State v. Mezins, 51026

• Decision Date: 18 January 1980
• Docket Number: No. 51026,51026
• Citation: 605 P.2d 159,4 Kan.App.2d 292
• Court: Kansas Court of Appeals
• Parties: STATE of Kansas, Appellant, v. Arwit Raymond MEZINS, Appellee.

Page 159

605 P.2d 159

4 Kan.App.2d 292

STATE of Kansas, Appellant, v. Arwit Raymond MEZINS, Appellee.

No. 51026.

Court of Appeals of Kansas.

Jan. 18, 1980.

Syllabus by the Court

In an appeal from an order suppressing evidence of the results of a blood test it is Held : (1) There is no duty placed on an arresting officer to inform a motorist of his right to refuse a chemical test under K.S.A. 1978 Supp. 8-1001; (2) under the "implied consent statute," K.S.A. 1978 Supp. 8-1001, once a person is arrested and requested to submit to a chemical test the overriding issue becomes whether the person Refuses such a request, and not whether the consent was voluntary; (3) what constitutes a refusal must depend upon the facts of each case; and (4) the failure to maintain close police custody over a hospitalized suspect does not vitiate the legality of defendant's arrest or the admissibility of the blood test results.

Robert H. Gale, Jr., Asst. Dist. Atty., Dennis W. Moore, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellant.

L. Wesley Nichols, Overland Park, for appellee.

Before FOTH, C. J., and SPENCER and PARKS, JJ.

PARKS, Judge:

This is an interlocutory appeal taken by the State pursuant to K.S.A.1978 Supp. 22-3603, from an order granting defendant's motion to suppress the results of a blood test.

Trooper Stackhouse of the Kansas Highway Patrol arrived at an accident scene on January 18, 1979, to find a car stuck in a snowbank. He was informed by a "good Samaritan," who stopped to lend assistance, that defendant Arwit Mezins was the only person who got out of the car. Defendant, however, stated he was only a passenger and that his friend, Jerry, was the driver of the vehicle. The physical evidence at the scene one set of footprints in the snow by the wrecked vehicle and condensation on the driver's side of the floorboard also indicated that the defendant was alone in the car. The officer observed Mezins to have a strong odor of alcohol, slurred speech and coordination difficulty, leading him to believe defendant was intoxicated. After Mezins was transported to the hospital, Stackhouse placed him under arrest, informed him of his Miranda rights, and requested a blood sample. Defendant signed a consent form and a blood sample was taken by a physician. A later analysis revealed a .27 percent blood alcohol content by weight. When advised that defendant was to be admitted to the hospital, Stackhouse testified that he "unarrested" the defendant and asked the hospital staff to notify the Kansas Highway Patrol when defendant was released because there would be charges pending against him. On January 23, 1979, Trooper Stackhouse picked up the defendant at the hospital and transported him to jail where he was charged with felony theft (this charge was later dismissed) and driving under the influence of intoxicating liquor (K.S.A.1978 Supp. 8-1567). Without stating its reasons, the trial court sustained defendant's motion to suppress the results of the blood test. From this ruling the State appeals.

Although neither party has raised the issue, we note that the district court failed to make findings of fact and conclusions of law pursuant to Rule 165 of the Supreme Court and K.S.A. 60-252 when it sustained defendant's motion to suppress evidence. Although we are reversing this decision on other grounds, we remind the district court of its obligation to make adequate findings of fact and conclusions of law in future hearings. Since the trial court failed to state its reason for granting defendant's motion to suppress, we shall consider the merits of each of the arguments asserted by defendant.

The governing statute in this case is K.S.A.1978 Supp. 8-1001(a) and (c), which provides in part:

"(a) Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, for the purpose of determining the alcoholic content of his or her blood whenever he or she shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer.

"(c) If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the arresting officer shall make to the division of vehicles of the state department of revenue a sworn report of the refusal, stating that prior to the arrest the officer had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. Upon receipt of the report, the division immediately shall notify such person of his or her right to be heard on the issue of the reasonableness of the failure to...