State v. Finch, 244 P.3d 673

Finch was arrested for DUI and tested with the Intoxilyzer 5000 within 2 hours of driving, yielding .08 BAC.
State charged Finch under K.S.A. 8-1567(a)(2) in the alternative; trial proceeded on that subparagraph only.
The officer testified the Intoxilyzer is calibrated with known-sample tolerances and may yield slightly varying results between tests.
Defense argued there is a margin of error in the Intoxilyzer 5000 and that varying back-to-back results create reasonable doubt.
Judge granted a directed verdict acquitting Finch, expressing that readings under .087 could not support beyond-a-reasonable-doubt conviction and noting alleged inconsistencies in testimony.
State noted the case should go to a jury under the per se framework; appeal reserved on the question of law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 'as measured' within two hours requires margin-of-error defense.	State contends margin of error is not required to convict under a per se statute.	Finch contends margin of error may be raised and can defeat the prima facie case.	Margin of error may be considered; per se proof does not guarantee conviction.
Whether the evidence of .08 within two hours, with alleged instrument variability, suffices to send to the jury.	State asserts prima facie case established; jury should resolve doubts.	Finch argues the device is unreliable; acquittal warranted as a matter of law.	Evidence established a prima facie case; jury should evaluate reliability and margins of error.
Whether the district court erred by relying on testimony from another case or on improper judicial notice.	State asserts no improper reliance; evidence appropriate to consider.	Finch argues use of unrelated testimony/judicial notice was improper.	Reversal for reliance on improper extrinsic testimony/notices; requires remand.

In re C.P.W., 289 Kan. 448 (2009) (questions of statewide interest; standard for reserved questions)
State v. Skolaut, 286 Kan. 219 (2008) (statutory interpretation and per se concepts in DUI context)
State v. Jefferson, 287 Kan. 28 (2008) (statutory interpretation; de novo review of law)
Graham v. Dokter Trucking Group, 284 Kan. 547 (2007) (plain language governs; avoid adding implicit terms)
State v. Cavaness, 278 Kan. 469 (2004) (statutory elements and sufficiency; margins considered by fact-finder)
Hartman, 26 Kan. App. 2d 928 (2000) (per se vs. margin of error considerations; appellate treatment)
Pendleton, 18 Kan. App. 2d 179 (1993) (margin of error as one factor for the fact-finder)
Ruble v. Kansas Dept. of Revenue, 26 Kan. App. 2d 1 (1999) (margin-of-error considerations in administrative contexts)
State v. Brice, 276 Kan. 758 (2003) (jury decision-making; issues for jury under criminal standard)
City of Colby v. Cranston, 27 Kan. App. 2d 530 (2000) (per se vs. broader evidentiary analysis in DUI context)