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[T] City of Dodge City v. Wipf7/30/2004
Affirmed.
After Leroy Wipf was convicted in municipal court of driving under the influence (DUI), he appealed his conviction to the district court. The district court granted Wipf's motion to suppress his blood test results, and the City of Dodge City appeals. We affirm.
At approximately 3:30 a.m., Officer Michael Coil arrested Leroy Wipf for DUI. Coil transported him to the police station for the purpose of administering an Intoxilyzer 5000 breath test. While walking toward the testing room but before entering the room, Wipf told Coil he was going to refuse any testing. Based on this information, Coil transported Wipf to the detention center, intending to complete paperwork and give Wipf another opportunity to submit to the breath test.
At the detention center, Coil read Wipf the implied consent advisory. After Coil read the provision stating that Wipf could consult with an attorney after testing, Wipf said, "I want to call my lawyer." Coil told him he could do so after the testing. After Coil finished reading the implied consent advisory, he asked Wipf to submit to a breath test. Wipf again refused but requested a blood test. Coil told him they would wait 20 minutes for observation, as required for the Intoxilyzer, and if Wipf still refused to submit to a breath test he could submit to a blood test at that time. After 20 minutes, Wipf still refused to submit to the breath test and again requested a blood test. Coil then transported Wipf to the hospital, where his blood was drawn. Wipf was in handcuffs during this time.
While en route back to the detention center, Wipf asked to call his attorney. Coil told him the jailers would let him use a phone at the detention center. After arriving at the detention center, Coil delivered Wipf to the custody of the jailers and left at approximately 6 a.m. Before leaving, he did not hear any conversation regarding Wipf's desire to contact an attorney.
Wipf testified the jailer told him he could not call anyone from the detention center. Wipf also testified he did not remember asking the jailer for an opportunity to call an attorney. The jailer testified that Wipf was uncooperative during the booking process and that Wipf refused to sign documents because "he wanted to speak to an attorney." The jailer stated, " f I remember, he didn't want to sign anything without speaking to an attorney." Wipf was released from the detention center at approximately 9:30 a.m.
Wipf was convicted in municipal court of DUI. On appeal to the district court, Wipf filed a motion to suppress arguing, inter alia, that while in custody, his request to call an attorney was denied and, therefore, his blood test results should be suppressed. After a hearing on the motion, the district court suppressed Wipf's blood test results, finding Wipf expressed a desire to contact an attorney after the blood test was administered and this request was improperly denied. The City filed a notice of interlocutory appeal.
The material facts are undisputed. When the facts material to a district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which this court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
Interpretation of statutes is a question of law, and this court's review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). In construing statutes and determining legislative intent, this court mu
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