State v. Kraemer

371 P.3d 954, 52 Kan. App. 2d 686, 2016 WL 1728749, 2016 Kan. App. LEXIS 28
CourtCourt of Appeals of Kansas
DecidedApril 29, 2016
DocketNo. 112,787
StatusPublished
Cited by8 cases

This text of 371 P.3d 954 (State v. Kraemer) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kraemer, 371 P.3d 954, 52 Kan. App. 2d 686, 2016 WL 1728749, 2016 Kan. App. LEXIS 28 (kanctapp 2016).

Opinion

Standridge, J.:

Brent J. Kraemer was arrested for driving under the influence (DUI) of alcohol after a routine traffic stop for failing to use his turn signal. On appeal, Kraemer makes two arguments. First, he argues the officer did not have probable cause to arrest him. Second, he contends the district court erred in finding the good-faith exception to the exclusionary rule applied after the court determined that his consent to the breath-alcohol test was coerced. For the reasons stated below, we affirm.

[688]*688Facts

On September 5, 2013, around 2:20 a.m., Officer Randy Con-stantino of the Salina Police Department pulled Kraemer over for failing to use a turn signal while turning. Constantino testified Kraemer appeared very nervous and shaky and stuttered when he spoke. Constantino also noted Kraemer had watery, bloodshot eyes. Constantino smelled alcohol and asked whether Kraemer had anything to drink. Kraemer admitted to having one beer.

Constantino then asked Kraemer to exit the vehicle for field sobriety testing. Although Kraemer did not appear to have difficulty exiting the car, Constantino noted that Kraemer leaned on the rear of the car for support afterward, which Constantino recognized as an indication that Kraemer might be impaired. Constantino also testified to smelling alcohol on Kraemer s breath when standing close to Kraemer.

Constantino first instructed Kraemer on the walk-and-tum test. For the walk-and-tum test, Constantino told Kraemer to take nine heel-to-toe steps down a line, then turn around using a series of small steps, and walk nine heel-to-toe steps back. Constantino demonstrated the test for Kraemer. Constantino instructed Krae-mer to look down at his feet, count out loud tire number of steps, keep his arms at his side, and not stop walking until the task was completed.

Constantino looked for eight indications or clues that a person was impaired on the walk-an,ol-tum test. The first clue was whether the person failed to hold tb,e heel-to-toe position while being instructed. The second clue was whether the person started too soon. Clues during the walk included the person failing to step heel-to-toe, stepping off the fine at any tinie, walking with raised arms, stopping, or making an improper turn.

According to Constantino, the first error Kraemer made on the walk-and-turn test was stepping out of the heel-to-toe position during the instruction stage. Constantino acknowledged that while instructing Kraemer on the test, a cat wandered into the area around Kraemer’s feet. Constantino did not grade the test differently based on the cats presence and removed the cat from the area before Kraemer took the first heel-to-toe step. The cat returned after Kraemer had taken a few steps, and the officer again removed it.

[689]*689Kraemer’s second error occurred when stepping off the line on step six of the first nine steps. On video footage from Constantino’s police car, Kraemer claims that the cat caused the error, but the video reflects that the cat already had been removed. On step eight of the first nine steps, Kraemer failed to properly step heel-to-toe and again stepped off the line; the officer counted it as missing the heel-to-toe. Constantino also noted that Kraemer made an error in making the turn; Kraemer was instructed to take a series of small steps to turn around but instead took only two steps. Krae-mer made no mistakes when walking back.

Constantino then instructed Kraemer on the one-leg stand test, which requires a person to raise and hold his or her foot extended 6 inches off the ground and count “[o]ne thousand one, one thousand two, one thousand three and so on,” until the officer tells the person to stop. As part of the instructions, Constantino told Kraemer to look down at his extended foot, count out loud, keep his arms to his sides, and keep his legs straight. During this test, Constantino watched for one of four indicators of impairment: putting the foot down, swaying while balancing, putting arms out for balance, or hopping on one foot. Kraemer held the position for 20 seconds before putting his foot down, but the test required him to hold the position for 30 seconds. Although the cat entered the periphery of the video frame while Kraemer was holding his leg up, the cat did not come close to Kraemer. Constantino did not believe the cat interfered with the test. Constantino acknowledged that there were people in the yard nearby but noted that, in administering the field sobriety tests, police look to see whether the person was easily distracted or whether the person could ignore a diversion and pay attention to the task at hand.

Overall, Constantino noted four errors on the walk-and-turn test and one on the one-leg stand test. Based on Constantino’s observations, Kraemer’s admission to drinking alcohol, and Kraemer’s performance on the field sobriety tests, Constantino arrested Kraemer for DUI. After transporting Kraemer to the “intox room” at the jail, Constantino provided Kraemer with a written copy of the required implied consent advisoiy, read the required advisoiy out loud to Kraemer, and then asked Kraemer to submit to a breath-alcohol [690]*690test. Kraemer indicated he would submit to the test as requested. Test results revealed Kraemers blood-alcohol concentration to be .139, which was above the .08 legal limit for drivers. See K.S.A. 2015 Supp. 8-1567(a)(1). Thereafter, Kraemer was charged with alternative counts of DUI with two prior DUI convictions, driving with a cancelled or suspended license, and improper lane change.

Kraemer filed a motion to suppress the breath-alcohol test results, arguing the officer did not have probable cause to arrest him, which rendered his arrest illegal and any evidence obtained after the arrest inadmissible at trial under the exclusionary rule. The district court held a hearing on the matter on March 4, 2014. Krae-mers attorney argued that the officer did not have probable cause to arrest Kraemer because he had not been driving erratically and his errors on the field sobriety tests were the result of outside interferences during testing. The district court was not pei'suaded by Kraemers argument and found Constantino had probable cause to arrest “based upon the officer’s observations, [Kraemers] admission of drinking alcohol, and [Kraemers] performance on the field sobriety tests.”

After his first motion to suppress was denied, Kraemer filed a second motion to suppress. In this second motion, Kraemer claimed the breath-alcohol test results were obtained in violation of his constitutional rights. Specifically, Kraemer argued his consent to take the breath-alcohol test had been coerced because he was improperly told prior to the request that he could be charged with another crime if he refused testing. After a hearing on March 27, 2014, the district court held the criminal refusal statute to be unconstitutional on its face. Finding Constantino improperly advised Kraemer he could be charged with a separate offense under the criminal refusal statute if he refused testing, the court then held that Kraemers consent was coerced and involuntary under the Fourth Amendment to the United States Constitution. Notwithstanding a finding that Kraemer s consent was coerced, the district court ultimately denied Kraemer s motion to suppress based on its further finding that tire officer acted in good faith in advising Krae-mer that he would be charged with another crime if he refused to [691]

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Cite This Page — Counsel Stack

Bluebook (online)
371 P.3d 954, 52 Kan. App. 2d 686, 2016 WL 1728749, 2016 Kan. App. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kraemer-kanctapp-2016.