State v. May, 102,248.

CourtUnited States State Supreme Court of Kansas
Citation293 Kan. 858,269 P.3d 1260
Docket NumberNo. 102,248.,102,248.
PartiesSTATE of Kansas, Appellant, v. Lindsay Taylor MAY, Appellee.
Decision Date10 February 2012

269 P.3d 1260
293 Kan. 858

STATE of Kansas, Appellant,
Lindsay Taylor MAY, Appellee.

No. 102,248.

Supreme Court of Kansas.

Feb. 10, 2012.

[269 P.3d 1261]

Syllabus by the Court

1. A person who is physically capable of doing so but fails to provide an adequate breath sample as directed by the law enforcement officer administering a breathalyzer test shall be treated as if the person refused to take the test.

2. An initial refusal to take a breathalyzer test, including a refusal as a matter of law for providing an inadequate breath sample, may be changed or rescinded by subsequent consent. To effectively cure the initial refusal, 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.

3. When the trial court finds that a person charged with driving under the influence of alcohol effectively cured an initial refusal to take a chemical test but the law enforcement officer in charge of testing has not permitted the person to take or retake the test, the proper remedy is to suppress

[269 P.3d 1262]

any reference to the testing proceedings, including the breathalyzer's numerical result obtained from a deficient breath sample.

Roy W. Mozingo II, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the brief for appellant.

Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

Kansas State Trooper Mellick arrested Lindsay May for driving under the influence. May agreed to submit to an Intoxilyzer breath test, but her initial efforts failed to provide an adequate breath sample, albeit the machine issued an alcohol concentration reading on the insufficient volume of breath. After the trooper informed her that the insufficient breath sample constituted a test refusal under Kansas law, May requested an opportunity to retake the breath test. The trooper denied the request, but, at trial, the district court found that May had validly rescinded her test refusal. The trial court suppressed any evidence of a test refusal or of the test result on the insufficient sample. The State filed an interlocutory appeal of the suppression, and a majority of a Court of Appeals panel affirmed the district court. We granted the State's petition for review. Finding that May effected a valid rescission of her constructive test refusal, we affirm the district court's suppression of both the evidence of a test refusal and the evidence of the deficient breath sample test result.

Factual and Procedural Overview

On October 16, 2007, May was involved in a one-car traffic accident. While investigating at the scene, Trooper Mellick determined that he was warranted in requesting that May submit to a preliminary breath test (PBT). May agreed to the testing and provided a sufficient breath sample to successfully complete the PBT, which required her to blow into the instrument for 10 to 15 seconds. Based on the result of that test and his observations, Mellick arrested May for DUI.

Following the arrest, Mellick transported May to the Johnson County jail; completed and read aloud the DC–70 form; waited the required 20–minute observation period; and then requested that May provide another breath sample to use in the Intoxilyzer 8000 breath test machine. May agreed to the test, and the trooper instructed May to blow hard enough to make the machine emit a tone and then to maintain that volume of breath for 10 to 20 seconds. Despite the instructions, May failed to blow hard enough and long enough to provide a sufficient breath sample for the machine to issue a valid breath alcohol concentration number. The trooper testified that the required duration of blowing is approximately the same for the Intoxilyzer as it is for the PBT that May had successfully completed. After 3 or 4 minutes, the Intoxilyzer automatically terminates the testing and prints a deficient sample result. Here, the result was .156.

After the machine printed the deficient sample result, the trooper informed May that her attempt was considered a test refusal, which prompted an immediate request by May to retake the test. At the time of the retake request, May remained seated in front of the Intoxilyzer machine and remained under the constant observation of the trooper. The trooper conceded that it would not have been a major hardship or inconvenience to conduct a retest, but he indicated that he had refused May's request based upon his belief that she had been given an ample opportunity to provide a sufficient breath sample.

The State charged May with one count of driving under the influence, albeit the complaint listed three alternative means for committing the crime. See K.S.A. 2007 Supp. 8–1657(a)(1)–(3). May subsequently filed a motion to suppress the deficient sample result, arguing that she had properly rescinded her refusal in accordance with Standish v. Department of Revenue, 235 Kan. 900, 902–03, 683 P.2d 1276 (1984).

[269 P.3d 1263]

After holding two hearings and allowing further briefing on the issue, the district court granted May's motion and suppressed testimony regarding both the constructive refusal of the test and the deficient sample numerical test result. With respect to suppressing testimony that May refused the test, the district court found a valid rescission under the factors set forth in Standish. To support the suppression of the .156 deficient sample reading, the district court analogized to the independent testing requirements of K.S.A. 8–1004.

Under K.S.A. 8–1004, as long as a licensee submits to testing, even if producing only a deficient sample, that licensee has a right to seek an independent test. Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 236, 32 P.3d 705 (2001) (citing State v. Chastain, 265 Kan. 16, 19, 960 P.2d 756 [1998] ). The statute further provides that an officer's refusal to permit such additional testing renders the original, State-ordered test “not ... competent in evidence.” K.S.A. 8–1004. The district court opined that May's request to retake the Intoxilyzer 8000 test was akin to a request for independent testing under 8–1004, so the trooper's refusal of the second (retake) test required suppression of the original, albeit deficit sample, test result.

After its motion to reconsider was denied by the district court, the State filed this interlocutory appeal with the Court of Appeals challenging the suppression of both the evidence of refusal and the result of the deficient sample. The panel majority affirmed the district court's suppression of the refusal evidence based on Standish but disagreed with the district court's rationale that the numerical test result from the deficient breath sample should be suppressed under an independent testing theory. Nevertheless, the panel majority ultimately also affirmed suppression of the numerical test result, concluding that State v. Gray, 270 Kan. 793, 18 P.3d 962 (2001), required suppression of all references to any testing procedures where an officer refuses subsequent testing after a proper rescission. State v. May, No. 102,248, ––– Kan.App.2d ––––, 2009 WL 5206248, at *9 (Kan.App.2009) (unpublished opinion).

Judge Buser dissented, opining that neither Standish nor Gray applied to a constructive refusal based on a deficient sample. The dissent believed it prudent to distinguish between licensees who make express refusals and licensees—like May—who agree to take the test but fail to complete it. The dissent believed that allowing rescission in the latter situation would “ ‘encourage deceptive practices ... and ... reward that deceptiveness.’ ” May, 2009 WL 5206248, at *10. Further, the dissent asserted that, based on State v. Stevens, 285 Kan. 307, 322, 172 P.3d 570 (2007), the deficient sample numerical result should have been admissible as “other competent evidence,” as that phrase is defined in K.S.A. 2007 Supp. 8–1013(f)(2). May, 2009 WL 5206248, at *11–12.

Suppression of Evidence

In petitioning for review, the State first challenges the Court of Appeals' reliance on Standish, suggesting that a licensee's failure to provide an adequate breath sample is a test refusal as a matter of law that cannot be rescinded under any circumstances. Secondly, the State rejects the Court of Appeals' reliance on Gray, claiming that the breath alcohol concentration number generated by the Intoxilyzer 8000 on May's deficient breath sample was admissible under the provisions of K.S.A. 2007 Supp. 8–1013(f)(2) as “other competent evidence.” We disagree with both contentions.

Standard of Review

In both issues, the State's bottom line complaint is that the district court suppressed its evidence. An appellate court applies a bifurcated standard when reviewing a district court's suppression of evidence. Without reweighing the evidence, the district court's factual findings are reviewed to determine whether they are supported by substantial competent evidence. Gray, 270 Kan. at 796, 18 P.3d 962. Substantial evidence is such evidence that a reasonable person might accept as sufficient to support a conclusion. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010); Gray, 270 Kan. at 796, 18 P.3d 962. The district court's ultimate legal conclusion is reviewed de novo.

[269 P.3d 1264]

State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

To the extent our decision involves statutory interpretation or the interpretation and...

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