State v. Murry, 85,011.

• Citation: 21 P.3d 528,271 Kan. 223
• Decision Date: 20 April 2001
• Docket Number: No. 85,011.,85,011.
• Parties: STATE OF KANSAS, Appellant, v. JOHN V. MURRY, a/k/a JOHN MURRAY, a/k/a JOHN V. MURRAY II, Appellee.
• Court: Kansas Supreme Court

271 Kan. 223

21 P.3d 528

STATE OF KANSAS, Appellant, v. JOHN V. MURRY, a/k/a JOHN MURRAY, a/k/a JOHN V. MURRAY II, Appellee.

No. 85,011.

Supreme Court of Kansas.

Opinion filed April 20, 2001.

Joe Shepack, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellant.

Michael S. Holland II, of Holland and Holland, of Russell, argued the cause, and Michael S. Holland, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

The State appeals on a question reserved, pursuant to K.S.A. 22-3602(b)(3), from a decision suppressing evidence of a blood sample taken from the defendant, John V. Murry, prior to his arrest. On April 25, 1999, Murry was driving his vehicle in Ellsworth County, Kansas. His vehicle left the roadway and crashed into a culvert embankment. Murry was trapped in the vehicle and could not extricate himself. His vehicle was "totaled." Ellsworth County Deputy Sheriff Jaime Montoy was called to the scene of the accident. Montoy followed Murry to the Ellsworth County Hospital where he was transported by an EMT crew. Montoy suspected Murry had been driving while under the influence of alcohol. This issue has never been disputed. At the hospital, Montoy asked Murry to consent to a blood alcohol test. Murry replied, "I don't know what's going on, I'm starting to fade." A sample of blood was taken from Murry, despite the lack of consent and despite the fact that he was not under arrest at the time.

Murry filed a motion to suppress the blood sample evidence, arguing that he had not consented and that he had not been under arrest at the time the blood sample was taken. The trial court ruled that Murry had not consented to the taking of the blood sample and therefore granted the motion. In doing so, the trial court cited K.S.A. 2000 Supp. 8-1001 and State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976), for the proposition that a suspect must be placed under arrest before a blood sample can be taken without the suspect's consent. A motion to reconsider filed by the State was denied.

Murry pled guilty to three other charges. However, the driving under the influence charge was dismissed. This appeal was transferred to this court pursuant to K.S.A. 20-3018(c).

The State argues that the district court erred in suppressing evidence of Murry's blood sample taken before Murry was placed under arrest.

This case involves the interpretation of K.S.A. 2000 Supp. 8-1001. Interpretation of statute is a question of law over which this court's review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).

This case also involves analysis of the Fourth Amendment of the United States Constitution. Our review is unlimited. State v. Saleem, 267 Kan. 100, 107, 977 P.2d 921 (1999). The trial court relied on Gordon in ruling that the blood sample evidence was not admissible because Murry was not under arrest at the time. Gordon was rendered moot after the legislature amended K.S.A. 8-1001 in 1985. Prior to Gordon, K.S.A. 8-1001 (Weeks 1975) read in pertinent part:

"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, blood, urine, or saliva 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." (Emphasis added.)

In 1976, in Gordon, this court held that evidence of a blood alcohol test was inadmissible where the defendant was not under arrest or in custody at the time the blood test was administered. In 1985, the legislature amended K.S.A. 8-1001 and eliminated the "arrest" requirement. The current version of the statute, K.S.A. 2000 Supp. 8-1001, reads in pertinent part:

"(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.... A person who is dead or unconscious shall be deemed not to have withdrawn the person's consent to such test or tests, which shall be administered in the manner provided by this section.

"(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person was driving a commercial vehicle ... while having alcohol or other drugs in such person's system; and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both ... in violation of a state statue or a city ordinance; or (2) the person has been involved in a vehicle accident or collision resulting in property damage, personal injury or death." (Emphasis added.)

Following the legislative changes in 1985, 8-1001 no longer requires an arrest. If the person has been involved in a "vehicle accident or collision resulting in property damage, personal injury or death," an arrest is not required. The trial court erred in interpreting 8-1001 and applying Gordon.

Despite statutory language authorizing the taking of the blood sample, any such bodily invasion must still be constitutionally sound. The Fourth Amendment is implicated when blood samples are drawn from the body.

"The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." The extraction of a blood sample is both a search of the person and a seizure of an effect. The extraction implicates constitutional guarantees against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution. Schmerber v. California, 384 U.S. 757, 767, 16 L. Ed.2d 908, 86 S. Ct. 1826 (1966).

The State argues that the U.S. Supreme Court decision in Schmerber controls the outcome of this case. In Schmerber, the defendant was arrested at a hospital after suffering injuries in an automobile accident. Schmerber had been driving the car involved in the accident. At the request of police officers, a blood sample was taken from Schmerber and analyzed for blood alcohol content. Officers did not have a warrant to remove the blood from the body, although Schmerber was under arrest. The blood alcohol test indicated that Schmerber was intoxicated at the time he was driving. At trial, Schmerber moved to suppress the evidence of the blood alcohol test, arguing, among other things, that taking blood out of his body was a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The Court held that Schmerber's Fourth Amendment rights were not violated when blood was drawn from his body and stated:

"The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence,' [citation omitted]. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.

"Similarly, we are satisfied that the test chosen to measure petitioner's blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. [Citation omitted.] Such tests are a commonplace in these days of periodic physical examination and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the `breathalyzer' test petitioner refused....

"Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

"We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the

...