State v. Muck

Decision Date30 May 1997
Docket NumberNo. 76520,76520
Citation939 P.2d 896,262 Kan. 459
PartiesSTATE of Kansas, Appellant, v. Elmer J. MUCK, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

In a driving under the influence case addressing the foundational requirements for admission of the result of a breath alcohol test and the interplay between the granting of defendant's motion for a mistrial and double jeopardy, the record is examined and it is held: (1) certification under K.S.A. 1996 Supp. 8-1002(a)(3) is a statutory foundational requirement; (2) State v. Rohr, 19 Kan.App.2d 869, 878 P.2d 221 (1994), is approved; (3) the district court did not err in excluding the testimony of the officer administering the breath alcohol test; (4) the district court did not err in declaring a mistrial; and (5) the district court's dismissal of the DUI charge with prejudice cannot be reviewed, because the record lacks a specific finding that the State intended to goad the defendant to request a mistrial, as required by Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), and the case is remanded for the purpose of having the district court make a supplemental finding of fact on that issue.

Thomas K. Stanton, Assistant County Attorney, argued the cause, and Steven C. Staker, Assistant County Attorney, Julie McKenna, County Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellant.

James L. Sweet, of Sweet & Sheahon, Salina, argued the cause and was on thebrief for appellee.

SIX, Justice.

This case addresses the foundational requirements for the admission of the result of a breath alcohol test and the interplay between the granting of defendant's motion for a mistrial and double jeopardy. The State appeals the granting of a mistrial and dismissal with prejudice of the DUI charge against defendant Elmer J. Muck. The State failed to produce the arresting officer's 1995 certification card for using the Intoxilyzer 5000 breath test instrument. Our jurisdiction is under K.S.A. 22-3602(b)(1) (appeal from an order dismissing a complaint).

The two issues are whether the trial court erred in: (1) ruling that Trooper Dave Weed's current (1996) Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck's breath alcohol test given in 1995, and (2) declaring a mistrial and dismissing the case with prejudice. In resolving the first question, the State requests us to disapprove State v. Rohr, 19 Kan.App.2d 869, 878 P.2d 221 (1994).

We affirm the certification card foundation and mistrial rulings but remand for a specific finding under Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). We approve Rohr.


Trooper Weed of the Kansas Highway Patrol stopped Muck after observing his pickup moving well below the speed limit, straddle the center line, and swerve. Weed could smell alcohol on Muck's breath. Muck had to lean against the pickup to maintain his balance. He needed Weed's assistance in retrieving his driver's license. Muck agreed to submit to a breath alcohol test. The results of the test administered by Weed showed a blood alcohol concentration of .184. Muck was charged with driving under the influence (DUI), K.S.A. 1996 Supp. 8-1567, and failure to maintain a single lane, K.S.A. 8-1522. He was found guilty of both counts by the district magistrate judge. He appealed to the district court, demanding a jury trial.

Before the trial in district court, the State charged Muck with operating a vehicle while the alcohol concentration in his blood or breath was .08 or more (K.S.A. 1996 Supp. 8-1567[a] ) and, alternatively, operating a vehicle under the influence of alcohol to a degree that rendered him incapable of safely driving (K.S.A. 1994 Supp. 8-1567[a] ). He was also charged with improperly driving a vehicle on a laned roadway (K.S.A. 8-1522).

The State endorsed Weed and Lieutenant Darrell Fiske (the records custodian) as witnesses. The voir dire referenced Weed and Fiske. After the jury was selected but before opening statements, the State advised the court that Fiske was unavailable and that Officer Furbeck would be testifying in his place. Muck's counsel objected because he had no opportunity to voir dire the jury on Furbeck and he had prepared to cross-examine Fiske. The judge considered the State's request as an untimely motion to endorse an additional witness and denied it, observing that Fiske had been subpoenaed on January 10, 1996. (The trial commenced on March 7, 1996.) The State acknowledged that this ruling would prevent it from presenting any evidence on the breath test but indicated it would proceed on the alternate driving under the influence charge. The district court granted Muck's motion for an order in limine prohibiting the State from mentioning the breath test. The State requested a short recess to admonish its witness to comply.

Early in the direct examination of Weed, the prosecutor asked about a report Weed had filled out at the time of Muck's arrest, and Weed answered:

"Q. All right. Are there any other errors in your report that you're aware of?

"A. I'm sure there's probably some. There's one on the chemical test information, the type of test offered.

"[Muck's counsel]: Hold on."

At the sidebar, counsel moved for dismissal or alternatively, a mistrial, in view of Weed's answer. The judge expressed concern that Weed's mention of the test had occurred so soon after the order in limine and stated he would take the motion under advisement. Counsel completed his questioning of Weed. The breath test was not mentioned again.

Following cross- and redirect examination, Weed was excused, subject to recall. The prosecutor approached the bench and advised the court that he just learned that Fiske had arrived. Over Muck's objection, the court allowed the State to proceed. Weed testified that after the arrest, Muck agreed to a breath test, which Weed administered. Weed was asked about his certification to use the Intoxilyzer 5000 test equipment. He answered that he was certified through the State. Muck objected for lack of foundation, and another sidebar exchange followed:

"[Defense counsel]: That part of the answer was unresponsive to the questions. But, beyond that, Your Honor, the case law is clear that unless he has his card with him that his oral testimony is not admissible.

"THE COURT: I presume that you're going--

"[Prosecutor]: That's what I was going to do, Your Honor.

"[Defense counsel]: I think if he does that I don't have an objection.

"THE COURT: For the record, I'm going to overrule the prior Motion for Mistrial at this point. Does appear that the Motion in Limine will be filled by the presence of Officer Fiske to testify as endorsed."

The State marked as an exhibit a photocopy of Weed's certification card issued by the Department of Health and Environment for the Intoxilyzer 5000, with an effective date of January 1, 1996. Muck objected, based on the effective date of the card. The district court sustained the objection. The State then asked Weed if he had ever lost his certification, and Weed testified that he had not. Weed earlier testified that he has been employed by the Highway Patrol since 1987. Muck's counsel requested a sidebar conference and reiterated his objection, arguing that unless the certification card showed it was effective at the time of the March 1995 test, Weed's testimony as to his certification was inadmissible under State v. Rohr, 19 Kan.App.2d 869, 878 P.2d 221. Muck renewed the motion in limine and motion for mistrial, arguing that the State had misled the court and counsel by representing that Weed had his card. The judge inquired if Weed had a certification card effective on the test date. The State said that he did not, having learned of the missing card the previous evening. The prosecutor said that he was proceeding based on his prior experience when an officer had not kept his previous year's card after being issued a new card. The prosecutor would ask the officer if he was currently certified and if he had ever lost that certification. The district court, relying on Rohr, 19 Kan.App.2d 869, 878 P.2d 221, ruled that Weed's current (1996) Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck's breath alcohol test given in 1995.

The judge did not feel the prosecutor's explanation of the missing 1995 card was adequate. Having determined that Muck had been prejudiced by the testimony concerning the breath test, the judge declared a mistrial at the responsibility of the State and discharged Muck. The judge found Muck not guilty on the failure to maintain a single lane change. (This misdemeanor traffic charge was tried to the court.) The journal entry provides: "The Court declares a mistrial and dismissed Count One (1) [the DUI charge] with prejudice." The judge made no statement on the record that he was dismissing Count I. He said: "And I'm going to declare a mistrial at the responsibility of the State and discharge the defendant with prejudice."

Appellate Jurisdiction

Initially, Muck argues that the State failed to question the validity of Rohr at the trial level and, thus, should be precluded from advancing a challenge on appeal. However, the position the State took at trial did call into question the validity of Rohr.

Muck also argues that the State never proffered the excluded evidence (the breath test results) to the district court; consequently, we cannot review whether this evidence was properly excluded. Muck acknowledges that the State did file a proffer of the breath test results before trial to the magistrate judge. The district judge and counsel knew what the State's excluded breath test results would show here. Muck's argument is not persuasive.

Muck also contends that the State should have appealed under K.S.A. 22-3602(b)(3) (question reserved), rather than K.S.A. 22-3602(...

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