State v. Adee

• Citation: 241 Kan. 825,740 P.2d 611
• Decision Date: 17 July 1987
• Docket Number: No. 60466,60466
• Parties: STATE of Kansas, Appellant, v. Jerry A. ADEE, Appellee.
• Court: United States State Supreme Court of Kansas

Page 611

740 P.2d 611

241 Kan. 825

STATE of Kansas, Appellant, v. Jerry A. ADEE, Appellee.

No. 60466.

Supreme Court of Kansas.

July 17, 1987.

Syllabus by the Court

1. Questions reserved by the State pursuant to K.S.A. 22-3602(b)(3): (1) will not be accepted on appeal merely to demonstrate whether or not error has been committed by a district court in its rulings adverse to the State; and (2) are generally accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law.

2. General rules of statutory construction are stated.

3. The Kansas implied consent law (K.S.A.1986 Supp. 8-1001) is discussed, and the 1986 amendment thereto contained in K.S.A.1986 Supp. 8-1001(g) is held not to permit the issuance of a search warrant for a blood sample of a person suspected of the offense of driving under the influence of alcohol (K.S.A.1986 Supp. 8-1567) over the person's refusal, pursuant to K.S.A.1986 Supp. 8-1001(f), to submit to alcohol concentration testing.

John McNish, Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Robert L. Pottroff of Myers & Pottroff, Manhattan, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

This is an appeal by the State upon a question reserved as authorized by K.S.A. 22-3602(b)(3). At issue is the propriety of a district court ruling that K.S.A.1986 Supp. 8-1001(g) does not permit a law enforcement officer to obtain a search warrant for a blood sample of a person arrested for driving under the influence of alcohol (K.S.A.1986 Supp. 8-1567) over the person's refusal to submit to alcohol concentration testing.

The facts are not in dispute and may be summarized as follows. On July 14, 1986, Jerry A. Adee was arrested in Abilene for driving under the influence of alcohol in violation of K.S.A.1986 Supp. 8-1567.

The arresting officer, Officer Ira R. Duer of the Abilene Police Department, requested Adee to take a breath test to determine the alcohol concentration of his blood. Adee refused. After Adee's refusal, Officer Duer obtained a search warrant from District Magistrate Judge James W. Davis. Adee was taken to an Abilene hospital for the purpose of the execution of the warrant--namely, the obtaining of a blood sample from Adee. At the hospital, Officer Duer handed a copy of the warrant to Adee and requested Adee's cooperation. Adee refused. There was no further effort to execute the search warrant. Adee was charged with the additional count of obstructing legal process in violation of K.S.A. 21-3808.

On August 13, 1986, defendant was tried before District Magistrate James W. Davis on the charges of driving under the influence of alcohol and obstructing legal process. Adee was found guilty on both counts. On October 15, 1986, Adee was sentenced. For the DUI offense, he received a six-month sentence, suspended except for the statutory 48-hour incarceration (K.S.A.1986 Supp. 8-1567[d]; a $200 fine; an assessment of $28 court costs; driver's license suspension for six months; and a supervised probationary period of one year. For the obstructing legal process offense, Adee was sentenced to one year in jail, suspended except for 30 days, to be served pursuant to a work release program. Defendant appealed from both convictions.

On November 25, 1986, defendant withdrew his appeal from the DUI conviction. On January 20, 1987, District Judge John F. Christner found Adee not guilty of the charge of obstructing legal process, ruling that a search warrant could not be obtained under K.S.A.1986 Supp. 8-1001(g) to obtain a sample of defendant's blood over his refusal to submit to alcohol concentration testing. The State appeals from this determination upon a question reserved.

It has long been the rule of this court that questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether or not error has been committed by the trial court in its rulings adverse to the State. State v. Willcox, 240 Kan. 310, Syl. p 1, 729 P.2d 451 (1986); State v. Holland, 236 Kan. 840, Syl. p 1, 696 P.2d 401 (1985); State v. Glaze, 200 Kan. 324, Syl. p 1, 436 P.2d 377 (1968). Appeals on questions reserved by the State have been generally accepted where they involve questions of statewide interest important to the correct and uniform administration of the criminal law. State v. Glaze, 200 Kan. at 325, 436 P.2d 377. As we noted in State v. Holland, recently enacted statutes which have not previously been before this court are appropriate subjects of questions reserved. 236 Kan. at 841, 696 P.2d 401. The matter herein, involving a subsection of our implied consent statute on testing for alcohol concentration, has not previously been before this court.

K.S.A.1986 Supp. 8-1001 provides:

"(a) Any person who operates or attempts to operate a motor vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person's consent to such test or tests, which shall be administered in the manner provided by this section.

"(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury or death. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.

"(c) If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician. When presented with a written statement by a law enforcement officer directing blood to be withdrawn from a person who has tentatively agreed to allow the withdrawal of blood under this section, the person authorized herein to withdraw blood and the medical care facility where blood is withdrawn may rely on such a statement as evidence that the person has consented to the medical procedure used and shall not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent. No person authorized by this subsection to withdraw blood, nor any person assisting in the performance of a blood test nor any medical care facility where blood is withdrawn or tested that has been directed by any law enforcement officer to withdraw or test blood, shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices in the community where performed.

"(d) If there are reasonable grounds to believe that there is impairment by a drug which is not subject to detection by the blood or breath test used, a urine test may be required. If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by persons of the same sex as the person being tested and shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence.

"(e) No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.

"(f)(1) Before a test or tests are administered under this section, the person shall be given oral and written notice that: (A) There is no right to consult with an attorney regarding whether to submit to testing; (B) refusal to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer will result in six months' suspension of the person's driver's license; (C) refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both; (D) the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both; and (E) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities and physicians. After...