Opinion
111,922.
02-06-2015
STATE of Kansas, Appellant, v. Bret A. JACKSON, Appellee.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant. John E. Stang, of Hulnick, Stang & Rapp, P.A., of Wichita, for appellee.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant.
John E. Stang, of Hulnick, Stang & Rapp, P.A., of Wichita, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
In this interlocutory appeal, the State argues that the district court erred in granting Bret Jackson's motion to suppress the results of a blood draw taken at the direction of law enforcement while investigating whether Jackson had been driving under the influence of alcohol. For the reasons explained herein, we reverse the district court's suppression of the evidence and remand for further proceedings.
On November 5, 2011, at 6:38 p.m., Wichita Police Officer Cory Masterson was dispatched to an injury accident. He saw a van stopped toward the shoulder of the road and a motorcycle on the ground. Masterson learned that the driver of the van had experienced engine trouble and the motorcycle struck the rear of her van as she was pulling onto the shoulder. Emergency medical services (EMS) workers were treating a man, later identified as Jackson, who had been operating the motorcycle. The EMS workers put a neck brace on Jackson and moved him onto a backboard and a stretcher.
Masterson smelled a moderate odor of an alcoholic beverage and noticed that Jackson's eyes were bloodshot, watery, and glazed. Based on his training, Masterson believed that Jackson had possibly been drinking alcohol. When EMS took Jackson to the hospital, Masterson followed to further investigate whether Jackson had been driving under the influence (DUI). During a break in treatment, Masterson was alone with Jackson. According to Masterson's later testimony, Jackson was lying down, wearing a neck brace, but Masterson did not remember whether Jackson had any intravenous lines (IVs) in place. Moreover, Masterson believed that Jackson was no longer strapped to the backboard and that Jackson's hands were free. He placed a copy of the DC–70 form—the written implied consent advisories—on Jackson's chest and told him that he could read it silently while Masterson read it aloud, which Masterson did, word-for-word. Jackson agreed to the blood draw, and the results showed a blood-alcohol level of .17 percent.
On October 1, 2012, the State charged Jackson with one count of DUI, fourth or subsequent conviction, and one count of driving while a habitual violator. Jackson filed three motions to suppress the results of the blood-alcohol test, arguing that Masterson (1) failed to properly provide the statutorily required written notice of the implied consent advisories, (2) violated Jackson's statutory rights to an attorney and to additional testing, and (3) did not have reasonable grounds to request the test. Regarding the first argument—the only one relevant to the current appeal—the State asserted that Masterson complied or substantially complied with the statutory requirement of written notice.
On April 4, 2014, the district court held a hearing on the motions to suppress. Jackson withdrew the motion that argued failure to provide access to an attorney, but the hearing proceeded on the remaining two motions. Masterson testified for the State and Jackson did not present any other testimony or evidence. Regarding the written notice, the State asserted that an officer has no duty to ensure that the person physically takes possession of the written notice and that Masterson had met the requirement by placing the DC–70 on Jackson's chest. The State reminded the district court that the standard was substantial compliance and that, Jackson obviously understood the warning.
In response, Jackson contended that there was no reason for Masterson not to hand the written notice to Jackson. Jackson argued that Masterson was required to either put the form in his hand or hold it so that he could read along. He pointed out that no one can read a document that is lying flat on his or her chest; therefore, he argued the written notice had not been properly presented for his consideration.
After hearing the evidence and arguments, the district judge first denied Jackson's motion to suppress due to lack of reasonable grounds to request the blood test; that denial is not on appeal here. Regarding the written notice, the judge said that it appeared that the statute required “at least the opportunity, or a bit more than the presentation, or the making [the DC–70] available in the manner that it occurred.” The judge noted that some of the facts of this case were unclear, “[b]ut at least it does appear that the defendant's inability to physically take it, at least based on my notes, would have made it the better practice to have had the officer ... ‘present’ it in a fashion beyond just reading it to him.” The judge found that Masterson's actions did not substantially comply with the statute's written notice requirement; accordingly, the district court granted Jackson's motion to suppress the evidence. The State filed a motion to reconsider, which the district court denied after conducting a hearing. The State timely pursued this interlocutory appeal.
On appeal, the State argues that the district court erred by granting Jackson's motion to suppress. Specifically, the State argues that Masterson substantially complied with the statutory requirement to give written notice of the implied consent advisories. The State also contends that the district court based its decision on its factual finding that Jackson's hands were restrained, a finding the State claims the record does not support.
In response, Jackson maintains that Masterson's testimony did not support a factual finding that Jackson was able to move the DC–70 into a position where he could read it. Jackson again argues that an officer must make a reasonable effort to place the written notice where the person can read and consider the form's contents. Thus, Jackson argues that Masterson failed to substantially comply with the statute and, accordingly, the district court properly suppressed the blood-test results.
As a preliminary matter, the State acknowledges its responsibility to establish jurisdiction by showing that the district court's ruling substantially impaired its ability to prosecute this case. See State v. Sales, 290 Kan. 130, Syl. ¶ 5, 224 P.3d 546 (2010). The State contends that suppression of the evidence substantially impaired its ability to prosecute Jackson because the blood-test results were essential to show that Jackson was attempting to operate a motor vehicle with a blood-alcohol level greater than .08. We agree with the State that suppression of the test results, which showed a blood-alcohol content of .17 percent, substantially impaired the State's ability to prosecute Jackson for DUI. Jackson does not challenge our court's jurisdiction to consider the State's appeal.
“ ‘Our review of an evidence suppression issue is bifurcated. Without reweighing the evidence, the appellate court first examines the district court's findings to determine whether they are supported by substantial competent evidence. [Citation omitted.] The district court's legal conclusions are then reviewed de novo.’ “ State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014). “Substantial competent evidence “ ‘is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.’ “ [Citation omitted.]” State v. Brown, 300 Kan. 542, 546, 331 P.3d 781, 787 (2014).
K.S.A.2013 Supp. 8–1001(k) requires that before an alcohol or drug test is administered, “the person shall be given oral and written notice” of certain information. Although that notice is mandatory, our Supreme Court has recognized that substantial compliance with the statute is sufficient. See State v. Edgar, 296 Kan. 513, 528, 294 P.3d 251 (2013) ; Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1998). Substantial compliance occurs where the notice is “ ‘sufficient to advise the party to whom it is directed of the essentials of the statute.’ “ Edgar, 296 Kan. at 528, 294 P.3d 251.
We first turn to the State's argument about the district court's factual finding that Jackson's hands were restrained. Here, Masterson placed a copy of the DC–70 on Jackson's chest, instead of handing it to him. In granting the motion to suppress, the judge stated that it appeared Jackson had been unable to physically take the DC–70 form and it would have been better if Masterson had ensured that Jackson could view the DC–70 and read it. The State contends that the district court's finding is not supported by the record.
At the hearing, Masterson clearly testified that he placed a copy of the DC–70 on Jackson's chest while he was lying on his back on a hospital bed. On cross-examination, Masterson testified as follows:
“Q Why didn't you hand it to him?
“A I put it on his chest. That was for him to—I advised him that he could
“Q Don't you normally hand it to people?
“A He was back down (demonstrating).
“Q He couldn't hold it, from your recollection?
“A It was up to him to hold it, sir.
“Q Was he in a position that he could hold it; do you remember?
“A He was on his back, [lying] on a bed.
“Q Do you remember, were his hands available to hold it?
“A I believe so, yes.
“Q When you say ‘you believe, ‘you don't know then?
“A As far as whether he was strapped down, I don't believe he was strapped down any more on the backboard.
“Q Okay. But you know he was still in the neck brace?
“A Yes.
Q You don't remember if he had an IV?
“A No, I don't recall that.
“Q Normally don't you hand the person the DC–70, or place it on a table, if you're sitting down?
“A Yes. In a normal situation, yes.
“Q And you've done 20–plus hospital Implied Consents is my understanding?
“A Yes.
“Q I guess my question is: Why would you just set it on someone's chest instead of trying to hand it to him? My understanding [is that] you didn't offer to hand it to him, you just put it on his chest.
“A I clearly explained to him that—gave him directions that that was the form I was going to be reading. And it was his choice whether he wanted to read it silently to himself. I told him I was going to read it out loud to him.” (Emphasis added.)
Defense counsel did not question Masterson further about Jackson's hands or whether Jackson was otherwise restrained. During closing argument, while discussing whether Masterson had sufficiently provided written notice, the State argued that Jackson could have taken the DC–70 off his chest and read along if he had wanted to do so. On the contrary, defense counsel suggested that Jackson might have been restrained, stating that Masterson testified that he did not know whether Jackson was strapped down.
In ruling from the bench, the judge seemed to be proceeding on the assumption that Jackson could not have used his hands to move the DC–70 form, stating, “You know, there is not the opportunity to try [to read the DC–70], I guess, if he can't use his hands and it's on his chest.” When the State pointed out that there was no evidence that Jackson was unable to read the DC–70 at the hospital or that he was unable to grasp and lift the DC–70 to read it, the judge stated, “If he can't do anything with his hand, because it's tied down—at least, my notes indicate that the officer stated, his hands were not available. And I am taking that into account, I guess, in my scenario trying to address this.”
At the hearing on the motion to reconsider, the judge again noted, “[T]here was a question of whether he was restrained or strapped down” and “[W]e didn't get a solid answer from” Masterson as to whether Jackson was restrained when Masterson placed the DC–70 on his chest. The judge described the instant case as having “facts which appear to at least support an individual who was restrained by straps and also in a neck brace and unable to I guess exercise the opportunity or the ability ... to at least look at [the DC–70].” Thus, the district court denied the motion to reconsider.
Our review of the hearing transcript shows that the district judge incorrectly recalled Masterson's testimony. There was no evidence that Jackson could not use his hands; the idea seemed to arise when defense counsel argued that Masterson had not testified unequivocally that Jackson's hands were available. In fact, Masterson testified that he believed Jackson was not strapped down and that his hands were available to hold the DC–70. In short, there was no substantial competent evidence to support a factual finding that Jackson's hands were immobilized or that Jackson was unable to grasp the DC–70 and move it to a position from which he could have read it if he had so desired.
We now turn to the district court's legal conclusion that Masterson did not substantially comply with the written notice requirement of K.S.A.2013 Supp. 8–1001(k). The State compares this case to Thompson v. Kansas Dept. of Revenue, 37 Kan.App.2d 255, 152 P.3d 106 (2007), in which a deputy went to a hospital to ask Thompson to submit to blood testing. When he later testified, the deputy could not recall whether Thompson had IVs in his arms or whether he was wearing a neck brace. Regardless, the deputy read the DC–70 to Thompson and placed a copy of the form in Thompson's hand. Thompson testified that he was lying flat on his back, wearing a neck brace, had IVs in both arms, and “was not able to maneuver the document in a position where he could read it.” 37 Kan.App.2d at 256, 152 P.3d 106.
On appeal from the suspension of his driver's license that resulted from his refusal to submit to the testing, Thompson argued that the deputy did not substantially comply with the requirement that he give written notice of the implied consent advisories. This court rejected that argument, noting that the deputy placed the written notice in Thompson's hand, Thompson received verbal notice, and he “was conscious, did not tell the deputy that he could not read the form, and did not ask for assistance to read the form.” 37 Kan.App.2d at 258–59, 152 P.3d 106. Thus, this court found that the deputy had substantially complied with the notice requirements. 37 Kan.App.2d at 258–59, 152 P.3d 106.
The State argues that the facts of this case are “largely indistinguishable” from those in Thompson. Here, at the time Masterson purportedly gave the required notice, Jackson was lying on his back in a hospital bed, wearing a neck brace. Masterson later testified that he did not remember whether Jackson had any IVs in place. He also testified that he believed Jackson was not strapped down and that his hands were available to hold the DC–70. The State argues there is no indication that Jackson could not read the DC–70 or that he needed assistance to do so. According to the State, the only material difference between the two cases is that the deputy in Thompson placed the DC–70 directly into Thompson's hand, whereas Masterson placed the DC–70 on Jackson's chest.
Jackson, on the other hand, argues that the State presented no evidence that the DC–70 came into contact with Jackson's hands, as it did in Thompson. Jackson concludes that because Masterson did not present Jackson with the DC–70 in a reasonable manner that allowed Jackson to read and consider its content, Masterson did not substantially comply with the written notice requirement.
Jackson also points this court toward Dye v. Kansas Dept. of Revenue, No. 90,699, 2004 WL 720118, at * 1–3 (Kan.App.2004) (unpublished opinion), cited in Thompson, in which this court found substantial compliance with the notice requirement where an officer placed the form in front of Dye, held it, and used his finger to note his place as he read the document aloud. This court rejected Dye's contention that written notice was defective because she did not physically possess the form and because she had trouble reading it since she did not have her reading glasses. 2004 WL 7201187, at *2–3. Noting that Dye did not tell the officer she had any difficulty reading the document and that Dye's failure to physically possess the form was not fatal, this court held that the officer substantially complied with the notice requirements. 2004 WL 7201187, at *3.
Jackson argues that Dye, like Thompson, stands for the proposition that an officer must present the written notice in a reasonable manner by which the officer believes the licensee can consider and read the form. But Jackson's argument is flawed because here there is no evidence that Jackson could not simply reach up, take the DC–70 off of his chest, hold it, and read it. The district court's belief that Jackson was restrained was erroneous, and unlike Thompson, Jackson has not testified that he could not move his arms or was unable to take the DC–70 and read it. Although Jackson emphasizes that he was in a neck brace, that fact would not necessarily prevent a person from reaching to his or her own chest, picking up a document placed there, and maneuvering that document to a position from which the person could read it.
In summary, the district court's factual finding that Jackson's hands were restrained was not supported by substantial competent evidence. Masterson testified that Jackson's hands were available to hold the DC–70. Although Masterson did not place the DC–70 into Jackson's hand, Jackson was in control of the document and could maneuver it so that he could read it. Jackson never informed Masterson that he could not read the DC–70 or that he needed help to do so. Under these facts, we conclude that Masterson substantially complied with the notice requirements of K.S.A.2013 Supp. 8–1001(k). Accordingly, the district court erred in granting the motion to suppress.
Reversed and remanded.