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STATE v. PENDLETON3/26/1993
a per se prosecution to be taken within two hours of operating or attempting to operate a vehicle.
Although not addressing the precise issue presented by Pendleton herein, another panel of this court in Podrebarac v. Kansas Dept. of Revenue, 15 Kan. App. 2d 383, 807 P.2d 1327 (1991), recognized that K.S.A. 1990 Supp. 8-1567(a)(2) contained a two-hour
limitation on the admissibility of alcohol concentration test results. The question before our court in Podrebarac was whether the trial court erred in applying the two-hour limitation on test results taken under K.S.A. 1990 Supp. 8-1567(a)(2) to administrative suspension actions under the implied consent law, K.S.A. 8-1001 et seq.
In reversing the trial court after determining the two-hour limitation did not apply to the admissibility of test results for administrative suspension purposes, Judge Brazil reasoned that the legislature intended "to allow administrative suspensions for driving while intoxicated on less strict standards of proof than a criminal conviction for driving with a blood alcohol concentration of .10 would require." 15 Kan. App. 2d at 386.
Another panel of this court in State v. Zito, 11 Kan. App. 2d at 434-35, although not so holding, recognized that under K.S.A. 1985 Supp. 8-1567(a)(1), the blood or breath samples must be taken within two hours of the defendant's last operation or attempted operation of the vehicle.
Research of other jurisdictions with similar DUI statutes that have addressed this issue supports the conclusion that to obtain a conviction under K.S.A. 8-1567(a)(2) the State must show the test was conducted within the two-hour limitation period; otherwise, the test results are not competent evidence and are inadmissible to prove a per se violation. State v. Kimball, 361 N.W.2d 601 (N.D. 1985), held that if a chemical test is not performed within two hours of driving, a driver cannot be convicted of violating N.D. Cent. Code § 39-08-01(1)(a) (1987) (a provision similar to K.S.A. 8-1567(a)(2)). See City of Grand Forks v. Soli, 479 N.W.2d 872, 874 (N.D. 1992).
In Newark v. Lucas, 40 Ohio St.3d 100, 103-04, 532 N.E.2d 130 (1988), the Supreme Court of Ohio opined:
" t is clear from . . . the per se offenses set forth in R.C. 4511.19(A) and Newark Ordinance 434.01(a) that the respective legislative bodies have determined that if the amount of alcohol concentration in the driver's bodily substance exceeds the proscribed amount as shown by a properly administered test given within two hours of the alleged violation, then a per se offense has been committed. Admission of the chemical analysis of bodily substances withdrawn beyond the two-hour limit into evidence in prosecutions for violations of these sections would defeat that legislative intent and produce confusing, unreliable and inconsistent verdicts."
See also State v. Dowd, 63 Ohio App.3d 610, 612, 579 N.E.2d 734 (1989), in which the court held that " hether the prosecution complied with the two-hour time limitation is a foundational question to be determined by the trial court."
In this case, the timing was unclear, but the State admitted on oral argument that the accident may have occurred closer to 11:00 p.m., although the trooper's testimony placed it later. The holding critical to this appeal, however, remains the trial court's factual finding that the test was administered approximately two hours after the accident. Pursuant to the plain wording of K.S.A. 8-1567(a)(2), we hold that the test must be administered within two hours of driving or attempting to drive in order to be competent evidence to sustain a per se violation.
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