Appeal of Ball

• Decision Date: 27 March 1986
• Docket Number: No. 58175,58175
• Citation: 11 Kan.App.2d 216,719 P.2d 750
• Parties: In the Matter of the Appeal of Ronald C. BALL from the order of the Kansas Department of Revenue.
• Court: Kansas Court of Appeals

Page 750

719 P.2d 750

11 Kan.App.2d 216

In the Matter of the Appeal of Ronald C. BALL from the order of the Kansas Department of Revenue.

No. 58175.

Court of Appeals of Kansas.

March 27, 1986.

Motion By Appellee For Publication Granted May 9, 1986.

Syllabus by the Court

In determining whether the district court erred in finding a driver's refusal to submit to a breath test was unreasonable pursuant to K.S.A. 8-1001(c), it is held a driver's refusal to take a breath test is not reasonable if based only on his belief that the breathalyzer machine is not functioning properly.

Michael V. Foust, of Foust & Vignery, Goodland, for appellant.

Ann Smith and Kris E. McKinney, Legal Services, and William L. Edds, Gen. Counsel, Dept. of Revenue, for appellee.

Before BRISCOE, P.J., and RALPH M. KING, Jr., and DAVID S. KNUDSON, District Judges, Assigned.

BRISCOE, Presiding Judge:

Ronald C. Ball was arrested for driving while under the influence of alcohol.He refused to submit to a breath test.The Kansas Department of Revenue determined Ball's refusal was unreasonable and suspended his driver's license pursuant to K.S.A. 8-1001(c).Ball appeals the district court's affirmance of the suspension.

After his arrest, Ball was taken to the Sherman County Sheriff's office by a highway patrol trooper.When the breathalyzer machine was plugged in, Ball saw a light on the machine flashing on and off erratically.Ball told the trooper about the light and expressed some concern that the machine was not working properly.The trooper believed the problem was in the electrical outlet, not the machine, and plugged the machine into a different outlet.Following this change, the machine's function appeared normal to the trooper.The trooper then asked Ball whether he would submit to the breath test.Ball again expressed concern about the machine's reliability.The trooper then provided Ball with an explanation of how the machine operated.The trooper even opened the machine to show Ball a heat tape which indicated that the machine was working properly.Despite the trooper's explanation, Ball refused to take the breath test.

Ball's driver's license was subsequently suspended by the Kansas Department of Revenue after the hearing examiner concluded his refusal was unreasonable.On appeal to the district court, Ball only challenged this conclusion by the hearing examiner.The district court upheld the examiner by also concluding the refusal was unreasonable.

The trooper testified before the district court that the machine, known as a crimper box, is only used to gather breath samples and does not analyze the samples to determine blood alcohol content.The trooper testified that the machine uses heat to seal the glass tubes and the light that concerned Ball is used to indicate that the machine has reached the proper temperature to seal the tubes.The trooper noted that the machine also contains a heat tape which changes color when the proper temperature is achieved.In case of a faulty indicator light, the officer can double-check the machine by examining the heat tape.The trooper testified he explained these facts to Ball and assured him that the machine was reliable.

The only issue before us is whether the district court erred in finding that Ball's refusal to submit to the breath test was unreasonable.

Ball contends that the district court erred by not considering the facts and circumstances surrounding his refusal to submit to the breath test.Specifically, he argues the court should have first considered the factual basis for his refusal before reaching the legal conclusion that Ball could not reasonably base his refusal on his belief that the breathalyzer machine was not functioning properly.

A careful review of both the transcript and the journal entry demonstrates the trial court first familiarized itself with the facts and circumstances surrounding Ball's refusal before reaching its decision.Further, the court's decision was correct.

Although the issue before us is essentially a fact issue, other courts have also concluded a driver's refusal to take a breath test is not reasonable if based only on his belief that the test was unreliable.In a factually analogous case, Swedzinski v. Com'r of Public Safety, 367 N.W.2d 119(Minn.App.1985), Swedzinski was arrested for driving under the influence and was asked to submit to a breath test.On the first attempt at administering the test, the intoxilyzer machine kicked out the test record because of radio frequency interference.Swedzinski was aware of the faulty test.He refused to submit to a subsequent breath test and his license was revoked.On appeal, the trial court rescinded the revocation on the grounds that his refusal was reasonable.The Minnesota Court of Appeals reversed:

"The trial court found that Swedzinski's 'suspicions' about the intoxilyzer machine (following the...