The following case summaries are provided by Stacey L. Schlimmer. For complete case opinions visit kscourts.org. All cases are individual and in no way do these cases reflect every case.
STATE OF KANSAS V. PHILLIP MESSER, No. 108184 (8/23/13) (Kan. App.)(published)
K.S.A. 8-1004 – REASONABLE OPPORTUNITY FOR ALCOHOL TESTING
The Court of Appeals held that a defendant was given a “reasonable opportunity” to obtain an independent alcohol test when the driver was released from custody within 42 minutes of asking for the test and less than two hours after the traffic stop. The officer who arrested the defendant testified that he told the defendant that he was free to get his own independent testing as the department’s policy was to take a defendant for additional testing only when the suspect is to remain in custody. The defendant argued that he was not permitted to additional testing as required under K.S.A. 8-1004 which reads, “Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.” The Court emphasized that although an officer can’t refuse to permit additional testing, the officer is only responsible for the driver while that person is in custody, and it is the driver’s responsibility to obtain the independent test. The Court looked at whether the defendant had a reasonable opportunity once he was released from custody to obtain an independent test. In this case, the Court held that the release of the defendant within 42 minutes of asking for the test and less than two hours from the arrest was reasonable.
K.S.A. 8-1567(j)(3) –“LOOK-BACK” PERIOD FOR SENTENCING DUI
The Court of Appeals once again held that the “look-back” period for determining the number of DUI convictions for sentencing purposes applies only to crimes committed on or after July 1, 2011.