Posted on October 24, 2022
Admissibility of Breath Tests: Must an Intoxilyzer 9000 Operator Check a Subject’s Mouth?
State v. Fudge, No. 124,793, (Kan. Ct. App. Sept. 30, 2022)
Hayley Koontz, Staff Editor
Issue: Is an Intoxilyzer 9000 operator required to check a subject’s mouth before administering a breath test for the results to be admissible?
Answer: No. Breath test results must conform only with Kansas Department of Health and Environment (“KDHE”) procedural requirements to be admissible, and the Intoxilyzer 9000 protocol does not require an operator to check a subject’s mouth before administering a breath test.
Facts: Jeremy Fudge was arrested for driving under the influence of alcohol. A sheriff’s deputy pulled Fudger over and administered a breath test using an Intoxilyzer. The test revealed that Fudge’s blood alcohol content was above the legal limit. During the breath test, Fudge had chewing tobacco in his mouth. Fudge moved to suppress the test results, arguing that the deputy had violated KDHE breath test operating procedures by not adequately checking Fudge’s mouth before administering the test. The motion to suppress was granted and the State appealed.
Discussion: Although prior precedent held that for a breath test to be admissible as evidence, the State must show the test procedures conformed to both the instrument’s operating manual and the KDHE requirements, the Kansas Court of Appeals held the updated regulations changed the evidentiary standard. Kan. Stat. Ann. § 8-1002(a)(3)(B) (2021) requires only that breath test procedures conform with KDHE requirements to be admissible. The KDHE’s Intoxilyzer 9000 protocol does not require an operator to check the subject’s mouth before administering a breath test. Accordingly, an Intoxilyzer 9000 operator need not do so. However, Fudge relied on State v. Bishop, to argue the State was required to show the test procedures conformed with the test equipment’s operating manual, as well as KDHE requirements. Importantly, however, the regulation the Bishop court relied on has since changed. The KDHE administrative regulation applicable in Bishop, Kan. Admin. Regs. § 28-32-1(b)(3) (Supp. 1997), required that procedures comply with both manufacturer and KDHE requirements. The current regulation, however, Kan. Admin. Regs. § 28-32-9(b)(4)(2022), which has been effective since 2008, only requires that procedures comply with KDHE requirements. Because the current regulation does not require compliance with the operating manual, there is no requirement that operators check a subject’s mouth before administering a breath test for the breath test to be admissible as evidence.
Key Authorities: Kan. Stat. Ann. § 8-1002(a)(3)(B) (2021) (outlining breath test procedural requirements); State v. Bishop, 957 P.2d 369, 375 (Kan. 1998) (holding the State was required to show the test procedures conform to both the operating manual and KDHE requirements); Kan. Admin. Regs. § 28-32-9(b)(4)(2022) (stating the procedure a breath test operator is required to follow).