State v. Shadden

• Decision Date: 16 January 2009
• Docket Number: No. 97,457.,97,457.
• Parties: STATE of Kansas, Appellee, v. Richard SHADDEN, Appellant.
• Court: Kansas Court of Appeals

199 P.3d 167

40 Kan. App. 2d 1103

STATE of Kansas, Appellee, v. Richard SHADDEN, Appellant.

No. 97,457.

Court of Appeals of Kansas.

January 16, 2009.

Shawn E. Minihan, of Kansas Appellate Defender Office, for the appellant.

Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Stephen N. Six, attorney general, for the appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PIERRON, J.

Richard Dale Shadden appeals his conviction and sentence for driving under the influence of alcohol (DUI). Shadden challenges several rulings by the district court and alleges prosecutorial misconduct. We find the admission of the testimony by an arresting officer that there was a 68% likelihood that Shadden was under the influence to an unlawful degree was scientific opinion that was not properly supported by expert testimony. We reverse and remand with directions.

On December 27, 2005, Officers Nick Weiler and Shannon Goodnight received a citizen complaint. Following the directions and descriptions of the reporting citizens, the officers located a truck loaded with pallets in the Town Center parking lot in Merriam, Kansas. As the officers observed the truck, the driver went through a stop sign, causing another vehicle to stop quickly to avoid an accident. The officers pulled behind the truck as it waited for a signal light at Antioch Road and activated the emergency lights after the truck had passed through the intersection. The truck turned onto a side street and stopped in the middle of the lane of traffic close to the intersection. The officers pulled up directly behind the truck.

Weiler approached the driver, later identified as Shadden, and asked for his driver's license and proof of insurance. Shadden was unable to provide a license or proof of insurance, but he provided the automobile registration. Weiler detected a strong odor of alcohol from Shadden and requested Shadden to step out of the vehicle. The smell of alcohol persisted after Shadden emerged from the vehicle. Shadden slurred some of his words and had difficulty communicating, frequently pausing and asking Weiler to repeat his questions. Shadden's eyes were bloodshot and watery and his face appeared flushed.

Weiler asked Shadden to perform some field sobriety tests and directed him to the rear of the truck. Shadden swayed as he walked. Because Weiler was required to pull his car close to the truck, the space between the vehicles did not accommodate the tests. Therefore, Weiler conducted the tests next to the vehicles, and the patrol car's video camera was unable to record Shadden's performance.

Weiler requested that Shadden perform the walk-and-turn test, and, after Weiler instructed Shadden and demonstrated the test, Shadden attempted to perform the test. Because the street provided no actual line Weiler advised Shadden to imagine a line for purposes of the field sobriety test. Based on standards promulgated by the National Highway Traffic Safety Administration (NHTSA), Weiler was trained to look for eight possible clues of intoxication based upon an individual's performance of the walk-and-turn test. If an individual demonstrates two or more clues, the individual is deemed to have failed the test.

As Shadden performed the test, Weiler noted that Shadden failed to maintain balance during the instructions and began the test before Weiler had instructed him to begin. During the first nine steps, Shadden stopped once, stepped sideways once, raised his arms twice, and failed to place the heel of one foot against the toe of the other foot on four occasions. When turning, Shadden stepped outside the acceptable range of motion. On the final nine steps, Shadden stopped twice, stepped sideways twice, raised his arms five times, and failed to place his heel against his toe five times. Because of these errors, Weiler claimed he identified all eight clues of intoxication.

Weiler had planned to conduct the one-leg stand test, but, because of the grade of the street, he opted not to conduct this test. Goodnight then conducted three nonstandardized sobriety tests: the alphabet test, a counting test, and the finger-to-nose test. Shadden was unable to recite the alphabet from A to Z without mistake. Shadden counted to 15 correctly but repeated a few numbers when counting back down to 1. In six attempts, Shadden failed to touch his nose correctly during the finger-to-nose test.

Weiler arrested Shadden for DUI. At the police station, Weiler provided Shadden with the implied consent advisory form (DC-27), which included a warning that a test refusal may be used against the individual in a trial for DUI. Weiler then requested that Shadden submit to a breath test on the Intoxilyzer 5000. Shadden refused the test. Weiler read Shadden his Miranda warnings, and Shadden waived his rights and spoke with Weiler. Weiler asked how much Shadden had to drink that evening, and Shadden not only informed Weiler he had consumed 3-4 beers, he also stated he had smoked marijuana.

The State charged Shadden with operating or attempting to operate a vehicle while under the influence of alcohol to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2005 Supp. 8-1567(a)(3). Following a 2-day trial, a jury found Shadden guilty of DUI. For purposes of sentencing, the district court found that Shadden had three prior DUI convictions. The court imposed a sentence of 1 year in jail and a fine of $2,500. The court also imposed court costs, BIDS attorney fees, and a requirement of 12 months of substance abuse treatment upon release from jail.

Prior to trial, Shadden filed a motion in limine seeking to exclude any testimony referring to the field sobriety exercises as "tests," indicating that he had failed such exercises, or lending scientific credibility to the results of the exercises. At the hearing regarding the motion, the district court denied the request without much discussion. On appeal, Shadden contends the court's ruling on this issue was erroneous.

Appellate review of a district court's decision concerning a motion in limine has traditionally been limited to determining whether judicial discretion has been abused. State v. Oliver, 280 Kan. 681, 693, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183, 126 S.Ct. 2361, 165 L.Ed.2d 286 (2006). However, since a motion in limine involves the admission or exclusion of evidence, our review of the district court's exercise of discretion must necessarily be framed by our standard of review regarding the admission of evidence.

When reviewing a district court's decision to admit or exclude evidence, an appellate court first determines whether the evidence is relevant. Relevant evidence is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). An appellate court has unlimited review over questions of the materiality of evidence, but a district court's decision regarding the probative value of the evidence is reviewed for an abuse of discretion. State v. Reid, 286 Kan. 494, 503-09, 186 P.3d 713 (2008). Once relevance is established, appellate review regarding an evidentiary ruling depends upon the contours of the evidentiary rules governing admission and exclusion of evidence. When the legal basis for the admission or exclusion of evidence is challenged, an appellate court possesses unlimited review. See 286 Kan. at 503, 186 P.3d 713. Even if evidence is admissible under the pertinent evidentiary rules, a district court must determine whether the evidence is unduly prejudicial, a determination that is subject to the abuse of discretion standard of review. 286 Kan. at 512, 186 P.3d 713.

Shadden does not challenge the relevance of the field sobriety tests administered in this case. Clearly, a driver's performance on tests designed to gauge sobriety are relevant to determining whether the driver was capable of safely driving a vehicle. Shadden concedes that officer testimony related to his performance on the tests was admissible; however, he argues that testimony regarding the results of the tests, i.e., whether he passed or failed the tests, or reference to the tests, was unfairly prejudicial.

As the State notes, Kansas courts have consistently referred to field sobriety exercises as "tests" and have described an individual's performances on such tests as "passing" or "failing." See, e.g., State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 (2007) (finding DUI conviction was supported by evidence that defendant "was unable to satisfactorily complete the field sobriety tests"); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 765, 148 P.3d 538 (2006) (noting that Bruch technically passed the field sobriety tests); State v. Martinez, 268 Kan. 21, 24, 988 P.2d 735 (1999) (discussing Martinez' failure on the field sobriety tests); State v. Neuman, 266 Kan. 319, 320, 970 P.2d 988 (1998) ("Field sobriety tests were administered and defendant failed the tests. He also failed a breath test."); City of Dodge City v. Norton, 262 Kan. 199, 204-05, 936 P.2d 1356 (1997) (discussing the validity of a field sobriety test as a clue to physical impairment); State v. Shaw, 37 Kan.App.2d 485, 487, 154 P.3d 524, rev. denied 284 Kan. 950 (2007) (summarizing officer's testimony that Shaw failed the walk-and-turn test by exhibiting four of eight clues); City of Dodge City v. Ingram, 33 Kan.App.2d 829, 831, 109 P.3d 1272 (2005) (discussing Ingram's failure on the alphabet test, the walk-and-turn test, and the one-legged balance test).

However, none of the cited cases specifically addressed the issue raised by Shadden in this appeal. Shadden's argument rests primarily upon a decision by a Florida District Court of Appeal, State v. Meador, 674 So.2d 826 (Fla.Dist.App.1996).

In Meador, the State appealed the suppression of all evidence related to Meador's performance of field sobriety tests. The Meador court initially distinguished between psychomotor field...