State v. Rohr, 70663

• Decision Date: 22 July 1994
• Docket Number: No. 70663,70663
• Citation: 878 P.2d 221,19 Kan. App. 2d 869
• Parties: STATE of Kansas, Appellee, v. Melvin V. ROHR, Appellant.
• Court: Kansas Court of Appeals

Page 221

878 P.2d 221

19 Kan.App.2d 869

STATE of Kansas, Appellee, v.Melvin V. ROHR, Appellant.

No. 70663.

Court of Appeals of Kansas.

July 22, 1994.

Syllabus by the Court

1.The Kansas Legislature has expressly required that, for breath test results to be reliable and, thus, admissible in a court of law, the testing equipment, the testing procedures, and the operator of the equipment must all be certified.

2.Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion.

3.Regarding admissibility of breath test results, failure to admit the written documents of certification regarding the breath testing equipment and the equipment operator violates the prohibition against hearsay as well as the best evidence rule as codified in K.S.A. 1993 Supp. 60-467(a).Oral testimony regarding certification in and of itself is inadmissible to establish certification and admission of such evidence is not a mere technical error or irregularity that can be disregarded.

Michael S. Holland, Russell, for appellant.

Glenn R. Braun, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before LEWIS, P.J., and LARSON and GERNON, JJ.

GERNON, Judge:

Melvin V. Rohr appeals his conviction of driving while under the influence of alcohol.He contends the trial court erred in admitting into evidence the printed results of his breath test without proper certification.He also argues he was denied due process of law and a fair trial by remarks made by the State in its closing argument.

We agree with Rohr on the issue of admitting the printed results of his breath test and reverse.

At Rohr's trial, the State presented the testimony of Officer Tom Meiers, and the defense offered the testimony of an expert witness, Norman Scholes.Scholes testified regarding the reliability or the lack of reliability of the Intoxilizer 5000.

At trial, Rohr objected to the admission of the printout of the results of his breath test.He contended there had been no scientific basis laid for its admission and that Officer Meiers was not qualified to give the appropriate foundation.He also objected on the basis of hearsay, for the written documents of certification were not offered or admitted into evidence.The trial court overruled both objections, stating in part: "The testimony has been that the machine was certified and the operator was certified and that the requirements of the Kansas Department of Health were followed and the Exhibit will be admitted."

Rohr first contends the State failed to provide a proper foundation for the admission of the breath test results because written documents showing that Meiers and the machine were certified in 1991 were not presented to the jury.What occurred was that Officer Meiers testified that he was properly certified as an operator of the machine in October of 1991 and that the machine was also certified on that date.Rohr contends that the actual written Kansas Department of Health and Environment certification of both the operator and the machine, rather than the officer's oral testimony, should have been introduced into evidence by the State.

This court clearly stated in Lincoln v. Kansas Dept. of Revenue, 18 Kan.App.2d 635, 639, 856 P.2d 1357(1993): "The legislature has expressly found that, for breath test results to be reliable, the testing equipment, the testing procedures, and the operator of the equipment must all be certified."SeeK.S.A. 1993 Supp. 8-1002(a)(3).

"Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion.[Citation omitted.]So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal."State v. Lieurance, 14 Kan.App.2d 87, 91, 782 P.2d 1246(1989), rev. denied246 Kan. 769(1990).

The question before us is unique in that neither this court nor the Kansas Supreme Court has expressly stated whether the actual documents of certification are necessary to establish that the machine and its operator were certified at the time the test was taken.

In City of Shawnee v. Gruss, 2 Kan.App.2d 131, 133, 576 P.2d 239, rev. denied225 Kan. 843(1978), this court stated: "Both the operator and apparatus in question were currently certified at the time the appellant was tested."The court found that the current certification, in addition to the officer's testimony that he had passed all of the periodic proficiency tests required, was sufficient to establish the necessary evidentiary foundation.

Admission of the actual documents of certification appears to be, from our reading of the cases, the standard.Obviously, the easiest method for proving certification is to present the actual documents.

In State v. Lieurance, 14 Kan.App.2d 87, written certification as to both the operator and the machine was...