State v. Herrman, No. 90,760.
| Decision Date | 21 May 2004 |
| Docket Number | No. 90,760. |
| Citation | 99 P.3d 632,33 Kan.App.2d 46 |
| Parties | STATE OF KANSAS, Appellee, v. CURTIS JOHN HERRMAN, Appellant. |
| Court | Kansas Court of Appeals |
Michael S. Holland II and Michael S. Holland, of Russell, for appellant.
Glenn R. Braun, special prosecutor, of Glassman, Bird, Braun & Schwartz, L.L.P., and Phill Kline, attorney general, for appellee.
Before HILL, P.J., JOHNSON and McANANY, JJ.
In this case we are asked to determine whether a deficient breath sample can be admitted as "other competent evidence" in a prosecution under subsection (a)(1) of our DUI statute (K.S.A. 8-1567). An examination of the legislative history of the statute and the application of the legal maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another) leads us to conclude that such evidence is not admissible. Accordingly, we vacate Herrman's conviction for DUI. The parties have tailored this case for appeal. Both sides agreed to the facts, and there is no need to repeat them. Herrman was stopped for driving a vehicle with a defective muffler. He was arrested for DUI and submitted to a breath test. The test result indicated a "deficient sample" (reading 0.119). Herrman waived a jury trial, and the entire matter was submitted to the district court on a motion in limine. If the trial court admitted as competent evidence the deficient breath sample, the parties agreed there was sufficient evidence to find Herrman guilty. If inadmissible, the parties agreed, there was insufficient evidence, and Herrman would be acquitted. The trial court convicted Herrman of driving under the influence of alcohol in violation of K.S.A. 8-1567(a)(1), suspended his sentence, and allowed him to post an appeal bond.
Herrman contends that a deficient sample breath test or a partial alcohol concentration test is not considered competent evidence in sustaining a conviction under K.S.A. 8-1567(a)(1). This is a question of statutory interpretation and a matter over which we have unlimited review. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
K.S.A. 8-1567(a) lists five ways someone can be convicted for driving under the influence:
We must focus on subparagraph (1) of the statute since it was the basis of the charge against Herrman. It refers to K.S.A. 8-1013(f), a statute that defines "other competent evidence" as:
"(1) Alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine."
In making this statutory interpretation, we naturally look first to the intent of the legislature, the prime rule of statutory construction. Williamson, 275 Kan. at 305. Ordinary words are to be given their ordinary meanings without adding something not readily found in the statute or eliminating that which is readily found therein. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
Furthermore, an appellate court must consider all of the provisions of a statute in pari materia rather than in isolation, and these provisions must be reconciled, if possible, to make them consistent and harmonious. State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001). Also, statutes should be interpreted to avoid unreasonable results, as the presumption exists that the legislature does not intend to enact useless or meaningless legislation. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). We can also "look to historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested." State v. Dickson, 275 Kan. 683, 689, 69 P.3d 549 (2003).
K.S.A. 8-1567(a)(1) was amended in 1990 (L. 1990, ch. 44, sec. 6) to include the following language: "as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto." James Keller of the Kansas Department of Revenue, who testified before the House Committee on Transportation about this amendment, stated in his memorandum:
Minutes of the House Committee on Transportation, February 6, 1990, attachment 3.
Also offering testimony about the amendment was Theresa Hodges, who is the section chief of the laboratory improvement program office of the Kansas Health and Environmental Laboratory. She elaborated upon her concerns over the implied consent law. She said:
The refusal to take a breath test causes two actions by the State. First, it initiates a temporary suspension of the driver's license. And second, it allows the admission of the refusal into evidence against the driver at any ensuing trial stemming from the alleged DUI incident. K.S.A. 8-1001(f); State v. Adee, 241...
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...objection is overruled, subject to your cross-examination." Post-trial, Stevens relied upon the then recently decided case of State v. Herrman, 33 Kan.App.2d 46, Syl. ¶ 1, 99 P.3d 632 (2004). There, the Court of Appeals held that a deficient sample breath test could not be admitted as "othe......
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