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STATE v. LARSON6/4/1987
Stanley E. Larson appeals his conviction for driving with a blood or breath alcohol concentration of .10 or above. K.S.A. 1986 Supp. 8-1567(a)(1).
On February 3, 1986, Kansas Highway Patrol Trooper Robert Shows stopped Larson for driving 72 miles per hour on I-470 in or near Topeka. While discussing this infraction with Larson, Trooper Shows noticed Larson's speech was slurred and that he was slow in locating his driver's license. Trooper Shows asked Larson to get out of his car and then had him perform several
field sobriety tests. Trooper Shows also noticed Larson's breath had "a strong odor of an alcoholic beverage." He concluded Larson was under the influence of alcohol and arrested him for driving under the influence (DUI).
Larson testified that he told Trooper Shows before the field sobriety tests that he had had three beers. Trooper Shows testified this conversation occurred after he arrested Larson. Larson claimed he told Trooper Shows he had a defect in his left eye and that he would not do well on any coordination or depth perception test and would prefer some other field sobriety test be performed. Trooper Shows did not remember this at trial.
After arresting Larson, Trooper Shows read him his Miranda warnings and also an implied consent advisory. Trooper Shows asked Larson, and he agreed, to blow into a "crimper box" to take a sample for an alcohol concentration test. Trooper Shows placed the sample and a report form in a box with Larson's name on it, sealed the box, and marked the seals with Trooper Shows' own initials. When he took Larson to highway patrol headquarters and booked him, Trooper Shows put this box in the "GC room." The "GC room" is apparently the room where the gas chromatograph intoximeter machine is kept. Trooper Raymond Gonzales broke the seals and tested the breath sample on February 4, 1986. The sample was held in three compartments in the crimper so each could be tested separately, and according to Gonzales, the results were .100, .104, and .100 on the three tests.
Larson moved to suppress the test results on the ground Trooper Shows did not have probable cause to request an alcohol concentration test. The district court denied the motion.
Larson testified that he went to highway patrol headquarters on February 5 and was told the sample had not yet been tested. He returned the following day and was told the results were .10.
Larson's case was tried to the court. At the close of the State's evidence, the district court granted a directed verdict of not guilty on the charge under K.S.A. 1986 Supp. 8-1567(a)(2) on Larson's motion because the State had not shown Larson was incapable of driving safely. However, at the end of the trial, the district court found Larson guilty of speeding and of driving under the influence of alcohol as defined in K.S.A. 1986 Supp. 8-1567(a)(1), that is, with an alcohol concentration in his breath of .10 within two hours after driving.
I. Constitutionality of K.S.A. 1986 Supp. 8-1567(a)(1).
On appeal Larson first contends K.S.A. 1986 Supp. 8-1657(a)(1) is unconstitutional because (a) it creates an irrebutable presumption of guilt; (b) it is impermissibly vague; (c) it establishes a standard which is arbitrary, capricious, and unreasonable; or (d) the act adopting it contained more than one subject.
The 1985 legislature amended K.S.A. 1984 Supp. 8-1567 to read in pertinent part as follows: "(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
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