A 2008 felony drunk driving case against Delbert Leroy Adams Jr. that was dismissed by a Barton County District Judge is back in the court system, following a ruling by the Kansas Court of Appeals.

All charges, including driving under the influence of alcohol on the fourth or subsequent conviction, were dismissed by District Judge Ron Svaty at a preliminary hearing last year. The judge said the arresting officer did not have probable cause.

Defense attorney Robert Anderson noted the arresting officer had stopped Adams based on a telephone call.

Barton County Attorney Doug Matthews appealed the case’s dismissal, and on Oct. 15, 2010, the Court of Appeals issued a "green card," allowing Matthews and Kansas Attorney General Steve Six to present the case. Matthews took the case before three justices on Feb. 6 in El Dorado. The appellate court reversed the district court ruling and sent the case back to the district court. No new hearing date has been scheduled at this time.

The court’s memorandum of opinion explains the rules for preliminary hearings. "When there is a conflict in witness testimony that creates a question of fact for the jury the preliminary hearing judge must accept the version of the testimony that is most favorable to the State."

The memorandum also recaps the events leading to Adams’ arrest, which began with a phone call around 10:30 p.m. on a night in September 2008.

Hoisington police officer Jeffrey Browne, who was on duty, received a call from his wife. "She was driving toward town and reported a car had nearly sideswiped her as she passed it. Before that the car had swerved back and forth in its lane. She also told him the car’s bright lights came on and off as she was passing."

Browne located the car and reportedly saw the brake lights come on several times; the car suddenly braked as it turned onto a different street. He noted the tag light was not working but saw no other infractions.

Adams stepped out and Browne told him to return to his vehicle, which he did. Browne testified Adams was not unsteady while he exited the vehicle and his speech was fair. "However, Adams had an odor of alcohol, his clothes were dirty, his eyes were bloodshot and glazed, he had trouble walking and there was a slight slur to his speech."

Adams did not have his driving license with him but provided insurance papers. Asked about the swerving, Adams said he was running out of gas and was trying to slosh gas residue in the tank so that he could get gas into the engine.

Officer Browne testified Adams walked with a limp and used the car for balance. He agreed to perform field sobriety tests, but noted he had only one leg and could not perform all of the tests.

Adams was arrested and eventually charged with the felony DUI; liquor in an open container; refusal of a preliminary breath test and defective registration lamp.

The district court considered the fact that Browne "never saw the defendant commit any driving violations," and therefore did not have a valid reason for stopping his car. But the court of appears notes the officer did see a traffic violation, when he witnessed the defective tag lamp, and therefore had sufficient reasonable suspicion to stop the car.