Opinion
No. 110,236.
2014-10-10
STATE of Kansas, Appellee, v. Gerald Lee VANDENBERG, Appellant.
Appeal from Ellis District Court; Edward E. Bouker, Judge.Michael S. Holland II, of Holland and Holland, of Russell, for appellant.Carol M. Park, special prosecutor, of Glassman, Bird, Schwartz & Park, L.L.P., of Hays, and Derek Schmidt, attorney general, for appellee.
Appeal from Ellis District Court; Edward E. Bouker, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Carol M. Park, special prosecutor, of Glassman, Bird, Schwartz & Park, L.L.P., of Hays, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Gerald Lee Vandenberg appeals his conviction for driving under the influence in violation of K.S.A.2009 Supp. 8–1567 on the grounds that the Ellis County District Court incorrectly admitted the results of a breath test because the officer administering the test failed to follow the required protocols. The record evidence supports the district court's ruling, and we, therefore, affirm the conviction.
The issue before us is a narrow one. We skip over the circumstances of Vandenberg's detention, since the legal sufficiency of the stop and the arrest are undisputed. After arresting Vandenberg, Hays Police Officer Brian Lee transported him to the law enforcement center. Officer Lee advised Vandenberg about the implied consent requirements of Kansas law and asked if he would submit to a breath test using the Intoxilyzer 8000. Vandenberg agreed. Vandenberg does not challenge the adequacy of the notification or the consent.
The protocol for the breath test requires that the subject, here Vandenberg, be watched for 20 minutes before the test is administered. During that time, the subject cannot eat or drink, belch, or vomit. Essentially, the subject's mouth must be kept clear of anything that might contaminate the test results. To preserve the integrity of the testing, a law enforcement officer is supposed to closely watch the subject during the 20–minute period immediately before the breath test. Officer Lee acknowledged a 20–minute waiting period was required as part of the standard procedures for administering a valid breath test using the Intoxilyzer 8000. He also agreed that as part of the training he received in administering breath tests, he was taught that a subject should not be permitted to go to the restroom during the 20–minute period.
Officer Lee began watching Vandenberg for the required 20 minutes. Toward the end of that time, Vandenberg asked if he could go to the bathroom. Officer Lee told him to wait. But Officer Lee said that if the need to go turned into an emergency, Vandenberg should say something. It did, and he did. Officer Lee took Vandenberg to a restroom in the law enforcement center. Officer Lee described the restroom as about 5 by 5 feet with a single toilet and one sink. Officer Lee stood in the doorway to the restroom as Vandenberg urinated. During that time, Officer Lee was within arm's reach of Vandenberg and had him in sight. Officer Lee said Vandenberg did not appear to belch or vomit during the restroom break; nor did he eat or drink anything.
After Officer Lee and Vandenberg returned from the restroom, they completed the required 20–minute wait. Officer Lee then administered the Intoxilyzer 8000 test to Vandenberg. The test showed Vandenberg to have a blood-alcohol level well over the legal limit of .08 set in K.S.A.2009 Supp. 8–1567. Officer Lee considered the test to be validly administered.
Vandenberg filed what he characterized as a motion to suppress the breath test results. We later discuss briefly the procedural propriety of the motion as one to suppress evidence as opposed to one for a motion in limine. The district court held an evidentiary hearing at which Officer Lee was the only witness. Basically, Vandenberg argued that the State could not supply a sufficient evidentiary foundation to admit the test results because he had been allowed to use the restroom during the 20–minute waiting period. The district court denied the motion. Vandenberg later went to trial before the district court on stipulated facts. He was found guilty of driving under the influence and duly sentenced. Vandenberg has appealed and for his sole issue contests the district court's ruling denying the motion to suppress.
In reviewing a district judge's ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772, 166 P.3d 1015 (allocation of burden).
If Vandenberg's challenge to the breath test results were treated as a motion in limine—a request for a pretrial ruling on the admissibility of evidence—appellate review would be for abuse of discretion. See State v. Holmes, 278 Kan. 603, Syl. ¶ 10, 102 P.3d 406 (2004). A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
Here, the standard of review is something of a formality. On appeal, Vandenberg agrees the facts are undisputed. That effectively renders the issue a question of law subject to unlimited review on appeal. We review the matter without deference to the district court simply because that's the most generous standard Vandenberg could possibly deserve.
The district court ruled correctly because Officer Lee observed Vandenberg for 20 minutes before administering the Intoxilyzer 8000 test and Vandenberg did not eat or drink anything and did not vomit or belch. Although Vandenberg was in the restroom for part of that time, Officer Lee was able to continue his observation given the confined layout of the facilities. The testing protocol, therefore, was followed. The district court properly so concluded based on Officer Lee's uncontroverted testimony. In turn, the breath test results were admissible as evidence against Vandenberg. We suppose but do not decide that an officer's failure to continuously observe the person to be tested for 20 minutes would render the results inadmissible rather than merely going to their weight. See Mitchell v. Kansas Dept. of Revenue, 41 Kan.App.2d 114, 123, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009); compare State v. Anderson, No. 94,364, 2006 WL 903168, at *3 (Kan.App.2006) (unpublished opinion).
Vandenberg tries to escape that result by arguing Officer Lee deviated from his training when he allowed the restroom visit and the test results should be kept out of evidence for that reason. But the argument overtaxes the evidence. First, the training tip to Officer Lee was not part of the formal testing protocol. Second, the tip seems to be premised on the notion that an officer would discontinue directly watching a person during a potty break. If that were true, the State would have some difficulty establishing compliance with the testing protocol. But Officer Lee maintained his direct watch over Vandenberg for a full 20 minutes, including the trip to the restroom. So Vandenberg's argument fails on the facts, since Officer Lee did comply with the testing protocol.
As we mentioned, Vandenberg filed his challenge to the test results as a motion to suppress. But under K.S.A. 22–3216(1), a motion to suppress seeks to exclude evidence government agents obtain “by an unlawful search or seizure.” A breath test is a search and seizure. In this case, it was not unlawful. If Officer Lee had stopped Vandenberg without a reasonable suspicion of his involvement in a crime or had arrested him without probable cause, the breath test results would have been properly subject to a motion to suppress. What Vandenberg sought was a ruling of the district court to exclude the test results because the State could not lay a proper foundation for their admission as evidence. That is a motion in limine—a request for an evidentiary ruling on the admissibility of testimony or exhibits in advance of trial. See State v. Shadden, 290 Kan. 803, 815–16, 235 P.3d 436 (2010). This court has recognized the difference. State v. Smith, 46 Kan.App.2d 939, Syl. ¶ 6, 268 P.3d 1206 (2011). In this case, the mischaracterization of the motion made no practical difference. The stipulation upon which the DUI charge was tried incorporated Officer Lee's testimony from the hearing and specifically noted Vandenberg's objection to the admission of the Intoxilyzer 8000 test results.
Affirmed.