Saturday, October 17, 2009
Suppression affirmed based on Marx
Wm. Rex Lorson won in State v. Sullivan, No. 101, 850 (Kan. App. Oct. 16, 2009) (unpublished), affirming Judge Hellmer's suppression of evidence in a felony DUI case based on State v. Marx (blogged about here).
At the suppression hearing in the district court, the arresting officer testified that he was following Sullivan's car, and he saw it weave within its lane, almost hit a curb, and cross the lane line one time. This occurred at approximately 1 a.m. but the district court believed Sullivan may have been leaving his place of employment. The court also suggested the "inattentive driving" could be due to cell phone use or adjustment of the radio. The district court found that Sullivan's vehicle may have been the only vehicle on the road and his one-time movement fell short of complying with State v. Ross, 37 Kan. App. 2d 126 (2007) (blogged about here).
Relying on Marx, the COA held, "Clearly, according to the Supreme Court, the State must present more information than an observation of a lane breach in order to use that violation to justify a car stop." Thus, the COA affirmed the district court's decision, holding that that the State failed to meet its burden of proving a violation of K.S.A. 8-1522(a).
[Update: the state did not file a PR and the mandate issued on November 19, 2009.]