State v. George, 60851

Citation12 Kan.App.2d 649,754 P.2d 460
Decision Date21 April 1988
Docket NumberNo. 60851,60851
PartiesSTATE of Kansas, Appellee, v. Gregory GEORGE, Appellant.
CourtCourt of Appeals of Kansas

Syllabus by the Court

1. Under K.S.A. 1987 Supp. 8-1004, a person suspected of driving under the influence who has been given an alcohol concentration test has the right to a reasonable opportunity to have an additional test performed. If the suspect is not given this opportunity for additional testing, the State's test is not competent in evidence.

2. What is a "reasonable opportunity" to have an additional alcohol concentration test performed depends upon the circumstances of each case.

3. The State's failure to afford a DUI suspect a reasonable opportunity to obtain an additional alcohol concentration test impairs the suspect's ability to procure probative evidence and to prepare a defense.

4. 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 of his own choosing, for the purpose of attempting to secure evidence for his defense at or near the crucial time under consideration.

5. In applying the Kansas harmless error rule (K.S.A. 60-2105), a reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.

William S. Mills, McPherson, for appellant.

Charles I. Prather, Asst. Co. Atty., Ty Kaufman, Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before SIX, P.J., and BRAZIL and ELLIOTT, JJ.

SIX, Presiding Judge:

Defendant-appellant Gregory George appeals his conviction for driving under the influence of alcohol, K.S.A. 1987 [12 Kan.App.2d 650] Supp. 8-1567. George contends the trial court erred in admitting the results of the State's breath test, K.S.A. 1987 Supp. 8-1004. George also challenges the sufficiency of the evidence supporting his conviction.

The issues are: (1) Did the district court err in admitting into evidence the State's breath test? (2) Was the admission of the State's test harmless error?

We find error and reverse the trial court's ruling on issue one. Issue two is answered, "No." The case is remanded.

On January 1, 1987, the McPherson County Sheriff's Department received a teletype from the Salina Police Department stating that George had telephoned the St. John's Hospital alcohol treatment unit in Salina and was threatening to harm himself or others. Deputy Ingermanson went to George's residence in McPherson. No one was at home. Ingermanson contacted a neighbor for a description of George's car. At 6:38 p.m., Ingermanson spotted George driving and began to follow him. Ingermanson followed George for several blocks while waiting for a backup deputy to arrive. George independently pulled into a driveway and stopped. Ingermanson drove up behind George's car and made a visual and driver's license identification. George stepped out of his car. Ingermanson, with his weapon drawn, ordered George to take his hands out of his pockets and place them on the car. George did so "momentarily" and kept asking, "What's going on?"

Ingermanson then approached George, patted him down, placed him in handcuffs, and advised him he was being placed under arrest in "protective custody" because of the notification from the Salina Police Department.

Ingermanson put George in the patrol car. For the next five minutes Ingermanson talked to George. The deputy was interested in determining whether George was a threat to himself or others and whether George should be in protective custody and taken to a doctor for examination.

Ingermanson testified that during that five minute period, George's speech "was pretty fair," he was "very talkative ... [k]ind of had a carefree attitude, although it was ... sort of indifferent." His clothing was orderly. His ability to understand instructions was poor. George was staggering a bit, and smelled of alcohol. Ingermanson did not ask George to perform field sobriety tests. He believed George was intoxicated and arrested him at 6:42 p.m. on two charges: (1) open container, and (2) driving under the influence (DUI). A sack containing an open rum bottle was found in the front seat of George's car.

George was taken to the Sheriff's office. He refused to perform any coordination tests or answer certain questions on a form. He agreed, however, to take a breath test.

Ingermanson and George then sat for approximately twenty minutes waiting the required time for the breathlyzer to warm up.

Before giving the test, Ingermanson reviewed with George several statements listed on the Implied Consent Advisory Form. Ingermanson had to explain statement number 6 on the form because George had difficulty understanding its meaning. Statement number 6 informed George that he had a right to an attorney and to additional testing if he agreed to take the State's breath test. The breath test, administered at 7:15 p.m., indicated George had a blood alcohol content level of .15%.

After the breath test, George went through the normal booking procedures. At approximately 7:45 to 7:50 p.m., after being processed, George requested to talk to an attorney. He was permitted to do so.

A discussion followed between George and Ingermanson concerning whether George was being held in protective custody, or whether he could bond out. The deputies determined that George would no longer be held in protective custody, but that he would be held on a DUI charge. George was then placed in an isolated holding cell until the bondsman (or his wife) came to pick him up. While in the cell, George asked his jailer (Officer Halburt) numerous times why he was being held. Officer Halburt in turn, repeated these inquiries to Ingermanson.

As Officer Halburt walked by a few minutes later (at approximately 8:12 p.m. according to George's watch) George asked Halburt if he could then be taken for an independent blood test. Ingermanson refused the request. Ingermanson testified he received George's request for the independent sample at 8:20 p.m.

In McPherson, blood tests have to be given at the local hospital. Ingermanson refused to allow the independent test because: (1) they would have had to transport George to the hospital, and (2) they would have had to have either the doctor on call or the lab technician come down and draw blood. Ingermanson estimated that it would have taken him five to ten minutes to get George ready to go to the hospital (some eight or nine blocks away) and an additional ten or fifteen minutes at the hospital. Had George's request been granted, the second test would have occurred two hours and ten minutes after Ingermanson first saw George driving his car.

George was charged with DUI (K.S.A.1987 Supp. 8-1567) and with transporting an open liquor container (K.S.A. 41-804). Subsequently, on the State's motion, the open container charge was dismissed and evidence of the rum bottle was not admitted into evidence. George filed a motion to suppress the State's breath test results. K.S.A. 1987 Supp. 8-1004. George reasoned that he had not been permitted to obtain a blood test after having submitted to the State's breath test and, consequently, the State's test should be excluded. The motion was overruled. The court found George guilty of DUI.

1. ADMISSIBILITY OF THE K.S.A. 8-1001 BREATH TEST--A REASONABLE OPPORTUNITY TO HAVE ADDITIONAL TESTING

George claims the breath test results were inadmissible under K.S.A. 1987 Supp. 8-1004, which provides:

"Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have 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. 8-1001 and amendments thereto shall not be competent in evidence." (Emphasis added.)

The right of a reasonable opportunity to have additional testing when arrested for driving while under the influence is secured by statute. We note the legislature utilized the word "shall" in addressing the right to an additional test. Under K.S.A. 1987 Supp. 8-1004, a person suspected of driving under the influence who has been given an alcohol concentration test has the right to a reasonable opportunity to have an additional test performed. If the suspect is not given this opportunity for additional testing, the State's test is not competent in evidence.

The issue before this court is whether Ingermanson, the McPherson County Deputy Sheriff, provided George with a "reasonable opportunity" to have additional testing. K.S.A. 1987 Supp. 8-1004. The issue of what is a "reasonable opportunity" under 8-1004 is one of first impression in this jurisdiction.

A DUI suspect's statutory right to an additional test has been acknowledged previously. See State v. Young, 228 Kan. 355, 363, 614 P.2d 441 (1980); In re Appeal of Ball, 11 Kan.App.2d 216, 719 P.2d 750 (1986).

The trial court ruled that George's request for the additional test was "unreasonable" because (1) when he was first informed of his right to the additional test, he remained silent; (2) George waited over an hour after the first test was given to request the second test; and (3) George's unspecific request simply to go to the hospital and have another test was not reasonable.

George took the State's breath test at 7:15 p.m. One hour later, he exercised his statutory right by requesting an additional test. Ingermanson, the arresting deputy, was still at the jail working on George's case. George had not been issued special clothes, and he had been fully processed (fingerprinted, photographed, and...

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