Kansas Supreme Court Denies Right to Cross-Examine Intoxilyzer Expert

Daniel A. Benson was stopped at a DUI checkpoint in July of 2004 in Shawnee County, Kansas. He agreed to take a series of Field Sobriety Tests, after which he agreed to submit to a test on the Intoxilyzer 5000, which registered a blood alcohol content of .087, which is just above the limit of .08 for both Kansas and Missouri DUI laws.

Mr. Benson was then charged with a Felony DUI in Shawnee County, as a third-time offender. He was later convicted of Felony DUI.

On appeal, Mr. Benson sought to have his DUI conviction overturned on the basis that he was denied the opportunity to cross-examine and confront the technician who certified and maintained the particular Intoxilyzer 5000 machine he was tested on.

The Kansas Supreme Court ruled that the confrontation clause of the United States Constitution does not apply, because such records are not kept for the purpose of convicting someone, rather they are generated in the course of business. Thus, Mr. Benson had no legal recourse to cross-examine the individual whose responsibility it was to maintain the machine that had a large part in convicting him of a felony offense.

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