State v. Graham, 88,881

• Decision Date: 24 January 2003
• Docket Number: No. 88,881,88,881
• Citation: 275 Kan. 176,61 P.3d 662
• Parties: STATE OF KANSAS, Appellant, v. WAYNE GRAHAM, Appellee.
• Court: Kansas Supreme Court

275 Kan. 176

61 P.3d 662

STATE OF KANSAS, Appellant, v. WAYNE GRAHAM, Appellee.

No. 88,881

Supreme Court of Kansas

Opinion filed January 24, 2003.

Charles A. Peckham, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellant.

Douglas F. Martin, of Bosch & Martin, LLC, of Clay Center, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.

Wayne A. Graham was found guilty by a magistrate judge of driving under the influence of alcohol. Graham appealed his conviction to the district court, then filed motions in limine, a motion to suppress, and a motion for a Frye hearing concerning the admissibility of the blood alcohol test evidence. Rawlins County District Court Judge Glenn D. Schiffner ruled that the enzyme analysis testing procedure used by the State did not meet the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that the blood test results were inadmissible at trial. The State now brings an interlocutory appeal.

On May 5, 2001, Greg Jirak, a Second Lieutenant for the Kansas Highway Patrol, observed a flatbed semi-trailer truck driving erratically through a 55 m.p.h. construction zone east of Atwood, Kansas, on Highway 36 at a speed of 75 m.p.h. Jirak activated his lights and the truck pulled over. Jirak testified that in the process of issuing a written warning for speeding to Graham, he noticed an odor of alcohol on Graham's breath. Jirak had Graham complete a preliminary breath test. The red light produced by the Intoximeter indicated that Graham's blood alcohol concentration was above .08. Jirak placed Graham under arrest for driving under the influence of alcohol in violation of K.S.A. 8-1567.

Jirak and Graham agreed that Jirak would drive Graham's truck to a mixing strip nearby rather than having it towed. While he was in the cab of the truck driving it to the mixing strip, Jirak saw an open can of beer in plain view between the driver and passenger seat just inside the sleeper compartment. Jirak transported Graham to the sheriff's office in Atwood and read the implied consent forms to him. Graham agreed to a blood test, so Jirak took him to the Rawlins County Hospital where a blood sample was drawn.

Graham filed a motion to suppress (1) evidence of the alcoholic beverage container found in the vehicle; (2) any statements he made after he was stopped; (3) any statements he made prior to being given the Miranda warnings; and (4) all medical records and reports from the Rawlins County Hospital pursuant to privilege. District Magistrate Judge Charles P. Carroll granted the request to suppress evidence of the alcoholic beverage container but denied the remainder of the motion. Judge Carroll found Graham guilty of driving under the influence of alcohol in violation of K.S.A. 8-1567.

Graham appealed his conviction to the district court and requested a jury trial. Judge Schiffner conducted a hearing on whether the blood alcohol testing procedure employed by the State met the Frye standard.

David Johnson, the laboratory manager at the Rawlins County Health Center, testified at the hearing on behalf of the State. Johnson's background and experience include a bachelor's degree in science and biology, a 2-year degree in medical technology, over 10 years' employment as a medical technologist, and a certificate from the American Society of Clinical Pathologists.

Johnson stated that the laboratory began using the Kodak Vitros 250 machine in January 2001, which employs an "enzyme analysis" method of testing plasma for blood alcohol concentration. Johnson explained that the machine employs an enzyme chemical reaction to test for the presence of ethanol in blood. He testified that proficiency tests performed using control samples for blood alcohol indicated that the machine was functioning properly during 2001. Johnson testified that this type of machine was commonly used in other hospitals and labs and agreed that the test results produced by the machine were generally accepted both by the hospital laboratory community and by physicians in treating patients.

Johnson told the court that there were three methods for testing blood alcohol concentration, including gas chromatography, dichromate methodology, and enzyme analysis. During cross-examination, he conceded that the gas chromatography method, which tests the blood alcohol concentration based on molecular weight, was "considered the gold standard in the field." Johnson stated that the lab procedures in place recommended that the enzyme analysis test results be confirmed by gas chromatography, but admitted the results in this case were not confirmed. In addition, he testified that the standard deviation of the enzyme analysis from the gold standard was 11 milligrams per deciliter, or in the range of a 5½% to 7% positive bias. Johnson conceded that it was possible that the positive bias could result in a reading of .081 blood alcohol concentration when, in fact, it should read .079. Johnson testified, however, that based on his discussions with personnel at the state health and environment laboratory and the Kansas Bureau of Investigation (KBI), he believed the enzyme analysis test for measuring blood alcohol concentration was generally accepted throughout the state of Kansas by courts and forensic scientists.

J. Robert Zettl, a private forensic toxicologist from Centennial, Colorado, appeared on behalf of Graham. His qualifications consist of a bachelor of science degree in bacteriology with a minor in physical chemistry, and a master's degree in public administration. Zettl is a Diplomat of the American Board of Forensic Examiners, and a Fellow of the American Academy of Forensic Science. Zettl's past employment included work at the Colorado State Health Department in the area of breath, blood, and urine drug and alcohol testing.

Zettl did not agree that the enzyme analysis test was "generally accepted in courts of law for the purposes of ascertaining blood alcohol content" in criminal cases. Moreover, he testified it was his personal opinion that the enzyme analysis method for testing blood alcohol content should not be accepted for the purposes of admission in criminal cases in Kansas. According to Zettl, the standard deviation and percent of error rate for the enzyme analysis method of testing was "probably closer to 10 percent" and was not reliable. Zettl also stated that the error rate reported by the manufacturer of the Intoxilyzer breath test instrument was plus or minus 5 percent and that many states allowed a plus or minus 10 percent error rate. He stated that he thought the error rate allowed in Kansas with the Intoxilyzer was "plus or minus .01," but that "it may be plus or minus 10 percent." In addition, he also conceded that the gas chromatography method had an error rate of approximately 5 percent. Zettl did not refer to any specific scientific studies or any tests he had conducted demonstrating inaccuracies in the enzyme reaction method.

Judge Schiffner ruled as a matter of law that the enzyme analysis test to determine blood alcohol concentration did not meet the requirements of Frye, and that the blood test results were inadmissible at trial. The State filed an interlocutory appeal, pursuant to K.S.A. 22-3603, of the suppression of the results of the blood tests and the district court's determination that the enzyme analysis method was not an appropriate method of introducing blood alcohol evidence in a criminal court. The interlocutory appeal was transferred to this court pursuant to K.S.A. 20-3018(c).

The State contends on appeal that the district court incorrectly ruled as a matter of law that the enzyme analysis test to determine blood alcohol concentration did not meet the requirements of Frye, and erred in holding that the blood test results were inadmissible at trial. The State requests that this court overrule the district court and allow the admission of the blood alcohol evidence.

When an appellate court considers the trial court's application of the Frye standard, which is a question of law, the appropriate standard of review is de novo. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 455-56, 14 P.3d 1170 (2000).

"Although an abuse of discretion standard of review generally governs the admissibility of evidence, including expert testimony [citations omitted], we review a trial court's Frye ruling de novo because the outcome of a Frye holding transcends individual cases such that applying less than a de novo standard could lead to inconsistent treatment of similarly situated claims. [Citations omitted.]" State v. Shively, 268 Kan. 573, 576, 999 P.2d 952 (2000).

Graham presents numerous arguments designed to dissuade this court from overruling the district court's decision. Graham contends that no Kansas appellate court has ever taken judicial notice of a scientific test under Frye where the trial court excluded the evidence and cautions against this court taking judicial notice of the enzyme method of testing. Graham submits that if this court were to take judicial notice of this method of testing, it would violate his due process and equal protection rights. Graham states that Kansas has never adopted the enzyme method as an appropriate priate test for blood alcohol concentration in DUI cases. Graham cites learned treatises advocating against the use of enzyme analysis for judicial purposes. According to Graham, the testimony of Zettl, his expert witness, was particularly strong in advocating against the use of enzyme analysis in court. Graham urges this court to find that the district court did not abuse its discretion when it held the enzyme analysis blood test evidence was inadmissible.

The State contends that blood alcohol evidence produced through enzyme analysis is admissible in Kansas for several reasons. First, the State argues that Kansas courts have previously...