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State v. Kogler

July 20, 2007

STATE OF KANSAS, APPELLANT,
v.
BRUCE M. KOGLER, APPELLEE.



Appeal from Saline District Court; JOHN WECKEL, judge.

SYLLABUS BY THE COURT

1. When the material facts to the trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.

2. The notice provisions of K.S.A. 2005 Supp. 8-1001(f) are mandatory and not merely directory.

3. Generally, substantial compliance with statutory notice provisions will usually be sufficient. To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.

4. An appellant has the duty to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails.

The opinion of the court was delivered by: Green, J.

Affirmed.

Before MALONE, P.J., GREEN and MARQUARDT, JJ.

Bruce M. Kogler was charged with driving under the influence (DUI). He moved to suppress evidence of a breath test because the arresting officer had failed to properly advise him of the implied consent advisory. The trial court granted the motion. On appeal, the State argues that the trial court improperly suppressed the evidence of the breath test because the implied consent advisory given was only a technical irregularity with the notice provisions under K.S.A. 2005 Supp. 8-1001(f). Because the implied consent advisory that the officer intended to give and did give and what Kogler did receive was different from the implied consent advisory that the officer was required to give under K.S.A. 2005 Supp. 8-1001(f), we conclude that the officer's implied consent advisory did not fulfill the notice requirements of K.S.A. 2005 Supp. 8-1001(f). Accordingly, we affirm.

On July 16, 2005, Trooper Scott Walker of the Kansas Highway Patrol arrested Kogler for DUI. Walker read Kogler the implied consent advisory DC-70 form, but read from an outdated form. Due to the change in the DUI laws, specifically K.S.A. 2005 Supp. 8-1001(f), the DC-70 form had been revised effective July 1, 2005.

Walker should have read Kogler an implied consent advisory that mirrored K.S.A. 2005 Supp. 8-1001(f)(D). The advisory should have substantially read:

"If you do not have a prior occurrence in which you refused or failed a test or were convicted or granted diversion on a charge of driving under the influence of alcohol and/or drugs, and you refuse to submit to [testing] . . . , your driving privileges will be suspended for 1 year. If you have had one such prior occurrence and refuse a test, your driving privileges will be suspended for 2 years. If you have had two such prior occurrences and refuse a test, your driving privileges will be suspended for 3 years. If you have had three such prior occurrences and refuse a test, your driving privileges will be suspended for 10 years. If you have had four or more such prior occurrences and refuse a test, your privileges will be permanently revoked."

The implied consent advisory form read to Kogler included language from an earlier version of the statute. The previous statute contained a 5-year look back period for refusal or failure of a breath test or conviction or diversion on a charge of driving under the influence. The advisory given to Kogler stated:

"If you do not have a prior occurrence in the past five years in which you refused or failed a test or were convicted or granted diversion on a charge of driving under the influence of alcohol and/or drugs, and you refuse to submit to [testing] . . . , your driving privileges will be suspended for 1 year. If you have had one such prior occurrence in the past five years and refuse a test, your driving privileges will be suspended for 2 years. If you have had two such prior occurrences in the past five years and refuse a test, your driving privileges will be suspended for 3 years. If you have had three such prior occurrences in the past five years and refuse a test, your driving privileges will be suspended ...


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