State v. Gray

Citation270 Kan. 793,18 P.3d 962
Decision Date09 March 2001
Docket NumberNo. 83,430.,83,430.
PartiesSTATE OF KANSAS, Appellant/Cross-appellee, v. JAMES W. GRAY, Appellee/Cross-appellant.
CourtUnited States State Supreme Court of Kansas

Douglas A. Matthews, assistant county attorney, argued the cause, and Rick J. Scheufler, county attorney, and Carla J. Stovall, attorney general, were with him on the briefs for appellant/cross-appellee.

Michael S. Holland, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee/cross-appellant.

The opinion of the court was delivered by


The State of Kansas appeals from the trial court's dismissal of charges against James W. Gray for driving under the influence of alcohol (DUI), K.S.A. 1999 Supp. 8-1567, and refusing to take a preliminary screening test (PBT) for alcohol concentration, K.S.A. 1999 Supp. 8-1012. Gray moved to suppress the evidence of his breathalyzer refusal and for dismissal of the charges on factual grounds as well as on the application of collateral estoppel.

Prior to the hearing of the motions, the Kansas Department of Revenue had instituted proceedings against Gray to suspend his driving privileges because of his refusal to submit to the breathalyzer testing procedures. After losing at the administrative hearing, Gray appealed to the district court, where the administrative decision was overturned by Judge Barry Bennington, who found Gray had properly rescinded his initial refusal to take the breathalyzer test as allowed by Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984).

After hearing evidence regarding Gray's motions to suppress and dismiss the DUI and PBT refusal charges, Judge Hannelore Kitts declined to apply the doctrine of collateral estoppel and give effect to the result in the administrative appeal, but held that Gray had properly rescinded his refusal to take the breathalyzer test and dismissed both charges.

The State contends the trial court erred in ruling Gray did not refuse to take the test and in dismissing the complaint because other evidence of Gray's claimed impaired condition was available which was not subject to any motion.

Gray's cross-appeal contends Judge Kitts erred in her refusal to apply the doctrine of collateral estoppel to the ruling in the administrative appeal. Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer on our own motion).

Although the legal effect is sharply contested, the parties are not in substantial disagreement concerning the facts giving rise to Gray's arrest and motions, which are as follows.

Hoisington Police Officer Justin Bailey stopped a motor vehicle after the bright headlights had not been dimmed and when the driver did not signal a turn. The vehicle was being driven under 5 miles an hour and was weaving.

When Officer Bailey approached the vehicle, Gray opened the door. The officer noticed a strong odor of alcohol and asked Gray for his driver's license and insurance information. Gray located his license and placed it in his lap but then continued thumbing through his wallet. Believing that Gray was driving under the influence of alcohol, Officer Bailey arrested him. Officer Bailey did not mention in his testimony at the suppression hearing that he had asked Gray to take a PBT in order to determine whether the DUI arrest should be made.

Following his arrest, Gray was transported to the Barton County jail in Great Bend. Gray was processed into the facility and was handed a written copy of the implied consent advisory. When the officer completed orally reading the form to Gray, Gray was asked if he would submit to a breath test under K.S.A. 1999 Supp. 8-1001. Gray replied that he did not have his glasses with him and could not understand the form and wanted to speak with an attorney.

The officer reread a portion of the implied consent notice to Gray after advising him that an attorney could not be consulted regarding taking the test, but Gray reiterated that he wanted to speak with an attorney and again opined that because he could not read the form, he should not have to take the test.

Gray never told the officer that he could not understand what the officer was telling him or the provisions of the implied consent. The officer, at Gray's request, reread the form and Gray never specifically stated that he was refusing to submit to a breath test.

All told, the meeting between Officer Bailey and Gray took about 35 minutes. Finally, the officer determined that he considered Gray to have refused to submit to the breathalyzer testing and so marked the implied consent notice form. After being served with a copy of the form, Gray immediately stated to Officer Bailey, who was moving away from him, that he would take the test. The officer did not allow the test since Gray had been given several opportunities previously. Officer Bailey's impression was that Gray was trying to drag out the process in order to obtain a better result. The officer acknowledged that Gray's delay in deciding to take the test did not prejudice the evidence, that the equipment to perform the test was still present when Gray consented to take the test, that the test would have taken only 2 to 5 minutes to administer, that Gray had been under the officer's constant observation since his arrest, and that all that Gray had to do was stand up and blow into the machine and wait for the reading result.

The hearing in which this contested dismissal took place was ready to commence as a hearing on a motion to suppress the evidence of Gray's refusal to take the breathalyzer test, but Gray's counsel orally moved to amend his motion to allege alternatively a motion in limine or to dismiss for the State's failure to allow the defendant to take the requested breathalyzer testing and for the court to take judicial notice of the decision in his administrative appeal. The State voiced no objection to the amendments.

Our standard of review of a trial court ruling on a motion to suppress has been stated as follows:

"[A]n appellate court reviews the factual underpinnings of a district court's decision `by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.'" State v. Toothman, 267 Kan. 412, 416, 985 P.2d 701 (1999) (quoting State v. DeMarco, 263 Kan. 727, Syl. ¶ 1, 952 P.2d 1276 [1998]).

Our standard for determining whether substantial competent evidence exists is well known as "evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion." State v. Wonders, 263 Kan. 582, 589, 952 P.2d 1351 (1998).

The motion to dismiss raises questions of statutory interpretation upon which our review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).

Although the trial court's factual findings are not a model of clarity, the holding was that the officer interpreted Gray's questions regarding the breathalyzer test as a refusal but that Gray then made a timely request and agreed to take the test. For that reason, the trial judge stated, "I believe that Standish applies here and that Mr. Gray agreed to take the test and the officer didn't give him the test." Our holding in Standish, 235 Kan. 900, is directly applicable here. There, we examined whether a defendant may later withdraw his or her refusal to consent to a blood alcohol test. While Standish was found not to have properly rescinded his refusal, we set forth the following standards by which to review this question:

"An initial refusal to take a chemical test to determine the alcohol content of the blood of one arrested for driving while under the influence of alcohol may be changed or rescinded. To be effective, the subsequent consent must be made: (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest." 235 Kan. 900, Syl. ¶ 1.

A review of the facts in our case shows that each of these elements were clearly met. The subsequent consent was given within a minute or less of when the officer checked the `refusal' box on the consent form. The test would have still been within 2 hours of the original arrest and therefore still accurate. The testing equipment was still available. The test would have taken only 2 to 5 minutes from when Gray gave his consent. Gray was in the custody and under the observation of the arresting officer from the time of the arrest to the point of his subsequent consent.

There was clearly substantial competent evidence to support the trial court's finding that Gray had properly and timely, under the specific requirements of Standish, rescinded his refusal to take the breathalyzer test for blood-alcohol concentration, and the trial court's decision so finding must be affirmed.

While the State objected below to the dismissal of both charges, its arguments centered on its contention that Gray had actually refused to take the breathalyzer test. There is no question that Gray amended his motion to ask for dismissal of both charges, and after arguing Standish's applicability, further contended that the proper remedy was dismissal because the State failed to permit him to obtain exculpatory evidence, citing State v. Clovis, 248 Kan. 313, 807 P.2d 127 (1991); ...

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