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State Given Benefit of Procedural Due Process Even Though the Back Dated Certificates


In State v. Ernesti 291 Kan. 54, 65, 239 P.3d 40 (2010), the Supreme Court decided to overturn the district court, who had previously suppressed the breath test results, ruling that the new regulations were not followed. The facts are as follows:

1. Ernesti was charged with DUI and during the case was provided a certificate which stated that the Lawrence Police Department "has met the requirements of K.A.R. 28-32-4 for testing…" The Lawrence received the certification on January 18, 2008.

2. The certificate was backdated to March 14, 2008, even though the certificate was not issued by the KDHE until September 2008! This was because on March 14, 2008, Kansas Department of Heaqlth and Environment revoked all regulations pertaining to the Intoxilyzer certification (including K.A.R. 28-32-4) and replaced them with K.A.R. 28-32-8 thru K.A.R. 28-32-14. Basically, they were trying to correct on oversight they missed by not getting a correct certificate, timely.

3. After the ruling, the State appealed and then the Supreme Court reviewed K.S.A. 8-1002(a)(3) establishing minimal foundation requirements for the state to show a proper breath test-- one of which is "the testing equipment used was certified by the KDHE". The Supreme Court said that:

A. The Lawrence Police Department obtained a certification from KDHE

B. The operators relied upon the certification.

C. The certificate protected important interests and vested an accrued right

D. Suspension of the certificate would involve state action that adjudicates important interests.

E. The certificate cannot be taken away without the procedural due process required by the Fourteenth Amendment. Therefore, the certificate remains valid until its original expiration date even though the regulations were revoked. This was also even though the new certificate had been back dated!

The criminal defense lawyers arguing this did an incredible job, but the Courts likely did not want to invalidate so many DUI convictions. Even though I thought this case might have been decided the other way, many DUI attorneys were not surprised by the outcome.