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Drake v. Kansas Dept. of Revenue10/19/2001
Appeal from Barton district court; MIKE KEELEY, judge.
Affirmed.
Appellant Ronald L. Drake brings this appeal under the Kansas Implied Consent Law, K.S.A. 8-1001 et seq. Drake appeals the Barton County District Court's decision upholding appellee Kansas Department of Revenue's order suspending his driving privileges for 1 year and asks that the decision be vacated. The case is before this court pursuant to a K.S.A. 20-3018(c) transfer.
Drake testified that, prior to his arrest, he drank four or five beers at Al's Drive- In, Great Bend, Kansas, between approximately 8 p.m. and midnight. On Saturday, September 19, 1999, Drake was arrested for driving under the influence . Officer Scott Bieberle, of the Great Bend Police Department, smelled the odor of an alcoholic beverage during the traffic stop and again at the sheriff's department. Drake admitted to the officer that he had ingested a few beers. On appeal, Drake does not raise the issue of whether the arresting officer had reasonable grounds to believe he was under the influence.
At the sheriff's department, Bieberle read the implied consent notices to Drake, and then asked him to submit to an Intoxilyzer 5000 breath test. In response to one of the notices provided, Drake asked to speak to an attorney. Bieberle said he could do that later. Drake then agreed to submit to the breath test.
What happened next is contested by the parties. Drake asserts that he blew into the machine, but Bieberle told him he was not blowing hard enough. Drake testified that "I blew into it, and he said you're not blowing hard enough, and I said that's as hard as I can blow into it . . . and I said I'll take it again if you want me to, and I took it again and the same thing happened." Bieberle's characterization, on the other hand, was that Drake "didn't blow into the Intoxilyzer." Bieberle testified that the Intoxilyzer emits a tone signal to show that a breath sample is entering the device. The tone never sounded during the time period when Bieberle allowed Drake to attempt to provide a breath sample. Bieberle stood right in front of Drake, holding the breath tube with the mouthpiece attached to it during the test. Drake testified he was actually blowing into the tube of the testing machine. Drake also stated that after the attempted test, he was not allowed to consult with an attorney or to seek independent blood alcohol testing.
Bieberle conceded that Drake asked to speak with his attorney and was not taken for independent testing. Bieberle testified that during the time when he was reading Drake the implied consent advisories, Drake asked about "the other test that he could take." However, Bieberle contradicted Drake's assertion that he was not allowed to speak with his attorney, stating that he advised Drake there was a pay phone on the wall that he could use to call his attorney.
The Intoxilyzer's digital LED reading came back as a " .000 deficient sample." Drake was not made aware of the test result. Bieberle did not consider this deficient sample reading of .000 to be a completed test. Bieberle stated that in the past he had allowed persons giving a deficient sample reading with .080 to obtain independent testing. He testified that it was his understanding that the difference between a deficient sample with a .000 reading and a deficient sample with a number attached to it was that the number indicated that the person had introduced air into the machine. However, Bieberle admitted that the machine could read .000 deficient sample if someone who had not been drinking blew in it for a second. The machine does not indicate how much air has been introduced into it. Here, there is no question t
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