This decision has been designated as "not for publication" in the Pacific Reporter, it is published in table format. See KS R S AND A CTS RULE 7.04
Appeal from Johnson District Court; SARA WELCH, judge.
Jay Norton, of Norton Hare, LLC, of Overland Park, for appellant.
Renee S. Henry, assistant city attorney, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
In this appeal Joshua Charles Lull asks us to overturn his jury conviction for driving under the influence of alcohol. Lull has convinced us that the district court erred when it denied his motion seeking to suppress evidence of his refusal to take a breath test. Because the investigating officer did not substantially comply with the notice requirements under K.S.A. 2012 Supp. 8-1001 (k) when she omitted reading an entire paragraph of the notice that clearly applied to Lull, we reverse the conviction and remand for a new trial.
Lull is arrested following an accident.
One afternoon in September 2012, Officer Tina Morse of the Overland Park Police Department responded to the scene of an injury accident in which a truck driven by Lull had struck a U.S. mail truck at an intersection, causing the mail truck to tip on its side, trapping the driver.
Officer Morse talked with Lull and immediately noticed his eyes were bloodshot and watery and the smell of consumed alcohol emanated from his breath. Lull admitted to having just come from a bar where he had two drinks. When asked to produce proof of his insurance, Lull initially gave Officer Morse his medical insurance card.
Based on these observations, Officer Morse asked Lull to perform field sobriety testing. Lull did the horizontal gaze nystagmus test, alphabet test, number test, walk-and-turn test, and one-leg stand test. Lull completed the alphabet test but indicated impairment when performing the number test, exhibited three clues of impairment on the walk-and-turn test, and exhibited the same clue of impairment on the one-leg stand test four separate times. Officer Morse then arrested Lull for DUI.
Once at the station, Officer Morse started the required 20-minute alcohol deprivation period before the administering of a breath test and provided Lull with a copy of the DC-70 form. Officer Morse observed Lull follow along while the DC-70 form was read to him. At one point, however, Officer Morse became distracted by Lull's comments and lost her place on the DC-70 form. In doing so, Officer Morse failed to read paragraph 7 to Lull. Officer Morse was unaware she had not read paragraph 7 to Lull until she subsequently viewed the video of their interaction. After Lull indicated that he ...