State v. Foster, 44493

Decision Date21 January 1967
Docket NumberNo. 44493,44493
Citation422 P.2d 964,198 Kan. 52
PartiesSTATE of Kansas, Appellee, v. Samuel L. FOSTER, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. In a criminal action charging a defendant with unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, the record is examined and it is held: The trial court erred (1) in admitting into evidence a blood alcohol test report of the laboratory of the State Department of Health over the objection of defendant that no proper foundation had been laid for its introduction and (2) in submitting an instruction to the jury that the results of the test shown in the report gave rise to a presumption that defendant was under the influence of intoxicating liquor.

2. The error in admission of the blood alcohol test report, compounded by the submission of the instruction referred to in paragraph 1 of this syllabus, prejudiced the substantial rights of defendant.

Wm. E. Settle, Fredonia, argued the cause, and P. W. Stephens, Neodesha, was with him on the briefs for appellant.

Donald C. Vosburgh, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the briefs for appellee.

KAUL, Justice:

This is an appeal by the defendant, Samuel L. Foster, from a conviction of driving a motor vehicle while under the influence of intoxicating liquor contrary to the provisions of K.S.A. 8-530. The question involved is whether or not a blood alcohol test report was properly admitted in evidence.

The facts are not in dispute and will be highly summarized.

On February 24, 1965, Trooper Walter Wiltse, of the Kansas Highway Patrol, was summoned to an accident scene seven miles east of Neodesha on Highway K-37. The defendant was one of the parties involved in the accident. During the course of the investigation by Wiltse a physical examination of the defendant indicated he might be under the influence of intoxicating liquor. Wiltse testified defendant's speech was slurred and that he was unsteady on his feet when asked to walk a line. Defendant was arrested, placed in the patrol car, and transported to Wilson County Hospital at Neodesha where he consented to the taking of a blood sample by the head laboratory technician of the hospital, Kenneth Stucker.

Mr. Stucker testified he complied with the standard procedure in drawing a blood specimen for a blood alcohol test. He did not remember who the man was that he took the specimen from. He stated the specimen was placed in a tube, sealed with a stopper and tape, and identified with his initials, date and time. The tube was then inserted in a mailing container and delivered to waiting police officers.

Wiltse testified he applied postage and mailed the addressed container to the State Board of Health, Topeka, Kansas. He further testified he received by mail a report on the blood alcohol test from the State Board of Health on February 27, 1965. No other witnesses were called to testify and at this point the report in question was offered as an exhibit in evidence.

It was offered in the form of a photograph of a laboratory report on a Kansas State Department of Health form, entitled 'Blood Alcohol Examination.' The photographic copy was not attested, authenticated, or certified as a true copy. A copy of the exhibit is appended hereto.

Defendant made timely objection to the introduction of the report on the grounds that it was hearsay and that no proper foundation had been laid. He later objected to instruction No. 11 which advised the jury of the presumption that a defendant is under the influence of intoxicating liquor if, at the time of procurement, his blood contains 0.15 percent or more by weight of alcohol. Both objections were overruled by the trial court.

The jury returned a verdict of guilty and the court imposed sentence after a motion for a new trial was denied. This appeal followed.

The basic issue is whether or not the photographic copy of the report of the blood alcohol test was properly admitted in evidence. It follows that if the report was erroneously admitted then instruction No. 11 was erroneously submitted to the jury.

Defendant contends the State Board of Health's report is hearsay because the State failed to call witnesses to authenticate or lay a foundation for its production. The State asserts that although the report is hearsay evidence it is admissible under the business records exception enumerated in K.S.A. 60-460(m). This statute provides for the admission of business records if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness. The provisions are substantially the same as those of the prior law, G.S.1949, 60-2869, the changes being mostly in phraseology. The present statute is, for all practical purposes, the same as the Uniform Business Records As Evidence Act. (Gard, Kansas Code of Civil Procedure, § 60-460(m), pp. 482, 483.)

The trial court did not disclose its reasoning in overruling defendant's objection. The abstract merely reflects that when the court was confronted with defendant's objection the jury was dismissed; arguments were heard at the conclusion of which the court announced: 'I'm going to receive the exhibit. The objection will be overruled.'

While the specific question presented here has not been determined by this court the admissibility of blood alcohol test reports and testimony in connection therewith has been discussed in several cases.

In City of Wichita v. Showalter, 185 Kan. 181, 341 P.2d 1001, the prosecution introduced the testimony of a laboratory technician with the sheriff's office of Sedgwick County. The technician testified in general as to the workings of the alcometer; that its operation was simple; and that if not operated correctly it would not operate at all. A member of the Wichita Police Department testified as to administering the test on the alcometer in the particular case. He testified that he had been instructed in the art of operating the machine by a police lieutenant, who was a graduate chemist and laboratory technician, who had prepared the vials to be used on the machine in the case in question.

The Wichita police officer testified that the test showed a reading of 0.21. We held the trial court did not err in refusing to strike out such testimony.

In State v. Bailey, 184 Kan. 704, 339 P.2d 45, it was held that the testimony of B. L Glendening, Ph.D., principal chemist for the Kansas State Board of Health, concerning the results of a blood alcohol test conducted under his supervision, was properly admitted even though the test in question was actually conducted by an assistant chemist in the laboratory. On appeal the defendant urged that the assistant, who made the analysis, must be produced as a witness in order that the report might be introduced. We stated at page 708 of the opinion, 339 P.2d at page 48:

'* * * The analysis was conducted under the supervision and control of Dr. Glendening and as such became his own analysis. He was the proper party to testify concerning the result of the analysis. * * *'

In State v. Johnson, 190 Kan. 795, 378 P.2d 167, a blood alcohol report of the State Board of Health laboratory was offered during the testimony of the sheriff of Johnson County. The report was objected to on the grounds no proper foundation was laid. The objection was sustained by the trial court. The jury was instructed to disregard the testimony of the witness concerning the report. The defendant was convicted nevertheless on other evidence and the defendant urged on appeal that even though the testimony was excluded it could not have been forgotten by the jury and a mistrial should have been granted. The conviction was affirmed on appeal but the question of whether or not the report was admissible on the sheriff's testimony was not discussed.

In Williams v. Hendrickson, 189 Kan. 673, 371 P.2d 188, a civil action for damages, the report of a blood alcohol test was admitted on the testimony of a doctor who withdrew the blood. The admission of the test report was objected to on the ground that under the provisions of G.S.1961 Supp., 8-1001, now K.S.A. 8-1001, the use of the report as evidence was limited only to criminal actions and that the doctor was incompetent to testify inasmuch as he had taken the blood from the appellant and there was thereby created a doctor-and-patient relationship, and that any information pertaining to the test was privileged Both contentions were determined adversely to appellant. It was stated on page 676 of the opinion 371 P.2d on page 191:

'* * * We are of the opinion such evidence, if properly obtained and accurately identified, may be admitted in a civil action where pertinent to the issues involved in the case.'

We know of no cases in this or any other jurisdiction and we are cited to none where a blood alcohol test report was held to have been properly received in evidence, over objection, without the testimony of a witness who could identify the report and explain methods and procedures used in its production. A witness may qualify, however, even though he did not actually perform the test himself. (State v. Bailey, supra.)

Two recent cases in which the question presented might be considered somewhat analogous to that before us here are Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533, and McGrath v. Mance, 194 Kan. 640, 400 P.2d 1013. In both cases it was held that the accident report of a police officer is...

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  • Melendez-Diaz v. Massachusetts
    • United States
    • U.S. Supreme Court
    • June 25, 2009
    ...under business-records exception because the prosecution did not show that it was kept in regular course of business); State v. Foster, 198 Kan. 52, 422 P.2d 964 (1967) (no foundation laid for introduction of blood-alcohol test because the prosecution did not show that the test was conducte......
  • Wadena v. Bush
    • United States
    • Minnesota Supreme Court
    • August 15, 1975
    ...must introduce minimal evidence to identify the report and explain the methods and procedures used in its production. State v. Foster, 198 Kan. 52, 422 P.2d 964 (1967). The problem in this case is not that foundation is inadequate, but, rather, that counsel for Mrs. Bush failed to make an o......
  • State v. Lafferty
    • United States
    • Maine Supreme Court
    • September 11, 1973
    ...testimony is inadmissible because 'there are missing links in the chain of evidence of identity of blood specimens.' State v. Foster, 198 Kan. 52, 422 P.2d 964 (1967) is cited to support this argument. In that case, however, the 'chain of evidence connecting the defendant with the blood sam......
  • Pacific Indem. Co. v. Berge
    • United States
    • Kansas Supreme Court
    • July 17, 1970
    ...the report, is not admissible as substantive evidence.' (Syl. 1.) See, also, State v. Taylor, 198 Kan. 290, 424 P.2d 612; State v. Foster, 198 Kan. 52, 422 P.2d 964; and Letcher v. Derricott, 191 Kan. 596, 383 P.2d In their brief plaintiffs cite generally the exceptions to the hearsay rule ......
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