State v. Fudge

No. 124,793
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
JEREMY R. FUDGE,
Appellee.
SYLLABUS BY THE COURT
1.
The State meets the minimal foundational requirements for admission of a
breathalyzer test by showing that the operator and the testing equipment were certified,
and the testing procedures met the requirements set out by the Kansas Department of
Health and Environment. K.S.A. 2020 Supp. 8-1002(a)(3).
2.
The required testing procedures set out by the KDHE for evidentiary breath
alcohol tests are in the written protocol published by the KDHE for the equipment used.
KDHE's protocol for the Intoxilyzer 9000 does not require the test operator to check the
subject's mouth for foreign matter.
3.
The State may meet the minimal foundational requirements of K.S.A. 2020 Supp.
8-1002(a)(3) for admissibility of a breath test even though a suspect has foreign matter in
his or her mouth during the test.
Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed September 30,
2022. Reversed and remanded with directions.
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Elizabeth L. Oliver, county attorney, and Derek Schmidt, attorney general, for appellant.
Russell L. Powell, of Monaco, Sanders, Racine, Powell & Reidy, L.C., of Leawood, for appellee.
Before GARDNER, P.J., MALONE and CLINE, JJ.
GARDNER, J.: Jeremy R. Fudge, after being arrested for driving under the
influence of alcohol, took a breathalyzer test which showed his breath alcohol content
was above the legal limit. The State then charged Fudge with various crimes. Fudge
moved to suppress the breathalyzer test results, arguing they were unreliable because he
had a pouch of chewing tobacco in his mouth during the test. The district court agreed
and granted the motion to suppress, finding the test results inadmissible because the test
operator had violated Kansas Department of Health and Environment (KDHE)
procedures by inadequately checking Fudge's mouth before administering the test. The
State timely appeals, arguing that KDHE's protocol does not require a breathalyzer
operator to check the subject's mouth. Agreeing with the State's position, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On December 24, 2020, Sheriff's Deputy David Harper-Head arrested Fudge for
driving under the influence, in violation of K.S.A. 2020 Supp. 8-1567(a). Harper-Head
transported Fudge to the Anderson County Jail where he administered a chemical breath
test using an Intoxilyzer 9000. It showed Fudge's blood alcohol content was 0.106—over
the legal limit.
The State charged Fudge with possessing a firearm under the influence, driving
under the influence, transporting liquor in an open container, and speeding. Fudge then
moved to suppress the results of his breath test, arguing he had a pouch of chewing
tobacco in his mouth during the test, and that the deputy's failure to ensure his mouth was
clear of foreign matter violated KDHE's procedures for operating the breathalyzer.
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At the hearing on Fudge's motion to suppress, Deputy Kenneth Seabolt testified
that before bringing Fudge to the county jail, he instructed Fudge to not bring any "chew,
cigarettes, alcohol, guns, grenades, anything needles, anything contraband" into the
facility. Seabolt also warned Fudge that his violation of these instructions could result in
a felony charge. But Seabolt did not check Fudge's mouth for foreign matter.
In his testimony, Harper-Head explained that his habit is to check a suspect's
mouth before administering the test: "To the best of my recollection I checked [Fudge's]
mouth. I can't say with a 100 percent certainty, but I can tell you it's my normal standard
practice in my many years of doing this job and my many years of DUI arrests that I
check their mouth." Harper-Head also testified that he followed the protocol of the State
of Kansas when he administered the test. He closely observed Fudge for the twenty-
minute deprivation period and did not observe Fudge drink, belch, or chew anything
during that period. Harper-Head turned off his body camera to administer the test to
avoid radio frequency interference with the breathalyzer test. Although there is normally
video in the Intoxilyzer 9000 room, there was none from Fudge's test.
Fudge testified that he did not recall Seabolt's telling him that he could not bring
any tobacco into the jail. Nor did he remember whether Harper-Head checked his mouth.
But he testified that he had a pouch of chewing tobacco in his mouth during the breath
test. Fudge also admitted a picture he had taken of himself inside the jail which showed a
pouch of chewing tobacco in his mouth. The picture's caption, apparently added by
Fudge, said: "Getting booked in had a chew in the whole time before breathalyzer 12-25-
2020 breathalyzer on 12-24-2020".
Amanda Pfannenstiel, a Laboratory Improvement Specialist with KDHE, also
testified. She repeatedly spoke to whether breathalyzer operators should first check the
contents of the subject's mouth, saying:
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• "It is our preference that they check their mouth and ensure that there's
nothing there, but it is not a requirement of the protocol that they do so."
• "[I]t's a good practice to check the mouth . . . but it's never been an actual
requirement of the protocol."
• Agreeing that checking the mouth of the subject is "best practice."
Pfannenstiel provided two reasons why checking the subject's mouth is a
recommended practice. First, it is important to keep potential contaminants in a subject's
mouth from being blown into the Intoxilyzer 9000. Second, it is important to provide a
"fair and impartial" test because foreign matters could introduce alcohol into the mouth
that could alter the results of the breath test.
The State admitted the published protocol from the KDHE for the Intoxilyzer
9000. That one-page protocol requires, among other matters, that the test operator
observe the subject and deprive the subject of alcohol for 20 minutes, but it does not
require the operator to check the subject's mouth for foreign matter.
After hearing the evidence, the district court found that KDHE's protocol requires
the test operator to check the subject's mouth. It also found that the purpose of the
deprivation period is to ensure that no foreign substance is in the subject's mouth that
could interfere with the accuracy of the test; yet it was uncontroverted that Fudge had a
pouch of tobacco in his mouth when he took the test so Harper-Head either did not check
Fudge's mouth or did not check it sufficiently. The district court found the results were
inadmissible and granted Fudge's motion to suppress.
The State has taken an interlocutory appeal.
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DID THE DISTRICT COURT ERR IN SUPPRESSING THE RESULTS OF THE BREATH ALCOHOL
TEST?
Standard of Review
In State v. Ernesti, 291 Kan. 54, 64-65, 239 P.3d 40 (2010), the Kansas Supreme
Court noted three possible contexts in which to determine the appropriate standard of
review in this kind of case.
"[O]ur focus is on the district court's determination that the State cannot meet the
foundation requirements. The question of whether evidentiary foundation requirements
have been met is left largely to the discretion of the district court. Hemphill v. Kansas
Dept. of Revenue, 270 Kan. 83, 90, 11 P.3d 1165 (2000). Under an abuse of discretion
standard, an appellate court will not disturb a district court's decision unless no
reasonable person would have taken the same view. See Vorhees v. Baltazar, 283 Kan.
389, 393, 153 P.3d 1227 (2007). Yet, even under the deferential abuse of
discretion standard of review, an appellate court has unlimited review of legal
conclusions upon which a district court's discretionary decision is based. Kuhn v. Sandoz
Pharmaceuticals Corp. 270 Kan. 443, 456, 14 P.3d 1170 (2000)." 291 Kan. at 64-65.
Fudge styled his motion not as a motion in limine but as one to suppress. We need
not determine here whether the motion should have been one in limine rather than one to
suppress. See State v. Smith, 46 Kan. App. 2d 939, 942-43, 268 P.3d 1206 (2011)
(finding alleged failure of law enforcement officer to follow KDHE protocol "does not
constitute the violation of a constitutional right and is not legally sufficient to support a
motion to suppress"). Neither party has raised this issue and it matters not to our
resolution of this case.
Our review of legal conclusions in a motion to suppress is also unlimited. State v.
Cash, 313 Kan. 121, 125-26, 483 P.3d 1047 (2021). Similarly, our construction of
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statutes relating to DUI and the testing of blood alcohol content and the interpretation of
administrative regulations promulgated by the KDHE is unlimited. Ernesti, 291 Kan. at
64. Because the district court's factual findings are uncontested, including that Fudge had
a tobacco pouch in his mouth during the test, his appeal is subject to our unlimited review
regardless of which contextual standard we use.
Analysis
The State argues that the district court erred in suppressing the test results based
on Harper-Head's failure to ensure that Fudge had nothing in his mouth during his breath
test. It contends that KDHE's protocol for the Intoxilyzer 9000 does not require the test
operator to check the subject's mouth and that its evidence met all foundational
requirements for admission of the test results. In response, Fudge argues that Kansas
caselaw requires the State to establish that the testing procedures followed the
manufacturer's operational manual and that the State has not done so. Fudge also argues
that based on State v. Campas, No. 110,790, 2014 WL 4082408 (Kan. App. 2014)
(unpublished opinion), officers violated the first step in KDHE's protocol because his
mouth contained foreign matter during the test.
The certification requirements for admission of a breath test are established in
K.S.A. 2020 Supp. 8-1002(a)(2) and (3). No one challenges the district court's findings
under (a)(2)—that officers had reasonable ground to believe that Fudge was operating a
vehicle under the influence and that they gave Fudge sufficient notice. At issue is solely
the second subsection, K.S.A. 2020 Supp. 8-1002(a)(3), which establishes the "minimal
foundation requirements" for the admissibility of breath tests. See Ernesti, 291 Kan. at
62.
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This subsection requires the State to show, for admission of test failure results,
certification of the testing equipment and the test operator, and compliance with certain
testing procedures:
"(A) The testing equipment used was certified by the Kansas department of health and
environment; (B) the testing procedures used were in accordance with the requirements
set out by the Kansas department of health and environment; and (C) the person who
operated the testing equipment was certified by the Kansas department of health and
environment to operate such equipment." K.S.A. 2020 Supp. 8-1002(a)(3).
The parties agreed that the testing equipment and the test operator were properly
certified, as K.S.A. 2020 Supp. 8-1002(a)(3)(A) and (C) require. Fudge's motion
challenged only whether "the testing procedures used were in accordance with the
requirements set out by the Kansas department of health and environment," as K.S.A.
2020 Supp. 8-1002(a)(3)(B) demands.
The Minimal Foundational Requirements Are Those Set Out in KDHE's Protocol
The "requirements set out by the [KDHE]" for breath testing procedures are found
in KDHE's published protocol for the specific testing equipment used. KDHE's protocol
for the Intoxilyzer 9000 states in its entirety:
"Effective January 1, 2016
Intoxilyzer 9000
Protocol
"1. Keep the subject in your immediate presence and deprive the subject of alcohol
for 20 minutes immediately preceding the breath test.
"2. Check to determine the power switch of the instrument has been activated and is
in 'Ready Mode'.
"3. Press the green Start Test button and follow the instructions displayed by the
instrument.
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"4. The instrument will begin the Kansas approved sequence automatically. The
sequence is Air Blank, Diagnostic Check, Air Blank, Ext Std Check, Air Blank,
Subject Test, Air Blank.
"5. The acceptable range for the External Standard Check is 0.075 to 0.085.
"6. When prompted for Subject Test, place an unused mouth piece into the breath
tube and request the subject provide a breath sample.
"7. After the final Air Blank cycle, a test result will be printed."
The plain language of this protocol shows that checking a subject's mouth before
administering the test is not among the required testing procedures set out by KDHE.
K.S.A. 2020 Supp. 8-1002(a)(3). See State v. Hosler, No. 108,111, 2013 WL 2321191, at
*3 (Kan. App. 2013) (unpublished opinion) (holding that checking subject's mouth is not
requirement for admission of breathalyzer test because it is not listed in KDHE protocols;
declining to read language into statute that does not exist).
That conclusion was confirmed by KDHE Laboratory Improvement Specialist
Pfannenstiel. She typically drafts the manual for the Breath Alcohol Program for the
KHDE. She has received training in the Intoxilyzer 8000 and Intoxilyzer 9000, trains law
enforcement officers to use the Intoxilyzer 9000, and has trained thousands of officers
how to use the Intoxilyzer. She identified the State's Exhibit 2 (set out above) as the
relevant KDHE protocol for the Intoxilyzer 9000 and testified that checking the subject's
mouth is not part of the required testing protocol.
True, Pfannenstiel characterized checking the subject's mouth as a "preference,"
"good practice," "highly recommended," and "the best practice." But even highly
recommended or best practices are not requirements. See State v. Vandenberg, No.
110,236, 2014 WL 5312922, at *2 (Kan. App. 2014) (unpublished opinion) (holding that
good practices that are not part of the "formal testing protocol" cannot violate the
required testing procedures). See generally United States v. Kahn, 415 U.S. 143, 155
n.15, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974) (noting that warrants often "pass muster
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under the Fourth Amendment" even when they do not comply with "best practice");
United States v. Glenn, 966 F.3d 659, 661 (7th Cir. 2020) (Easterbrook, J.) ("The Fourth
Amendment does not require best practices in criminal investigations."); Henderson v.
Board of Montgomery County Comm'rs, 57 Kan. App. 2d 818, 834, 461 P.3d 64 (2020)
(finding officers' best practices do not dictate acts officers are required to take). Best
practices for officers, like best practices for attorneys, are not legal requirements. See,
e.g., Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)
(Strickland's standard for ineffective assistance of counsel does not ask whether attorney's
representation deviated from best practices or most common custom); Hartleib v. Weiser
Law Firm, P.C., No. 19-02099-CM-JPO, 2019 WL 3943064, at *7 (D. Kan. 2019)
(unpublished opinion) ("best practices generally recommend the clear and unambiguous
communication of termination of the attorney-client relationship, but these practices are
not required").
Our sole concern here is whether "the testing procedures used were in accordance
with the requirements set out by the Kansas department of health and environment."
K.S.A. 2020 Supp. 8-1002(a)(3)(B) (Emphasis added.). We use "requirements" in its
ordinary sense as meaning "something required; something obligatory or demanded, as a
condition"; or "something needed; necessity; need." Webster's New World College
Dictionary 1235 (5th ed. 2014).
Pfannenstiel consistently denied that checking a subject's mouth was a requirement
of KDHE's breath test protocol. Rather, she testified that the protocol says nothing "about
removing foreign substances or checking the mouth for anything." And she testified that
if the breath test were conducted with a tobacco pouch in the subject's mouth, the
operator could still comply with the Intoxilyzer 9000 standards and KDHE protocol. The
record contains no evidence to the contrary.
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Thus, per Pfannenstiel's expert testimony and KDHE's published protocol for the
equipment used here, checking a subject's mouth before administering the test is not
among the required testing procedures set out by KDHE. K.S.A. 2020 Supp. 8-
1002(a)(3)(B).
Evidentiary Foundation Does Not Include the Manufacturer's Manual
Fudge argues that the State, in addition to showing compliance with the required
testing procedures set out by KDHE, had to prove that the testing procedures followed
the "manufacturer's operational manual." In support, Fudge cites State v. Bishop, 264
Kan. 717, 957 P.2d 369 (1998), which states that to create an evidentiary foundation for a
breath test, the State must introduce evidence "that the testing procedures were used in
accordance with the manufacturer's operational manual and the requirements set out by
the KDHE." 264 Kan. at 725.
But the Bishop court never reached the protocol issue Fudge raises here. Defense
counsel had not objected to the evidence about the breath test and its result on the
grounds raised in the motion in limine—that the trooper who conducted Bishop's breath
test failed to follow the proper test protocol. Thus, the Kansas Supreme Court found the
issue was not preserved for appeal. 264 Kan. at 730-31.
More fundamentally, Fudge fails to recognize crucial changes in the law after
Bishop. Bishop applied K.S.A. 1997 Supp. 8-1002(a)(3)(A)-(C), which it held required
the State to show "that the testing procedures were used in accordance with the
manufacturer's operational manual and the requirements set out by the KDHE." 264 Kan.
at 725. See State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989) ("[T]o
introduce the results of a breath test, the prosecution must lay a foundation showing that
the testing machine was operated according to the manufacturer's operational manual and
any regulations set forth by the Department of Health and Environment.") The relevant
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statute requires the State to show, as to testing procedures, solely that "the testing
procedures used were in accordance with the requirements set out by the Kansas
department of health and environment." K.S.A. 2020 Supp. 8-1002(a)(3)(B).
KDHE's relevant administrative regulation in 1998, when Bishop was decided,
required compliance with both the manufacturer's requirements and KDHE's protocol.
K.A.R. 28-32-1(b)(3) (1997 Supp.) stated: "Equipment shall be operated strictly
according to description provided by the manufacturer and approved by the department of
health and environment." But this language was revoked effective March 14, 2008, thus it
has no application here. The comparable language in KDHE's current regulations is found
in K.A.R. 28-32-9(b)(4), which says nothing about the manufacturer's manual. It requires
only that "[e]ach certified operator shall follow the standard operating procedure
provided by the secretary for the EBAT device in use." ("EBAT" means evidential breath
alcohol test, K.A.R. 28-32-8(i); "secretary" means secretary of KDHE, K.A.R. 28-32-
8[m]). See State v. Knox, No. 104,204, 2011 WL 1197305 (Kan. App. 2011)
(unpublished opinion).
Compliance with the manufacturer's manual was thus not among the required
testing procedures set out by KDHE in the statute, in the administrative regulations, or in
the protocol for the Intoxilyzer 9000 in 2020 when Fudge was arrested for DUI. See
generally K.A.R. 28-32-9 (agency certification); K.A.R. 28-32-10 (operator certification);
K.A.R. 28-32-11 (2020 Supp.) (EBAT device certification). As a result, the State had no
need to show that the testing procedures followed the manufacturer's operational manual
to establish the admissibility of Fudge's breath test results under K.S.A. 2020 Supp. 8-
1002(a)(3)(B).
But even if compliance with the manufacturer's manual were required in 2020,
Fudge fails to show that the "manufacturer's operational manual" for the Intoxilyzer 9000
requires an operator to check the subject's mouth before administering the test. To the
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contrary, Pfannenstiel testified that the Intoxilyzer 9000 Operation Manual does not
recommend that anyone check the subject's mouth.
Prior Cases are Not on Point
Fudge also relies on Campas, 2014 WL 4082408, at *7, alleging it has similar
facts. Campas asked whether the testing procedures used were in accordance with the
requirements set out by the KDHE. And the Campas panel affirmed the district court's
suppression of breathalyzer test results because the subject had tobacco in his retainer
during the test.
But the similarity ends there. Other facts distinguish Campas from our case in one
important respect. There, as the court recognized, "[l]ittle evidence was presented as to
what the KDHE protocols actually require." 2014 WL 4082408, at *5. Not so here.
The only evidence in Campas about KDHE's testing protocol was one statement
from a law enforcement officer:
"'Q. Okay. Now your protocol—protocol number one, the 20–minute immediate
presence requirement requires that you make sure that the subject does not have any
foreign matter in his mouth; is that correct? 'A. It is correct that he's not to have
anything. That is correct.'" 2014 WL 4082408, at *5.
In Campas, the State did not admit KDHE's written protocol for testing procedures, or
expert testimony about the protocol, or any other evidence on the subject. The panel thus
concluded, based on the only evidence presented, that KDHE protocol number one
required a subject's mouth to be free of foreign matter. 2014 WL 4082408, at *7.
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Here, in contrast, the State admitted KDHE's published protocol for the Intoxilyzer
9000 which says nothing about checking the subject's mouth. The State also admitted an
expert witness who testified that KDHE's testing requirements do not include checking a
subject's mouth. And our record contains no evidence to the contrary. We thus find
Campas distinguishable and unpersuasive. See Supreme Court Rule 7.04(g)(2)(B)(i)
(2022 Kan. S. Ct. R. at 48).
Our Court has addressed similar evidentiary foundation issues in various contexts
over the years. See e.g., Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 123,
200 P.3d 496 (2009); City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 133, 576 P.2d 239(1978), overruled on other grounds by State v. Bristor, 236 Kan. 313, 691 P.2d 1 (1984);
State v. Hosler, No. 108,111, 2013 WL 2321191, at *4 (Kan. App. 2013) (unpublished
opinion); State v. Pfizenmaier, No. 104,112, 2011 WL 1877831, at *l-2 (Kan. App. 2011)
(unpublished opinion); State v. Anderson, No. 94,364, 2006 WL 903168, at *3 (Kan.
App. 2006) (unpublished opinion). But each case is governed by its own facts and the
relevant law. We find no case on all fours with this one.
The Purpose of the Deprivation Period is Not Undermined
We acknowledge that the general purpose of the 20-minute deprivation period in
the first step of the KDHE Intoxilyzer 9000 protocol is "for the testing officer to make
sure there is no residual alcohol in the subject's mouth at the time of the breath test."
Mitchell, 41 Kan. App. 2d at 119. As stated in Molina v. Kansas Dept. of Revenue, 57
Kan. App. 2d 554, 559, 456 P.3d 227 (2019):
"The whole point of the alcohol deprivation period is to assure that the test
subject has neither placed alcohol in his or her mouth during the deprivation period nor
allowed some other substance in the test subject's body which could interfere with the
accuracy of the test that is about to be administered." 57 Kan. App. 2d at 559.
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Pfannenstiel's testimony confirms this purpose.
Still, no evidence shows that the tobacco pouch in Fudge's mouth may have
inflated the alcohol content measured by the Intoxilyzer 9000. Pfannenstiel testified that
chewing gum in the subject's mouth during the breathalyzer would not affect the test's
accuracy. And her biggest concern with having chewing tobacco in the subject's mouth is
that flecks of it could be blown into the equipment and block its mesh filter, not that it
could increase the measured alcohol content. No evidence shows that Fudge's tobacco
pouch in his mouth during the test may have increased the alcohol measured by the
breath test.
But even if having a foreign matter in a subject's mouth may generally cast doubt
on the accuracy of the breathalyzer test results, the court's role here is to determine only
whether the State has met the minimal foundational requirements for admissibility. The
fact-finder will determine the weight to give that evidence. See Hosler, 2013 WL
2321191, at *4.
CONCLUSION
Based on the evidence admitted at this hearing, we find that the operator of the
Intoxilyzer 9000 is not required to check a subject's mouth as a requirement for
admission of failed breathalyzer test results. The State met the minimal foundational
requirements for admission of the breathalyzer test by showing that the operator and the
equipment used were certified, and "the testing procedures used were in accordance with
the requirements set out by the Kansas department of health and environment." K.S.A.
2020 Supp. 8-1002(a)(3). Thus, the district court erred by granting Fudge's motion to
suppress. For these reasons, we reverse and remand with instructions to deny Fudge's
motion to suppress.
Reversed and remanded with directions.
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