Opinion
No. 108,681.
2013-06-7
James H. MORELAND, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Division of Vehicles, Appellee.
Appeal from Butler District Court; Michael E. Ward, Judge. Ray L. Cornell, of Connell & Conneli, of El Dorado, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Butler District Court; Michael E. Ward, Judge.
Ray L. Cornell, of Connell & Conneli, of El Dorado, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
James H. Moreland appeals the district court's affirmation of the Kansas Department of Revenue's suspension of his driving license for failing to submit to blood-alcohol testing at the hospital after his automobile accident. To us, he argues it was unreasonable for the Department to suspend his license because as part of his treatment a blood draw taken by the hospital 15 minutes later should suffice as a rescission of his prior refusal to take the test. The analysis of the sample did indeed reveal the alcohol concentration in his blood at the time of the sampling. Because K.S.A.2009 Supp. 8–1001(f), the statute in effect on the date of his accident, stated a blood sample had to be an independent sample and not be a portion of a sample collected for medical purposes, we hold the test could not constitute a rescission of his prior test refusal. In addition the circumstances of the blood test do not reveal an unequivocal rescission of a prior refusal. We affirm the district court.
Moreland was the driver of a vehicle involved in a one-vehicle accident in Butler County. Officer Amanda Scott of the El Dorado Police Department was dispatched to the scene. A witness told Officer Scott she saw Moreland's vehicle fail to stop at a stop sign and drive through an intersection, striking a concrete wall. When Officer Scott saw Moreland, who had blood around his face, Scott requested emergency medical assistance for Moreland's head injury.
While Moreland was on the stretcher, Officer Scott saw he was falling asleep. First responders had to repeatedly awaken him. At the hospital, Moreland continued to fall asleep while the emergency room staff tried to evaluate him for treatment. There, Officer Scott provided Moreland a copy of the implied consent advisory and read it to him. Officer Scott saw that Moreland was asleep when she completed reading the advisory, so she woke him.
Around 8 p.m., Officer Scott asked Moreland if he would submit to a blood test. Moreland responded that he “didn't know what to do” and fell asleep. Officer Scott awoke Moreland and again asked if he would submit to a blood test. Moreland again responded he “didn't know what to do” and fell asleep. Officer Scott decided Moreland had refused the test request. At 8:15 p.m., the hospital took a blood sample from Moreland. Blood testing revealed the presence of tricyclic antidepressants, methadone, and benzodiazepines.
The Department administratively suspended Moreland's driving license based upon his refusal to submit to and complete a requested test. The district court affirmed the decision of the administrative hearing officer—holding Moreland did not consent to a blood test and the failure to consent amounted to a test refusal.
The sole issue before us is whether Moreland rescinded that refusal. The question whether a driver effectively rescinded a refusal to submit blood alcohol testing is a question of law over which we exercise unlimited review. See Mcintosh v. Kansas Dept. of Revenue, 291 Kan. 41, 43, 237 P.3d 1243 (2010).
A review of the operative testing procedures is helpful at this point. K.S.A.2009 Supp. 8–1001(q) states: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.” A “test refusal” is defined as “a person's failure to submit to or complete any test of the person's blood, breath, urine or other bodily substance, other than a preliminary screening test.” K.S.A.2009 Supp. 8–1013(i).
In this case, Moreland failed to complete the requested blood test and provide an adequate sample when he twice told Officer Scott he “didn't know what to do” and fell asleep. In his stipulated facts, Moreland offered no evidence to support that such responses were “caused by a medical condition unrelated to any ingested alcohol or drugs.” Although Moreland suffered a large scalp laceration, a right frontal scalp hematoma, and a chest contusion, there were no facts suggesting these injuries prevented Moreland from properly responding to Officer Scott's requests. Because Moreland failed to show his failure to provide a blood test to Officer Scott was due to physical inability caused by a medical condition unrelated to alcohol or drugs, Moreland's actions amounted to a refusal of the test.
Moreland argues his later submission of blood to the hospital constitutes a rescission of his prior refusal. Moreland says: “If the blood test administered by the hospital is found to satisfy the requirements of K.S.A. [2009 Supp.] 8–1001(c), then the parties will both be able to use the blood test results at the time of any trial and Plaintiff would not incur the penalties from the Department of Revenue when a refusal occurs.” This argument ignores the statutory requirement that the two samples—testing for driving license purposes and medical purposes cannot be the same.
K.S.A.2009 Supp. 8–1001(f), the statute in effect on the date of his accident provides: “Such sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes. The person collecting the blood sample shall complete the collection portion of a document provided by law enforcement.” Obviously the sample in this case was drawn by hospital personnel for medical purposes.
Besides that, the circumstances here can hardly be construed as a rescission of a refusal. In State v. May, 293 Kan. 858, 269 P.3d 1260 (2012), a driver submitted a deficient breath sample. When the officer informed May that her attempt was considered a test refusal, May immediately requested to retake the test. At the time, May was still seated in front of the Intoxilyzer machine and under the constant observation of the officer. Nevertheless, the officer certified that May refused the test and May's license was suspended.
On appeal, our Supreme Court held that a person who is deemed to have refused testing by providing an inadequate breath sample has the “right” to cure a test refusal by rescission in accordance with the factors set forth in Standish v. Department of Revenue, 235 Kan. 900, 902–03, 683 P.2d 1276 (1984). May, 293 Kan. at 866. In Standish, the court said that for a subsequent consent ( i.e., a rescission) to be effective, it must be made (1) within a short and reasonable time after the prior refusal; (2) when a subsequent test would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will not result in substantial inconvenience or expense to law enforcement; and (5) when the driver has been in the custody of the arresting officer and under observation during the entire time since arrest. 235 Kan. at 902–03.
Moreland's case differs from May in one key regard. In May, the driver asked the requesting officer if she could retake the breath test. Here, Moreland made no such request. Not only did Moreland not agree to take a blood test initially, but he did not later ask for permission to take one. See also Standish, 235 Kan. at 901, where the court held the driver did not rescind his refusal where he asked the jailer about taking the test after the arresting officer left the jail. Moreland's submission of a blood test to hospital officials for purposes of medical treatment does not equate to a submission to law enforcement.
If Moreland did not communicate his agreement to take the test to Officer Scott, how was Officer Scott to know Moreland was doing anything but refusing the test? In the absence of any communication by Moreland to Officer Scott regarding Moreland's desire to take the blood test, we reject Moreland's argument that he rescinded his initial refusal.
In Standish, the court stated the administration of chemical testing “should be encouraged” and that the person arrested should be given “every reasonable opportunity” to submit to a test. 235 Kan. at 902. Here, Moreland does not claim he did not have a reasonable opportunity to rescind his initial refusal of the test to Officer Scott. In fact, he claims he was “clearly in the custody of [Officer Scott] and under observation” between the time of the initial request and the hospital's blood draw (although the State disputes this fact in its brief). There is no basis in the record for finding Moreland did not have a reasonable opportunity to submit to a test to Officer Scott.
Moreland did not rescind his refusal to take a blood test when he submitted a blood sample to the hospital for medical reasons. Thus, the district court did not err in holding Moreland refused a blood test and affirming the suspension of his driving license.
Affirmed.