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State v. Messer

Court of Appeals of Kansas

August 23, 2013

STATE of Kansas, Appellee,
Phillip M. MESSER, Appellant.

Syllabus by the Court

1. K.S.A. 8-1004 requires that when a driver is given an evidentiary test for alcohol concentration, the driver also must be given a reasonable opportunity afterward to obtain

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an independent test. In a situation where the driver is released from custody within 42 minutes of asking for an independent test and less than 2 hours after the initial traffic stop, the driver has a reasonable opportunity to obtain an independent test after being released from custody.

2. The 2011 amendment to K.S.A. 8-1567(j)(3), which shortens the " look-back" period for determining the number of previous DUI convictions to be taken into account for sentencing purposes, applies only to crimes committed on or after July 1, 2011, the effective date of the statutory amendment; it does not apply when sentencing defendants for crimes committed before July 1, 2011.

Edward C. Gillette, Michael S. Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.



Phillip Messer failed field-sobriety tests after a traffic stop and then failed an evidentiary breath test at the police station. At that point, having been told that he had the right to secure additional alcohol-concentration testing, Messer asked the officer for an independent blood test. Rather than taking Messer to a hospital to get a blood test, the officer told Messer that he could get that test on his own after he was released. Messer was able to leave within 45 minutes of his request, but he didn't go to get a blood test after his release.

Messer asked the district court to exclude evidence of his failed breath test, citing K.S.A. 8-1004, under which that test result will be excluded if " the officer refuses to permit ... additional testing" for the driver. The district court denied Messer's request and convicted him based on the evidence.

Messer has appealed, again raising K.S.A. 8-1004. But that statute begins by providing that the person who takes the breath test given by an officer " shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing." (Emphasis added.) Messer was released from custody within 45 minutes of making the request for additional testing— giving him a " reasonable opportunity" to get that testing done. Accordingly, the district court properly denied Messer's request that the breath-test evidence be excluded; with that evidence, the district court's conviction of Messer must be affirmed.


Messer was stopped in Overland Park for making an illegal U-turn at 1:22 a.m. on November 13, 2010. After Messer performed poorly on field-sobriety tests, the officer asked him to take a preliminary breath test. Messer refused, and the officer arrested him for a DUI offense.

After being taken to a nearby police station, Messer agreed to take the Intoxilyzer 8000 breath test. He took that test at 2:38 a.m., registering a breath-alcohol concentration of .147— well above the legal limit of .08.

Kansas law provides that a person must be advised of various rights as he or she goes through the process of being asked to take a preliminary breath test and, later, an evidentiary breath test. Before giving Messer the evidentiary breath test, the officer gave Messer a required notice that Messer had a right to obtain additional testing:

" After completion of testing, you have the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing."

Sometime after Messer took the evidentiary breath test, he asked the officer for an additional blood test.

The officer responded that he wouldn't take Messer to get a blood test but that Messer could get one himself once he was released or bonded out. The officer testified that his department's policy was to take the suspect to get an additional test only if the suspect was to remain in custody. The officer also testified that Messer was released at

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3:10 a.m. Video footage showed Messer leaving the police station at 3:21 a.m. Messer's attorney told the district court that Messer didn't get a ...

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