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STATE v. PENDLETON3/26/1993
Aubrey J. Pendleton appeals his bench trial conviction of having a blood alcohol concentration of .10 or more within two hours of operating a motor vehicle in violation of K.S.A. 8-1567(a)(2).
On October 12, 1991, Pendleton and a friend, Billy Davidson, were driving to Leavenworth, Kansas, on a sparsely traveled gravel road in Atchison County. Pendleton was driving. Davidson began joking with him and then, at some point, grabbed Pendleton's arm, which caused him to lose control of the pickup truck.
The pickup overturned in a ditch alongside the road. Davidson was trapped in the wreckage and killed. Pendleton was able to crawl out of the pickup.
At 11:30 p.m., a citizen reported the accident to the sheriff's dispatcher, who immediately notified Trooper James T. Bryan. Bryan did not know the exact time of the accident, but estimated it occurred at approximately 11:15 p.m.
When he arrived at the accident scene, Bryan went to help Davidson, but found he was dead. While returning to his patrol car, Bryan saw Pendleton walking on the road towards him, crying hysterically. Bryan tried to calm him down and learned Pendleton had been driving the pickup. During the conversation, Bryan noticed Pendleton had an overpowering odor of alcoholic beverage on his breath and concluded he had been drinking alcohol. Bryan Mirandized Pendleton, who agreed to continue to talk. Pendleton told Bryan he had drunk a lot of beer.
Pendleton was taken by ambulance to the Atchison Hospital. Bryan followed a short time later. Pendleton agreed to submit to a blood alcohol test, which was conducted at 1:15 a.m. on October 13, 1991.
After the blood was drawn and Pendleton was released from the hospital, Bryan took him to the sheriff's department. Pendleton was again Mirandized and told Bryan he had been drinking beer at a party, but felt at the time of the accident he could safely operate the vehicle.
The Kansas Bureau of Investigation received the sample on October 14, 1991, but Bryan did not receive the results until February 14, 1992. Bryan believed the delay was caused because a drug analysis was requested which was not conducted until February 5, 1992. The test results showed Pendleton had a blood alcohol concentration of 0.19.
On March 23, 1992, Pendleton was charged with violating K.S.A. 8-1567(a)(2), which states:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
. . . .
"(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .10 or more."
Pendleton moved to dismiss the charges, contending: (1) failure to take him before a judge without unnecessary delay, (2) failure to grant him a speedy trial, and (3) lack of evidence that he had been driving a vehicle within two hours of the time the blood test was administered.
A bench trial was held on May 15, 1992. The trial court denied the speedy trial and unnecessary delay motions and found that "although there is no exact time as to when the accident happened and when the blood test was actually performed, the Court finds that it was within approximately two hours from the time of the accident that the blood alcohol test was administered."
Pendleton was found guilty as charged and sentenced to a minimum jail term of six months, all but 30 days of which was suspended to be served on weekends. Pendleton was placed on two years' probation with conditions including payment of a $200 fine and completion of 200 hours of
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