Opinion
No. 108,111.
2013-05-17
STATE of Kansas, Appellee, v. Justin M. HOSLER, Appellant.
Appeal from Coffey District Court; Phillip M. Fromme, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Douglas P. Witteman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Coffey District Court; Phillip M. Fromme, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Douglas P. Witteman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Justin M. Hosler appeals from his conviction of felony driving under the influence of alcohol (DUI) (third offense), arguing that the district court erred in denying his motion to suppress the result of an Intoxilyzer 8000 breath test due to a lack of foundation. Hosler's argument on appeal is that the evidentiary foundation for the test result admission was inadequate because the officer did not inspect Hosler's mouth before conducting the testing. We disagree and affirm the district court.
Factual and Procedural Background
The motion to suppress and the bench trial resulting in Hosler's conviction were submitted to the court on stipulated facts. Those facts were gleaned in great part from the testimony of Coffey County Deputy Robert Nelson at Hosler's preliminary hearing. In the early morning hours of March 27, 2009, Hosler drove his vehicle into a ditch. He called the Coffey County Sheriff's Office for assistance at approximately 2:29 a.m. Coffey County Deputy Robert Nelson arrived at the scene at approximately 2:38 a.m. Medical personnel arrived by ambulance, provided some treatment on site, but did not transport Hosler to the hospital. Deputy Nelson noticed that Hosler had chewing tobacco in his mouth, so he requested that Hosler remove it. He saw Hosler put his finger in his mouth, remove the tobacco, and flip it out of the patrol car's window. Because Deputy Nelson believed that Hosler had consumed alcohol, he placed Hosler under arrest for suspicion of DUI.
Deputy Nelson took Hosler to the Coffey County Sheriff's Office. Hosler performed field sobriety tests. Deputy Nelson gave and read an implied consent advisory form to Hosler. Hosler submitted to a breath alcohol test on the Intoxilyzer 8000. Deputy Nelson observed Hosler during the 20–minute–deprivation period required before performing the test. The deputy did not actually inspect Hosler's mouth before the test, but he had spent almost an hour talking to Hosler and had not seen any evidence of something in Hosler's mouth. Hosler did not challenge the State's evidence that Deputy Nelson was certified to operate the Intoxilyzer 8000, his certification was current, the Intoxilyzer 8000 was certified by the Kansas Department of Health and Environment (KDHE), the certification was current, the machine was operating within proper tolerances, and the testing was conducted in a timely manner. Deputy Nelson claimed he had followed KDHE protocols for administering the test.
Hosler's only challenge to admission of the test results was that because Hosler had earlier been chewing tobacco and even though the officer saw Hosler remove the tobacco, a proper foundation required that the officer inspect Hosler's mouth before the testing. There was no evidence that Hosler put more tobacco in his mouth after he removed the original amount Deputy Nelson noticed. Deputy Nelson stated that Hosler did not belch, regurgitate, or ingest any substance during the deprivation period. State's Exhibit 1, a copy of KDHE's Intoxilyzer 8000 protocol effective July 1, 2007, was admitted into evidence.
The district court denied Hosler's motion to suppress. The court found that there was no protocol requirement that Deputy Nelson look inside Hosler's mouth. With Deputy Nelson's observation that Hosler did not belch, regurgitate, or ingest any substance during the deprivation period the court held there was prima facie evidence that he had no foreign substance in his mouth at the time of testing. The district court found these facts sufficient to create an evidentiary foundation to admit the Intoxilyzer result.
Hosler waived a jury trial and proceeded to a bench trial on stipulated facts. Hosler included his objection to the admission of the Intoxilyzer result in the stipulations. The Intoxilyzer 8000 breath test showed that Hosler's breath alcohol content was .114, an alcohol concentration greater than .08 in violation of K.S.A.2008 Supp. 8–1567. The district court found Hosler guilty of DUI, third conviction, and sentenced him to 12 months' probation after serving 90 days, with an underlying 12–month jail sentence. Hosler timely appeals.
Analysis
At trial, Hosler's attorney agreed that checking the mouth was not specifically listed as a protocol requirement, but he argued that “it certainly is implicit and it's implied.” Extending this argument on appeal, Hosler argues that there was an inadequate evidentiary foundation for admitting the Intoxilyzer results. When reviewing a district court's ruling on a motion to suppress an appellate court applies a mixed standard of review. Any findings of fact by the district court are adopted if they are supported by substantial competent evidence. The ultimate legal conclusion regarding suppression, however, is a question of law subject to unlimited appellate review. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2011). Here, the material facts the parties provided the trial court were undisputed so the suppression question becomes solely a matter of law subject to plenary review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
Our legislature has made provisions for the admission of breath alcohol test results in criminal trials by enacting K.S.A. 8–1002. In State v. Ernesti, 291 Kan. 54, 239 P.3d 40 (2010), Ernesti's DUI occurred July 26, 2008. Our Supreme Court applied 8–1002(a)(3) to determine the propriety of the trial court's suppression of Intoxilyzer evidence (there the evidentiary foundation issue concerned machine certification). The Supreme Court stated the foundational test as follows:
“In defining the evidentiary foundation for the admission of a test failure in a criminal DUI proceeding, this court has required the State, at a minimum, to present evidence that there was compliance with K.S.A.2009 Supp. 8–1002(a)(3). See State v. Bishop, 264 Kan. 717, 725, 957 P.2d 369 (1998). In various cases, this court and the Court of Appeals have paraphrased these requirements and the parties quibble over the significance of words used in some of those opinions. The important concept from the cases, however, is that K.S.A.2009 Supp. 8–1002(a)(3) establishes minimal foundation requirements. It requires the State to show:
“ ‘(A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.’ K.S.A.2009 Supp. 8–1002(a)(3). Ernesti, 291 Kan. at 62.
There is no substantial dispute that the State met that minimum showing of the three listed statutory items. The officer and the machine were certified, and Deputy Nelson said he observed KDHE's protocol. The district court noted that the testing protocol exhibit admitted into evidence did not list as a requirement checking the defendant's mouth for foreign substance before starting the deprivation period. The district court also relied on City of Shawnee v. Gruss, 2 Kan.App.2d 131, 133, 576 P.2d 239,rev. denied 225 Kan. 843 (1978), overruled on other grounds by State v. Bristor, 236 Kan. 313, 691 P.2d 1 (1984), in which Gruss states: “The officer's testimony that the appellant did not belch, regurgitate or ingest any substance during the twenty-minute observation period creates a prima facie showing that he had no foreign substance in his mouth at the time of testing.”
Hosler argues that the statutory minimum showing on the facts here is not enough to justify admission of the test results. He would have us add an additional requirement to the statutory minimums that, at least in a situation as exists here, the officer inspect the mouth of the accused before testing. We decline. We agree with the trial court that, in addition to these minimums, the State did show that Hosler did not belch, regurgitate, or ingest any substance during the deprivation period, all of which is evidence supporting the lack of any contamination of the breath sample from Hosler. Deputy Nelson arrived at the scene of the crash at 2:39 a.m. While he and Hosler were in the deputy's vehicle, at Deputy Nelson's request, he watched Hosler remove the tobacco from his mouth and flip it out of the vehicle's window. At the station Deputy Nelson began Hosler's deprivation period at 3:23 a.m. and administered the breath test at 3:48 a.m. Unlike in United States v. Plumer, 920 F.Supp. 151 (D.Kan.1996), the case relied on by Hosler, there was no evidence that Hosler put tobacco back into his mouth in the time leading up to or during the deprivation period. In addition, the Plumer court was apparently provided evidence from the subject machine's manual that supported Plumer's claim that a mouth inspection should have been conducted. The trial court here did not have such evidence.
Hosler argues for the first time on appeal that the 2008 KDHE Breath Alcohol Training Manual required that Deputy Nelson check Hosler's mouth before the deprivation period began. But, again, the manual Hosler cites was not presented to the district court and is not part of the record on appeal. Hosler simply includes a page he contends is from that manual as an attachment to his brief. We do not consider that attachment. “[A]n appendix to a brief is limited to extracts from the record on appeal; it cannot serve as a substitute for the record itself.” State v. Valladarez, 288 Kan. 671, 686, 206 P.3d 879 (2009) (citing State v. Bryant, 285 Kan. 970, Syl. ¶ 8, 179 P.3d 1122 [2008] ).
Furthermore, this argument was not made at the district court level. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009) (stating issues not raised before district court cannot be raised on appeal). This court is required to review the district court's decision to determine if it was supported by substantial competent evidence. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). The 2008 KDHE Breath Alcohol Training Manual was not evidence provided to the district court. The only testing requirements before the district court and included in the record on appeal were those listed on the Intoxilyzer 8000 protocol. The protocol, in relevant part, only states: “Keep the subject in your immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the breath test.”
The district court found that the State proved that Deputy Nelson complied with this protocol. It also found that Deputy Nelson's testimony that Hosler did not ingest anything, regurgitate, or belch during the deprivation period created a prima facie showing that he had no foreign substance in his mouth. See Gruss, 2 Kan.App.2d at 133. The issue here concerns the admissibility of the test results, not the ultimate weight the fact-finder might give them. Hosler provided the district court with nothing to support his evidentiary foundation complaints other than his assertion that checking the mouth was “implicit and it's implied.”
Substantial competent evidence supports the district court's findings, which were based on stipulations. Hosler's only claim is that the State's evidence was one fact short at law in that Deputy Nelson did not inspect Hosler's mouth. We have exercised our plenary review and find, as a matter of law, that Deputy Nelson was not required here to inspect Hosler's mouth in order to lay an adequate evidentiary foundation for admission of the Intoxilyzer test result. The district court did not err in admitting that evidence. We affirm the district court's decision denying Hosler's motion to suppress.
Affirmed.