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State v. Wenzel

March 7, 2008

STATE OF KANSAS, APPELLEE,
v.
ALAN WENZEL, APPELLANT.



Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge.

SYLLABUS BY THE COURT

1. An adequate evidentiary foundation for the admission of a breathalyzer-test result may be shown through testimony that the machine used had been certified for use by the Kansas Department of Health and Environment (KDHE), that the machine operator had been certified by KDHE to operate the machine, and that the operator followed testing procedures established by KDHE. There is no evidentiary requirement that the machine operator have separately reviewed the manufacturer's operating manual for the machine because any significant requirements of that manual should be incorporated into the KDHE's testing procedures.

2. The sentence in a criminal case is effective when it is announced from the bench, not when it is placed on paper in a written journal entry. Because the assessment of the Board of Indigents' Defense Services application fee and attorney fees are mandatory by statute and not part of a defendant's punishment for a crime, they may be included in a journal entry of sentencing even if not announced from the bench. However, the district court must follow statutory requirements that mandate consideration of whether to waive those fees when they would impose manifest hardship.

3. The Board of Indigents' Defense Services application fee is to be assessed under K.S.A. 22-4529 at the time the defendant applies for court-appointed counsel. When reviewing the application for appointed counsel and accompanying affidavit of indigency, the district court should determine both whether the defendant qualifies in full or in part for appointed counsel and whether the imposition of the $100 application fee will impose a manifest hardship. If the court does not find manifest hardship, it should order payment of the application fee at the time that the court reviews the application. If any portion of that fee remains unpaid at the time of sentencing, then the district court should include the unpaid fee in its sentencing order but need not make any additional findings at that time.

4. Assessment of Board of Indigents' Defense Services attorney fees is mandatory under K.S.A. 22-4513 unless the fees would cause manifest hardship. In that event, they may be partially or totally waived. The sentencing court has the duty to consider the financial resources of the defendant and the burden the fees would place upon the defendant, and a record must be made of the district court's findings.

5. When the district court assesses the minimum fine provided by statute for an offense, it need not give consideration to the defendant's ability to pay it.

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

Affirmed.

Before GREEN, P.J., GREENE and LEBEN, JJ.

Alan Wenzel appeals both the conviction and sentence for his third conviction for driving under the influence of alcohol.

First, he claims that the breath test showing that he was driving while drunk should not have been admitted because the officer who administered the test did not testify that he had read the manufacturer's operational manual for the testing instrument or personally determined that the test procedure complied with that manual. But K.S.A. 8-1002(a)(3) gives the Kansas Department of Health and Environment (KDHE) the task of developing appropriate testing procedures, and the officers here were certified by KDHE and administered the test according to the KDHE's established procedures. Each officer is not required to read the manufacturer's manual and provide a personal interpretation of it.

Second, he claims that the district court was wrong to assess fees against him related to the cost of his court-appointed counsel without mentioning this orally in the sentencing hearing or showing that the judge had considered the effect of these obligations in light of his financial resources. Because the legislature has made consideration of and, in most cases, assessment of these fees mandatory, we must remand to the district court to follow these statutory requirements.

Third, he claims that the assessment of a $1,500 fine against him was improper since the district court again did not consider the effect of the fine in light of his financial resources. But the fine was the minimum established by the ...


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