State v. Finch
Decision Date | 07 January 2011 |
Docket Number | No. 101,136.,101,136. |
Citation | 244 P.3d 673 |
Parties | STATE of Kansas, Appellant, v. Paul R. FINCH, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. Kansas courts accept appeals on questions reserved when the issues are matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes but will not consider such appeals when the resolution of the question would not provide helpful precedent.
2. Statutory interpretation and construction raise questions of law reviewable de novo. The court's first task is to ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should or should not be. The court will not speculate on the legislative intent and will not read the statute to add something not readily found in it.
3. An appellate court reviewing a district court's grant or denial of a defense motion for judgment of acquittal examines the sufficiency of the evidence to support the conviction. The proper standard is whether, after reviewing all of the evidence in the light most favorable to the State, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
4. K.S.A.2007 Supp. 8-1567(a)(2) prohibits operating or attempting to operate a vehicle while the alcohol concentration of the driver's blood or breath, as measured within 2 hours of operating, is .08 or more. It is a per se statute. The State need not prove the actual alcohol concentration of the driver's blood or breath at the time of driving or at the time of measurement. It also need not prove that alcohol actually impaired the defendant's driving.
5. The plain language of K.S.A.2007 Supp. 8-1567(a)(2) is clear and unambiguous. It neither requires nor prohibits the fact-finder's consideration of an Intoxilyzer 5000's margin of error. Such a margin of error is merely one factor to be considered in arriving at the verdict.
Nicole Romine, assistant district attorney, argued the cause, and Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief for appellant.
Janine A. Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.
This appeal by the State arises on a question reserved in a driving under the influence (DUI) prosecution. The State challenges the district court judge's decision to grant a motion for judgment of acquittal based on the margin of error for the Intoxilyzer 5000 used to test defendant's blood-alcohol concentration.
Factual and Procedural background
Defendant Paul R. Finch was arrested for DUI, and his blood-alcohol concentration was measured at .08 through the use of an Intoxilyzer 5000 within 2 hours of his operating a vehicle. The State initially charged him in the alternative under K.S.A.2007 Supp. 8-1567(a)(1), (a)(2), and (a)(3). Immediately before trial, the State informed the court that it was basing its DUI case solely on subsection (a)(2), which reads: "No person shall operate or attempt to operate any vehicle within this state while: ... the alcohol concentration in the person's blood or breath,as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more." See K.S.A.2009 Supp. 8-1567(a)(2) (same language). At trial, a police officer testified that he conducted two tests on the Intoxilyzer 5000 every 7 days or every 14 tests, whichever came first, to ensure that it was properly calibrated. He further explained that the results from these tests often varied. For example, on April 24, 2007, the first test returned a result of .080; the second test returned a result .079. Two days before, the first test had returned a result of .072; the second test returned a result of .073. The officer said the Intoxilyzer 5000 was calibrated so that tests returned readings from .070 to .089, with a temperature range of 33.8 degrees Celsius to 34.2 degrees Celsius. If the results did not fall within this range, the machine would abort the test and give an error message. The officer also testified that a person with a test result of .08 was considered intoxicated under state law.
During further cross-examination by Finch's counsel, the officer was asked if the Intoxilyzer 5000 was 100 percent accurate. This exchange followed:
Finch moved for judgment of acquittal after the State rested its case, arguing that the varying test results obtained on the Intoxilyzer 5000 created reasonable doubt. The district judge expressed concern about the officer's testimony, saying:
The State responded, and then the judge and counsel further discussed the Intoxilyzer 5000:
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