DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - Hutchinson v. Davenport

 Posted on June 03, 2013 in DUI

City of Hutchinson v. Davenport
30 Kan.App.2d 1097, 54 P.3d 532 (2002)

A bad day at Black Rock for this poor fellow, but things turned out okay for him in the end. He went to a law enforcement center to check on his daughter who had been picked up, and to locate her vehicle. Detecting an odor of alcohol on his breath, an officer told him to not drive even though his speech was not slurred and his gait was normal. He said he was just walking and departed. The officer observed him looking up and down the street before getting in a vehicle and driving away. He told another officer he thought the driver might be intoxicated and to check on him, even though no bad driving was observed. An enforcement stop led to his arrest.

The Court held that the mere odor of alcohol and the “I’m walking" statement were not enough to constitute reasonable suspicion for the enforcement stop.

EDITOR’S NOTE: Oddly, the Court agreed with the trial court’s conclusion that “If [the reporting officer] had believed [the] defendant was intoxicated, he could have arrested him at the Law Enforcement Center. He did not." The oddity is that if the second officer lacked even reasonable suspicion to make a Terry stop, how would the first officer have had a legal basis to arrest him at the station, and for what (the offense of public intoxication involves a level of intoxication considerably higher than what’s required for driving under the influence)?

A different result might have occurred had the State argued (or the Court found) that the detention was objectively reasonable based on the defendant’s failure to follow the first officer’s order (“don’t drive")!