State v. Pendleton, 68390

Decision Date26 March 1993
Docket NumberNo. 68390,68390
Citation18 Kan.App.2d 179,849 P.2d 143
PartiesSTATE of Kansas, Appellee, v. Aubrey PENDLETON, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. A conviction for driving while under the influence of alcohol may be obtained by one of the alternative means provided for in K.S.A. 8-1567(a)(1), (2), or (3). However, because each subsection provides a different basis for a conviction, each has requirements that must be met.

2. To obtain a conviction for a per se violation under K.S.A. 8-1567(a)(2), the State must show the alcohol concentration was tested within two hours of the last time a defendant operated or attempted to operate a motor vehicle.

3. In a prosecution under K.S.A. 8-1567(a)(2), whether the State complied with the two-hour time limitation is a foundational question to be determined by the trial court.

Richard T. Merker and John M. Ross, Wallace, Saunders, Austin, Brown, and Enochs, Chartered, Overland Park, for appellant.

Linda S. Mock, Asst. County Atty., Gunnar A. Sundby, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before LEWIS, P.J., LARSON, J., and E. NEWTON VICKERS, District Judge Retired, Assigned.

LARSON, Judge.

Aubrey J. Pendleton appeals his bench trial conviction of having a blood alcohol concentration of .10 or more within two hours of operating a motor vehicle in violation of K.S.A. 8-1567(a)(2).

On October 12, 1991, Pendleton and a friend, Billy Davidson, were driving to Leavenworth, Kansas, on a sparsely traveled gravel road in Atchison County. Pendleton was driving. Davidson began joking with him and then, at some point, grabbed Pendleton's arm, which caused him to lose control of the pickup truck.

The pickup overturned in a ditch alongside the road. Davidson was trapped in the wreckage and killed. Pendleton was able to crawl out of the pickup.

At 11:30 p.m., a citizen reported the accident to the sheriff's dispatcher, who immediately notified Trooper James T. Bryan. Bryan did not know the exact time of the accident, but estimated it occurred at approximately 11:15 p.m.

When he arrived at the accident scene, Bryan went to help Davidson, but found he was dead. While returning to his patrol car, Bryan saw Pendleton walking on the road towards him, crying hysterically. Bryan tried to calm him down and learned Pendleton had been driving the pickup. During the conversation, Bryan noticed Pendleton had an overpowering odor of alcoholic beverage on his breath and concluded he had been drinking alcohol. Bryan Mirandized Pendleton, who agreed to continue to talk. Pendleton told Bryan he had drunk a lot of beer.

Pendleton was taken by ambulance to the Atchison Hospital. Bryan followed a short time later. Pendleton agreed to submit to a blood alcohol test, which was conducted at 1:15 a.m. on October 13, 1991.

After the blood was drawn and Pendleton was released from the hospital, Bryan took him to the sheriff's department. Pendleton was again Mirandized and told Bryan he had been drinking beer at a party, but felt at the time of the accident he could safely operate the vehicle.

The Kansas Bureau of Investigation received the sample on October 14, 1991, but Bryan did not receive the results until February 14, 1992. Bryan believed the delay was caused because a drug analysis was requested which was not conducted until February 5, 1992. The test results showed Pendleton had a blood alcohol concentration of 0.19.

On March 23, 1992, Pendleton was charged with violating K.S.A. 8-1567(a)(2), which states:

"(a) No person shall operate or attempt to operate any vehicle within this state while:

....

"(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .10 or more."

Pendleton moved to dismiss the charges, contending: (1) failure to take him before a judge without unnecessary delay, (2) failure to grant him a speedy trial, and (3) lack of evidence that he had been driving a vehicle within two hours of the time the blood test was administered.

A bench trial was held on May 15, 1992. The trial court denied the speedy trial and unnecessary delay motions and found that "although there is no exact time as to when the accident happened and when the blood test was actually performed, the Court finds that it was within approximately two hours from the time of the accident that the blood alcohol test was administered."

Pendleton was found guilty as charged and sentenced to a minimum jail term of six months, all but 30 days of which was suspended to be served on weekends. Pendleton was placed on two years' probation with conditions including payment of a $200 fine and completion of 200 hours of community service. Appeal bond of $10,000 was set. Pendleton appeals.

Pendleton raises four issues. Only one of the issues has any merit, but it is dispositive of the appeal.

Pendleton asserts that the State could not prove the blood test was administered within two hours of the time he was driving the pickup as required by K.S.A. 8-1567(a)(2).

The trial court, in its written findings, stated that the blood test was administered "approximately" two hours from the time of the accident. This finding might justify a conviction under K.S.A. 8-1567(a)(1) or (3), but the issue in this appeal is whether it is sufficient to justify a K.S.A. 8-1567(a)(2) conviction.

The State makes a broad "use the blood test with the time it was administered going to the weight" argument as if a different subsection of K.S.A. 8-1567 had been charged.

The trial court's construction of K.S.A. 8-1567(a)(2) places in issue the interpretation of the phrase "as measured within two hours of the time of operating or attempting to operate a vehicle." "Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature." Martindale v. Tenny, 250 Kan. 621, Syl. p 1, 829 P.2d 561 (1992).

"When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed." Randall v. Seemann, 228 Kan. 395, Syl. p 1, 613 P.2d 1376 (1980).

"In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citations omitted.]" State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).

"When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment." Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).

"Penal statutes must be strictly construed in favor of the person sought to be subject to them. The rule of strict construction simply means ordinary words are to be given their ordinary meaning." State v. Thompson, 237 Kan. 562, 566, 701 P.2d 694 (1985). A statute that prohibits operating or attempting to operate a motor vehicle while under the influence of alcohol, which imposes criminal liability, is to be strictly construed. State v. Morelli, 25 Conn.App. 605, 609, 595 A.2d 932 (1991).

In support of its position that the trial court did not err by admitting and relying upon the test results, the State relies on our Supreme Court's decision in State v. Armstrong, 236 Kan. 290, 689 P.2d 897 (1984), in which the court stated:

"In a prosecution for driving under the influence of alcohol, the results of a blood alcohol test, which was administered after a delay of slightly more than two hours, are not rendered inadmissible in evidence due to the delay. The length of the delay in time between the administration of the test and when the defendant last operated the motor vehicle goes to the weight and not the admissibility of the evidence. Such evidence should be admitted along with expert testimony estimating the defendant's blood alcohol content at the time of last driving." 236 Kan. 290, Syl., 689 P.2d 897.

In Armstrong, the court concluded the trial court abused its discretion by excluding evidence of the defendant's blood alcohol content, tested 2 hours and 10 minutes after the last time the defendant had driven his car, in a prosecution for driving while under the influence of alcohol in violation of K.S.A.1983 Supp. 8-1567. Armstrong is not a per se violation case.

At the time of Armstrong, K.S.A.1983 Supp. 8-1567(a) provided: "No person shall operate any vehicle within this state while under the influence of alcohol." Pursuant to K.S.A. 8-1005(a)(2) (Ensley), "if there was at the time .10% or more by weight of alcohol in the defendant's blood, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely."

Currently under K.S.A. 8-1005(b), alcohol concentration of .10 or more in the defendant's blood, urine, breath, or other bodily substance is still prima facie evidence that a defendant was under the influence of alcohol. However, 8-1567 has been substantially amended since 1983.

In 1985, the Kansas Legislature amended 8-1567 to read in relevant part:

"(a) No person shall operate or attempt to operate any vehicle within this state while:

"(1) The alcohol concentration in the person's blood or breath, at the time or within two hours after the person operated or attempted to operate the vehicle, is .10 or more;

"(2) under the influence of alcohol." K.S.A.1985 Supp. 8-1567(a)(1), (2); see L.1985, ch. 50, § 5.

Our court held in State v. Zito, 11 Kan.App.2d 432, Syl. p 1, 724 P.2d 149, rev. denied 240 Kan. 806 (1986): "Under K.S.A.1985 Supp. 8-1567(a)(1), driving or attempting to drive a vehicle with an alcohol concentration of .10 or more in a driver's blood or breath...

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8 cases
  • State v. Janssen
    • United States
    • Kansas Court of Appeals
    • December 5, 2014
    ...is .08 or more.”If the test occurs outside the 3 hours, the test cannot be used to support a per se DUI conviction. See State v. Pendleton, 18 Kan.App.2d 179, Syl. ¶¶ 2 –3. 849 P.2d 143 (1993) (time limit previously was 2 hours); but see K.S.A.2013 Supp. 8–1567(a)(1).There are numerous prob......
  • State v. Pollman, No. 93,947.
    • United States
    • Kansas Court of Appeals
    • November 21, 2008
    ...were, there would be no issue of vagueness. The statute is clear, and there is only one way to violate it. See State v. Pendleton, 18 Kan.App.2d 179, 186, 849 P.2d 143 (1993) ("[T]o obtain a conviction under K.S.A. 8-1567(a)(2) the State must show the test was conducted within the two-hour ......
  • State v. Finch
    • United States
    • Kansas Supreme Court
    • January 7, 2011
    ...challenge whether the test was conducted within 2 hours of operating or attempting to operate a vehicle. See State v. Pendleton, 18 Kan.App.2d 179, 185-86, 849 P.2d 143 (1993). Margin of error is simply a factor among many possibilities for the fact-finder to consider. See State v. Miller, ......
  • City of Colby v. Cranston, 82,805.
    • United States
    • Kansas Court of Appeals
    • May 12, 2000
    ...or attempted to operate a vehicle may be competent evidence to support a conviction under that subsection." State v. Pendleton, 18 Kan. App.2d 179, 185, 849 P.2d 143 (1993). There is no dispute in this case regarding the results of the test administered on Cranston within 2 hours of his app......
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