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State v. Dang11/19/2004
Hung T. Dang appeals his conviction for driving under the influence of alcohol (DUI), contrary to K.S.A. 8-1567(a)(1) and (3). The issues on appeal are: (1) Did the trial court err in admitting the DC-27 form into evidence, and (2) did the trial court err in its instructions to the jury?
We affirm.
Admitting the DC-27
Dang did not give a full deep-lung breath sample. However, in the opinion of the arresting officer, Dang did cooperate and made some effort to provide a proper sample. In administrative proceedings under K.S.A. 8-1014, a refusal results in a longer suspension of one's driving privileges than does a test failure. Apparently, because of Dang's cooperation, the arresting officer decided to certify the test as a failure rather than a refusal.
At trial, Dang objected to the admission of the DC-27 because it was not properly certified as a refusal. The trial court overruled the objection, reasoning the distinction between a failure and a refusal is only relevant in a administrative proceeding before the Kansas Department of Revenue. Unfortunately, the trial court did not have the benefit of our recent opinion, State v. Herrman, 33 Kan.App.2d ___, ___ P.3d ___ (2004). In Herrmann, the court held a test failure is inadmissible to support a conviction under K.S.A. 8-1567(a)(1). The court reasoned that the legislature's express inclusion of K.S.A. 8-1013(f)(1) within the definition of other competent evidence in K.S.A. 8-1567(a)(1) and the exclusion of K.S.A. 8-1013(f)(2) meant that deficient breath samples are inadmissible to support a conviction under 8-1567(a)(1). Herrman, 33 Kan.App.2d at ___.
Complicating a determination of error is Dang's prosecution under K.S.A. 8- 1567(a)(3) and the use of a general verdict form by the jury. In State v. Ward, No. 89,917, unpublished opinion filed November 26, 2003, rev. denied February 10, 2004, a panel of this court determined that since a "deficient sample breath test is included within the meaning of other competent evidence under K.S.A. 8-1013(f)(2), and because other competent evidence can be admitted in criminal proceedings under K.S.A. 8-1005 and 8-1006," Ward's deficient test result was statutorily admissible. Ward, slip opinion at 6. We adopt the reasoning in Ward and conclude the trial court did not err in admitting the evidence as competent in the State's prosecution of Dang under 8- 1567(a)(3).
However, our conclusion of the inadmissibility of the DC-27 under K.S.A. 8- 1567(a)(1), coupled with the trial court's use of a general verdict form, will require a new trial unless there is other substantial competent evidence in the record on appeal that convinces us the error was harmless. See State v. Timley, 255 Kan. 286, Syl. 1, 875 P.2d 242 (1994). "Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done. [Citation omitted.]" State v. Kendall, 274 Kan. 1003, 1010, 58 P.3d 660 (2002).
*2 In a criminal prosecution, the results of a defendant's blood alcohol test are admissible if the State complies with the requirements of K.S.A. 8- 1001 and K.S.A. 8-1002. State v. Baker, 269 Kan. 383, Syl. 2, 2 P.3d 786 (2000). The use of the DC-27 form is simply one way to lay a proper foundation. In the present appeal, the arresting officer testified: (1) there existed reasonable grounds to believe Dang was operating a vehicle while under the influence of alcohol; (2) he had been placed under arrest; (3) he was presented with the oral and written notice required under K.S.A. 8-1001; and (4) the breath test result disclosed an alcohol concentration of .121. The arresting officer also testified that (1) the testing equipment used was certified by the Kansas Department of Health and Envi
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