State v. Doeden

738 P.2d 876, 12 Kan. App. 2d 245, 1987 Kan. App. LEXIS 1081
CourtCourt of Appeals of Kansas
DecidedJune 25, 1987
Docket59,741
StatusPublished
Cited by8 cases

This text of 738 P.2d 876 (State v. Doeden) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Doeden, 738 P.2d 876, 12 Kan. App. 2d 245, 1987 Kan. App. LEXIS 1081 (kanctapp 1987).

Opinions

Brazil, J.:

This is an interlocutory appeal filed by the State from the trial court’s order suppressing the results of an alcohol test of the blood of Charles L. Doeden done with his consent.

Doeden is charged in Barton County District Court with one count of driving on a suspended license, K.S.A. 1986 Supp. 8-262, and one count of driving under the influence of alcohol and/or drugs. K.S.A. 1986 Supp. 8-1567. He filed a motion to suppress the results of a blood alcohol test (BAT) that was performed on him.

At the suppression hearing Bruce Green, a deputy sheriff in Barton County, testified he was sent to investigate a one-car accident at about one-thirty in the morning on January 11, 1986. Ambulance attendants already on the scene were helping a man into their ambulance. The man told Green that his name was “Chuck,” and he had been alone while driving the car that had run into a bridge structure. Green could see the man was injured and also noticed the odor of alcohol on his breath. The man was [246]*246taken to Central Kansas Medical Center, and Green followed him there.

The doctor at the medical center allowed Green to question the man. Green discovered the man had a driver’s license in his wallet and from that learned his name was Charles Doeden. Green told Doeden he could smell alcohol on Doeden’s breath, and Doeden admitted he had been drinking whiskey and beer. Without arresting Doeden, Green requested a BAT, and Doeden indicated he understood, but made no objection. Green told Doeden he would take the blood, send it to the State for analysis, and charge Doeden with DUI if the results came back .10 or higher. Doeden said he understood. A nurse had Doeden sign a hospital consent form for the blood withdrawal.

Green admitted he did not have Doeden complete an implied consent, or Standish, form. Green testified on direct examination that he did not go over the form because he felt it would take too long and interfere with Doeden’s treatment. On cross-examination, Green admitted his report filed shortly after the events stated he did not use the implied consent form because he did not feel Doeden would understand the questions due to his condition, described by Green as “semi-conscious.” The nurse who drew the blood sample testified that she read the hospital’s consent form to Doeden by pointing the words out to him as she read them, and she believed he understood the form or she would not have had him sign it. The form states that Doeden gives consent for hospital staff to draw blood from him for testing for blood alcohol content and agrees the hospital will incur no liability to him by taking the sample.

At the close of the hearing, the trial judge said:

“Well, seems we’ve got a consent and we have an implied consent advisory procedure which was not followed because the person was not coherent enough to understand it, yet the nurse on duty felt that he was coherent to understand. The Court is going to order the suppression for failure to have the defendant under arrest at the time of the withdrawal of the blood.”

The State’s first issue regarding our jurisdiction to hear this appeal under K.S.A. 22-3603 has been conceded by Doeden and need not be addressed. The remaining issues involve the construction of K.S.A. 1985 Supp. 8-1001; the events in this case occurred before the effective date of the 1986 amendment of this statute.

[247]*247The State contends the trial court erred in suppressing the test results because Doeden was not under arrest at the time of the withdrawal of the blood. We agree.

K.S.A. 1985 Supp. 8-1001(b) provided that tests to determine the presence of alcohol or drugs in a person’s blood, breath, urine, or other bodily substances

“shall be administered when a law enforcement officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury or death.” (Emphasis added.)

Clearly the test was authorized under subdivision (2).

The final issue raised on appeal is whether a trial court must suppress the results of a BAT done with the defendant’s consent because the law enforcement officer requesting the test failed to provide the defendant with the notices listed in K.S.A. 1985 Supp. 8-1001(f)(l).

As noted by the State in its brief, the trial court did not base its decision to suppress the BAT on Green’s failure to provide Doeden with the notices contained in K.S.A. 1985 Supp. 8-1001(f)(1). However, the question was raised by Doeden’s attorney at the suppression hearing; therefore, we will consider it now.

Doeden argues that the taking of his blood violated the Fifth and Sixth Amendments and that the results of the BAT must be suppressed to protect his constitutional rights. We disagree.

In State v. Compton, 233 Kan. 690, 664 P.2d 1370 (1983), the court discussed the application of the Fifth Amendment to K.S.A. 8-1001 and followed South Dakota v. Neville, 459 U.S. 553, 562-64, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), by holding:

“The taking or the refusal to take the test is an option provided by the legislature. Both the results of the test, if taken, or the refusal to take it, if declined, are admissible in evidence, and the admission of such evidence does not offend the Fifth Amendment privilege against self-incrimination or the right to due process.” 233 Kan. at 694.

The court then went on to say: “Since the refusal is not the [248]*248exercise of a constitutional right, but merely a matter of grace bestowed by the legislature, we hold that there is no requirement that an explanation of the accused’s right to refuse the test or of the consequences of that refusal be given.” 233 Kan. at 695. Thus, the Fifth Amendment poses no barrier to admission of the BAT results in this case.

Doeden’s Sixth Amendment claim, presumably of a right to counsel prior to submitting to the blood alcohol test, has been rejected by our supreme court. State v. Bristor, 236 Kan.

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Kansas Attorney General Reports, 1993
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825 P.2d 1175 (Court of Appeals of Kansas, 1992)
State v. Luft
811 P.2d 873 (Supreme Court of Kansas, 1991)
Barnhart v. Kansas Department of Revenue
755 P.2d 1337 (Supreme Court of Kansas, 1988)
State v. Doeden
738 P.2d 876 (Court of Appeals of Kansas, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
738 P.2d 876, 12 Kan. App. 2d 245, 1987 Kan. App. LEXIS 1081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-doeden-kanctapp-1987.