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STATE v. MUCK5/30/1997
The opinion of the court was delivered by
This case addresses the foundational requirements for the admission of the result of a breath alcohol test and the interplay between the granting of defendant's motion for a mistrial and double jeopardy. The State appeals the granting of a mistrial and dismissal with prejudice of the DUI charge against defendant Elmer J. Muck. The State failed to produce the arresting officer's 1995 certification card for using the Intoxilyzer 5000 breath test instrument. Our jurisdiction is under K.S.A. 22-3602(b)(1) (appeal from an order dismissing a complaint).
The two issues are whether the trial court erred in: (1) ruling that Trooper Dave Weed's current (1996) Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck's breath alcohol test given in 1995, and (2) declaring a mistrial and dismissing the case with prejudice. In resolving the first question, the State requests us to disapprove State v. Rohr, 19 Kan. App. 2d 869, 878 P.2d 221 (1994).
We affirm the certification card foundation and mistrial rulings but remand for a specific finding under Oregon v. Kennedy, 456 U.S. 667, 72 L.Ed.2d 416, 102 S.Ct. 2083 (1982). We approve Rohr.
FACTS
Trooper Weed of the Kansas Highway Patrol stopped Muck after observing his pickup moving well below the speed limit, straddle the center line, and swerve. Weed could smell alcohol on Muck's breath. Muck had to lean against the pickup to maintain his balance. He needed Weed's assistance in retrieving his driver's license. Muck agreed to submit to a breath alcohol test. The results of the test administered by Weed showed a blood alcohol concentration of .184. Muck was charged with driving under the influence (DUI), K.S.A. 1996 Supp. 8-1567, and failure to maintain a single lane, K.S.A. 8-1522. He was found guilty of both counts by the district magistrate judge. He appealed to the district court, demanding a jury trial.
Before the trial in district court, the State charged Muck with operating a vehicle while the alcohol concentration in his blood or breath was .08 or more (K.S.A. 1996 Supp. 8-1567 ) and, alternatively, operating a vehicle under the influence of alcohol to a degree that rendered him incapable of safely driving (K.S.A. 1994 Supp. 8-1567 ). He was also charged with improperly driving a vehicle on a laned roadway (K.S.A. 8-1522).
The State endorsed Weed and Lieutenant Darrell Fiske (the records custodian) as witnesses. The voir dire referenced Weed and Fiske. After the jury was selected but before opening statements, the State advised the court that Fiske was unavailable and that Officer Furbeck would be testifying in his place. Muck's
counsel objected because he had no opportunity to voir dire the jury on Furbeck and he had prepared to cross-examine Fiske. The judge considered the State's request as an untimely motion to endorse an additional witness and denied it, observing that Fiske had been subpoenaed on January 10, 1996. (The trial commenced on March 7, 1996.) The State acknowledged that this ruling would prevent it from presenting any evidence on the breath test but indicated it would proceed on the alternate driving under the influence charge. The district court granted Muck's motion for an order in limine prohibiting the State from mentioning the breath test. The State requested a short recess to admonish its witness to comply.
Early in the direct examination of Weed, the prosecutor asked about a report Weed had filled out at the time of Muck's arrest, and Weed answered:
"Q. All right. Are there any other errors in your
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