State v. Young

Decision Date18 July 1980
Docket NumberNo. 51726,51726
Citation228 Kan. 355,614 P.2d 441
PartiesSTATE of Kansas, Appellant, v. Robert B. YOUNG, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Decisions on questions of law must rest upon the court, uninfluenced by law stipulations by the parties. Accordingly stipulations of the parties litigant as to what the law is are ineffective and not controlling on the court.

2. Under the safeguards built into K.S.A.1979 Supp. 8-1001, K.S.A. 8-1004 and K.S.A.1979 Supp. 8-1005, the failure of the State to automatically furnish an accused with a sample of his own breath for independent testing is not a denial of due process.

3. The plain wording of K.S.A. 8-1004 gives the person tested for blood alcohol content the right to obtain, on request, an additional chemical test by a physician of his or her own choosing, and it is not an obligation of the State to advise the person of this statutory right.

4. In the absence of any request by the defendant in this case to obtain an additional chemical test by a physician of his own choosing, it was error for the trial court to suppress evidence of the results of a gas chromatograph intoximeter test as a sanction for the State's failure to make a sample of defendant's breath available to the defendant.

Larry D. Ehrlich, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Michael S. Holland, Russell, argued the cause and was on the brief for appellee.

Max G. Moses, Topeka, executive director of Kansas County & District Attorneys Association of Topeka, and Frank Yeoman, Jr., Topeka, were on the amicus curiae brief.

FROMME, Justice:

The State filed an interlocutory appeal from an order suppressing evidence of the result of a gas chromatograph intoximeter test in an action filed against the defendant, Robert B. Young, for driving while under the influence of intoxicating liquor (DWI). This interlocutory appeal by the State is authorized by K.S.A.1979 Supp. 22-3603. The district court on defendant's motion to suppress, among other things, found:

"1. That there is no substantial cost to the State of Kansas by way of time or money to make a sample of breath available to the defendant when breath samples are taken for alcohol testing with the testing to be later done.

"2. (Not pertinent.)

"3. Concerning the supplemental proposition as to whether or not it should be the duty of the defendant to request a sample or whether it should be the duty of the State to advise the defendant that a sample of the defendant's breath will be made available to him if the defendant wants one, the Colorado decision is persuasive. (Garcia v. Dist. Court, 21st Jud. Dist., Colo., 589 P.2d 924 (1979).)

"4. (Not pertinent.)

"5. It becomes the State's obligation just as it is a State obligation for example to furnish the Miranda warning without being requested by the defendant to be advised of his rights and as a practical matter when you put the obligation on the State the underlying principle here stated will be carried out.

"6. That said decision above set forth relates only to breath samples taken for the purpose of later testing. It does not relate to direct breath testing by the subject breathing directly into a machine.

"7. That the defendant's motion to suppress the results of said gas chromatograph intoximeter test and/or results of said breathalyzer test is granted and that said results are suppressed."

We note at the outset, contrary to the inference created by the court's finding number seven (7), that no Breathalyzer test was administered in this case. The test given made use of an Intoximeter Mark IV machine, which is a gas chromatograph test machine. Some of the pertinent differences in the two machines will be covered later.

Before exploring the primary question presented, a preliminary question should be answered. The defendant states that the parties stipulated before the hearing on the motion to suppress that the factual issue to be determined by the trial court was whether or not a substantial expenditure of time or money would be involved in collecting an extra sample of defendant's breath for defendant's use and independent testing. The defendant indicates it was agreed by both sides that the evidence of the test result should be suppressed if no substantial expenditure of time or money would be required of the State in furnishing defendants in DWI cases extra breath samples.

When the facts material to a decision of the court on a motion to suppress evidence are not in dispute the question of whether to suppress becomes a question of law. Points of law pertaining to a case are to be determined judicially regardless of whether the controlling law has been settled by agreement between the parties litigant. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973). It has frequently been said decisions on questions of law must rest upon the court, uninfluenced by law stipulations by the parties. Accordingly stipulations of the parties litigant as to what the law is are ineffective and not controlling on the court. Urban Renewal Agency v. Reed, 211 Kan. 705, 712, 508 P.2d 1227 (1973). It is only agreements and admissions as to fact which are within the authority of the parties litigant or their attorneys. A court may not be bound by agreements and admissions of the parties as to matters of law or legal conclusions. In re Estate of Maguire, 204 Kan. 686, 691, 466 P.2d 358 (1970).

Therefore neither the trial court nor this court on appeal is bound by the agreement of these parties that the blood alcohol test should be suppressed on a finding the costs of furnishing an extra breath sample to a defendant would be negligible. It is not clear to this court what the cost of an extra breath sample has to do with defendant's constitutional right to due process. If defendant's constitutional right to due process requires that defendant be furnished a sample of his breath for independent testing, the cost thereof cannot be the single controlling factor. The trial court was correct in not limiting its decision to the single question of cost.

Before turning to the primary question it might be helpful to set out some preliminary information on breath testing. There are many different types of machines to test the blood alcohol content by breath used in the United States. In Kansas four types of machines are in use according to the brief of amicus curiae. The brand names are Intoximeter Mark IV, Intoxilizer, Also Analyzer and Breathalyzer. The machine used in the present case was the Intoximeter Mark IV, which makes use of a gas chromatograph intoximeter test. All machines presently in use in the State of Kansas must be certified for use periodically by the Kansas Department of Health and Environment. Each machine must be certified or any test result from such machine is not admissible in court.

The Intoximeter Mark IV used in this case will test breath blown directly into the machine. It is also equipped for indirect breath input. The indirect method, which was used in the present case, involves the use of what is referred to as an indium tube for capturing breath at the scene of an arrest. The indium tube is a soft metal device used to capture and preserve a breath sample for later examination and analysis in the Intoximeter Mark IV machine. The tube originally is a single piece but when the breath sample is blown into the tube, the tube can then be crimped to hold the sample breath in three separate compartments. The breath in each compartment can then be tested separately. These containers containing a breath sample are delivered to those locations in the State where the Intoximeter Mark IV testing machines are maintained. The required practice in Kansas is to test all three samples available in each indium tube. The triple testing maintains scientific reliability. The testing process totally expends or uses up the breath sample tested. Testing of only one of the three compartment samples is not regarded as scientifically acceptable or valid. The Kansas Highway Patrol uses the system of indirect breath input with the Intoximeter Mark IV machine. The highway patrol has some 300 indium capturing units and only eight of the Intoximeter Mark IV analyzing units.

Another type of machine which appears to be in use in a considerable number of states including Kansas is known as the Breathalyzer. This machine makes use of an entirely different method of testing the breath. The person being tested blows directly into the machine. The rationale of this chemical test is dependent on the reaction of hydrocarbon breath contents to potassium dichromate in a sulfuric acid solution contained in a test ampoule to induce and record color changes. These color changes in the dichromate are then measured and through internal machine mechanisms the result is presented as a blood alcohol percent. 2 Erwin's Defense of Drunk Driving Cases p. 22-2.1 (3d Ed. 1979). Accordingly the reliability of the test depends on the proper amount and mixture of chemicals in test ampoules. The breath of the person tested is blown directly into the machine, interacts with the chemicals, and is used up or expended in making the test.

The principle of gas chromatography breath testing, as when the Intoximeter Mark IV is used, is quite different from that of the Breathalyzer. The main function of the intoximeter is to separate the alcohol in the breath sample and measure its amount. Separation is achieved by a suitable absorption column, and measurement is by a flame ionization detector. The separated ethyl alcohol passes into the flame ionization detector where the burning of the alcohol creates an electronic signal. An amplifier magnifies this signal which then activates a recorder and digital readout component. 2 Erwin's Defense of Drunk Driving Cases p. 23-8.3.

We turn now to the primary question in this case. Is it the...

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