Friday, September 30, 2011

Do not have to dim high beams when passing a parked car

Donald R. Hoffman and Jason P. Hoffman won in State v. Peach, No. 104,792 (Kan. App. Sept. 23, 2011)(unpublished), affirming Judge Parrish's suppression order in a Shawnee County DUI case.  The initial claim by the officer for a stop was failure to dim high beam headlights as Mr. Peach passed his patrol car parked in the shoulder of the highway:
Before turning to those arguments, we note the State makes no challenge to the district court's determination that a police cruiser parked on the shoulder of a road is not “an oncoming vehicle” under K.S.A. 8-1725(a). The tacit concession is a sound one. In construing statutory provisions, the appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent.

The common meaning of “oncoming” entails movement forward. Webster's Third New International Dictionary Unabridged 1575 (1966) (Oncoming means “moving forward upon one.”); Oxford American Desk Dictionary and Thesaurus 575 (2d ed. 2001) (Oncoming means “approaching from the front” and may be considered synonymous with “advancing” or “arriving.”); The American Heritage College Dictionary 971 (4th ed. 2004) (Oncoming means “coming nearer [or] approaching.”). An oncoming army is one that is advancing rather than bivouacked. The same may be said of cars. Hendricks' police cruiser was not “oncoming” when Peach drove by.

The state apparently asserted that it was entitled to another evidentiary hearing after the district court held that the officer lacked authority to stop based on failure to dim high beams:
The State has failed to show that the evidentiary record compiled in the district court is somehow inadequate to decide the suppression issues. Most tellingly, perhaps, the State never made a proffer of what additional evidence Hendricks or some other witness might present in a second hearing. The State offered up no such a proffer in its request for the hearing, and it again failed to do so in support of its motion for reconsideration. In the absence of an affidavit from Hendricks or some other particularized showing by the State as to what new evidence would be produced in a second hearing, we find no error in the district court's decision to deny that request.

Finally, the COA held that the good-faith exception could not save a stop after an officer's mistake of law.

[Update: the state did not file a PR and the mandate issued on October 27, 2011.]

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