City of Shawnee v. Gruss, 49280

Decision Date24 March 1978
Docket NumberNo. 49280,49280
Citation576 P.2d 239,2 Kan.App.2d 131
PartiesCITY OF SHAWNEE, Kansas, Appellee, v. John J. GRUSS, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. Under K.S.A. 8-1004, a breathalyzer test operator is not required to inform the person being tested of his right to have an independent test taken by some other authorized person or agency.

2. Testimony which establishes that a breathalyzer test machine has been approved and certified by the State as of the date of the test in question is sufficient foundation testimony to establish validity of test results from the machine.

3. Testimony which establishes that the operator of a breathalyzer machine has been certified by the State of Kansas and is presently certified as an operator, and that the test he conducted is in accordance with the operational procedure of said breathalyzer machine is sufficient foundation for the operator's testimony relative to the results of the test.

David R. Gilman and J. Steven Schweiker, Overland Park, for appellant.

James T. Wiglesworth, Asst. City Atty., for appellee.

Before SWINEHART, P. J., and REES and SPENCER, JJ.

SWINEHART, Judge:

The appellant, John J. Gruss, was convicted in the Municipal Court of Shawnee, Kansas, of driving under the influence of intoxicating liquor. He appealed to the district court, where his case was tried de novo to a six-member jury. He appeals the jury's verdict.

At the trial, breathalyzer test results showing that the appellant's blood alcohol content was .11 percent were admitted over his objections. K.S.A. 8-1005 states that a blood alcohol content of .10 percent by weight establishes a presumption of intoxication. The only question on appeal is whether the trial court erred in admitting the breathalyzer test results.

The appellant argues that the admission of the breathalyzer results constituted prejudicial error. The testimony presented at trial showed some evidence of intoxication other than the breathalyzer results (i. e., erratic driving, belligerent behavior, and name-calling). Under the facts and circumstances of the case, we concur with the appellant that the admission of the test results would be prejudicial if it was erroneous; however, for reasons discussed below, we find that the trial court did not err in admitting the breathalyzer results.

The appellant contends that the breathalyzer evidence was incorrectly admitted because the City of Shawnee failed to lay a proper foundation. He attacks the sufficiency of the foundation testimony on the following grounds:

(1) The breathalyzer operator failed to examine the appellant's mouth for foreign substances prior to the test;

(2) the operator failed to observe the appellant for a period of twenty minutes immediately prior to the test;

(3) the operator was not qualified to administer the test;

(4) the machine was not properly certified;

(5) the test ampoule was not properly certified as containing the correct chemical compound; and

(6) the appellant was denied a reasonable opportunity to have an additional chemical test by a physician of his own choosing.

K.S.A. 1977 Supp. 65-1,107 authorizes the secretary of health and environment to promulgate rules and regulations affecting breath testing, including testing procedures and certification, and periodic testing of operators and machines. Those guidelines are found at K.A.R. 1977 Supp. 28-32-1, et seq. Briefly summarized, the regulations require initial inspection of the testing machine for accuracy with yearly testing and certification thereafter, and initial training of operators with periodic proficiency testing and yearly certification. The regulations also require that breath testing machines be operated strictly in accordance with the manufacturer's operational manual. Summers, a chemist with the Kansas Department of Health and Environment, and Officer Morris, who administered the breath test, both testified concerning the requirements contained in the manufacturer's checklist for the Smith Wesson 900A, which was used to test the appellant's breath. The checklist requires that the test subject be observed for a twenty-minute period during which time he must not belch, regurgitate or ingest any substance. Belching, regurgitating or ingesting within twenty minutes of the breath test could substantially affect the test results, according to their testimony.

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16 cases
  • State v. Bristor
    • United States
    • Kansas Court of Appeals
    • 3 Mayo 1984
    ...it was held that the officer is not required to explain the consequences of refusal to the accused. The court in City of Shawnee v. Gruss, 2 Kan.App.2d 131, 134, 576 P.2d 239, rev. denied 225 Kan. 843 (1978), held that the officer need not inform a consenting accused of his right to an inde......
  • State v. Bristor
    • United States
    • Kansas Supreme Court
    • 30 Noviembre 1984
    ...from our earlier cases. See, e.g., Hazlett v. Motor Vehicle Department, 195 Kan. 439, 442, 407 P.2d 551 (1965); City of Shawnee v. Gruss, 2 Kan.App.2d 131, 134, 576 P.2d 239, rev. denied 225 Kan. 843 (1978). Thus, the consent envisioned by the statute is to be implied and if submission is n......
  • State v. Potucek
    • United States
    • Kansas Court of Appeals
    • 5 Junio 2015
    ...the appellant actually was observed for twenty minutes is a question of fact to be resolved by the trial court.” City of Shawnee v. Gruss, 2 Kan.App.2d 131, 133, 576 P.2d 239, rev. denied 225 Kan. 843 (1978), superseded on other grounds in State v. Bristor, 236 Kan. 313, 691 P.2d 1 (1984). ......
  • State v. Fudge
    • United States
    • Kansas Court of Appeals
    • 30 Septiembre 2022
    ...the years. See e.g., Mitchell v. Kansas Dept. of Revenue , 41 Kan. App. 2d 114, 123, 200 P.3d 496 (2009) ; City of Shawnee v. Gruss , 2 Kan. App. 2d 131, 133, 576 P.2d 239 (1978), overruled on other grounds by State v. Bristor , 236 Kan. 313, 691 P.2d 1 (1984) ; State v. Hosler , No. 108,11......
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