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Mitchell v. Kansas Dep't of Revenue1/9/2004
ician to take his blood and none were available. State v. Copeland, 391 A.2d 836 (Me. 1978).
In reviewing KDR's decision, we find no evidence in the record that the agency acted fraudulently, arbitrarily, or capriciously. Its order was supported by evidence and its action of suspending Mitchell's license is clearly within the scope of its authority. The decision of the trial court affirming the KDR order is supported by substantial competent evidence that Mitchell was given a reasonable opportunity to be given an independent test.
Turning to the next question of whether the trial court abused its discretion by admitting the breath test, our standard of review is abuse of discretion. An abuse of discretion must be shown by the party attacking the evidentiary ruling and exists only when no reasonable person would take the view adopted by the trial court. Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000); see First Savings Bank, F.S.B. v. Frey, 29 Kan. App. 2d 436, 440, 27 P.3d 934 (2001).
Mitchell contends that the trial court erred when it admitted the results of his BAC test. He argues that he was not provided a reasonable opportunity to obtain an additional test because the officer refused to permit such additional testing. Mitchell contends that in refusing to take him to a second facility that would perform the requested blood test, Winner violated his statutory rights. The problem with this argument is that we find no evidence in the record that suggests that Winner ever refused to take Mitchell to a second hospital. We find no evidence that Mitchell requested to be taken to a second hospital. The evidence supports the conclusion reached by the trial court that Mitchell had a reasonable opportunity to obtain an independent BAC test but failed to do so. We find no reason to suppress Mitchell's BAC test under K.S.A. 8-1004. A reasonable person would agree with the trial court's decision to consider Mitchell's BAC test as competent evidence. The trial court's decision to allow the BAC test was not an abuse of discretion.
Affirmed.
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