State v. Chastain
| Decision Date | 29 May 1998 |
| Docket Number | No. 76092,76092 |
| Parties | STATE of Kansas, Appellee/Cross-appellant, v. Jerry R. CHASTAIN, Appellant/Cross-appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 8-1004 authorizes a person tested for blood alcohol concentration under the provisions of K.S.A.1994 Supp. 8-1001 a reasonable opportunity to have an additional test by a physician of the person's own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A.1994 Supp. 8-1001 and amendments thereto shall not be competent in evidence.
2. The purpose expressed in K.S.A. 8-1004 is to allow an accused an opportunity to secure independent testing for blood alcohol concentration in order to rebut the results of police testing which may be used by the State upon trial. Thus, the provisions of K.S.A. 8-1004 apply to an accused who, rather than refusing a test, simply fails to provide an adequate breath sample.
3. While the State is not required to provide a DUI suspect with a free additional blood alcohol concentration test, it may not unreasonably interfere with the suspect's reasonable attempts to secure an additional test at his or her own expense by a physician by his or her own choosing for the purpose of attempting to secure evidence for his or her defense at or near the crucial time under consideration.
4. The question of whether comments made by officers to a DUI suspect constitute coercion, and rise to the level of unreasonable interference with the suspect's rights under K.S.A. 8-1004 to additional testing, depends upon the facts and circumstances of each particular case.
5. It is the sentencing judge alone who determines the appropriate sentence to be imposed or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive.
6. Horizontal gaze nystagmus testing is scientific evidence; its admissibility in Kansas is governed by our decision in State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992).
7. While contributory negligence is no defense in a prosecution for a driving offense of involuntary manslaughter or vehicular homicide, it is a circumstance to be considered along with all other evidence to determine whether the defendant's conduct was or was not the proximate cause of a decedent's death. In some instances, a decedent's contributory negligence may have been a substantial factor in his or her death and a superseding cause thereof; it may have intervened between a defendant's conduct and the fatal result so as to be itself the proximate cause.
Joe Dickinson, Newton, argued the cause and was on the brief, for appellant/cross-appellee.
Jennifer M. Wieland, Assistant County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief, for appellee/cross-appellant.
The defendant, Jerry R. Chastain, was charged with involuntary manslaughter arising out of an automobile accident resulting in the death of Robert Glenn. The jury returned a verdict of guilty to the lesser included offense of driving while under the influence of alcohol. He appeals, claiming that the results of his breath test should have been suppressed and that the trial court abused its discretion in the sentence imposed. The State cross-appeals on two questions reserved: (1) the exclusion of horizontal gaze nystagmus testing and (2) instructions on involuntary manslaughter. We agree with the trial court's resolutions of both questions reserved. We affirm the conviction and sentence.
The questions raised by this appeal are questions of law and do not involve disputed questions of facts surrounding the automobile accident. At trial, the defendant argued that Glenn caused his own death by proceeding into the intersection without stopping at a stop sign. The State claimed the defendant was operating his vehicle at a high rate of speed under the influence of alcohol, causing Glenn's death. Those facts necessary for resolution of the legal issues involved are set forth in the discussion of the issues raised by the parties.
The defendant contends that the results of his breath test should have been suppressed because the arresting officer unreasonably prevented him from taking a blood alcohol Sergeant A.J. Wuthnow, after conducting certain field sobriety tests at the scene, took the defendant to the station and gave him a breath test. The defendant was unable to blow a sufficient amount of air into the machine. Thus, the test resulted in a deficient sample, although the machine registered a .210 concentration of alcohol. Prior to the administration of the breath test, the defendant requested a blood alcohol test. Wuthnow correctly explained that the defendant would have to take the breath test before being allowed to take the requested blood test. After completing the breath test, Wuthnow told the defendant that he would take him to the hospital to get his requested blood test. Wuthnow also told the defendant that the blood test would register higher. The defendant decided not to take the blood test and told Wuthnow to forget it.
test he requested before and after the breath test.
Both parties suggest that the trial court did not resolve this issue. Two district judges handled pretrial motions in this case. The first judge to hear the suppression motion resolved against the defendant the question of whether proper procedures were utilized in the operation of the breath testing machine. During the proceeding, Wuthnow mentioned that he informed the defendant that the results of the blood test would be higher. Defense counsel indicated that he would raise the issue of unreasonable interference by a later motion.
The second district judge, dealing with another pretrial motion concerning the admissibility of the horizontal gaze nystagmus test, refused to hear additional evidence on the issue of unreasonable interference with the defendant's requested blood test. After consulting with counsel for the State, the judge was convinced that the issue had been resolved in the prior suppression hearing. The defendant did not object and the matter was not resolved by the second district judge. However, we conclude that the essential facts concerning this issue are undisputed and that the record permits us to resolve the legal issue without remanding for further hearing.
The State argues that under K.S.A.1994 Supp. 8-1001(f)(2), the failure of a person to provide an adequate breath sample constitutes a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs. Thus, according to the State, the defendant's deficient sample constituted a refusal, with the result that no additional testing was allowed. We find no merit in the State's contention. K.S.A.1994 Supp. 8-1001(f)(1) does not by its terms cut off the right to an independent test provided for under K.S.A. 8-1004 which states:
While an accused who refuses the arresting officer's test may not be eligible for independent testing under K.S.A. 8-1004, an accused who submits to the requested breath test but blows an inadequate sample retains his or her right under the provisions of K.S.A. 8-1004. Even though under the provisions of K.S.A.1994 Supp. 8-1001(f)(2), the blowing of an inadequate sample may constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs, the opportunity for the accused to show such a medical condition for his or her inability may not be demonstrated until a later time. Thus, a person who provides an inadequate breath sample is still entitled to an independent test under the provisions of K.S.A. 8-1004.
Moreover, even a deficient sample, as in the present case, registers a blood alcohol level. K.S.A.1994 Supp. 8-1013(f)(2) provides that readings obtained from a partial alcohol concentration test on a breath testing machine are admissible into evidence. See State v. Maze, 16 Kan.App.2d 527, 533-34, 825 P.2d 1169 (1992). The purpose expressed in K.S.A. 8-1004 is to allow an accused an opportunity to secure independent The Court of Appeals, in State v. George, 12 Kan.App.2d 649, Syl. p 4, 754 P.2d 460 (1988), correctly noted:
testing in order to rebut the results of police testing, which may be used by the State upon trial. Thus, the provisions of K.S.A. 8-1004 apply to an accused who, rather than refusing a test, simply failed to provide an adequate breath sample. The defendant in this case provided a deficient sample which was introduced into evidence by the State. The defendant in this case retained his right to an independent test.
"While the State is not required to provide a DUI suspect with a free additional alcohol concentration test, it may not unreasonably interfere with the suspect's reasonable attempts to secure an additional test, at his own expense, by a physician by his own choosing, for the purpose of attempting to secure evidence for his defense at or near the crucial time under consideration."
The defendant contends Wuthnow's statements that a blood test would show higher...
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