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State v. Dang11/19/2004
ronment (KDHE); (2) the testing procedures used were in accordance with the requirements of the KDHE; and (3) the person who operated the testing equipment was certified by the KDHE to operate the Intoxilyzer 5000 used in the test.
Dang's only objections to the admission of the printout from the Intoxilyzer 5000 revealing Dang's alcohol concentration to be .121 were "hearsay, lack of foundation, and not the best evidence." None of these objections are sufficient to merit exclusion of the evidence. We conclude irrespective of the DC-27 form, that the State fully complied with the foundational requirements of 8-1001 and 8-1002, before the results of Dang's breath test were admitted into evidence. Consequently, the trial court's error in admitting the DC-27 into evidence is harmless, not affecting the substantive rights of Dang to a fair trial.
Jury Instructions
Dang contends the trial court failed to give the jury adequate guidance to distinguish a test refusal from a test failure. Thus, this issue dovetails into the evidentiary issue already discussed. Although accurate that the trial court did reject Dang's proposed instructions on this issue, the trial court did instruct the jury:
"A partial alcohol concentration test on an Intoxilyzer 5000 constitutes other competent evidence of the concentration of alcohol in a person's blood, but that evidence must be considered together with all other evidence to determine whether the Defendant's blood or breath alcohol content while operating a vehicle was .08 or greater."
We do not find the instruction given to be so wide of the mark as to constitute serious error by the trial court. The lynchpin of Dang's argument has consistently been that other than the DC-27 form there was insufficient evidence to support convictions under K.S.A. 8-1567(a)(1) and (3). As we have previously explained, that simply is not the case. After reviewing the instructions given by the trial court as a whole and not in isolation, we conclude the jury could not reasonably have been misled, and there is no basis to support the grant of a new trial. See State v. Mays, 277 Kan. 359, 378- 79, 85 P.3d 1208 (2004).
*3 Affirmed.
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