State v. Finch

Decision Date07 January 2011
Docket NumberNo. 101,136.,101,136.
Citation244 P.3d 673
PartiesSTATE of Kansas, Appellant, v. Paul R. FINCH, Appellee.
CourtKansas 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.

The opinion of the court was delivered by BEIER, J.

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.

"Q. [DEFENSE COUNSEL:] And there is a margin of error in the Intoxilyzer 5000, is there not?
"A. [OFFICER:] I would not agree with that, no.

During further cross-examination by Finch's counsel, the officer was asked if the Intoxilyzer 5000 was 100 percent accurate. This exchange followed:

"Q. Is there not a one percent margin of error on either side?
"A. Not that I am aware of, according to the statistics.
"Q. Not that you are aware?
"A. Not that I have been taught, no.
"Q. You don't know whether there is a margin of error from the manufacturer?
"A. I'm stating I was not taught that there was.
"Q. All right. Were you taught that there wasn't?
"A. That's correct. I was taught that the test you get is accurate.
"Q. With—I mean like an election .... for instance where you have a two or three percentage point usual margin of error, you're saying that doesn't exist here?
"A. I would agree with that, yes.
"Q. I'm sorry?
"A. I believe that statement would be correct.
"Q. And do you have an explanation then as to why every trial that we pointed out was different, between one test and another, a percentage point or two, like for instance .079 to .080?
"A. The simulator solution bottle is attached to the Intoxilyzer. The simulator solution is heated, it has a heater in it. The top is not heated and the breath tube is not heated. When a subject gives a test, that breath tube is heated to try and maintain a constant temperature of the test, so with the simulator top not being heated and the tube not being heated, that air that is pulled through that simulator comes in at room temperature instead of what a person's temperature is, and therefore with that change it's gonna actually change your test result minutely, and that's why the State has a range."

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:

"Well, first, [the officer's] testimony to me seems inconsistent, and you can explain it if you want, with his testimony that the ... Kansas Department of Revenue allows a variation between .073 and .087 in the known sample.
"And the known sample is ... what's used to compare the unknown sample, and that's a .014, 14 one-hundredths variation. I don't understand how anything ... below .087 can be said to be .080 beyond a reasonable doubt, and so you can explain to me how—I mean I think [the officer's] testimony is inconsistent when he says there is no margin of error. Unfortunately, I'm also tainted by the fact I had a chemist testify in a trial ... that there is in fact that variation in the Intoxilyzer 5000."

The State responded, and then the judge and counsel further discussed the Intoxilyzer 5000:

"[THE STATE]: ... [The officer] testified that the known sample is, the tubes aren't heated so that it can allow that tolerance, so that it's an accurate test, and that it's different when a person gives a test because the breath is warmed up and what not, and I think he did a good job of explaining that inconsistency between the known sample and then an actual human test. He testified for several minutes over that.
"THE COURT: But they heat the known sample, it's got to be a certain temperature.
"[THE STATE]: Right, but he said there [are] variances in the known sample that can cause that variance, that's not present when they do the human sample, and he testified that there is no margin of error, and I think because we have that testimony in front of the jury there is enough to submit it to the jury for them to make a finding. They can decide if it's—if it hasn't risen to the level of reasonable doubt, or not, beyond a reasonable doubt or not, but I think that we've gotten past this point.
"[DEFENSE COUNSEL]: I think he also testified that every solution tests differently, so again when he was talking about the warm breath, every solution then is going to be a little different, and when it's this close, how in the world can you get to where we need to go.
"THE COURT: I don't think it makes sense, and frankly it's my belief that anything under .087, you cannot say beyond a reasonable doubt that it is—
"[THE STATE]: Those facts may or may not be true, but they're not before this jury and before the Court on this case.
"THE COURT: So we let them decide something that's on incorrect evidence that we know is incorrect?
"[THE STATE]: Well, I think we have to submit the case on the evidence that's been presented in this case, not evidence that's been presented .... in any other case ever. We don't have any evidence in this case that that's inaccurate or that there is a margin of error.
"THE COURT: Well, yeah, there is evidence, there is evidence—
"[THE STATE]: Not in this case.
"THE COURT:—there is evidence as the known sample—
"[DEFENSE COUNSEL]: Well, there is evidence that every time they tested, it came out different when they're doing the tests back to back.
"THE COURT: Yeah, which is .02.
"[THE STATE]: Well, but [the officer] testified as to why that happens. He did present that testimony as to why that happens with the known sample and not with the human sample.
"[DEFENSE COUNSEL]: Well, because every solution tests differently, which doesn't make a lot of sense.
"[THE STATE]: Every, every solution is different than any other solution.
"THE COURT: I know [the officer] is wrong. I cannot let that go to the jury knowing it's wrong. I am going to grant the motion for directed verdict."


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