge. K.S.A.1988 Supp. 8-2106 now allows any offense under the Uniform Act Regulating Traffic to be charged by a citation, presumably followed by the filing of an information under K.S.A. 22-2303. Subsection (e) of K.S.A.1988 Supp. 8-2106 precludes release of a DUI defendant on a written promise to appear.

These new sections took effect on July 1, 1988. Lieurance was arrested on April 15, 1988. The complaints were filed on April 19, 1988. Lieurance filed his motion to dismiss on August 12, 1988, after the new statutes took effect. Although procedural and remedial statutes may be given retrospective application (see State v. Nunn, 244 Kan. 207, 216, 768 P.2d 268 [1989], retrospective application would not be appropriate under the circumstances before us. Generally, even procedural statutes are not retrospectively applied to proceedings that have already taken place. In fact, the State does not argue for retrospective application.

Another related argument is that nothing in the record shows an appearance before a court until April 29, 1988, when Lieurance was arraigned and pled not guilty. The complaints were filed with the court on April 19, 1988. The language of K.S.A.1987 Supp. 8-2104(d) is unambiguous; the officer "shall" take the person into custody and then before a judge without unnecessary delay.

Lieurance certainly was taken into custody, but he did not stay in jail until arraignment on April 29. The docket shows that he was released on $500 bond, and at oral argument it was conceded that he was released on bail shortly after the breath test.

The requirement that a DUI defendant be taken before a judge is an obvious attempt to comply with constitutional requirements. Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 868, 43 L.Ed.2d 54 (1975), holds that there must be a probable cause determination after a warrantless arrest when the defendant is to be held in custody for more than a short period. Here, Lieurance does not claim he was detained for an extended period. Taking Lieurance before a judge would have been pointless. If there was noncompliance with the statute, it was harmless. So long as he was promptly released, he suffered no prejudice from not being taken before a judge.

The procedure used to arrest Lieurance was sufficient. It met both statutory and constitutional requirements.

2. Probable Cause Determination

Lieurance argues that the arrest and charging procedure in this case deprived him of his Fourth and Fourteenth Amendment rights under the United States Constitution. He cites several United States Supreme Court cases concerning warrantless arrests in houses--all of which are irrelevant. This is an arrest with probable cause in a public place, which does not require a prior judicial determination of probable cause. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Kansas statutes also grant authority for such an arrest. See K.S.A. 22-2401. See also State v. Miesbauer, 3 Kan.App.2d 53, 588 P.2d 953 (1979) (holding that an officer may arrest a DUI suspect with probable cause pursuant to 22-2401).

Lieurance also argues that in any event a probable cause determination is necessary after the arrest. He argues that Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), stands for the proposition that a pretrial probable cause hearing must be held whenever the defendant is subject to restraint pending trial. As stated above, Lieurance was released and thus there was no constitutional violation. Even if he was held in custody and there was a violation of his right to a probable cause determination, it is irrelevant. Gerstein holds that "illegal arrest or detention does not void a subsequent conviction." 420 U.S. at 119, 95 S.Ct. 854. See United States v. Bohrer, 807 F.2d 159 (10th Cir.1986).

Lieurance's due process challenge must also fail. He has not shown he was prejudiced in any way at trial.

3. Venue

Lieurance argues that the State did not establish venue because no one actually said that the streets Kellogg, Armour, and Post Oak are in Sedgwick County, Kansas. It does not appear that Lieurance raised this at trial. Failure to make timely objection waives venue. See Barbara, Kansas Criminal Law Handbook § 2.7 (1987). In any event, there is ample proof of venue.

"It is not necessary to prove the jurisdictional facts of venue by specific questions and answers to establish the county in which the offense occurred. [Citation omitted.] Under K.S.A. 60-409 the trial court can take judicial notice ... [of venue]. [Citation omitted.] Venue is a fact to be determined by the jury and may be proven by circumstantial evidence." State v. Deutscher, 225 Kan. 265, 272, 589 P.2d 620 (1979).

A finding of venue by a Sedgwick County court when a Sedgwick County deputy testifies about an occurrence while he was on patrol, along with the mention of Kellogg, Armour, and Post Oak Streets, is based on substantial competent evidence.

4. Intoxilyzer Results

Lieurance correctly observes that, to introduce the results of a breath test, the prosecution must lay a foundation showing that the testing machine was operated according to the manufacturer's operational manual and any regulations set forth by the Department of Health and Environment. See City of Shawnee v. Gruss, 2 Kan.App.2d 131, 576 P.2d 239, rev. denied 225 Kan. 843 (1978) (citing K.A.R....

To continue reading

Request your trial
19 cases
  • City of Overland Park v. Rhodes
    • United States
    • Kansas Court of Appeals
    • July 8, 2011
    ...“So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.” State v. Lieurance, 14 Kan.App.2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990). In order for the State to introduce the results of a breath test, it “must lay a ......
  • Meehan v. Kansas Dept. of Revenue, 77311
    • United States
    • Kansas Court of Appeals
    • May 29, 1998
    ...State v. Bishop, 264 Kan. 717, 957 P.2d 369 (1998); State v. Rohr, 19 Kan.App.2d 869, 870, 878 P.2d 221 (1994); State v. Lieurance, 14 Kan.App.2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 According to this clear line of cases, the legislature has deemed alcohol breath tests adm......
  • State v. Clayter
    • United States
    • Kansas Court of Appeals
    • September 26, 2014
    ...v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978). Accordingly,”[v]enue may be established by circumstantial evidence .” State v. Lieurance, 14 Kan.App.2d 87, Syl. ¶ 4, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990). Moreover, the district court and jury are permitted to take judici......
  • Wiles v. Am. Family Life Assurance Co. of Columbus
    • United States
    • Kansas Supreme Court
    • June 5, 2015
    ...So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.’ State v. Lieurance, 14 Kan.App.2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990).” Overland Park, 253 Kan. at 773, 861 P.2d 1316.Substantial competent evidence is “......
  • Request a trial to view additional results

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