Opinion
No. 106,591.
2012-10-19
STATE Of Kansas, Appellee, v. Randy BOYD, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., MALONE and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randy Boyd appeals his conviction and sentence for driving under the influence of alcohol (DUI). Boyd claims the district court erred by excluding testimony regarding the reliability of both field sobriety tests and breath tests. Boyd also challenges the $1,500 fine imposed, arguing the district court failed to consider the alternative method of payment through community service. We affirm Boyd's conviction, but we vacate his fine and remand for resentencing.
On February 13, 2010, Kansas Highway Patrol Trooper Steven LaRow stopped a vehicle driving with a flat tire. The driver Boyd told LaRow he knew he had a flat tire and he had an air bubble in the car to fix it. During the conversation, LaRow smelled the odor of alcoholic beverage and asked Boyd to step out of his vehicle. Boyd initially told LaRow he had not been drinking, but eventually he said he had one cocktail. LaRow asked Boyd to perform the walk-and-turn test, and during the test, Boyd showed seven out of eight possible clues of intoxication. Boyd also performed the one-leg-stand test and showed four of four possible clues of intoxication. LaRow asked Boyd to take a preliminary breath test (PBT), but Boyd declined to take the test. Based on his observations, LaRow arrested Boyd for DUI. At the police station, LaRow gave Boyd an implied consent form and also read the form to him. Boyd said that he understood the form, and he told LaRow he would not take a breath test.
The State charged Boyd with felony DUI, refusing a PBT, and driving with a flat tire. Boyd pled guilty to refusing a PBT. The other charges proceeded to jury trial, and Boyd was found guilty of both counts. The district court imposed a 12–month underlying jail sentence and a $1,500 fine. Boyd timely appealed the district court's judgment.
Boyd first argues that the district court erred by not allowing his counsel to cross-examine LaRow on the reliability of field sobriety tests through national standards. We agree with Boyd on the standard of review:
“ ‘When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.’ [Citation omitted.” State v. Richmond, 289 Kan. 419, 426, 212 P.3d 165 (2009).
Boyd challenges the district court's decision to sustain the prosecutor's objection to the following portion of LaRow's cross-examination:
“Q: [DEFENSE COUNSEL]: Now, with the field sobriety tests were you taught in your training that failure on, on those field sobriety tests could indicate intoxication 68 percent of the time based on national tests?
“[PROSECUTOR]: Objection, Your Honor.
“THE COURT: You going to object to that—the jury will make a determination whether the individual was under the influence as required under the statute, not a percentage test of any national organization.
“[DEFENSE COUNSEL]: Am I allowed to ask him if he's aware of such testing?
“THE COURT: No, I sustained the objection.
“[DEFENSE COUNSEL]: Okay.”
We begin by noting that defense counsel's specific question to which the prosecutor objected assumed facts that were not in evidence. If evidence equating field sobriety testing to a mathematical probability of intoxication had not yet been properly introduced at trial, it was improper for counsel to put this information before the jury in the form of a question. Thus, counsel's question was objectionable on this basis alone.
Moreover, it is clear from the record that Boyd wanted to cross-examine LaRow on the reliability of field sobriety tests through national standards. The Kansas Supreme Court has determined such evidence to be inadmissible in the absence of a proper foundation for such testimony through an expert witness. See State v. Shadden, 290 Kan. 803, 824–25, 235 P.3d 436 (2010). In Shadden, the defendant was charged with DUI. A law enforcement officer testified that the defendant's failure of the walk-and-turn test meant there was a 68 percent probability he had a blood-alcohol content above. 10. On appeal, the defendant argued that the district court should have excluded the testimony regarding the mathematical relationship between field sobriety test failure and blood-alcohol content. Our Supreme Court began its analysis by discussing what is appropriate lay testimony versus what testimony is admissible only if the proponent lays the appropriate scientific foundation:
“ ‘[I]t is appropriate for the officer to testify that field sobriety tests were administered and that, based upon the officer's training and experience, the driver failed those tests. It is impermissible to take the additional step of equating a level of certainty or probability to the officer's opinion or to correlate a driver's performance with a specific BAC level.’ [Citation omitted.]” Shadden, 290 Kan. at 829.
The Supreme Court also noted the law enforcement officer's lack of mathematical and scientific expertise necessary to lay a proper foundation for expert testimony:
“[A]s the Court of Appeals aptly observed, there was no evidence that the officers who testified in this case had the mathematical and scientific expertise to lay the necessary foundation/Therefore, Shadden had no effective means of cross-examining the reliability of the NHTSA [National Highway Traffic Safety Administration's] standards because [the officer] was merely relating information promulgated by the NHTSA.' [Citation omitted.]” Shadden, 290 Kan. at 825.
Here, Boyd sought to introduce evidence relating to national standards on field sobriety testing, which requires expert testimony, and Boyd failed to lay a proper foundation for this testimony. It is implicit from the record that the district court excluded the testimony for this reason. We conclude the district court did not err in sustaining the prosecutor's objection to this testimony.
Next, Boyd argues that the district court erred in not allowing his counsel to elicit testimony from LaRow about conditions that make breath tests unreliable. Boyd refused a breath test, and the jury was able to consider that fact in determining if Boyd was DUI. See K.S.A.2009 Supp. 8–1001(n); State v. Bussart–Savaloja, 40 Kan.App.2d 916, 927–29, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009). At trial, Boyd's counsel sought to ask LaRow questions about conditions affecting breath test reliability:
“A. [OFFICER LAROW]: ... The purpose of the 20–minute deprivation period [when giving a breath test] is to make sure that the person doesn't bring up any stomach contents. If there were to be alcohol in there, bring it up into the mouth which would indicate mouth alcohol on the Intoxilyzer 8000. So you want to make sure they don't vomit, take a deep burp, or anything like that. You want to make sure the stomach contents are where they're supposed to be and there's nothing in his mouth.
“Q: [DEFENSE COUNSEL]: So would you agree that the idea behind that is there could be other things present in the mouth that would trigger the test?
“[PROSECUTOR]: I'm going to object to relevance at this point, Your Honor. We don't have a breath test.
“THE COURT: What is the relevance since he refused the breath test?
“[DEFENSE COUNSEL]: Goes to Mr. Boyd's thinking in whether to submit to the test and his
“THE COURT: Sustained.”
“K.S.A. 60–401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard.” Shadden, 290 Kan. at 817.
Boyd argues that testimony from LaRow raising questions about the reliability of the breath test was relevant because it would have helped him explain why he refused the test. But from the plain language of K.S.A.2009 Supp. 8–1001, there is only one reason a person can offer to explain a rest refusal. K.S.A.2009 Supp. 8–1001(q) provides: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.” Here, Boyd had refused the breath test, and he was not attempting to explain his refusal due to physical inability caused by a medical condition. We agree with the district court that because LaRow had refused the breath test, any evidence at trial challenging the reliability of breath tests on grounds other than physical infirmity was irrelevant.
Furthermore, any error in the exclusion of this evidence was harmless. The State presented many indicators of intoxication in addition to Boyd's refusal to submit to a breath test. LaRow testified that when he approached Boyd, he smelled an odor of alcoholic beverage. Boyd admitted to LaRow that he had a cocktail. Boyd showed seven of eight possible clues of intoxication during the walk-and-turn test and four possible clues of intoxication on the one-leg-stand test. Any error in excluding testimony regarding the reliability of breath tests did not affect LaRow's substantial rights, meaning it did not affect the trial's outcome. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011)cert. denied132 S.Ct. 1594 (2012).
Finally, Boyd argues that the district court erred by imposing a $1,500 fine because the district court failed to consider the alternative method of payment through community service. The parties agree that this issue involves statutory interpretation and our review is unlimited. State v. Storey, 286 Kan. 7, 9–10, 179 P.3d 1137 (2008).
In State v. Copes, 290 Kan. 209, 223, 224 P.3d 571 (2010), our Supreme Court held that a trial court “must take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a ... DUI offense, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A.2009 Supp. 8–1567(j).” The court further explained that although the fine is mandatory, the alternative method of payment requires consideration by the trial court. 290 Kan. at 223.
Here, the district court correctly imposed the required $1,500 fine for Boyd's third DUI, but it failed to consider Boyd's financial circumstances for the method of payment of the fine. By failing to consider Boyd's ability to pay and the burden the payment will impose on him, the trial court bypassed the statutory consideration of whether community service was a preferential option for payment. Thus, we vacate Boyd's fine and remand for resentencing pursuant to K.S.A. 21–4607(3) and Copes.
Affirmed in part, vacated in part, and remanded with directions.