Opinion
No. 111,377.
2014-12-19
David HAMMERSCHMIDT, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.Roger D. Struble, of Blackwell & Struble, LLC, of Salina, for appellant.Donald J. Cooper, of Kansas Department of Revenue, Legal Services Bureau, of Topeka, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Roger D. Struble, of Blackwell & Struble, LLC, of Salina, for appellant. Donald J. Cooper, of Kansas Department of Revenue, Legal Services Bureau, of Topeka, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Department of Revenue suspended the driver's license of David Hammerschmidt after he refused to consent to a blood test following his arrest for driving under the influence. In doing so, the Department rejected Hammerschmidt's contention that he rescinded his earlier refusal to submit to testing. Hammerschmidt appealed to the district court, and the district court affirmed the license suspension. Hammerschmidt now appeals to us.
Hammerschmidt was involved in a single-car accident. The investigating troopers observed open and closed containers of alcohol inside Hammerschmidt's car. Trooper Alex Taylor also smelled alcohol on Hammerschmidt's breath. He testified that Hammerschmidt initially admitted to consuming alcohol that day but then denied doing so after being read his Miranda rights.
Hammerschmidt suffered a cut on his head in the accident and was transported to a hospital for treatment. At the hospital, Trooper Justin Rohr read and provided to Hammerschmidt a printed copy of the implied consent advisory form. Hammerschmidt refused to submit to a blood alcohol test.
Trooper Rohr then told Hammerschmidt that a blood draw was still necessary for medical purposes due to his injuries. According to the trooper, Hammerschmidt said nothing in response but allowed a nurse to take a blood sample from him, apparently by extending his arm to the nurse to permit the blood draw. Hammerschmidt contends he also expressed his consent by saying, “okay.”
In our review, we consider whether the district court's decision is supported by substantial competent evidence. Whether an act is sufficient to rescind a refusal to take a blood test is a question of law over which our review is unlimited. Bixenman v. Kansas Dept. of Revenue, 49 Kan.App.2d 1, 4, 307 P.3d 217 (2013).
K.S.A.2013 Supp. 8–1001 sets forth the time frame within which a refusal of consent may be rescinded. But our decision in Ramirez v. Kansas Dept. of Revenue, 13 Kan.App.2d 332, 770 P.2d 490, rev. denied 244 Kan. 738 (1989), defines the manner in which that rescission must be expressed. There, the court determined that following a driver's refusal to consent to a chemical test, the driver must make a specific request to take the test in order to rescind the original refusal. 13 Kan.App.2d at 335–36.
It is unclear whether Hammerschmidt said “okay” in response to the trooper's statement about the need for medical testing. Hammerschmidt initially testified he said “okay” in response to the trooper's statement that a blood draw was medically necessary. But he later testified, “I didn't say anything; I laid my hand out there.” In any event, because Ramirez requires a specific request to be tested in order to rescind a prior test refusal, Hammerschmidt's gesture alone was insufficient. Further, even if Hammerschmidt said “okay” when told about the need for a blood sample for medical purposes, this does not constitute a request for a blood alcohol test so as to rescind the earlier refusal. It was not a specific request to take the test, as was the situation in Mcintosh v. Kansas Dept. of Revenue, 291 Kan. 41, 237 P.3d 1243 (2010).
Hammerschmidt's response was to the trooper's explanation that a blood draw was still necessary for medical purposes. K.S.A.2013 Supp. 8–1001(f) states “[s]uch sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes.” Thus, under this statute blood draws to test for blood alcohol content and blood draws for medical tests are independent of each other, and it logically follows that consenting to a later medical blood test does not rescind an earlier refusal to consent to a blood draw for the purpose of testing for blood alcohol content.
Here, to the extent Hammerschmidt expressed any willingness to submit to a blood draw, it was in response to the trooper's statement that it would be necessary for medical purposes, not for determining the level of alcohol in his blood. Thus, the district court correctly concluded that Hammerschmidt did not withdraw his refusal to submit to a blood alcohol test.
Affirmed.