State v. Bishop
| Decision Date | 17 April 1998 |
| Docket Number | No. 79579,79579 |
| Citation | 957 P.2d 369,264 Kan. 717 |
| Parties | STATE of Kansas, Appellee, v. Gary D. BISHOP, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When either a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.
2. The failure to understand the warnings required by K.S.A.1997 Supp. 8-1001 does not require suppression of evidence and does not render the results of any tests inadmissible.
3. K.S.A. 75-4351 does not require the appointment of a qualified interpreter to inform a deaf driver, believed to have driven a motor vehicle while intoxicated, of the consequences of a refusal to take a breathalyzer test as set forth in K.S.A.1997 Supp. 8-1001 because the driver's participation in a breathalyzer test is not equivalent to an interrogation or criminal proceeding within the meaning of K.S.A. 75-4351.
4. Communicative testimony is protected by the privileges provided in the Fifth Amendment to the United States Constitution; real or physical evidence is not protected.
5. The legislature has expressly found that for breath test results to be reliable, the testing equipment, the testing procedures, and the operator of the equipment must all be certified.
6. When the sufficiency of the evidence is challenged, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Thomas R. Fields, Kansas City, argued the cause and was on the brief, for appellant.
Delia M. York, Assistant District Attorney, argued the cause, and Nick A. Tomasic, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.
This is a direct appeal by the defendant, Gary A. Bishop, from his convictions for driving under the influence of alcohol (K.S.A.1997 Supp. 8-1567) and failure to maintain a single lane of traffic (K.S.A.8-1522).
Bishop is a deaf mute who communicates through American Sign Language. At 11:36 p.m. on August 9, 1996, Trooper Steven Zeller observed Bishop's car weave drastically within its lane of traffic and leave its lane of traffic at least once. Bishop was accompanied by two children.
After stopping Bishop, the trooper realized that Bishop was deaf and could not verbally communicate with him. The trooper detected a strong odor of alcohol emanating from Bishop. Bishop's eyes were bloodshot. The trooper indicated that he wanted Bishop to get out of his car and walk to the rear of his vehicle. Bishop understood this request and followed it. As Bishop walked to the rear of his vehicle, he stumbled.
Because of the communication barrier, the trooper did not ask Bishop to perform any field sobriety tests. Instead, the trooper arrested Bishop for driving under the influence of alcohol and failure to maintain a single lane. At no time did the trooper ever attempt to obtain a sign language interpreter at the scene for Bishop. At some point, Bishop's car was searched and a nearly empty open quart bottle of beer was found in the car.
At the county jail, the trooper provided Bishop with a written copy of the implied consent advisory. Despite knowledge that Bishop was deaf, the trooper also read the implied consent advisory out loud to Bishop. At 12:36 a.m. on August 10, 1996, Bishop submitted to a breath test on the Intoxilyzer 5000. The result of the breath test was a reading of .149.
Bishop was charged with driving under the influence of alcohol and improper driving on a laned road. Bishop requested and was granted a jury trial. The jury returned a verdict of guilty. Bishop was sentenced on July 23, 1997, to 12 months in the county jail and probation for 12 months. County jail time imposed as a condition of Bishop's probation was 10 days. Bishop posted an appeal bond and timely filed a notice of appeal with the Court of Appeals on July 23, 1997. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Prior to trial, the defense counsel filed a motion to suppress the evidence regarding the arrest, which was denied. At the beginning of the trial, the defense counsel renewed the motion to suppress the evidence regarding the arrest, but it was again denied. At trial, the State introduced evidence regarding the arrest, and the defense counsel specifically objected to this evidence, claiming that the State had not established probable cause to arrest Bishop. At this point, the trial court informed the defense counsel that if he challenged probable cause for the arrest, then the preliminary breath test, which the arresting officer conducted on Bishop, would become admissible and the State would be allowed to introduce it into evidence. The trial court asked the defense counsel if that is what he wanted to do. After thinking it over, the defense counsel stated, "I'll go ahead and withdraw my objection." On appeal, the defense counsel claims that the trial court erred by admitting into trial the evidence regarding Bishop's arrest because there was no probable cause to warrant the arrest.
When either a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 (1991). In this issue, the defense counsel appeals the trial court's denial of its motion to suppress the evidence regarding Bishop's arrest, claiming that there was no probable cause for such arrest. When the evidence regarding Bishop's arrest was presented at trial, the defense counsel specifically objected to the evidence, claiming that there was no probable cause for the arrest, in order to preserve the issue for appeal. However, the defense counsel immediately withdrew this objection.
The defense counsel withdrew this objection for strategic reasons, and he cannot now complain of the resulting consequences. Since the defense counsel did not specifically object to the evidence admitted at trial regarding Bishop's arrest, he cannot now challenge the trial court's denial of the motion to suppress the evidence regarding Bishop's arrest. As such, the defense counsel's argument--that the trial court improperly admitted into trial the evidence regarding Bishop's arrest because there was no probable cause for the arrest--fails.
The defense counsel claims that the evidence regarding the breath test was improperly admitted into trial because oral notice of the implied consent advisory had not been properly provided to Bishop, as required by K.S.A.1997 Supp. 8-1001; because an interpreter had not been properly provided to Bishop, as required by K.S.A. 75-4351; and because there had not been a proper evidentiary foundation laid for the test. The defense counsel objected to the evidence regarding the breath test at trial, based on each of these grounds. All of these objections were overruled by the trial court. On appeal, Bishop adds a fourth challenge to the admission of evidence at trial regarding the breath test--Bishop claims that the proper protocol required in administering the breath test was not followed by the officers who conducted the test.
K.S.A.1997 Supp. 8-1001 provides that before a breath test is administered, the person being requested to submit to the test must be given oral and written notice of the statutory language set forth in 8-1001(f)(l ). Subsection (3) also provides: "It shall not be a defense that the person did not understand the written or oral notice required by this section."
Under this statute, before a breath test is administered, oral and written notice shall be given to the accused. K.S.A.1997 Supp. 8-1001(f); see Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, Syl. p 1, 840 P.2d 448 (1992); State v. Luft, 248 Kan. 911, 912-13, 811 P.2d 873 (1991) (). The defense counsel concedes that the trooper tried to comply with 8-1001 in administering the breath test by giving Bishop a written copy of the notice required and by reading the notice to Bishop out loud before the test was conducted. Even though the trooper knew that Bishop could not hear the oral notice required by 8-1001, the trooper subjectively believed that Bishop understood his rights before he consented to the breath test. The defense counsel claims that the trooper could not and did not provide Bishop with oral notice of his rights, since he was deaf, and that this violated the mandatory notice requirements in 8-1001.
In Kim v. Kansas Dept. of Revenue, 22 Kan.App.2d 319, 916 P.2d 47, rev. denied 260 Kan. 994 (1996), the defendant's driver's license was suspended for 1 year by the Kansas Department of Revenue (KDR), pursuant to 8-1001, for his refusal to submit to a blood alcohol test. The defendant was a Korean immigrant, and he claimed to have a problem understanding English, including the oral notice which was provided before the test was conducted. The defendant asked the trial court to review the KDR's decision, but the trial court granted summary judgment in favor of the KDR. The defendant appealed to the Court of Appeals.
On appeal, the defendant argued that he did not understand the officer who read him the implied consent advisory, which informed the defendant that the refusal to take an alcohol test could result in suspension of his driver's license for at least 1 year. See K.S.A.1997 Supp. 8-1001(f)(1)(F). According to the defendant, his lack of understanding in regards to the oral notice and the officer's failure to give such notice in Korean amounted to a failure to provide him...
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