Major-leaguer Austin Kearns seeks DUI dismissal

gkocher1@herald-leader.comMay 18, 2011 

NICHOLASVILLE — A drunken-driving charge against Lexington native and Cleveland Indians outfielder Austin Kearns should be dismissed, defense attorneys argued Tuesday, because the off-duty Lexington police officer who stopped the ball player in Jessamine County was outside his legal jurisdiction.

But an assistant prosecutor argued that the off-duty officer was authorized by a sergeant with the Jessamine County Sheriff's Office to make the traffic stop. The sergeant later made the arrest.

Jessamine District Judge Janet Booth made no ruling immediately after the hearing and did not indicate when she would make a decision on the motion to dismiss.

Kearns, 30, was stopped at 2:28 a.m. Feb. 12 by off-duty Lexington police officer Todd Hart on Golf Club Drive off U.S. 68 in Jessamine County. Kearns refused to take field sobriety tests and later, at the Jessamine County Jail, refused to take a breath test to measure blood-alcohol content.

Kearns was charged with driving under the influence and failure to maintain required insurance. He is free on bond and did not attend Tuesday's hearing.

Hart, who lives in Jessamine County, testified Tuesday that he had finished his shift and was returning home in his marked cruiser when, according to a transcript of his call to Jessamine County 911 dispatch, he reported that he was "following a DUI who is all over the roadway."

A police report said the Cadillac Escalade that Kearns was driving was weaving on the road and was going down an emergency lane without headlights.

Under questioning from Assistant County Attorney Anna Roberts-Smith, Hart acknowledged he could not make a stop on his own because "I was out of my legal jurisdiction."

However, under state law, a law enforcement agency may ask a police officer from another county "to assist in any matter within the jurisdiction" and that officer has "the same powers of arrest" in the requesting county as he possesses in the county in which he is an officer.

In this case, Jessamine County Sgt. Todd Sponcil, according to a transcript of the radio traffic, told the dispatcher to tell Hart "if he's got enough PC (probable cause), he can Code 5 (make a traffic stop) and get the guy stopped. We'll be there shortly to pick it up for him."

The dispatcher relayed to Hart that "if you have enough probable cause" to "go ahead and stop it."

During cross-examination, defense attorney Brent Caldwell asked Hart: "Did you understand that to be a direct order to stop that vehicle?"

"Yes, sir," Hart said.

In his testimony Tuesday, Sponcil said he gave Hart "the authority to make the stop in the county."

When Caldwell asked during cross-examination whether that was the same as "an official request," Sponcil said, "Yes."

But the defense doesn't see it that way. In his summary, Noel Caldwell said, "At the end of the day this is an illegal stop in the wrong jurisdiction, and everything from this illegal stop should be suppressed and dismissed."

"I would argue that there was an official request made," Roberts-Smith said in her conclusion. "... Clearly this motion to dismiss should be summarily overruled."

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