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STATE v. PENDLETON3/26/1993
inutes after the last time the defendant had driven his car, in a prosecution for driving while under the influence of alcohol in violation of K.S.A. 1983 Supp. 8-1567. Armstrong is not a per se violation case.
At the time of Armstrong, K.S.A. 1983 Supp. 8-1567(a) provided: "No person shall operate any vehicle within this state while under the influence of alcohol." Pursuant to K.S.A. 8-1005(a)(2) (Ensley), "if there was at the time .10% or more by weight of alcohol in the defendant's blood, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely."
Currently under K.S.A. 8-1005(b), alcohol concentration of .10 or more in the defendant's blood, urine, breath, or other bodily substance is still prima facie evidence that a defendant was under the influence of alcohol. However, 8-1567 has been substantially amended since 1983.
In 1985, the Kansas Legislature amended 8-1567 to read in relevant part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
"(1) The alcohol concentration in the person's blood or breath, at the time or within two hours after the person operated or attempted to operate the vehicle, is .10 or more;
"(2) under the influence of alcohol." K.S.A. 1985 Supp. 8-1567(a)(1), (2); see L. 1985, ch. 50, § 5.
Our court held in State v. Zito, 11 Kan. App. 2d 432, Syl. 1, 724 P.2d 149, rev. denied 240 Kan. 806 (1986): "Under K.S.A. 1985 Supp. 8-1567(a)(1), driving or attempting to drive a vehicle with an alcohol concentration of .10 or more in a driver's blood or breath is a per se violation." We further stated that: "`Attempting to operate a vehicle with an "alcohol concentration in the person's blood or breath" of .10 or more, as measured from samples taken within two hours after the person attempted to operate the vehicle is sufficient to result in a conviction.'" 11 Kan. App. 2d at 434-35.
The same per se violation provision survived subsequent amendments to K.S.A. 8-1567 in 1988 and 1989.
K.S.A. 8-1567 was further amended in 1990, L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3. K.S.A. 1990 Supp. 8-1567 provided in relevant part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .10 or more, except that an alcohol concentration of .04 or more, shall be used for persons operating or attempting to operate commercial motor vehicles, as defined in K.S.A. 1989 Supp. 8-2,128, and amendments thereto:
(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, except that an alcohol concentration of .04 or more, shall be used for persons operating or attempting to operate commercial motor vehicles, as defined in K.S.A. 1989 Supp. 8-2,128, and amendments thereto;
(3) under the influence of alcohol."
K.S.A. 8-1567 currently provides in relevant part:
"(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as de
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