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STATE v. MUCK5/30/1997
report that you're aware of?
"A. I'm sure there's probably some. There's one on the chemical test information, the type of test offered.
"[Muck's counsel]: Hold on." At the sidebar, counsel moved for dismissal or alternatively, a mistrial, in view of Weed's answer. The judge expressed concern that Weed's mention of the test had occurred so soon after the order in limine and stated he would take the motion under advisement. Counsel completed his questioning of Weed. The breath test was not mentioned again.
Following cross- and redirect examination, Weed was excused, subject to recall. The prosecutor approached the bench and advised the court that he just learned that Fiske had arrived. Over Muck's objection, the court allowed the State to proceed. Weed testified that after the arrest, Muck agreed to a breath test, which Weed administered. Weed was asked about his certification to use the Intoxilyzer 5000 test equipment. He answered that he was certified through the State. Muck objected for lack of foundation, and another sidebar exchange followed:
"[Defense counsel]: That part of the answer was unresponsive to the questions. But, beyond that, Your Honor, the case law is clear that unless he has his card with him that his oral testimony is not admissible.
"THE COURT: I presume that you're going —
"[Prosecutor]: That's what I was going to do, Your Honor.
"[Defense counsel]: I think if he does that I don't have an objection.
"THE COURT: For the record, I'm going to overrule the prior Motion for Mistrial at this point. Does appear that the Motion in Limine will be filled by the presence of Officer Fiske to testify as endorsed."
The State marked as an exhibit a photocopy of Weed's certification card issued by the Department of Health and Environment for the Intoxilyzer 5000, with an effective date of January 1, 1996. Muck objected, based on the effective date of the card. The district court sustained the objection. The State then asked Weed if he had ever lost his certification, and Weed testified that he had not. Weed earlier testified that he has been employed by the Highway Patrol since 1987. Muck's counsel requested a sidebar conference and reiterated his objection, arguing that unless the certification card showed it was effective at the time of the March 1995 test, Weed's testimony as to his certification was inadmissible under State v. Rohr, 19 Kan. App. 2d 869. Muck renewed the motion in limine and motion for mistrial, arguing that the State had misled the court and counsel by representing that Weed had his card. The judge inquired if Weed had a certification card effective on the test date. The State said that he did not, having learned of the missing card the previous evening. The prosecutor said that he was proceeding based on his prior experience when an officer had not kept his previous year's card after being issued a new card. The prosecutor would ask the officer if he was currently certified and if he had ever lost that certification. The district court, relying on Rohr, 19 Kan. App. 2d 869, ruled that 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.
The judge did not feel the prosecutor's explanation of the missing 1995 card was adequate. Having determined that Muck had been prejudiced by the testimony concerning the breath test, the judge declared a mistrial at the responsibility of the State and discharged Muck. The judge found Muck not guilty on the failure to
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