State v. May
269 P.3d 1260
| Kan. | 2012Background
- May was arrested for DUI after failing a preliminary breath test (PBT) following a traffic accident.
- May provided a deficient breath sample on the Intoxilyzer 8000, producing a .156 reading and a result deemed a test refusal.
- The trooper informed May her deficient sample constituted a test refusal, and May sought to retake the test.
- The district court suppressed evidence of the refusal and the deficient sample, finding May validly rescinded under Standish v. Dept. of Revenue.
- The State appealed; the Court of Appeals panel affirmed the suppression of the refusal and (in part) the deficient sample result.
- Kansas Supreme Court affirmed, holding May validly rescinded her constructive refusal under Standish and suppressing the deficient-sample reading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether rescission applies to a deficient breath sample as a test refusal | May argues Standish allows rescission of a constructive refusal | State argues no rescission for deficient sample under 8-1001(l) | rescission applies; initial refusal cured by Standish factors |
| Whether the deficient sample result is admissible as independent testing | May sought independent testing analogue under 8-1004 | State contends independent testing not applicable; suppression appropriate | Deficient-sample result suppressed as in Gray |
| Whether the medical-condition exception affects Standish rescission | Standish rescission unaffected by medical-condition exception | State contends amendment implies no rescission | Standish rescission preserved; medical-condition exception does not extinguish it |
Key Cases Cited
- Standish v. Department of Revenue, 235 Kan. 900 (1984) (rescission of implicit test refusals under Standish factors)
- Drake v. Kansas Dept. of Revenue, 272 Kan. 231 (2001) (independent testing framework for breath tests)
- Chastain v. Kansas Dept. of Revenue, 265 Kan. 16 (1998) (independent testing rights after police testing)
- Gray v. State, 270 Kan. 793 (2001) (suppress testing evidence when officer denies right to retest after rescission)
- Luft v. State, 248 Kan. 911 (1991) (suppression of test results for improper independent-testing warnings)
- Ostmeyer v. Kansas Dept. of Revenue, 16 Kan. App. 2d 639 (1992) (posttest right to counsel; suppression of results and subsequent evidence)
- Kelly v. State, 14 Kan. App. 2d 182 (1990) (sanctions for denial of counsel following testing)