Review of the judgment of the Court of Appeals in 43 Kan. App. 2d 815, 233 P.3d 290 (2010). Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge.
SYLLABUS BY THE COURT 1. An appellate court reviews a trial court's discovery order, including orders granting or refusing to grant sanctions, for an abuse of discretion. An abuse of discretion occurs where judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. 2. Where a law enforcement officer has fully and accurately transcribed his or her shorthand field notes into a more understandable account in the formal reports and the defendant has not been prejudiced by the destruction of the shorthand field notes, the district court does not abuse its discretion by denying the defendant's motion to dismiss the case based upon the State's inability to produce the destroyed shorthand field notes. 3. The State has a positive duty, independent of any court order, to disclose to the defendant all evidence that is material and exculpatory. But when dealing with the State's failure to preserve evidence that is only potentially useful, the defendant must show that the State acted in bad faith in order to establish a due process violation. Bad faith with respect to the destruction of evidence turns on the officer's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. 4. The constitutional duty of the State to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. 5. A driver's statutory right to obtain additional testing for blood-alcohol content from an independent source under K.S.A. 2007 Supp. 8-1001(k)(9) provides a reasonably available means to obtain comparable evidence to that which would have been available had a breath sample been trapped and stored in the State's Intoxilyzer 5000 machine. 6. The reasonable grounds test of K.S.A. 2007 Supp. 8-1001(b) is strongly related to the standards for determining probable cause to arrest, which is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime. 7. Test results lawfully obtained pursuant to K.S.A. 2007 Supp. 8-1001 are admissible in court as direct evidence of a defendant's blood-alcohol content in both driver's license suspension proceedings and criminal prosecutions for driving under the influence. 8. Under the Fourth and Fourteenth Amendments to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, a search conducted without a warrant is per se unreasonable, unless a specifically established exception applies, one of which is consent. The search resulting from a test listed in K.S.A. 2007 Supp. 8-1001(a) is the product of the consent exception to the warrant requirement. The State need not make an additional showing of probable cause plus exigent circumstances in order to use the results of a warrantless K.S.A. 2007 Supp. 8-1001(a) test as evidence. 9. Certifications establishing the authority of law enforcement agencies or individual law enforcement officers to operate and conduct tests on a particular breathalyzer machine, as well as certifications of any machine, are not testimonial statements subject to the Confrontation Clause requirements of Crawford v. Washington,541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 10. A petitioner seeking the Kansas Supreme Court's review of a Kansas Court of Appeals decision must set forth in the petition for review a statement of the issues decided by the Court of Appeals on which review is sought. The Supreme Court will not consider issues that are not presented or fairly included in the petition for review.
The opinion of the court was delivered by: Johnson, J.:
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
The opinion of the court was delivered by Andrew Johnson seeks review of the Court of Appeals decision that affirmed Johnson's jury trial conviction for misdemeanor driving under the influence (DUI) with a blood-alcohol concentration of .08 or higher. The DUI charge resulted from a sobriety checkpoint at which Johnson failed field sobriety tests and the ensuing Intoxilyzer 5000 breath test. Johnson first complains that his case should have been dismissed because the arresting deputy sheriff destroyed his field notes and failed to preserve the breath sample from the Intoxilyzer 5000. Next, he contends that, because the check lane was established in advance, the State was required to have a court-issued search warrant to conduct the Intoxilyzer 5000 breath test. He further claims that the State failed to show that the Intoxilyzer 5000 complied with Kansas Department of Health and Environment (KDHE) regulations. Finally, he argues that the court violated his constitutional right to confront witnesses by admitting KDHE certification evidence without the testimony of the person certifying those records. Finding no reversible error, we affirm.
FACTUAL AND PROCEDURAL OVERVIEW
In July 2007, Deputy Kenneth Kooser of the Sedgwick County Sheriff"s Department was working a DUI sobriety checkpoint in Wichita, Kansas. When Johnson pulled into the check lane, the deputy witnessed Johnson's vehicle almost strike another vehicle. Upon making contact with Johnson, the deputy observed that Johnson's eyes were bloodshot and watery; his speech was not clear; and he was emitting a strong odor of alcohol. Johnson admitted that he had consumed two beers that evening. Deputy Kooser then requested Johnson to step out of his vehicle to perform some field sobriety tests. Johnson swayed from side to side as he exited his vehicle to accompany Deputy Kooser to the area set up for the field sobriety tests. Johnson exhibited clues of intoxication on both the "walk and turn" and "one leg stand" field sobriety tests.
Based upon his observations, the deputy proceeded to give Johnson the written and oral notices from the DC-70 implied consent advisory. One of the notices advised that after the completion of a breath test, Johnson would have the right to consult with an attorney and to secure additional testing. Deputy Kooser then requested and Johnson consented to an Intoxilyzer 5000 breath test. The .084 result led to a misdemeanor charge of DUI with a blood-alcohol concentration of .08 or higher and an alternative charge of DUI to a degree that he could not safely operate a motor vehicle. See K.S.A. 2007 Supp. 8-1567(a)(2) and (a)(3).
Prior to trial, Johnson filed a motion to suppress the evidence obtained from a warrantless search, a motion to dismiss based upon the failure to save his Intoxilyzer 5000 breath sample, and a motion in limine to exclude evidence based upon an improper calibration of the Intoxilyzer 5000 machine. Following an evidentiary hearing, the district court denied the motions.
During the pretrial motion hearing, Deputy Kooser testified that he had destroyed his field notes from the checkpoint investigation, prompting Johnson to file a second motion to dismiss based on that destruction of the field notes. When the district court ultimately denied the motion, it concluded that there was no evidence of a department policy dealing with the maintenance of field notes of which the deputy was aware; the destruction of the field notes was for benign purposes; that Deputy Kooser fully and accurately transferred his shorthand field notes into a more understandable account in the alcohol influence report or narrative report; that all reports had been made available to the prosecution and the defense; and that there was no evidence to support a finding that Deputy Kooser destroyed the field notes with knowledge that they might be helpful to or potentially exculpatory for the defense.
During the trial, Johnson objected to the admission of the packet of documents establishing the certification of the Intoxilyzer 5000, including Deputy Kooser's certification to operate the Intoxilyzer 5000 and the machine's maintenance and calibration records. Johnson argued that the evidence constituted inadmissible hearsay in that it was testimonial evidence that violated Johnson's right to cross-examine and confront witnesses. The district court overruled the objection to the records that certified the Intoxilyzer 5000 as being in working order based upon State v. Dukes,38 Kan. App. 2d 958, 962, 174 P.3d 914 (2008), aff'd 290 Kan. 485, 231 P.3d 558 (2010). In addition, the district court found that the calibration certificates were admissible pursuant to the hearsay exception in K.S.A. 2007 Supp. 60-460(m). Finally, the district court admitted Deputy Koosler's certification to operate the Intoxilyzer 5000 subject to the deputy's anticipated testimony in the trial.
The jury found Johnson guilty of driving with a blood-alcohol concentration higher than .08 but acquitted him of the alternative charge of driving under the influence of alcohol to the extent that he was incapable of safely operating a motor vehicle. Johnson was sentenced to 6 months in jail but ordered to serve 48 hours of confinement and 1 year of probation.
Johnson appealed to the Court of Appeals, which affirmed his conviction. State v. Johnson,43 Kan. App. 2d 815, 233 P.3d 290 (2010). The Court of Appeals concluded that there was no evidence of bad faith in the destruction of the field notes or breath sample and, accordingly, no due process violation. 43 Kan. App. 2d at 820. The panel also determined that the deputy had probable cause to arrest Johnson and a warrant was unnecessary to conduct the breath test. 43 Kan. App. 2d at 824. A challenge to the officer's compliance with testing protocols was deemed an attack on the weight of the evidence. Finally, the Court of Appeals rejected Johnson's argument that the admission of the Intoxilyzer 5000 certification records violated his constitutional right of confrontation. 43 Kan. App. 2d at 825-26. We granted Johnson's petition for review.
DESTRUCTION OR PRESERVATION OF EVIDENCE
Johnson first complains that the district court should have dismissed his prosecution as a sanction for the deputy's destruction of his field notes and the failure to utilize the device on the Intoxilyzer 5000 that permits the trapping and storing of the breath sample for subsequent testing. Johnson argues the destruction of field notes and the failure to preserve breath sample complaints separately, albeit some of his arguments overlap.
The standard of review for denial of a motion to dismiss depends on the ground on which dismissal was sought. State v. Garcia,282 Kan. 252, 259, 144 P.3d 684 (2006).
We review a trial court's discovery order, including orders granting or refusing to grant sanctions, for an abuse of discretion. See Richards v. Bryan,19 Kan. App. 2d 950, 967, 879 P.2d 638 (1994). An abuse of discretion occurs where judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The interpretation of a statute is a question of law subject to unlimited review. State v. White,279 Kan. 326, 332, 109 P.3d 1199 (2005).
The determination of the question of bad faith with respect to a claimed due process violation turns on the "officers' knowledge of the exculpatory value of the evidence at the time it was lost or destroyed," and bad faith is a question of fact. State v. LaMae,268 Kan. 544, 551, 998 P.2d 106 (2000). This court reviews the district court's findings of fact to determine if they are supported by substantial competent evidence and whether the findings are sufficient to support the district court's conclusions of law. State v. Finley,273 Kan. 237, 241, 42 P.3d 723 (2002).
We first address Johnson's complaint about the destruction of field notes, which he approaches from two angles. In the first approach, he asserts that he was entitled to have the field notes under K.S.A. 22-3213 and that the district court should have sanctioned the State for its failure to produce the evidence by dismissing the case. We begin ...