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CITY OF OVERLAND PARK v. CUNNINGHAM10/29/1993
The opinion of the court was delivered by
This is an appeal by the City of Overland Park. The issue is whether the trial judge erred by refusing to admit
into evidence the breath alcohol concentration (BAC) test results in two separate DUI trials.
In separate cases, Mitchell Cunningham and Gary Dahn were convicted in the Overland Park municipal court of operating a motor vehicle while under the influence of alcohol and of speeding. Cunningham and Dahn appealed their convictions to the district court. The cases were tried de novo to the bench and, in both cases, different pro tem trial judges sustained the defendants' insufficient foundation objection to admission of the BAC test results. Both Cunningham and Dahn were acquitted of operating a motor vehicle while under the influence of alcohol.
The City of Overland Park appealed in both cases, alleging it reserved questions for appeal pursuant to K.S.A. 22-3602(b)(3). The question it seeks to present on appeal is whether an objection for "lack of foundation" is sufficient when a request for a more specific objection is made. In addition, the City argues it introduced evidence meeting the foundation elements required for admissibility of the BAC test results and the trial court improperly enlarged the scope of the foundation required for the admission of the BAC test results.
In State v. Crozier, 225 Kan. 120, 123-24, 587 P.2d 331 (1978), we summarized a long line of cases dealing with questions reserved, stating:
"The third situation where the prosecution is afforded an appeal after final judgment in a criminal case is upon a question reserved by the prosecution provided for in K.S.A. 1977 Supp. 22-3602(b)(3). It has been held that a question reserved must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law. State v. Glaze, 200 Kan. 324, 436 P.2d 377 (1968). A question reserved by the state will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the state. State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974); State v. Chittenden, 212 Kan. 178, 510 P.2d 152 (1973). No formal procedural steps are required by K.S.A. 1977 Supp. 22-3602(b) to appeal on a question reserved. All that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken. State v. Marek, 129 Kan. 830, 834, 284 P. 424 (1930)." All the State must do to reserve a question for appeal, then, is lay the same foundation for appeal that a defendant is required to lay.
In the Dahn trial in the district court, counsel for the City voluntarily told the trial court she would not inquire further and made no effort to present the evidence the trial judge stated was necessary to lay a proper foundation for admission of the BAC test. Counsel failed to properly reserve the question for appeal.
Based on the record before us, we dismiss the Dahn appeal. That is of no significance because the exact issues are raised in the Cunningham appeal.
We do comment that both appeals involve acquittals. An acquittal is final and not appealable; however, the State may appeal a question reserved in those special circumstances when the question reserved calls for an answer which is both of statewide interest and vital to a correct and uniform administration of the criminal law. State v. Crozier, 225 Kan. at 122-23. At first glance, it would appear that ample case law exists concerning laying a prope
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