State v. Messer

1

No. 108,184

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

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
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.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed August 23, 2013.
Affirmed.

2

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.

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

LEBEN, J.: 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.

3

FACTUAL AND PROCEDURAL BACKGROUND

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
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 blood test after he left the station.

4

Messer was charged with a third-offense DUI and with refusing to submit to a
preliminary breath test. Before trial, he filed a motion to suppress the results of the
evidentiary breath test, arguing that he was denied a reasonable opportunity to get
additional testing. After an evidentiary hearing, the district court denied Messer's motion.

The district court noted that the State argued that Messer was released at 3:10 a.m.
(based on the officer's testimony), while the defendant contended he was released at 3:20
a.m. The district court found that this 10-minute difference wasn't important and that
Messer was released "at most" 42 minutes after he requested additional testing. The court
concluded that Messer had a reasonable opportunity to obtain additional testing and that
the officer didn't unreasonably interfere with Messer's ability to obtain that test.

Before trial, Messer also made one other argument—that the 2011 amendments to
the DUI statute should apply retroactively to offenses committed before 2011. The 2011
amendment provided that past DUI offenses that occurred before July 1, 2001, would no
longer be counted for sentencing purposes. Thus, had the 2011 amendment been applied,
one of Messer's prior DUI offenses—a 2000 DUI diversion agreement—wouldn't have
been counted, and Messer's 2010 offense would have become a second-time DUI. The
district court rejected Messer's argument, concluding that the statutes in place at the time
of Messer's 2010 offense applied.

The district court convicted Messer on both the DUI charge and the charge of
refusing the preliminary breath test. Messer appealed to this court.

5

ANALYSIS

I. The District Court Correctly Determined That Messer Was Given a Reasonable
Opportunity to Obtain His Own Alcohol-Concentration Test.

Messer's main claim on appeal is that he wasn't given a reasonable opportunity to
get his own alcohol-concentration test. He claims that this violated his statutory rights, so
we begin our analysis with the statutes that may apply. We cite to the statutes that were in
effect at the time of Messer's arrest in November 2010.

The main statutes we must consider are K.S.A. 2010 Supp. 8-1001, which gives
law-enforcement officers the ability to request that a driver provide a breath, blood, or
urine sample, and K.S.A. 8-1004, which provides that the driver be given a reasonable
opportunity to obtain an independent test.

K.S.A. 2010 Supp. 8-1001(b) allows an officer to request testing in several
circumstances, including where the officer has reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs. Messer doesn't
question the officer's authority to request testing in this case. K.S.A. 2010 Supp. 8-
1001(k) provides that the driver be given several notices both orally and in writing before
the test is given. Among those is the notice Messer was given that he had a right—after
the completion of the officer's test—to "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." K.S.A. 2010 Supp. 8-1001(k)(10).

K.S.A. 8-1004 sets out the driver's right to "a reasonable opportunity" to get an
independent test. But the statute also provides a penalty—that the original breath test
can't be used in evidence—if the officer "refuses to permit" an independent test:

6

"Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments
thereto, the person tested shall have a reasonable opportunity to have an additional test
by a physician of the person's own choosing. In case the officer refuses to permit such
additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments
thereto shall not be competent in evidence." (Emphasis added.) K.S.A. 8-1004.

From these statutes, the basic contours of a driver's right to an independent test are
fairly clear, though the use of the term "reasonable opportunity" means that a bright-line
test—a simple, straightforward test for making judicial decisions—isn't possible here.
Concepts of "reasonableness" always bring some element of opinion and subjective
judgment into play, even though we attempt to arrive at an objective standard. But the
language of K.S.A. 8-1004 helps us to determine what an officer can and can't do when a
driver wants to exercise his or her right to get an independent test:
 The officer can't "refuse[] to permit such additional testing." But the officer's
power over the driver lasts only as long as the driver is in custody. So this tells us
that an officer can't keep a person in custody indefinitely without—upon request—
taking the person to get the independent test. But if the officer were to release the
driver immediately after taking the evidentiary test, the officer couldn't have
"refuse[d] to permit such additional testing" because the driver would no longer
have been under the officer's control.
 It's primarily the driver's responsibility to obtain the independent test. The statute
tells us that the test may be obtained from "a physician of the person's own
choosing," and the statute simply calls for the "reasonable opportunity to have an
additional test," not for the State to provide a second test to the driver.

Let's consider Messer's case now within this context. Messer wasn't released
immediately after the officer's evidentiary breath test. Rather, he first had to post a bond,
promising to appear in court and perhaps agreeing to certain conditions intended to
promote public safety. See K.S.A. 2010 Supp. 22-2802(1); K.S.A. 2010 Supp. 12-4213;
7

K.S.A. 12-4301. We also presume that formal booking procedures are probably done
after the evidentiary breath test has shown a result above the legal limit. But despite those
steps in the release process, the time from Messer's request of an independent test until
his release on bond was fairly brief.

The district court concluded that Messer was released no more than 42 minutes
after he requested additional testing. And we must accept the district court's factual
findings if they are supported by substantial evidence. State v. Johnson, 297 Kan. 210,
301 P.3d 287, 293 (2013). The officer's breath test was done at 2:38 a.m. Messer
requested the independent test sometime after that—2:39 a.m. would be a reasonable
estimate in Messer's favor. The video shows Messer leaving the police station 42 minutes
later, at 3:21 a.m., and he obviously had posted his bond and been released sometime
before he went out the front door of the station. So there is substantial evidence to
support the district court's factual finding on this point, which is the only factual issue on
which there is any potential disagreement.

We now have substantially narrowed the question we must answer here: Messer
was released from custody within 42 minutes of the request for an independent test and
less than 2 hours after he had last been observed driving. In such a case, if the officer
doesn't take the driver to get the testing while he's still in custody, has the officer refused
to permit the independent test? On this ultimate legal question, we must provide our own
answer, without any required deference to the district court. Johnson, 301 P.3d at 293.

We've already established that the officer doesn't have an obligation to help the
driver get an independent test if the driver is released from custody immediately after the
officer administers the evidentiary test. But that would never happen, of course. Like
Messer, the person usually has been arrested and must then post bond and go through
some procedures to finish up the process.

8

So what of the more typical situation—like Messer's—in which the driver is in
custody for a short time after asking for the independent test but is released without any
evidence of delay designed to prevent him from getting a test? In such cases, the driver
still has a reasonable opportunity to get the test, and officers haven't prevented the driver
from doing so. Thus, there is no basis to suppress evidence of the evidentiary test under
K.S.A. 8-1004.

Surely that is so in Messer's case. He was released within 42 minutes after he
made the request and within 2 hours of the time of the traffic stop. He still had a
reasonable opportunity to obtain an independent test at the time he was released.

The result we reach is in line with two past appellate decisions. In fact, these two
opinions—City of Dodge City v. Turner, No. 89,467, 2004 WL 421969 (Kan. App. 2004)
(unpublished opinion), rev. denied 278 Kan. 843 (2004), and State v. Huston, No. 90,758,
2004 WL 720126 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 849
(2004)—are essentially indistinguishable from Messer's case.

In Turner, the defendant was released from custody 50 minutes after he had
requested an independent test and within 2 hours of the traffic stop. In Huston, the
defendant was released 45 minutes after he had requested an independent test and 2 hours
and 12 minutes after the traffic stop. In both cases, our court held that the driver had been
given a reasonable opportunity to get the independent test. Turner, 2004 WL 421969, at
*3; Huston, 2004 WL 720126, at *2. In Huston, the court added that the officer had done
nothing that unreasonably interfered with the driver's right to have an additional test.
Huston, 2004 WL 720126, at *2.

Messer cites to another of our past cases, State v. George, 12 Kan. App. 2d 649,
754 P.2d 460 (1988), and it provides some support for his position. In George, the driver
asked for an independent test about an hour after he had taken the evidentiary breath
9

test—but still less than 2 hours after the traffic stop. The driver was in custody, awaiting
a bondsman or a family member to obtain his release. According to our court's decision
in George, an officer unreasonably "refused the request" for an independent test. 12 Kan.
App. 2d at 651.

There were some other facts in the George case to support our court's conclusion
that refusing the test was unreasonable under the circumstances presented. The court's
opinion tells us that the hospital where a blood test could have been given was only a few
blocks from the police station. The defendant's appellate brief includes testimony from
the officer who administered the evidentiary breath test saying that he would take George
to the hospital for an independent test if he wanted one: "I told him after he submits to
my testing that I would take him up to the hospital and he could have a blood test or any
other test he wanted run, as available, at his expense."

The State's argument on appeal in George was a very limited one: The State
simply argued that George had waited too long to request the independent test. In its
brief, the State agreed that "[h]ad the Defendant asked for additional testing in [an earlier]
conversation with the officer . . . , there would have been no question but that he was
entitled to the independent testing." But since George hadn't requested the test until more
than an hour after the evidentiary breath test, the State argued that "the delay in
requesting additional testing rendered that request unreasonable."

Our court disagreed, concluding that George didn't have a reasonable opportunity
to obtain the additional testing. The court emphasized that "[w]hat is a 'reasonable
opportunity' will depend on the circumstances in each case." 12 Kan. App. 2d at 653-54.
The George court noted that "[n]othing in the record indicates that [the officer] was
unable to comply with George's request for additional testing." 12 Kan. App. 2d at 653.

10

There is one key fact from George on which we have no information—when he
was released from custody. Neither the court's opinion nor the appellate briefs tell us.

Ultimately, since K.S.A. 8-1004 requires a reasonable opportunity to obtain an
independent test, the question is one of reasonableness, which presents a judgment call.
In George, where the officer said he'd take the driver to the hospital for an independent
test at the driver's request—and the hospital was only a few blocks away—our court held
it was unreasonable not to take the driver to the hospital for the test when he made that
request an hour later and was still in custody. In Turner and Huston, as in Messer's case,
the driver was released from custody less than 2 hours after the traffic stop and within 40
to 50 minutes after making the request for an independent test. Unlike George, no
promise had been made in Turner, Huston, or here to give the defendant a ride to the
hospital for independent testing.

In our judgment, Messer had a reasonable opportunity to obtain independent
testing, and that's all that the statute requires. The district court properly denied his
motion to suppress evidence of his breath-test result.

II. The District Court Correctly Applied the Sentencing Statutes in Effect at the Time of
Messer's Offense to Sentence Him.

Messer raises one other issue on his appeal—that the 2011 amendments to the
Kansas DUI statute should have been applied when he was sentenced. The 2011
amendments, which became effective July 1, 2011, provide that when determining
whether a conviction is a first, second, third, or subsequent conviction, "only convictions
occurring on or after July 1, 2001, shall be taken into account." K.S.A. 2011 Supp. 8-
1567(j)(3). In contrast, at the time of Messer's offense, the statute provided that "any
[DUI] convictions occurring during a person's lifetime shall be taken into account when
determining the sentence to be imposed." (Emphasis added.) K.S.A. 2010 Supp. 8-
11

1567(o)(3). Determining whether the 2011 amendment should be applied when
sentencing for a DUI offense that occurred in 2010, like Messer's, is a matter of statutory
interpretation, a legal question that appellate courts determine independently, without any
required deference to the district court. State v. Mason, 294 Kan. 675, 676, 279 P.3d 707
(2012).

Whether to apply the 2011 amendments when sentencing Messer is important
because his 2000 diversion agreement for DUI would no longer be considered. That
would make the 2010 offense a second-offense DUI, which is a misdemeanor, rather than
a third-offense DUI, which is a felony. See K.S.A. 2010 Supp. 8-1567(f)(1); K.S.A. 2011
Supp. 8-1567(b)(1)(A). The penalties for the second-offense, misdemeanor DUI are—not
surprisingly—less than those for the third-offense, felony DUI.

But the general rule in Kansas is that a defendant is sentenced based on the law in
effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667
(2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter,
"having the penalty parameters for an offense 'fixed as of the date of the commission of
the offense is fair, logical and easy to apply.'" Williams, 291 Kan. at 560 (quoting State v.
Vandervort, 276 Kan. 164, 180, 72 P.3d 925 [2003]). In addition, a statute generally
operates prospectively (applying only to future events) unless the language of the statute
clearly makes the statute retroactive (thus applying its provisions to earlier events, such
as the acts constituting a crime). The only exception to this rule is if the statutory change
is procedural or remedial in nature and does not prejudicially affect the parties'
substantive rights—rights that can be enforced by law. Williams, 291 Kan. at 557.

Messer argues that the 2011 amendment regarding which past DUI offenses would
count should be applied retroactively because the amendment contains plain language
indicating retroactivity, the amendment is procedural in nature, interpretation of the
whole act indicates that this section should be applied retroactively, and failing to apply
12

this section retroactively would lead to unreasonable results. But several panels of this
court have rejected arguments nearly identical to those raised by Messer. See State v.
Reese, 48 Kan. App. 2d 87, 91, 283 P.3d 233 (2012), petition for rev. filed September 4,
2012. The Reese decision thoroughly considered retroactive application of the
amendment and rejected retroactivity as inconsistent with settled Kansas authority
considering changes in sentencing statutes. 48 Kan. App. 2d at 88-91. Since Reese was
decided, all of the decisions of this court that we're aware of have agreed with Reese's
analysis. See, e.g., State v. Cox, No. 107,741, 2013 WL 2321173 (Kan. App. 2013)
(unpublished opinion), petition for rev. filed June 13, 2013; State v. Shafer, No. 107,988,
2013 WL 2321186, at *2 (Kan. App. 2013) (unpublished opinion), petition for rev. filed
June 13, 2013; State v. Miller, No. 108,302, 2013 WL 1943153, at *6 (Kan. App. 2013)
(unpublished opinion); State v. Ulrich, No. 107,785, 2012 WL 5869662, at *1-4 (Kan.
App. 2012) (unpublished opinion), petition for rev. filed December 17, 2012; State v.
Schmidt, No. 107,581, 2012 WL 4121132, at *1 (Kan. App. 2012) (unpublished opinion);
see also State v. Thacker, No. 107,464, 2012 WL 3136812, at *1-2 (Kan. App. 2012)
(unpublished opinion) (decided before Reese; refusing to apply 2011 amendments
retroactively), petition for rev. filed August 22, 2012.

We also agree with the Reese decision and adopt its analysis. In Reese, this court
upheld the district court's finding that the amendment to the "look-back" statute was a
substantive change in the law that should not be applied retroactively. 48 Kan. App. 2d at
90-91. The Reese court concluded it should apply the Kansas Supreme Court's finding
from Williams, 291 Kan. at 557, that a statutory amendment modifying the severity of
punishment for a conviction affects the defendant's substantive rights, and therefore only
operates prospectively. Reese, 48 Kan. App. 2d at 90.

Furthermore, the Reese court rejected an argument that under the plain language of
the statute, the date of sentencing should be used to determine which version of the
statute to apply. 48 Kan. App. 2d at 89-90. The Reese court based its decision on the fact
13

that the legislature explicitly provided for retroactive application of other aspects of the
act in which this amendment to the "look-back" statute was included, so the legislature's
failure to explicitly provide for retroactive application for K.S.A. 2011 Supp. 8-
1567(j)(3) meant it intended this "look-back" change to be applied prospectively only.
Reese, 48 Kan. App. 2d at 90-91.

Finally, the Reese court rejected an argument that the statute should be
retroactively applied simply because the defendant should receive the benefit of any
sentencing amendment that would lessen his sentence. 48 Kan. App. 2d at 91. The court
rejected this argument because the Kansas Supreme Court has not recognized a rule that
would apply a statute retroactively for this reason. 48 Kan. App. 2d at 91; see Ulrich,
2012 WL 5869662, at *9. Nor would such a rule seem sensible: a person's sentence
could depend upon how long it took for charges to be brought or for the case to move
forward (increasing the chance that changes might be made in the sentencing statutes),
not on the sentence applicable at the time the offense was committed. Everyone is
presumed to know the criminal penalties that attach to their conduct, and uniformly
applying the penalties in place on the date of each defendant's conduct is the surest way
to assure fair treatment of all defendants.

Messer cites Dorsey v. United States, 567 U.S. ___, 132 S. Ct. 2321, 183 L. Ed. 2d
250 (2012), in support of his position that the amendments should be applied
retroactively. The Dorsey Court interpreted the Fair Sentencing Act that reduced
penalties for crimes related to crack cocaine. Based upon the language of the federal
statute, the Court concluded that there was a "'fair implication'" that Congress intended to
have the sentencing amendment applied retroactively, despite the lack of express
congressional intent. 132 S. Ct. at 2335. In its analysis, the Dorsey Court relied on the
Sentencing Reform Act's express statement that the amended sentences "'in effect on the
date the defendant is sentenced'" control regardless of the date of the crime. 132 S. Ct. at
2331 (quoting 18 U.S.C. § 3553[a][4][A][ii]). Moreover, the Fair Sentencing Act
14

contained a specific congressional finding that previous sentences for crimes involving
crack cocaine, when compared to sentences involving powder cocaine, were "unfairly
long." Dorsey, 132 S. Ct. at 2333.

In contrast, the 2011 DUI amendments do not contain any similar language or
legislative findings that were present in Dorsey. The federal amendments in Dorsey did
not attempt to alter general practices relating to the retroactivity of sentencing statutes,
but were specific changes addressing a disparity in the sentencing scheme between
crimes involving two different forms of cocaine. See Ulrich, 2012 WL 5869662, at *9.
So Dorsey is clearly distinguishable from the present case.

The Reese court's reasoning is sound and persuasive. Messer does not present any
compelling new arguments that were not addressed in Reese and other cases examining
retroactivity of an amended statute. The amendments to K.S.A. 8-1567 do not apply
retroactively, and Messer was not entitled to be sentenced under the amended statute.

The district court's judgment is affirmed.