State v. Messer, 108,184.

• Decision Date: 23 August 2013
• Docket Number: No. 108,184.,108,184.
• Citation: 49 Kan.App. 313,307 P.3d 255
• Parties: STATE of Kansas, Appellee, v. Phillip M. MESSER, Appellant.
• Court: Kansas Court of Appeals

49 Kan.App. 313

307 P.3d 255

STATE of Kansas, Appellee,

v.Phillip M. MESSER, Appellant.

No. 108,184.

Court of Appeals of Kansas.

Aug. 23, 2013.

Syllabus by the Court

1. K.S.A. 8–1004 requires that when a driver is given an evidentiary test for alcohol concentration, the driver also must be given a reasonable opportunity afterward to obtain an independent test. In a situation where the driver is released from custody within 42 minutes of asking for an independent test and less than 2 hours after the initial traffic stop, the driver has a reasonable opportunity to obtain an independent test after being released from custody.

2. The 2011 amendment to K.S.A. 8–1567(j)(3), which shortens the “look-back” period for determining the number of previous DUI convictions to be taken into account for sentencing purposes, applies only to crimes committed on or after July 1, 2011, the effective date of the statutory amendment; it does not apply when sentencing defendants for crimes committed before July 1, 2011.

Edward C. Gillette, Michael S. Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.

LEBEN, J.

Phillip Messer failed field-sobriety tests after a traffic stop and then failed an evidentiary breath test at the police station. At that point, having been told that he had the right to secure additional alcohol-concentration testing, Messer asked the officer for an independent blood test. Rather than taking Messer to a hospital to get a blood test, the officer told Messer that he could get that test on his own after he was released. Messer was able to leave within 45 minutes of his request, but he didn't go to get a blood test after his release.

Messer asked the district court to exclude evidence of his failed breath test, citing K.S.A. 8–1004, under which that test result will be excluded if “the officer refuses to permit ... additional testing” for the driver. The district court denied Messer's request and convicted him based on the evidence.

Messer has appealed, again raising K.S.A. 8–1004. But that statute begins by providing that the person who takes the breath test given by an officer “shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing.” (Emphasis added.) Messer was released from custody within 45 minutes of making the request for additional testing—giving him a “reasonable opportunity” to get that testing done. Accordingly, the district court properly denied Messer's request that the breath-test evidence be excluded; with that evidence, the district court's conviction of Messer must be affirmed.

Factual and Procedural Background

Messer was stopped in Overland Park for making an illegal U-turn at 1:22 a.m. on November 13, 2010. After Messer performed poorly on field-sobriety tests, the officer asked him to take a preliminary breath test. Messer refused, and the officer arrested him for a DUI offense.

After being taken to a nearby police station, Messer agreed to take the Intoxilyzer 8000 breath test. He took that test at 2:38 a.m., registering a breath-alcohol concentration of .147—well above the legal limit of .08.

Kansas law provides that a person must be advised of various rights as he or she goes through the process of being asked to take a preliminary breath test and, later, an evidentiary breath test. Before giving Messer the evidentiary breath test, the officer gave Messer a required notice that Messer had a right to obtain additional testing:

“After completion of testing, you have the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.”

Sometime after Messer took the evidentiary breath test, he asked the officer for an additional blood test.

The officer responded that he wouldn't take Messer to get a blood test but that Messer could get one himself once he was released or bonded out. The officer testified that his department's policy was to take the suspect to get an additional test only if the suspect was to remain in custody. The officer also testified that Messer was released at 3:10 a.m. Video footage showed Messer leaving the police station at 3:21 a.m. Messer's attorney told the district court that Messer didn't get a blood test after he left the station.

Messer was charged with a third-offense DUI and with refusing to submit to a preliminary breath test. Before trial, he filed a motion to suppress the results of the evidentiary breath test, arguing that he was denied a reasonable opportunity to get additional testing. After an evidentiary hearing, the district court denied Messer's motion.

The district court noted that the State argued that Messer was released at 3:10 a.m. (based on the officer's testimony), while the defendant contended he was released at 3:20 a.m. The district court found that this 10–minute difference wasn't important and that Messer was released “at most” 42 minutes after he requested additional testing. The court concluded that Messer had a reasonable opportunity to obtain additional testing and that the officer didn't unreasonably interfere with Messer's ability to obtain that test.

Before trial, Messer also made one other argument—that the 2011 amendments to the DUI statute should apply retroactively to offenses committed before 2011. The 2011 amendment provided that past DUI offenses that occurred before July 1, 2001, would no longer be counted for sentencing purposes. Thus, had the 2011 amendment been applied, one of Messer's prior DUI offenses—a 2000 DUI diversion agreement—wouldn't have been counted, and Messer's 2010 offense would have become a second-time DUI. The district court rejected Messer's argument, concluding that the statutes in place at the time of Messer's 2010 offense applied.

The district court convicted Messer on both the DUI charge and the charge of refusing the preliminary breath test. Messer appealed to this court.

Analysis

I. The District Court Correctly Determined That Messer Was Given a Reasonable Opportunity to Obtain His Own Alcohol–Concentration Test.

Messer's main claim on appeal is that he wasn't given a reasonable opportunity to get his own alcohol-concentration test. He claims that this violated his statutory rights, so we begin our analysis with the statutes that may apply. We cite to the statutes that were in effect at the time of Messer's arrest in November 2010.

The main statutes we must consider are K.S.A. 2010 Supp. 8–1001, which gives law-enforcement officers the ability to request that a driver provide a breath, blood, or urine sample, and K.S.A. 8–1004, which provides that the driver be given a reasonable opportunity to obtain an independent test.

K.S.A. 2010 Supp. 8–1001(b) allows an officer to request testing in several circumstances, including where the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs. Messer doesn't question the officer's authority to request testing in this case. K.S.A. 2010 Supp. 8–1001(k) provides that the driver be given several notices both orally and in writing before the test is given. Among those is the notice Messer was given that he had a right—after the completion of the officer's test—to “secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.” K.S.A. 2010 Supp. 8–1001(k)(10).

K.S.A. 8–1004 sets out the driver's right to “a reasonable opportunity” to get an independent test. But the statute also provides a penalty—that the original breath test can't be used in evidence—if the officer “refuses to permit” an independent test:

“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.) K.S.A. 8–1004.

From these statutes, the basic contours of a driver's right to an independent test are fairly clear, though the use of the term “reasonable opportunity” means that a bright-line test—a simple, straightforward test for making judicial decisions—isn't possible here. Concepts of “reasonableness” always bring some element of opinion and subjective judgment into play, even though we attempt to arrive at an objective standard. But the language of K.S.A. 8–1004 helps us to determine what an officer can and can't do when a driver wants to exercise his or her right to get an independent test:

• The officer can't “refuse[ ] to permit such additional testing.” But the officer's power over the driver lasts only as long as the driver is in custody. So this tells us that an officer can't keep a person in custody indefinitely without—upon request—taking the person to get the independent test. But if the officer were to release the driver immediately after taking the evidentiary test, the officer couldn't have “refuse[d] to permit such additional testing” because the driver would no longer have been under the officer's control.

• It's primarily the driver's responsibility to obtain the independent test. The statute tells us that the test may be obtained from “a physician of the person's own choosing,” and the statute simply calls for the “reasonable opportunity to have an additional test,” not for the State to provide a second test to the driver.

Let's consider Messer's case now within this context. Messer wasn't released immediately after the officer's...