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STATE v. PENDLETON3/26/1993
fined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .10 or more;
(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;
(3) under the influence of alcohol."
The 1992 amendments to K.S.A. 8-1567 are not relevant to this issue on appeal. See L. 1992, ch. 298, § 1.
Research of legislative history behind the 1990 amendments reveals that James Keller of the Kansas Department of Revenue testified before the House Committee on Transportation on February 6, 1990, in support of HB 2658, a bill which included amendments, subsequently approved, to K.S.A. 1989 Supp. 8-1567. In a memorandum to the committee dated February 7, 1990, Keller outlined the Department of Revenue's recommendations as contained in HB 2658, including:
"K.S.A. 8-1567 is amended to allow evidence other than a breath or blood test taken within two hours to support a conviction for operating or attempting to operate a vehicle with an alcohol concentration of .10 or more. Other competent evidence (including expert testimony) could be used to arrive at a determination that the person operated or attempted to operate with an alcohol concentration of .10 or more. The present provision allowing prosecution based only upon a breath or blood test taken within 2 hours is also retained. Some district courts> have refused to allow evidence other than a test taken within the two-hour period in a prosecution under the present `per se' statute. The change would simply allow other evidence to
be used to prove a person had an alcohol concentration of .10 or more at the time of operation or attempted operation."
Although not expressive of legislative intent, the Supplemental Note on HB 2658 prepared by the Legislative Research Department states:
"H.B. 2658 does the following:
. . . .
6. modifies current language in K.S.A. 8-1567 to allow a person's blood or breath test taken outside of a two-hour period of the person's driving to support a conviction for operating or attempting to operate a vehicle with an alcohol content of .10 or more at the time of driving."
K.S.A. 8-1013(f)(1) defines "other competent evidence" as that phrase is used in K.S.A. 8-1567(a)(1) as including: "Alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle."
It is evident by the changes made to K.S.A. 8-1567 that our legislature intended that a conviction for driving under the influence of alcohol may be obtained by one of the alternative means provided for in K.S.A. 8-1567(a)(1), (2) or (3). However, because each subsection provides a different basis for a conviction, each has requirements that must be met.
The legislative directive is clear. To obtain a conviction for a per se violation under K.S.A. 8-1567(a)(2), the State must show the alcohol concentration was tested within two hours of the last time a defendant operated or attempted to operate a vehicle. Further, our legislature has expressly provided in K.S.A. 8-1567(a)(1) that an alcohol concentration test administered two hours or more after a defendant operated or attempted to operate a vehicle may be competent evidence to support a conviction under that subsection. Armstrong appears to still be valid authority for the proposition that a post two-hour test is competent evidence in a K.S.A. 8-1567(a)(3) prosecution, but the provisions of K.S.A. 8-1567(a)(2) specifically require the test in
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