Opinion
No. 105,942.
2012-06-1
STATE of Kansas, Appellee, v. Brian ROOT, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge. Juanita M. Carlson, of Carlson Law Office, of Lawrence, for appellant. Mitchell Peterson, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Juanita M. Carlson, of Carlson Law Office, of Lawrence, for appellant. Mitchell Peterson, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State obtained a blood sample from driver Brian Root when Root was receiving treatment at the hospital after his car rolled over. Root was later convicted of driving while under the influence of alcohol based on the alcohol level detected in his blood sample. In this appeal, he asks us to overturn his conviction, contending his blood was illegally obtained and the blood sample was not stored at the correct temperature. Based on the stipulated facts, we affirm Root's conviction. We conclude the blood was properly collected. Root's challenge to the qualification of the person who collected the sample is unpersuasive because we know of no statute requiring a phlebotomist to be licensed by the State. Finally, we refrain from ruling on Root's second issue concerning the temperature of the stored blood because Root did not first raise the issue to the trial court.
Root suffers injuries after his car rolls over and he is ejected .
In January 2009, Douglas County Sheriff's Deputies Jason Grems, Jacob Montney, and Bradley Bissey were dispatched to a motor vehicle accident. At the scene, Deputy Bissey made contact with Mike Bryant, who had reported the accident. Bryant had found Brian Root ejected from his vehicle and lying injured in a ditch. Root's vehicle was facing south in the northbound lane of East 175 Road and had sustained heavy damage from rolling several times. The evidence showed that Root's seatbelt was retracted and he had not been wearing his seatbelt at the time of the accident.
Root had been moved to the back of the ambulance and was receiving treatment from emergency medical personnel. Root identified himself as the driver but was unable to tell Deputy Bissey what had happened prior to the accident other than he had been driving home East on 175 Road. During their discussion, Deputy Bissey could smell a faint odor of alcohol on Root's breath. Deputy Bissey asked Root if he had consumed any alcohol prior to the accident. Root stated he had. Due to the extent of his injuries, Root was flown by Life Star to Stormont–Vail Hospital in Topeka.
At 9:04 p.m., Deputy Hardy handed Root a copy of the implied consent advisory and read the nine statements requesting a blood test. Root agreed to the blood test. Stormont–Vail “lab technician” Danielle Kelliher drew one tube of blood from Root's left arm at 9:32 p.m. Deputy Bissey subsequently entered Root's tube of blood into the evidence locker at the law enforcement center, where it was stored until sent to the KBI for Root's BAC level. On March 23, 2009, Deputy Hardy received the KBI lab results for Root's blood, which indicated 0.14 grams of alcohol per 100 milliliters of blood.
The State charged Root with operating a vehicle while the alcohol concentration in his blood or breath was .08 or more, in violation of K.S.A.2008 Supp. 8–1567(a)(l). Before trial, Root filed a motion to suppress the blood test and any statements he had made. At the suppression hearing, the State presented testimony from Danielle Kelliher, the phlebotomist who drew Root's blood; Julinne Kemp, the KBI lab technician; and Deputy Bissey. Root elected to testify and also offered testimony from Deputy Hardy. The district court ruled that the State had met its burden and denied Root's motion.
Then in August 2010, the district court tried the case based on the parties' stipulation to the facts taken from Deputy Bissey's probable cause affidavit and read into the record. The district court also agreed to the parties' request that it take judicial notice of the testimony at the suppression hearing from Root, Kelliher, and Kemp. The district court found the evidence supported Root's conviction under either of the remaining charges and found Root guilty under K.S.A.2008 Supp. 8–1567(a)(1).
Root claims the blood sample was not properly obtained by the State.
Because Root asks us to construe a statutory scheme based on stipulated facts, our standard of review is de novo. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Root first complains that the State did not meet the statutory requirements under K.S.A.2008 Supp. 8–1001(b)(2). But we review first things first. The implied consent law found in K.S.A.2008 Supp. 8–1001(a) provides that by driving in Kansas a person has given implied consent “to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.” Under subsection (b)(2) (that portion of the statute cited by Root), a police officer shall request the driver operating a vehicle to submit to a blood test if the vehicle has been involved in an accident or collision, any person is seriously injured or killed, and the driver could be cited for any “traffic offense,” as defined in K.S.A.2008 Supp. 8–2117(d). The traffic offense violation is sufficient probable cause to request the blood test. K.S.A.2008 Supp. 8–1001(b)(2). Under K.S.A.2008 Supp. 8–2117(d), the relevant traffic offenses include a violation of the Uniform Act Regulating Traffic on Highways (K.S.A. 8–501 to K.S.A. 8–5,135), a violation of articles 1 (K.S.A. 8–101 to 8–1,151) and 2 (K.S.A. 8–201 to K.S.A. 8–2,148) of chapter 8 of the Kansas Statutes Annotated, and a violation of K.S.A. 40–3104, and amendments thereto. The Uniform Act Regulating Traffic on Highways was repealed in 1974. See L.1974, ch. 33, sec. 8–2205.
Here, Deputy Bissey did not cite Root with any traffic offense. Root concedes that his vehicle was involved in an accident and that he was seriously injured. However, Root argues that the State did not charge him with a traffic offense and there was no evidence in the record to support any named traffic offense in K.S.A.2008 Supp. 8–2117(d). Root asserts that the State had a burden to produce articulable facts of a traffic offense, not a “mere hunch,” and Deputy Bissey did not have reasonable suspicion to believe Root was driving while under the influence. See State v. Johnson, 293 Kan. 1, Syl. ¶ 4, 259 P.3d 719 (2011), where the court held that to possess reasonable suspicion an officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity. To be exact, K.S.A.2008 Supp. 8–1001(b)(2) does not require that the driver must be cited for a traffic offense, only that the driver “could be cited.” Thus, the dispositive question becomes: did Officer Bissey have reasonable grounds to cite Root with a traffic offense?
It is well settled that whether an officer had reasonable grounds for a particular action is a mixed question of fact and law. Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, Syl. ¶ 1, 233 P.3d 286 (2010). Here, the district court rendered a judgment based on submitted stipulated facts. Generally, such stipulations bind the parties as judicial admissions, and a reviewing court is bound by stipulations of facts. “When parties submit stipulated facts to a tribunal and the tribunal does not allow the parties to withdraw the stipulations, the parties are subject to those stipulations, and a trial court or appellate court must render judgment based on those stipulated facts.” Double M Constr., 288 Kan. 268, Syl. ¶ 1. Because the facts here are undisputed, this court moves directly to the legal question and must independently determine whether those facts provided reasonable grounds. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 657, 256 P.3d 845 (2011); Poteet, 43 Kan.App.2d at 415.
Further, whether an officer has reasonable grounds is substantially similar to a determination of probable cause to make an arrest. Bruch v. Kansas Dept of Revenue, 282 Kan. 764, 775, 148 P.3d 538 (2006). Probable cause to make an arrest is reached when the evidence leads a reasonably prudent police officer to believe that guilt is “more than a mere possibility.” Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431, 962 P.2d 1150,rev. denied 266 Kan. 1107 (1998). Our Supreme Court has also recognized that the reasonable-grounds test is somewhat easier to meet than the probable cause standard, in that an officer could have reasonable grounds to request a breath test while not yet having the probable cause required to make an arrest. Allen, 292 Kan. at 656; (citing Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 [2009] );State v. Pollman, 286 Kan. 881, 896–97, 190 P.3d 234 (2008).
The parties stipulated that (1) Deputy Bissey observed a single-vehicle accident in which Root's vehicle had rolled several times; (2) Root's injuries were such that Life Star had to fly him to the hospital; (3) Deputy Bissey could smell a faint odor of alcohol on Root's breath; and (4) Root admitted to Deputy Bissey he had consumed alcohol prior to the accident.
The law indicates that an officer has probable cause to believe a driver is under the influence of alcohol whenever the driver operates a vehicle in such a manner as to cause serious injury to any person, including the driver. See K.S.A.2008 Supp. 8–1001(p). That is what happened here. To us, the combination of the facts surrounding Root's accident, plus the reported odor of alcohol and Root's admission of recent alcohol consumption were certainly sufficient for Deputy Bissey to believe that it was more than a mere possibility that Root was “under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle .” K.S.A.2008 Supp. 8–1567(a)(3); see Poteet, 43 Kan.App.2d 412, where the court held that the odor of alcohol, the admission of drinking, and the facts of the single-vehicle accident provided reasonable grounds to believe that the driver was under the influence of alcohol.
Root asks us to consider the suppression hearing testimony from both deputies to support his arguments on appeal. We cannot do so because we must render judgment based on the stipulated facts. See Double M Constr., 288 Kan. 268, Syl. ¶ 1. Actually, Root is asking us to reweigh the evidence and reassess credibility. That is not the role of an appellate court. See State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009), where the court held that an appellate court does not reweigh the evidence, resolve conflicting evidence, or assess the credibility of the witness.
A phlebotomist needs no license in Kansas to obtain blood samples for DUI tests.
Root also challenges the qualifications of the hospital employee who drew his blood. He claims that the district court erred in finding Kelliher was authorized under K.S.A.2008 Supp. 8–1001(c) to draw blood as a phlebotomist. Root argues the statute requires a phlebotomist to have a license, and the evidence indicated Kelliher was “at best, only certified.”
The appropriate statute, K.S.A.2008 Supp. 8–1001(c), clearly defines those qualified to draw blood for DUI testing purposes. Those individuals include:
“(1) A person licensed to practice medicine and surgery, licensed as a physician's assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate, or mobile intensive care technician, as those terms are defined in K.S.A. 65–6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist.” (Emphasis added.)
Root cites no specific language in the statute or any other authority to support his argument K.S.A.2008 Supp. 8–1001 clearly states that a phlebotomist can draw blood, and the statute does not contain any language requiring a phlebotomist to have a license. In fact, Root acknowledges this court noted in State v. Stegman, 41 Kan.App.2d 568, 576, 203 P.3d 52 (2009), that Kansas does not license or certify phlebotomists.
The Stegman court considered whether an individual's job title establishes that he or she is a phlebotomist under K.S.A.2008 Supp. 8–1001(c)(4), or whether a person with a different job title ( i.e. medical assistant) can be considered a phlebotomist if he or she has received training in drawing blood. This court concluded:
“If the person in question has sufficient training in the withdrawal of blood to accomplish the legislative objectives of protecting the individual's health, guarding against infection and pain, and assuring the accuracy of the test, all in accordance with accepted medical standards, then, for purposes of K.S.A.2008 Supp. 8–1001(c)(4), that person is a phlebotomist regardless of whether he or she is called a ‘phlebotomist’ by his or her employer.” 41 Kan.App.2d at 577.
The Stegman court was bound by the stipulation of facts, which did not include any mention of the medical assistant's training in the drawing of blood. In affirming the suppression of the blood test results, this court offered that had the district court's factual findings regarding the medical assistant's experience and expertise at drawing blood been included in the stipulated facts, the court's determination might have been different. 41 Kan.App.2d at 578.
Here, both parties agreed to have the district court take judicial notice of Kelliher's prior testimony regarding her qualifications to draw blood. Accordingly, the district court was bound by the stipulation of facts taken from Kelliher's testimony regarding her own qualifications. Kelliher testified to (1) having been certified by the American Society of Clinical Pathology as a phlebotomist for 17 years; (2) receiving initial training of 2 to 4 weeks and extensive yearly training to maintain certification; (3) working at Stormont–Vail for 18 years drawing blood 20–45 times a day, 5 days a week; and (4) the procedure she used to draw Root's blood.
At trial, the district court did not address Kelliher's qualifications other than to notify Root that its ruling at the suppression hearing remained the same. In its finding of facts at the suppression hearing, the district court found that Kelliher's testimony presented no issue regarding her qualifications to draw blood.
The precise facts the Stegman court believed were decisive in making a determination if an individual can be considered a phlebotomist are present here. Kelliher's certification as a phlebotomist is irrelevant because K.S.A.2008 Supp. 8–1001 does not require certification. The statute simply states that a phlebotomist can perform the withdrawal of blood for blood tests. Kelliher has received both initial and continuous medical education in the drawing of blood and she has drawn thousands of blood samples during her 18 years of employment with Stormont–Vail. Kelliher is a phlebotomist as that term is defined in Stegman, and the stipulations of facts are sufficient to show that Kelliher was qualified under K.S.A.2008 Supp. 8–1001(c)(4) to withdraw Root's blood.
The storage of the blood sample was not raised to the district court.
Root's final complaint is that the blood collection tube containing his sample was not stored at the recommended temperature. Root asks this court to compare the testimony from Kemp and Deputy Hardy with the recommended storage temperature from the company who manufactured the blood draw kit.
At the suppression hearing, the district court found that the blood sample was kept at the correct temperature at all times. Deputy Hardy testified that he transported Root's blood sample approximately 20 miles from Stormont–Vail in Topeka to Lawrence in his vehicle at around 80 degrees Fahrenheit. Kemp testified that the refrigerators for the blood draws are kept somewhere between 2 to 8 degrees Celsius. On appeal, Root cites to the website of the manufacturer, which recommends the blood sample be stored at 4 to 25 degrees Celsius, or 39 to 77 degrees Fahrenheit.
This issue is not properly before this court. Granted, Root's addendum to his motion to suppress included his conclusory argument that “there were flaws in the testing procedures used by the KBI Lab in the storage of the blood draw,” and he did elicit the testimony from both Kemp and Deputy Hardy regarding the storage temperatures. Root, however, did not present at any stage of the proceedings before the district court any evidence regarding the manufacturer's recommendations or any other evidence to support his contention. At the suppression hearing, Root only challenged the general trustworthiness of Kemp's procedures and results because she worked for the KBI and she did not check his blood sample for fermentation and bacteria. Thus, Root did not raise this specific argument below.
Issues not raised by a party before the trial court cannot be later raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). In addition, Root only asked the district court to take judicial notice of Kemp's testimony, not Deputy Hardy's testimony. This court is limited to consideration of the same stipulated facts that were before the district court. See Double M Constr., 288 Kan. 268, Syl. ¶ 1.
We affirm the conviction.