State v. Ostdiek
| Decision Date | 30 August 2011 |
| Docket Number | WD 72398,Nos. WD 72397,WD 72399.,s. WD 72397 |
| Citation | 351 S.W.3d 758 |
| Parties | STATE of Missouri, Respondent, v. Andrew J. OSTDIEK, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Supreme Court Denied Oct. 4, 2011.
Application for Transfer Denied
Dec. 6, 2011.
Jeffrey Scott Eastman, Gladstone, MO, for appellant.
Ellen Greenberg Jacobs and Scott A. Ison, Kansas City, MO, for respondent.
Before Division Two: JAMES M. SMART, JR., P.J., MARK D. PFEIFFER and CYNTHIA L. MARTIN, JJ.
Appellant Andrew Ostdiek appeals his conviction of driving while intoxicated, exceeding the posted speed limit, and possession of drug paraphernalia. Ostdiek claims: that the Clay County Sheriff's Department lacked the authority to make a traffic stop for speeding on a Kansas City, Missouri street; that there was insufficient evidence to support the conviction of speeding; that the court erred in admitting evidence of the results of the horizontal gaze nystagmus test; and that the results of his breathalyzer test should have been excluded because the deputy administering the test lacked proper authority to perform the tests. We affirm in part and reverse in part.
Deputy Alyssa Ryder (hereafter, “Deputy”) of the Clay County Sheriff's Department was patrolling the area of 72nd Street and Brighton Avenue, an area within the City of Kansas City, and Clay County, Missouri, on April 17, 2009. While on patrol, she stopped Andrew Ostdiek for speeding. Deputy was heading northbound on Brighton Avenue when Ostdiek passed by her, heading southbound, “traveling [at a rate] a little bit faster than normal.” She activated her emergency lights, turned her vehicle around, and pursued Ostdiek. The posted speed limit in the area was 40 mph. Her radar gun registered Ostdiek traveling 16 mph over the posted speed limit.
After stopping Ostdiek just north of 72nd Street on Brighton Avenue, Deputy ran his license plate and determined there was a warrant out for Ostdiek's arrest in Gladstone, Missouri. Upon confirming the validity of the warrant, Deputy made contact with Ostdiek. Deputy engaged Ostdiek in conversation, advising him that he had an outstanding warrant in Gladstone. As they conversed, she noticed a strong odor of alcohol emanating from Ostdiek and his vehicle. Deputy also noticed that Ostdiek's eyes were bloodshot.
Deputy had Ostdiek exit his vehicle. She escorted him to the front of her patrol car, placed him in handcuffs for the Gladstone warrant, situated him in the back of her patrol car, and then began to look inside Ostdiek's vehicle. Deputy observed pills in the center console, in plain sight. She also found a glass pipe commonly used to smoke marijuana in the glove box. The pipe contained a green leafy residue-type substance in the bell of it, which she believed to be marijuana.
Having found pills and a pipe, and smelling alcohol on Ostdiek, Deputy decided to conduct some standard field sobriety tests. Apparently finding the location of the stop dangerous and unsuitable for administering all of the standard field tests, she decided to conduct only the horizontal gaze nystagmus (“HGN”) test on Ostdiek. Deputy took Ostdiek back out of the patrol car, uncuffed him, and began checking his eyes for nystagmus.
While administering the HGN test, Deputy noticed a lack of smooth pursuit in each eye. She observed that Ostdiek had nystagmus at maximum deviation and also the onset of nystagmus prior to a forty-five degree angle. She therefore concluded that Ostdiek was intoxicated, based on the emanating odors and his performance on the HGN test, and handcuffed him for a second time, arresting him for driving while intoxicated.
Once back at the Sheriff's Department, Ostdiek told Deputy he had consumed two glasses of whiskey around 9:00 p.m. Ostdiek had been stopped by Deputy at 10:22 p.m. He also admitted to smoking three grams of marijuana and taking Hydrocodone pills earlier in the day.
Deputy read the Missouri implied consent law to Ostdiek and asked him if he would submit to a chemical breath test (breathalyzer test). Ostdiek did not refuse and she administered the test. The results from the test revealed a blood alcohol concentration of .114 percent.
Subsequently, Ostdiek was charged by information with driving while intoxicated,1 exceeding the posted speed limit by driving 56 mph in a 40 mph zone,2 and possession of drug paraphernalia.3
Prior to trial, Ostdiek filed a Motion to Suppress challenging the legality of the stop. The court conducted a suppression hearing on October 28, 2009, at which Deputy testified. The State sought to introduce Deputy's testimony regarding the use of a radar gun to determine the speed of Ostdiek's vehicle. However, the trial court sustained Ostdiek's objection concerning the admissibility of the radar gun results because Deputy had no knowledge of any calibration tests performed on the radar gun itself, besides the self-check the gun conducts on itself when first activated. Nevertheless, Deputy was still allowed to testify that based upon her experience and observation, the vehicle was traveling faster than the “normal rate of speed.”
At the conclusion of the evidentiary hearing, Ostdiek argued that Deputy, as a member of the Clay County Sheriff's Department, lacked authority to effect a traffic stop as to a municipal ordinance violation. The argument was premised upon the absence of an agreement between the sheriff and the city council, and approved by the county commission, authorizing the Sheriff's Department to enforce the municipal laws. On cross examination, Deputy acknowledged that the road on which she stopped Ostdiek was a city street and not what she would consider a state highway or interstate highway. The trial court, however, disagreed with Ostdiek's argument, stating that it believed that a deputy sheriff has the authority to stop an individual on a city street if the individual is violating state law. Furthermore, the trial court found that because Deputy could see Ostdiek speeding, probable cause existed to stop his vehicle without taking into account any evidence from the radar gun. The Motion to Suppress was subsequently denied, and the matter was set for bench trial.
On February 24, 2010, the court conducted a bench trial on the charges of exceeding the posted speed limit, possession of drug paraphernalia, and driving while intoxicated. During the trial, the State continued its efforts to try and secure admission of the radar reading. However, the trial court once again sustained Ostdiek's objection on foundational grounds,4 and Deputy's testimony was restricted to her observation of Ostdiek's purported speed.
Ostdiek also objected to the admission of the results of the HGN test conducted by Deputy, claiming that there was a lack of evidence that she was qualified to administer the test. Deputy testified that she had taken several different training classes on the HGN test and she “had too many” hours of training to recall the exact number. She further stated she had taken “two or three classes in the past year or two.” The last class she had taken consisted of a total of twenty-four hours of standardized field sobriety testing, but she could not recall the exact number of hours dedicated solely to the HGN test. Deputy stated, however, that she did have the minimum number of hours required to administer the HGN test. The trial court, therefore, overruled Ostdiek's objection.
Deputy proceeded to describe, in detail, what clues an officer is to look for during the HGN test and the process in determining each. She testified that Ostdiek exhibited six clues in total and that she only needed four to make an arrest. While Ostdiek continued to object to Deputy's testimony regarding the HGN test for insufficient foundation, the trial court continued to overrule the objection and allowed her to finish her testimony regarding the HGN test.
Finally, Ostdiek challenged the admission of the breathalyzer test results, claiming Deputy lacked the requisite statutory or regulatory authority to administer the test in that she possessed no permit from the Department of Transportation. At the time the test was administered, Deputy held a permit issued by the Missouri Department of Health and Senior Services, effective April 10, 2008. Ostdiek's objection was overruled.
Sometime before Ostdiek's arrest, Sergeant Donnie St. John of the Clay County Sheriff's Department had performed a maintenance check on the same DataMaster used for Ostdiek's breathalyzer test. He performed this check pursuant to a permit issued to him by the Missouri Department of Health and Social Services. Ostdiek again objected to admission of the breathalyzer test results, claiming Sergeant St. John lacked statutory or regulatory authority from the Department of Transportation to conduct such maintenance. The objection was overruled, and the DataMaster result of .114 percent was admitted. The State rested. Ostdiek's motion for acquittal at the close of evidence was denied. Ostdiek did not testify or offer other evidence. Ostdiek again moved unsuccessfully for acquittal.
The court found Ostdiek guilty and sentenced him. On the driving while intoxicated conviction, he was sentenced to 180 days in the Clay County Jail. (Execution of that sentence was suspended, and he was placed on two years of probation.) For the Possession of Drug Paraphernalia conviction, he was assessed a fine of $200.00. And for the speeding charge, he was assessed a fine of $78.50.
From such judgments, Ostdiek filed an appeal.5
In his first point on appeal, Ostdiek claims that the trial court erred in denying his motion to suppress all evidence obtained by Deputy during the traffic stop, because Deputy lacked the authority to make a traffic stop for speeding in violation of section 304.010, RSMo. 6 When considering a trial court's denial of a motion to suppress, appellate...
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...evidence needed to establish probable cause and that needed to sustain a conviction. Of particular note, in State v. Ostdiek, 351 S.W.3d 758, 768–69 & 769 n. 10 (Mo.Ct.App.2011), the Missouri Court of Appeals, citing its earlier opinion in Kimes, recently reversed a defendant's speeding con......
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...language without change, we presume the legislature knew about and adopted this construction of the statute. See State v. Ostdiek, 351 S.W.3d 758, 766 (Mo.App.2011); Duckworth v. United States Fid. & Guar. Co., 452 S.W.2d 280, 286 (Mo.App.1970). We conclude that the legislature intended no ......
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