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Kansas Criminal Cases: 12/13/19, Substantial compliance with the 20 min. deprivation period.

Posted by Adam Stolte | Dec 13, 2019 | 0 Comments

KANSAS COURT OF APPEALS

MOLINA V. KANSAS DEPT. OF REVENUE, No. 119766, Substantial Compliance with the 20 Min Deprivation Period.

Rule: The KDHE Intoxilyzer 9000 testing protocol states: "Keep the subject in your immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the breath test." As stated in Mitchell, 41 Kan. App. 2d at 119, "[t]he purpose of the 20-minute alcohol deprivation period is to make sure there is no residual alcohol in the subject's mouth at the time of the breath test." Substantial compliance is sufficient to satisfy this requirement. See K.S.A. 2018 Supp. 8-1020(h)(2)(F); Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, 823, 74 P.3d 588 (2003). Substantial compliance has been defined as "'compliance in respect to the essential matters necessary to assure every reasonable objective.'" Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 9, 163 P.3d 313 (2006). In driver's license suspension cases, the substantial compliance standard requires the petitioner "to demonstrate a violation of the KDHE testing procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results." Mitchell, 41 Kan. App. 2d at 122-23.

1. Appeals from administrative suspensions of driver's licenses are subject to review under the Kansas Judicial Review Act (KJRA). They are considered by the district court de novo. The burden of proving the invalidity of the agency's action rests on the party asserting invalidity.

2. When reviewing a driver's license suspension, an appellate court applies the substantial competent evidence standard. To uphold an agency's action it must be supported by evidence that is substantial when viewed in light of the record as a whole.

3. Substantial compliance is sufficient to satisfy the protocols established by the Kansas Department of Health and Environment (KDHE) for administering an Intoxilyzer 9000 test of a suspected intoxicated driver. In driver's license suspension cases, the substantial compliance standard requires a licensee seeking to overturn the agency's action to demonstrate a violation of the KDHE testing procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results.

4. The 20-minute alcohol deprivation period required before administering an Intoxilyzer 9000 test ends when the breath test is actually administered by the test subject providing a breath sample, not when the Intoxilyzer 9000 machine is turned on prior to the test.

KANSAS SUPREME COURT

STATE V. HARRIS, No. 112883, Affirmed.

1. The "taking or confining" element for the crime of kidnapping under K.S.A. 2018 Supp. 21-5408 is satisfied if the purpose of the taking or confining was to "facilitate" the commission of another crime. The term "facilitate" means something more than to just make the crime's commission more convenient. The taking or confining must have some significant bearing on making the other crime's commission easier.

2. To constitute a kidnapping under K.S.A. 2018 Supp. 21-5408(a)(2) when a taking or confining is alleged to have been done to facilitate another crime's commission, the resulting taking or confinement: (a) must not be slight, inconsequential, or merely incidental to the other crime; (b) must not be of the kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime's commission substantially easier or substantially lessens the risk of detection.

3. The statutory language "to facilitate flight or the commission of any crime" in K.S.A. 2018 Supp. 21-5408(a)(2) does not create alternative means. It merely provides options within a means.

4. The test for determining whether cumulative error requires reversal of a defendant's conviction is whether the totality of the circumstances substantially prejudiced the defendant and denied that defendant a fair trial.

5. State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), does not apply to collateral attacks challenging jurisdiction based on the charging document in a criminal case so long as the charged offense is a crime under Kansas law and the defendant was adequately apprised of that alleged offense

About the Author

Adam Stolte

Adam D. Stolte's journey toward becoming an attorney began when he was young. Growing up Adam always had a knack for problem-solving and researching solutions. It was this sense of curiosity and problem-solving that led to him becoming a cryptologic technician in the U.S. Navy. During his time in...

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