State v. Fudge

518 P.3d 1268

STATE of Kansas, Appellant,

v.Jeremy R. FUDGE, Appellee.

No. 124,793

Court of Appeals of Kansas.

Filed September 30, 2022

Elizabeth L. Oliver, county attorney, and Derek Schmidt, attorney general, for appellant.

Russell L. Powell, of Monaco, Sanders, Racine, Powell & Reidy, L.C., of Leawood, for appellee.

Before Gardner, P.J., Malone and Cline, JJ.

Gardner, J.:

Jeremy R. Fudge, after being arrested for driving under the influence of alcohol, took a breathalyzer test which showed his breath alcohol content was above the legal limit. The State then charged Fudge with various crimes. Fudge moved to suppress the breathalyzer test results, arguing they were unreliable because he had a pouch of chewing tobacco in his mouth during the test. The district court agreed and granted the motion to suppress, finding the test results inadmissible because the test operator had violated Kansas Department of Health and Environment (KDHE) procedures by inadequately checking Fudge's mouth before administering the test. The State timely appeals, arguing that KDHE's protocol does not require a breathalyzer operator to check the subject's mouth. Agreeing with the State's position, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On December 24, 2020, Sheriff's Deputy David Harper-Head arrested Fudge for driving under the influence, in violation of K.S.A. 2020 Supp. 8-1567(a). Harper-Head transported Fudge to the Anderson County Jail where he administered a chemical breath test using an Intoxilyzer 9000. It showed Fudge's blood alcohol content was 0.106—over the legal limit.

The State charged Fudge with possessing a firearm under the influence, driving under the influence, transporting liquor in an open container, and speeding. Fudge then moved to suppress the results of his breath test, arguing he had a pouch of chewing tobacco in his mouth during the test, and that the deputy's failure to ensure his mouth was clear of foreign matter violated KDHE's procedures for operating the breathalyzer.

At the hearing on Fudge's motion to suppress, Deputy Kenneth Seabolt testified that before bringing Fudge to the county jail, he instructed Fudge to not bring any "chew, cigarettes, alcohol, guns, grenades, anything needles, anything contraband" into the facility. Seabolt also warned Fudge that his violation of these instructions could result in a felony charge. But Seabolt did not check Fudge's mouth for foreign matter.

In his testimony, Harper-Head explained that his habit is to check a suspect's mouth before administering the test: "To the best of my recollection I checked [Fudge's] mouth. I can't say with a 100 percent certainty, but I can tell you it's my normal standard practice in my many years of doing this job and my many years of DUI arrests that I check their mouth." Harper-Head also testified that he followed the protocol of the State of Kansas when he administered the test. He closely observed Fudge for the twenty-minute deprivation period and did not observe Fudge drink, belch, or chew anything during that period. Harper-Head turned off his body camera to administer the test to avoid radio frequency interference with the breathalyzer test. Although there is normally video in the Intoxilyzer 9000 room, there was none from Fudge's test.

Fudge testified that he did not recall Seabolt's telling him that he could not bring any tobacco into the jail. Nor did he remember whether Harper-Head checked his mouth. But he testified that he had a pouch of chewing tobacco in his mouth during the breath test. Fudge also admitted a picture he had taken of himself inside the jail which showed a pouch of chewing tobacco in his mouth. The picture's caption, apparently added by Fudge, said: "Getting booked in had a chew in the whole time before breathalyzer 12-25-2020 breathalyzer on 12-24-2020".

Amanda Pfannenstiel, a Laboratory Improvement Specialist with KDHE, also testified. She repeatedly spoke to whether breathalyzer operators should first check the contents of the subject's mouth, saying:

• "It is our preference that they check their mouth and ensure that there's nothing there, but it is not a requirement of the protocol that they do so."

• "[I]t's a good practice to check the mouth ... but it's never been an actual requirement of the protocol."

• Agreeing that checking the mouth of the subject is "best practice."

Pfannenstiel provided two reasons why checking the subject's mouth is a recommended practice. First, it is important to keep potential contaminants in a subject's mouth from being blown into the Intoxilyzer 9000. Second, it is important to provide a "fair and impartial" test because foreign matters could introduce alcohol into the mouth that could alter the results of the breath test.

The State admitted the published protocol from the KDHE for the Intoxilyzer 9000. That one-page protocol requires, among other matters, that the test operator observe the subject and deprive the subject of alcohol for 20 minutes, but it does not require the operator to check the subject's mouth for foreign matter.

After hearing the evidence, the district court found that KDHE's protocol requires the test operator to check the subject's mouth. It also found that the purpose of the deprivation period is to ensure that no foreign substance is in the subject's mouth that could interfere with the accuracy of the test; yet it was uncontroverted that Fudge had a pouch of tobacco in his mouth when he took the test so Harper-Head either did not check Fudge's mouth or did not check it sufficiently. The district court found the results were inadmissible and granted Fudge's motion to suppress.

The State has taken an interlocutory appeal.

DID THE DISTRICT COURT ERR IN SUPPRESSING THE RESULTS OF THE BREATH ALCOHOL TEST?

Standard of Review

In State v. Ernesti , 291 Kan. 54, 64-65, 239 P.3d 40 (2010), the Kansas Supreme Court noted three possible contexts in which to determine the appropriate standard of review in this kind of case.

"[O]ur focus is on the district court's determination that the State cannot meet the foundation requirements. The question of whether evidentiary foundation requirements have been met is left largely to the discretion of the district court. Hemphill v. Kansas Dept. of Revenue , 270 Kan. 83, 90, 11 P.3d 1165 (2000). Under an abuse of discretion standard, an appellate court will not disturb a district court's decision unless no reasonable person would have taken the same view. See Vorhees v. Baltazar , 283 Kan. 389, 393, 153 P.3d 1227 (2007). Yet, even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court's discretionary decision is based. Kuhn v. Sandoz Pharmaceuticals Corp. 270 Kan. 443, 456, 14 P.3d 1170 (2000)." 291 Kan. at 64-65, 239 P.3d 40.

Fudge styled his motion not as a motion in limine but as one to suppress. We need not determine here whether the motion should have been one in limine rather than one to suppress. See State v. Smith , 46 Kan. App. 2d 939, 942-43, 268 P.3d 1206 (2011) (finding alleged failure of law enforcement officer to follow KDHE protocol "does not constitute the violation of a constitutional right and is not legally sufficient to support a motion to suppress"). Neither party has raised this issue and it matters not to our resolution of this case.

Our review of legal conclusions in a motion to suppress is also unlimited. State v. Cash , 313 Kan. 121, 125-26, 483 P.3d 1047 (2021). Similarly, our construction of statutes relating to DUI and the testing of blood alcohol content and the interpretation of administrative regulations promulgated by the KDHE is unlimited. Ernesti , 291 Kan. at 64, 239 P.3d 40. Because the district court's factual findings are uncontested, including that Fudge had a tobacco pouch in his mouth during the test, his appeal is subject to our unlimited review regardless of which contextual standard we use.

Analysis

The State argues that the district court erred in suppressing the test results based on Harper-Head's failure to ensure that Fudge had nothing in his mouth during his breath test. It contends that KDHE's protocol for the Intoxilyzer 9000 does not require the test operator to check the subject's mouth and that its evidence met all foundational requirements for admission of the test results. In response, Fudge argues that Kansas caselaw requires the State to establish that the testing procedures followed the manufacturer's operational manual and that the State has not done so. Fudge also argues that based on State v. Campas , No. 110,790, 2014 WL 4082408 (Kan. App. 2014) (unpublished opinion), officers violated the first step in KDHE's protocol because his mouth contained foreign matter during the test.

The certification requirements for admission of a breath test are established in K.S.A. 2020 Supp. 8-1002(a)(2) and (3). No one challenges the district court's findings under (a)(2)—that officers had reasonable ground to believe that Fudge was operating a vehicle under the influence and that they gave Fudge sufficient notice. At issue is solely the second subsection, K.S.A. 2020 Supp. 8-1002(a)(3), which establishes the "minimal foundation requirements" for the admissibility of breath tests. See Ernesti , 291 Kan. at 62, 239 P.3d 40.

This subsection requires the State to show, for admission of test failure results, certification of the testing equipment and the test operator, and compliance with certain testing procedures:

"(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. 2020 Supp. 8-1002(a)(3).

The parties agreed that the testing equipment and the test operator were...