Stimulants & Alcohol (cont.)

CASE UPDATES

PBT                                        

Did well on SFSTs-Reasonable suspicion not to be reweighed

State v. Edgar 246 P.3d 1013, 2011 WL 480759  (02/11/11)

Officers were conducting a driver's license checklane.  Edgar while in the checklane seemed confused and smelled of alcohol.  He admitted to drinking.  Edgar was asked to perform SFSTs.  The officer testified Edgar passed the one-leg stand and "did fine" on the walk and turn except for not touching heel to toe one time.  Officer requested Edgar to take a PBT and told him "he didn't have the right to refuse".  Edgar took the PBT showing 0.122.  Edgar was arrested.  KBI results showed BAC of 0.10.  Edgar claims officer did not have reasonable suspicion to request the PBT and Edgar's consent was not voluntary.  Court stated:  A law enforcement officer is not required to reweigh reasonable suspicion after each field sobriety test.  If reasonable suspicion exists at the outset of the investigation an officer should be allowed to run the usual array of tests, within a reasonable number, to determine if the officer's reasonable suspicion leads to the arrest or release of the person detained.  Reasonable suspicion to request a PBT is determined by the totality of the circumstances.  Based on K.S.A. 8-1012 any person driving within the state has given consent to be tested by the PBT. Hence Edgar's consent to the PBT was not required to be knowing, intelligent and voluntary; rather, his consent was statutorily implied. 

 PROTOCOL

 Margin of Error-Intox 5000

State v. Finch 244 P.3d 673 (01/07/11)
Defendant was charged with per se violation.  His test indicated .08.  The defense suggested a 'margin of error' in the measurement.  The defense solicited information about the monthly certified testing and how they differed from the 0.08 standard but were within the required KDHE protocol.  The defense suggested a "margin of error".  The officer was unaware of any "margin of error" and testified as such.  The defense moved for a judgment of acquittal suggesting that the varying test results obtained created reasonable doubt.    The judge basing some of his decision on information he gleaned from a non-related case found the jury should not be given the case based on the officers incorrect statements.  Judge gave a directed verdict.  The state appeals on a questioned reserved.  The Court of Appeal stated a defendant in a prosecution under K.S.A. 8-1567(a)(2) may raise and argue margin of error or other questions about the reliability or accuracy of his or her blood- or breath alcohol concentration "as measured," in the same way he or she can challenge whether the test was conducted within 2 hours of operating or attempting to operate a vehicle.  The court also noted it was error for the judge to rely on testimony from another case-that was not related to the case at bar.

PRIOR CONVICTIONS

Arkansas Conviction

State v. Shaw 245 P.3d 1102, 2011 WL 426105 (02/04/11)

***UNPUBLISHED***

Defendant had two prior convictions out of Arkansas.  Defendant claims they should not count.  Both parties did not dispute the Arkansas convictions were for the same conduct which is prohibited by K.S.A. 8-1567.  The court noted the Kansas statute includes other states DUI laws by noting the qualifier "of this section" to refer to the entire K.S.A 8-1567 not merely its subparagraphs.  Court properly included the Arkansas convictions.  

 PBT

Attorney's Action/Conduct

DC-27-Temporary License

State v. Smith 243 P.3d 716, 2010 WL 5279802 (12/17/10)

***UNPUBLISHED*** 

The defendant was stopped and produced a DC-27 (temporary drivers license pending hearing on DL for prior DUI).  During the trial the officer was asked about this document.  He stated it was a temporary license however there was no discussion or implication defendant had been involved in the commission of a crime or civil wrong.  Defense objected saying this was highly prejudicial in violation of K.S.A. 60-455.  Although the court found this harmless Judge Buser of the Court of Appeals in a concurring opinion:  the possession of the DC-27 was not relevant or material to the DUI prosecution-some jurors may have been aware of the significant of a DC-27-- that the defendant had taken and failed or refused the a DUI test previously-- Also mentioned during the trial was the officer did give a PBT.  No mention of what the results were however upon the administration of the PBT the defendant was arrested implicating the failure of the PBT tests. The appellate court noted:  We question whether it was relevant for the prosecutor to ask the officer about the PBT in light of the fact the PBT results are not admissible at trial.  Judge Buser again comment about the PBT-the prosecutor knew or should have known the evidence offered was inadmissible and could lead the jury to impermissible inferences-ethical duties require the prosecutor "specific obligations to see that the defendant is accorded procedural justice."

 PER SE/TWO HOURS

Delay in testing-over two hours-test admissible

State v. Armstrong 236 Kan. 290, 689 P.2d 897 (10/26/84)

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. 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. This is not a per se violation case.