State v. Price
664 P.2d 869
Kan.,1983.

Defendant was convicted before the Shawnee District Court, Franklin R. Theis, J., of driving under the influence of alcohol and driving left of center and he appealed. The Supreme Court, Lockett, J., held that: (1) phrase "you shall presume," in instructing on results of clinical blood alcohol test, was a permissive presumption, and (2) Miranda warnings were not required in connection with preparation of motor vehicle accident report.
Affirmed.

**869 *706 Syllabus by the Court

1. The presumption "you shall presume" contained in the trial court's instruction to the jury was a correct statement of the statutory presumption contained in K.S.A. 8-1005.
2. The statutory presumption that a defendant was under the influence of intoxicants **870 is not conclusive, but is a presumption which may be rebutted by other evidence which a jury is entitled to take into consideration to determine whether the prosecution has sustained its burden of proving beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor.
3. The propriety of instructions to the jury is to be gauged by consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case. State v. Korbel, 231 Kan. 657, Syl. ¶ 6, 647 P.2d 1301 (1982).
4. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction is clearly erroneous. State v. Korbel, 231 Kan. 657, Syl. ¶ 4, 647 P.2d 1301 (1982).
5. General on-the-scene questioning as to the facts surrounding the cause of an accident or other general questioning of a citizen in a fact finding process is not affected by Miranda.
6. By investigatory interrogation is meant the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. State v. Frizzell, 207 Kan. 393, Syl. ¶ 2, 485 P.2d 160 (1971).