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STATE v. PENDLETON3/26/1993
community service. Appeal bond of $10,000 was set. Pendleton appeals.
Pendleton raises four issues. Only one of the issues has any merit, but it is dispositive of the appeal.
Pendleton asserts that the State could not prove the blood test was administered within two hours of the time he was driving the pickup as required by K.S.A. 8-1567(a)(2).
The trial court, in its written findings, stated that the blood test was administered "approximately" two hours from the time of the accident. This finding might justify a conviction under K.S.A. 8-1567(a)(1) or (3), but the issue in this appeal is whether it is sufficient to justify a K.S.A. 8-1567(a)(2) conviction.
The State makes a broad "use the blood test with the time it was administered going to the weight" argument as if a different subsection of K.S.A. 8-1567 had been charged.
The trial court's construction of K.S.A. 8-1567(a)(2) places in issue the interpretation of the phrase "as measured within two hours of the time of operating or attempting to operate a vehicle." "Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature." Martindale v. Tenny, 250 Kan. 621, Syl. 1, 829 P.2d 561 (1992).
"When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed." Randall v. Seemann, 228 Kan. 395, Syl. 1, 613 P.2d 1376 (1980).
"In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citations omitted.]" State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
"When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment." Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
"Penal statutes must be strictly construed in favor of the person sought to be subject to them. The rule of strict construction simply means ordinary words are to be given their ordinary meaning." State v. Thompson, 237 Kan. 562, 566, 701 P.2d 694 (1985). A statute that prohibits operating or attempting to operate a motor vehicle while under the influence of alcohol, which imposes criminal liability, is to be strictly construed. State v. Morelli, 25 Conn. App. 605, 609, 595 A.2d 932 (1991).
In support of its position that the trial court did not err by admitting and relying upon the test results, the State relies on our Supreme Court's decision in State v. Armstrong, 236 Kan. 290, 689 P.2d 897 (1984), in which the court stated:
"In a prosecution for driving under the influence of alcohol, the results of a blood alcohol test, which was administered after a delay of slightly more than two hours, are not rendered inadmissible in evidence due to the delay. The length of the delay in time between the administration of the test and when the defendant last operated the motor vehicle goes to the weight and not the admissibility of the evidence. Such evidence should be admitted along with expert testimony estimating the defendant's blood alcohol content at the time of last driving." 236 Kan. 290, Syl.
In Armstrong, the court concluded the trial court abused its discretion by excluding evidence of the defendant's blood alcohol content, tested 2 hours and 10 m
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