State v. Garner, 50470
| Decision Date | 05 April 1980 |
| Docket Number | No. 50470,50470 |
| Citation | 608 P.2d 1321,227 Kan. 566 |
| Parties | STATE of Kansas, Appellant, v. Joe F. GARNER, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
K.S.A.1979 Supp. 8-1001 is applicable to an unconscious or incapacitated driver who is unable to make a knowing, intelligent, free and voluntary response to a request to take a blood or breath test to ascertain the level of intoxication in the blood.
Mickey W. Mosier, Asst. County Atty., argued the cause and Curt T. Schneider, Atty. Gen., and Wm. Rex Lorson, County Atty., were with him on the brief for appellant.
James L. Sweet, of Sweet & Boyer, Salina, argued the cause and was on the brief for appellee.
This is an interlocutory appeal by the State of Kansas pursuant to K.S.A. 22-3603. Defendant, Joe F. Garner, is charged with driving while under the influence of intoxicating liquor (K.S.A.1979 Supp. 8-1567); transporting an open container of intoxicating liquor (K.S.A. 41-804); and not having a valid driver's license on his person (K.S.A. 8-244). The state appealed the order of the trial court suppressing the results of a breath test to determine the defendant's blood alcohol level. The Court of Appeals reversed the trial court and found the defendant was not entitled to suppress the results of the breath test. State v. Garner, 3 Kan.App.2d 697, 600 P.2d 1166 (1979). We granted review and affirm the Court of Appeals.
This case arose from the following facts. On May 6, 1978, at 12:55 p. m. Saline County deputy sheriff John D. Myers stopped a car driven by Joe F. Garner as it proceeded down Broadway in Salina. Myers had followed Garner for about one and one-half blocks, observing the car weave from one side of the street to the other. After Myers stopped Garner he approached his car. Defendant remained seated and appeared to be asleep or dazed. Over one-half of one side of his face was bruised with black and blue coloration and there was a strong odor of intoxicating liquor about the defendant and his car. Myers arrested Garner, gave him the Miranda warning, and then attempted to have him perform the standard coordination tests. Defendant could not perform any of the three tests satisfactorily. Myers had to catch him to prevent him from falling during two of the tests. While awaiting the arrival of the wrecker, Myers asked Garner if he would submit to a breath test. The defendant readily consented and blew into the apparatus. The test disclosed he had a .30% content of alcohol in his blood. Defendant testified he remembered nothing about being stopped, arrested or questioned or the taking of the breath test. The trial court ruled the officer performed the breath test on the defendant without his free and voluntary consent and without a valid search warrant. The appeal followed.
The sole issue before us is whether the trial court erred in suppressing the results of the defendant's breath test because defendant, an incapacitated driver, was physically unable to freely and voluntarily refuse the request.
K.S.A.1977 Supp. 8-1001 was in effect at the time this case arose. In 1978, the statute was amended to exclude the testing of urine and saliva under the statute. In addition, the amendment added sections (b)(2) and (3) regarding persons authorized to withdraw the blood. L.1978, Ch. 36, § 1. Neither amendment affects the issues in this case; therefore the statute will be cited in its current form. K.S.A.1979 Supp. 8-1001 provides as follows:
(a) "Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, for the purpose of determining the alcoholic content of his or her blood whenever he or she shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer.
(b) "If a law enforcement officer requests the arrested person to submit to a chemical test of blood, the withdrawal of blood at the direction of the officer may be performed only by: (1) a person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person, (2) a registered nurse or a licensed practical nurse, or (3) any qualified medical technician. No person authorized by this subsection to withdraw blood, nor any person assisting in the performance of a blood alcohol test or any hospital wherein such blood is withdrawn or tested that has been directed by any law enforcement officer to withdraw or test blood shall be liable in any civil or criminal action when such act is performed in a reasonable manner according to generally accepted medical practices in the community where performed. No law enforcement officer who is acting pursuant to this section shall be liable for such action in any civil or criminal proceeding involving such action.
(c)
K.S.A.1979 Supp. 8-1001(a) provides for implied consent and section (c) provides that no test shall be given if the person so arrested refuses a request to submit. Do those provisions include an "unconscious or incapacitated driver?" The state argues the test result is admissible in the absence of the driver's refusal, for whatever cause, even to the extent of being unconscious. The defendant argues the statute grants a right of refusal which is rendered meaningless when the driver is incapable of exercising his right and the evidence is inadmissible.
Many states have implied consent statutes, some of which have unconscious or incapacitated driver provisions, such as:
Ariz.Rev.Stat.Ann. § 28-691(C)
Cal.Veh.Code § 13353(a) (West 1979 Supp.)
Fla.Stat.Ann. § 322-261(1)(c) (West)
Ill.Ann.Stat. ch. 951/2, § 11-501(e) (1979 Supp.)
Iowa Code Ann. § 321B.5 (West)
Ky.Rev.Stat. § 186.565(2) (1978 Supp.)
La.Rev.Stat.Ann. § 32:661 B (West 1979 Supp.)
Mont.Rev.Codes Ann. § 32-2142.1(b) (1977 Supp.)
Ohio Rev.Code Ann. § 4511.191 (1979 Supp.)
Tenn.Code Ann. § 59-1045 (1979 Supp.)
Vt.Stat.Ann. tit. 23, § 1202(a)
The following states, like Kansas, have implied consent statutes which do not provide for the unconscious driver:
Alaska Stat. §§ 28.35.031, 28.35.032, 28.35.033 and 28.35.034
Conn.Gen.Stat. §§ 14-227a, 14-227b
Idaho Code § 49-352 (1979 Supp.)
Ind.Code Ann. § 9-4-4.5-4 (Burns 1979 Supp.)
Me.Rev.Stat.Ann. tit. 29, § 1312 (See also 1979-1980 Supp.)
Md.Transp.Code Ann. § 16-205.1 (1979 Supp.)
Mass.Ann.Laws ch. 90, § 24 (See also 1979 Supp.)
Mich.Stat.Ann. § 9.2325 et seq. (M.C.L.A. § 257.625 et seq.)
Minn.Stat.Ann. § 169.123 (West 1980 Supp.)
Okla.Stat.Ann. tit. 47, § 751 et seq. (West 1979 Supp.)
Let us examine the decisions from states with implied consent statute similar to our own. In State v. Wood, 576 P.2d 1181, 1183 (Okl.Crim.1978), the Oklahoma court construed its implied consent statute to mean:
"(A) person driving on the public roads gives his implied consent to a blood test in the event that he is rendered unconscious as a result of an automobile collision, and the police have probable cause to believe that he was driving while intoxicated."
The Oklahoma court found the person whose blood or breath is taken while unconscious must be afforded the right to revoke the consent upon regaining consciousness. The Oklahoma court treated the refusal provision as a "right," qualifying the implied consent provision of the statute.
In State v. Towry, 26 Conn.Supp. 35, 210 A.2d 455 (1965), the Connecticut Supreme Court held the implied consent statute did not specifically authorize the taking of blood from an unconscious driver; therefore, the state was required to prove the defendant consented to the test in order for the results to be admissible.
The Idaho Supreme Court reached yet another result in Mills v. Swanson, 93 Idaho 279, 280, 460 P.2d 704 (1969), wherein the court stated:
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