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State v. Graham1/24/2003
Reversed and remanded.
Wayne A. Graham was found guilty by a magistrate judge of driving under the influence of alcohol. Graham appealed his conviction to the district court, then filed motions in limine, a motion to suppress, and a motion for a Frye hearing concerning the admissibility of the blood alcohol test evidence. Rawlins County District Court Judge Glenn D. Schiffner ruled that the enzyme analysis testing procedure used by the State did not meet the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that the blood test results were inadmissible at trial. The State now brings an interlocutory appeal.
On May 5, 2001, Greg Jirak, a Second Lieutenant for the Kansas Highway Patrol, observed a flatbed semi-trailer truck driving erratically through a 55 m.p.h. construction zone east of Atwood, Kansas, on Highway 36 at a speed of 75 m.p.h. Jirak activated his lights and the truck pulled over. Jirak testified that in the process of issuing a written warning for speeding to Graham, he noticed an odor of alcohol on Graham's breath. Jirak had Graham complete a preliminary breath test. The red light produced by the Intoximeter indicated that Graham's blood alcohol concentration was above .08. Jirak placed Graham under arrest for driving under the influence of alcohol in violation of K.S.A. 8-1567.
Jirak and Graham agreed that Jirak would drive Graham's truck to a mixing strip nearby rather than having it towed. While he was in the cab of the truck driving it to the mixing strip, Jirak saw an open can of beer in plain view between the driver and passenger seat just inside the sleeper compartment. Jirak transported Graham to the sheriff's office in Atwood and read the implied consent forms to him. Graham agreed to a blood test, so Jirak took him to the Rawlins County Hospital where a blood sample was drawn.
Graham filed a motion to suppress (1) evidence of the alcoholic beverage container found in the vehicle; (2) any statements he made after he was stopped; (3) any statements he made prior to being given the Miranda warnings; and (4) all medical records and reports from the Rawlins County Hospital pursuant to privilege. District Magistrate Judge Charles P. Carroll granted the request to suppress evidence of the alcoholic beverage container but denied the remainder of the motion. Judge Carroll found Graham guilty of driving under the influence of alcohol in violation of K.S.A. 8-1567.
Graham appealed his conviction to the district court and requested a jury trial. Judge Schiffner conducted a hearing on whether the blood alcohol testing procedure employed by the State met the Frye standard.
David Johnson, the laboratory manager at the Rawlins County Health Center, testified at the hearing on behalf of the State. Johnson's background and experience include a bachelor's degree in science and biology, a 2-year degree in medical technology, over 10 years' employment as a medical technologist, and a certificate from the American Society of Clinical Pathologists.
Johnson stated that the laboratory began using the Kodak Vitros 250 machine in January 2001, which employs an "enzyme analysis" method of testing plasma for blood alcohol concentration. Johnson explained that the machine employs an enzyme chemical reaction to test for the presence of ethanol in blood. He testified that proficiency tests performed using control samples for blood alcohol indicated that the machine was functioning properly during 2001. Johnson testified that this type of machine was commonly used in other hospitals and labs and agreed that the test results produced by the machine were generally accepted both by the hospital laboratory communi
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