State v. Brown

Jun 28, 1996

No. 73,465

Reporters:: , ,
Before:: Lewis

Lewis, J.:

Defendant was convicted of driving under the influence of alcohol (DUI) and driving left of center. He appeals from those conviсtions.

We affirm.

Defendant first argues that all of the evidence obtained from the stop of his vehicle was inadmissible because the stop wаs illegal. He raised this issue to the trial court by way of a motion to suppress, which was denied.

The facts show that Deputy Michael Lowеry was at a convenience store in the early morning hours on the day of defendant’s arrest. While he was at the store, a motorist рulled in and reported seeing a pickup being driven erratically.

Deputy Lowery drove in the direction he was told the pickup was heading and observed the pickup about % of a mile ahead of him. He began following the vehicle and saw it cross left of center four separate times. He also saw the vehicle drive off the shoulder and weave within its own lane.

On the basis of the repeated left of center violations, Deputy Lowery stopped the vehicle. Defendant was driving the vehicle, his eyes were watery and bloodshot, and he smelled of alcohol. Defendant admitted he had been drinking, and the officer determined that defendant could nоt pass the field sobriety tests. He was taken to the law enforcement center, where a breath test was administered, and his blood alcohol concentration was determined to be .179.

After hearing the evidence, the trial court found ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant guilty of DUI, in violation оf K.S.A. 1993 Supp. 8-1567(a)(3).

In denying defendant’s motion to suppress, the trial court indicated it based its decision on the officer’s testimony that he had observed dеfendant drive left of center four different times.

We agree with the trial court. The officer observed defendant commit four left of center violations, which furnished ample grounds for stopping the vehicle. “The officer making the stop must be able to articulate thе basis for his reasonable suspicion. What is reasonable is based on the totality of circumstances and is viewed in terms as understoоd by those versed in the field of law enforcement.” State v. Toney, 253 Kan. 651, 656-57, 862 P.2d 350 (1993).

In State v. Field, 252 Kan. 657, 660-61, 847 P.2d 1280 (1993), the Supreme Court held that a police officer was authorized, pursuant to K.S.A. 22-2402(1), to stop a vehicle driving erratically, even absent a traffic violation, on the reasonable suspicion that the driving might be impaired in some manner, as a public safety precaution. In Field, weaving within the car’s оwn lane was found to be sufficient grounds to justify the stop.

On the basis of Toney and Field, we hold that the officer in this case had probable cause to stop defеndant’s vehicle. The trial court’s decision ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍denying defendant’s motion to suppress is supported by substantial competent evidence and is affirmed. See State v. Toney, 253 Kan. at 656.

The original complaint filed in this case charged defendant with driving with a blood alcohol concentration оf .10 or above. The law was changed in July 1993, reducing the standard to .08 or above. In light of this change in the law, the State moved to amend its complaint to conform to the new law, and the trial court granted the motion. Defendant argues on appeal that the trial cоurt erred in granting the State’s motion to amend.

The standard of review on this issue is abuse of discretion. See State v. Woods, 250 Kan. 109, 115, 825 P.2d 514 (1992). We find none in this case. The amendment took place before the trial began and was one of a technical nature and did not prejudice or hampеr defendant. Defendant’s blood alcohol concentration was .179, well above both .08 and .10. In addition, defendant was convicted under K.S.A. 1993 Supp. 8-1567(a)(3), which does not contain any blood alcohol requirement.

Defendant’s argument is without merit. The trial court did not err in allowing the amendment.

Finally, defendant argued that his right ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to a speedy trial was violatеd.

He bases his argument on K.S.A. 22-3402(2), which provides:

“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred еighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime chаrged, unless the delay shall happen as a result of the application or fault of the defendant.”

Defendant was brought to trial оn the charges within 170 days of his arraignment. If we subtract out the continuances that are chargeable to defendant, he was brought to trial within 107 days.

Defendant makes a novel argument. He does not argue that he was denied a speedy trial based upon delay in bringing him to trial. Hе argues that the trial itself took too long to complete.

We agree that the trial was unusually protracted. It was conducted on 3 separate days. However, approximately 3 months passed between the first and second days of the trial, and approximately 1 month passed between the second and third days of the trial. Defendant argues that the State had an obligation to complete his trial within the 180-day time format.

Defendant’s argument is without merit. It is clear that his trial was not completed within 180 days. However, K.S.A. 22-3402 requires only thаt a defendant be brought to trial within 180 days of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his or her arraignment; it does not require that the trial be con- eluded within that time frame. We are аware of no authority, statutory or otherwise, nor does defendant supply us with any, that requires a trial to be started and completed within 180 days or within any specific time frame.

We are at a loss as to why the trial took so long to complete. It appears thаt some of the delay is attributable to the trial judge’s schedule, and part of the delay is attributable to the parties. At one point, the trial court said:

“I just want this case to be done. This is a DUI trial that has been — on many situations it’s been my fault that it’s been continued because of court matters I’ve had. But it’s been continued many times for you as weE, Mr. SaviEe. To convenience your witness, Ms. Daniels, was part of the рroblem on at least one occasion.”

It appears from the trial court’s comments that there is enough blame to sprеad among the trial court and both parties to this action. The record, however, does not permit us to determine anything more thаn this general observation. The record is simply not sufficient to indicate who is principally to blame for the 4-month period of time оver which this case was tried.

We suspect there may exist some reasonable time frame within which a trial should be completed. However, defendant has failed to show us that his rights were violated in this case or that he was in any way prejudiced by the delay in complеting his trial. He has further failed to show us that all of the delay in completing this trial is the fault of the State. Defendant has failed to show us that any сircumstances exist upon which we might hold that his trial was not completed within a reasonable time.

We hold the speedy trial rights specified by K.S.A. 22-3402 apply only to the commencement of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial. In this case, defendant was brought to trial within 180 days of his arraignment, and his speedy trial rights were not violated by the procedures followed.

Affirmed.