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STATE v. MUCK5/30/1997
maintain a single lane change. (This misdemeanor traffic charge
was tried to the court.) The journal entry provides: "The Court declares a mistrial and dismissed Count One (1) [the DUI charge] with prejudice." The judge made no statement on the record that he was dismissing Count I. He said: "And I'm going to declare a mistrial at the responsibility of the State and discharge the defendant with prejudice."
DISCUSSION
Appellate Jurisdiction
Initially, Muck argues that the State failed to question the validity of Rohr at the trial level and, thus, should be precluded from advancing a challenge on appeal. However, the position the State took at trial did call into question the validity of Rohr.
Muck also argues that the State never proffered the excluded evidence (the breath test results) to the district court; consequently, we cannot review whether this evidence was properly excluded. Muck acknowledges that the State did file a proffer of the breath test results before trial to the magistrate judge. The district judge and counsel knew what the State's excluded breath test results would show here. Muck's argument is not persuasive.
Muck also contends that the State should have appealed under K.S.A. 22-3602(b)(3) (question reserved), rather than K.S.A. 22-3602(b)(1) (dismissal of complaint), to question the validity of Rohr. We acknowledge that the State could have appealed under K.S.A. 22-3602(b)(3), but presumably chose K.S.A. 22-3602(b)(1) to pursue prosecution of Muck if the appeal is successful. The alternative selected by the State is appropriate.
In State v. Johnson, 261 Kan. 496, 932 P.2d 380 (1997), we recently reviewed under K.S.A. 22-3602(b)(1) the State's appeal of the dismissal of DUI and reckless driving charges based on double jeopardy. Johnson is precedent for jurisdiction under K.S.A. 22-3602(b)(1) to review a complaint dismissal based on double jeopardy. In Johnson, the assigned magistrate judge (whose home district was 5 hours away) declared a mistrial because he considered the forum inconvenient after the trial could not be completed in 1 day. Johnson moved for dismissal, based on double jeopardy. The district court agreed and we affirmed.
The Rohr Case
The State calls into question the foundational requirements for admission of breath test results announced in Rohr, 19 Kan. App. 2d 869. An issue of law is subject to unlimited review. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993). We address the State's challenge to Rohr.
Rohr appealed his DUI conviction, arguing that the district court erred in admitting his breath test results without proper certification. The Court of Appeals reversed and remanded for a new trial. At trial, the officer who administered the breath test testified that the test instrument and operator were properly certified on the date of the test. Rohr objected on lack of foundation and hearsay grounds; the written certification from the Kansas Department of Health and Environment of the operator and instrument were not introduced. The Rohr court observed that admission of the actual documents of certification appeared to be the "standard," stating: "Without question, the better practice is for the State to produce the original documents of certification for admission into evidence." 19 Kan. App. 2d at 871. However, the court noted a greater problem was whether the officer's testimony regarding certification "violated the prohibition against hearsay [K.S.A. 60-460] and/or the best evidence rule as codified in K.S.A. . . . 60-467(a)." 19 Kan. App. 2d at 871. Rohr concluded that the testimony was inadmissible hear
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