State
v.
Nece

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of Kansas.Oct 10, 2014
337 P.3d 72 (Kan. Ct. App. 2014)

111,401.

10-10-2014

STATE of Kansas, Appellant, v. Gregory Michael NECE, Appellee.

Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant. Michael S. Holland II, of Holland and Holland, of Russell, for appellee.


Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant.

Michael S. Holland II, of Holland and Holland, of Russell, for appellee.

Before MALONE, C.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION

PER CURIAM.

In this interlocutory appeal, the State challenges the district court's suppression of the results of a breath test administered to Gregory Michael Nece after his arrest for driving under the influence of alcohol (DUI). The district court found that Nece's consent to the breath test was coerced and not freely and voluntarily given because the law enforcement officer who administered the test had advised Nece, pursuant to the statutory implied consent advisories, that his refusal to take the breath test might result in a separate criminal charge being filed against him. For the reasons explained herein, we reverse the district court's judgment and remand for further proceedings.

On June 26, 2013, Officer Crystal Hornseth of the Salina Police Department stopped Nece's vehicle for having a defective headlight. While speaking with Nece, Hornseth detected the odor of an alcoholic beverage and observed that his eyes were bloodshot. Nece said that he had consumed one beer approximately an hour earlier.

Hornseth administered three field sobriety tests: the horizontal gaze nystagmus test (HGN), the walk-and-turn test, and the one-leg-stand test. Hornseth observed six clues of impairment during the HGN test, six clues during the walk-and-turn test, and three clues during the one-leg-stand test. A preliminary breath test (PBT) indicated that Nece's blood alcohol content (BAC) was above the legal limit. Hornseth arrested Nece and transported him to the Saline County Jail.

At the jail, Hornseth provided Nece with oral and written notice of the implied consent advisory, commonly known as the DC–70 form. The DC–70 form advised Nece that if he refused to submit to testing and other prerequisites were met, “you may be charged with a separate crime ... which carries criminal penalties equal to or greater than those for the crime of driving under the influence.” After receiving the implied consent advisories, Nece consented to a breath test conducted with an Intoxilyzer 8000. The test results revealed Nece's BAC to be .162 percent, more than twice the legal limit.

On July 30, 2013, the State charged Nece with alternative counts of driving under the influence of alcohol or drugs with at least one prior conviction within the last 10 years, a nonperson felony. Nece filed multiple motions to suppress and requested that “all evidence seized or obtained in violation of his constitutional rights be suppressed.” Nece also filed a memorandum in support of his motion to suppress. In the memorandum, Nece argued that the recent United States Supreme Court decision in Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), “eviscerated” the foundation of the Kansas implied consent law and, therefore, warrantless test results obtained pursuant to that law must fit within an exception to the general warrant requirement or violate the Fourth Amendment to the United States Constitution. Although Nece acknowledged that consent is a well-established exception to the warrant requirement, he argued that his consent was not valid because he was improperly coerced by the implied consent advisories, which informed him that refusing the test was an additional criminal act.

The State responded to the motion to suppress, arguing that the search was reasonable and that consent to the search was statutorily implied. The State pointed out the Kansas Supreme Court's approval of the use of the implied consent law to coerce submission to chemical testing, and the State argued that the threat of criminal sanctions fits within that type of approved coercion. In addition, the State asserted the “special needs” warrant exception applied because the State's interest in protecting public safety outweighs the intrusion of the testing. The State also argued that McNeely does not control and that the constitutionality of criminalizing a test refusal was not properly before the court because Nece was not charged under that law.

On February 12, 2014, the district court held a hearing on the motion to suppress. The parties stipulated to the following facts:

“1. Defendant was arrested at 10:52 p.m. on June 26th for driving under the influence.

“2. Defendant was taken into custody to the Law Enforcement Center.

“3. While in custody Defendant, at the Law Enforcement Center, was read and provided his Implied Consent Advisories.

“4. The Implied Consent Advisories were provided both in oral and written form through the use of the form commonly referred to as the DC–70.

“5. The arresting officer did not attempt to obtain a search warrant.

“6. Defendant's deep air—deep lung air was searched through the use of an Intoxilyzer 8000 breath test at 11:36 p.m. on June 26, 2013.

“7. The deep lung air sample obtained was tested by the Intoxilyzer 8000 and provided test results relied upon by the State as part of the prosecution.”

3

Based upon the stipulated facts and the written briefs submitted by the parties, the district court ruled from the bench as follows:

“The issue before the Court is whether Defendant's submission to the breath test constituted a knowing, intelligent and voluntary consent for Fourth Amendment purposes. The Court finds that the notice provided to the Defendant in the DC–70 before he consented to the breath test was inherently coercive as he was advised he had no constitutional right to refuse this test and refusal would result in criminal charges, including felony charges in some cases and imprisonment.

“The Court finds that the current refusal law criminalizes the refusal to a warrantless search and therefore violates the voluntariness requirement for consent searches.

“The Court concludes the Defendant's consent to the breath test was coerced and not freely and voluntarily given in violation of the Defendant's Fourth Amendment rights.

“The Defendant's Motion to Suppress the results of the breath test is granted.”

On March 13, 2014, the district court filed its written order. After relating the factual findings, the order stated: “The Court further finds that the DC–70 Implied Consent Advisory is coercive in nature. Defendant's consent to a breath test, after being provided the DC–70 Implied Consent Advisory and having it read to him, was not freely and voluntarily given.” The State timely filed this interlocutory appeal.

On appeal, the State argues that the district court erred in concluding that Nece did not provide knowing, voluntary consent to a search, free from duress and coercion. It contends that consent searches conducted pursuant to the Kansas implied consent law are reasonable under the Fourth Amendment to the United States Constitution. The State concludes that in addition to expressly consenting to the breath test, Nece impliedly consented by operating a vehicle in the state of Kansas. The State readily admits that the implied consent advisories' warning about the consequences of refusing a test is coercive; however, the State asserts that the coercion does not invalidate Nece's consent.

Nece responds by replicating the memorandum in support of his motion to suppress that he submitted to the district court. He renews his argument that McNeely changed the landscape of blood-alcohol testing pursuant to a DUI stop by eliminating the previously accepted use of the probable cause plus exigent circumstances exception to the warrant requirement. He argues that implied consent laws were not enacted to imply consent to an otherwise unconstitutional search, but rather to coerce an individual into consenting to a blood draw which would otherwise be forcibly and physically conducted. He contends that as a result of McNeely, courts must now conduct a case-by-case Fourth Amendment analysis to determine if any of the exceptions to the general warrant requirement apply. In this case, Nece asserts that the State's reliance upon the consent exception is inappropriate because Nece was improperly coerced by the implied consent advisories, which informed him that refusing the test was an additional criminal act.

An appellate court reviews the district court's denial of a motion to suppress using a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). When the material facts to the district court's decision on a motion to suppress evidence are not in dispute, as in this case, the question of whether to suppress is a question of law over which an appellate court has unlimited review. 296 Kan. at 485, 293 P.3d 718.

We begin by setting forth the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” The protections of the Fourth Amendment are made applicable to the states through the Fourteenth Amendment to the United States Constitution. See State v. Robinson, 293 Kan. 1002, 1013, 270 P.3d 1183 (2012). Kansas appellate courts “interpret § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution. [Citations omitted.]” State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011).

“The extraction of a blood sample is both a search of the person and a seizure of an effect. The extraction implicates constitutional guarantees against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution.” State v. Murry, 271 Kan. 223, 226, 21 P.3d 528 (2001) (citing Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 [1966] ). Moreover, subjecting a person to a breathalyzer test is a search that falls under the purview of the Fourth Amendment. See State v. Jones, 279 Kan. 71, 76, 106 P.3d 1 (2005).

Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. Daniel, 291 Kan. at 496, 242 P.3d 1186. Consent is one recognized exception to the warrant requirement. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). Generally, finding valid consent requires (1) “clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied. [Citation omitted.]” State v. Spagnola, 295 Kan. 1098, 1107, 289 P.3d 68 (2012).

But contrary to the general rule about consent being free of coercion, an apparent exception has long been recognized in the area of blood-alcohol testing to help curb the problem of drunk drivers on Kansas roadways. The Kansas Supreme Court has readily recognized that “ ‘[t]he purpose of the implied consent law ... is to coerce submission to chemical testing through the threat of the statutory penalties of license revocation and the admission into evidence in a DUI proceeding of the fact of refusal.’ [Citation omitted.]” Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995).

Turning to the applicable statute, K.S.A.2012 Supp. 8–1001, also known as the Kansas implied consent law, is a remedial law designed to promote public health, safety and welfare. See K.S.A.2012 Supp. 8–1001(v). The statute provides in relevant part:

“(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs....

“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, ... and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence....

....

“(k) Before a test or tests are administered under this section, the person shall be given oral and written notice that: (1) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both;

(2) the opportunity to consent to or refuse a test is not a constitutional right;

(3) there is no constitutional right to consult with an attorney regarding whether to submit to testing;

(4) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence .... (Emphasis added.) K.S.A.2012 Supp. 8–1001.

K.S.A.2012 Supp. 8–1025, which became effective on July 1, 2012, now criminalizes the refusal to submit to a blood-alcohol test under certain circumstances. The classification of the crime and the penalties for a test refusal are consistent with the crime classification and penalties for a DUI conviction, including a nonperson felony classification and up to 1 year's imprisonment on a third or subsequent conviction.

Stated as clearly as possible, the issue here is whether the coercive nature of the implied consent advisory, including the potential criminal consequences of refusing a blood-alcohol test, renders involuntary a subsequent consent such that an ensuing warrantless blood alcohol test violates the Fourth Amendment to the United States Constitution. As the State points out, Kansas courts have long held that consent to a blood-alcohol test obtained by the notification of adverse legal consequences for refusal is valid. For example, in Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 635, 176 P.3d 938 (2008), the Kansas Supreme Court stated that “compulsory testing for alcohol or drugs through drivers' implied, even coerced, consent does not violate the Constitution; it is reasonable in light of the State's compelling interest in safety on the public roads.” See Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984) ; Popp v. Motor Vehicle Department, 211 Kan. 763, 767, 508 P.2d 991 (1973).

This court also addressed a similar situation in City of Kingman v. Lubbers, 31 Kan.App.2d 426, 65 P.3d 1075, rev. denied 276 Kan. 967 (2003). In that case, the defendant was involved in a vehicle accident, after which he admitted to police that he had been drinking earlier that day. The police officer asked the defendant to submit to a PBT and advised him that a refusal to consent would result in a traffic infraction. The defendant agreed to submit to the test; after he took the PBT, he was arrested and transported to the law enforcement center. The defendant moved to suppress the PBT results and, when the district court denied the motion, submitted the case on stipulated facts, preserving his right to appeal the denial of his motion to suppress.

On appeal, the defendant claimed that any consent he gave to the PBT “was not voluntary because the threat of a traffic violation constituted coercion.” 31 Kan.App.2d at 428, 65 P.3d 1075. Focusing on the legality of the threatened sanction, the Lubbers court stated:

“Where, as here, consent is obtained after informing a driver of actual legal consequences, the consent, if freely given, is valid. The accurate statement would not involve deceit. Police cannot use deceit, but they are entitled to make truthful, accurate statements. [Citation omitted.]

....

“In the present case, [the officer] correctly advised Lubbers of the consequence of refusing the request to take a preliminary breath test. And the record contains ample evidence that Lubbers freely consented to the procedure. The ‘threat’ of a traffic citation did not render the consent invalid.” 31 Kan.App.2d at 428–29, 65 P.3d 1075.

Similarly, here, Hornseth obtained Nece's consent to the Intoxilyzer test after advising him of the potential legal consequences of his refusal. Nece does not argue that he was deceived or misinformed by Hornseth. In fact, Hornseth was required by law to advise Nece of all the consequences of a test refusal including the potential of being charged with a separate crime. See K.S.A.2013 Supp. 8–1001(k)(4). Hornseth used a DC–70 form to provide the required advisories, and there is no contention that the DC–70 form contained inaccurate information. Likewise, Nece does not contend that criminal prosecution of a test refusal is not currently legal in Kansas.

Like Kansas, other states have enacted statutes criminalizing refusal to submit to a blood-alcohol test. These laws have been challenged on various grounds, including the right against unreasonable search and seizure, and have been consistently upheld against such challenges. See People v. Harris, 225 Cal.App. 4th 1, 9, 170 Cal.Rptr.3d 729 (2014) (“The fact that there are [enhanced criminal penalties for DUI conviction if the person convicted refuses a request for testing] upon arrest does not render the consent illusory or coercive.”); State v. Smith, 2014 N.D. 152, 849 N.W.2d 599, § 21, 849 N.W.2d 599 (2014) (“[A]n individual's consent is not coerced simply because a criminal penalty has been attached to refusing the test or that law enforcement advises the driver of that law.”); State v. Brooks, 838 N.W.2d 563, 570 (Minn.2013) (“[A] driver's decision to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test.”); see also Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1450–51 (9th Cir.1986) (Alaska's imposition of criminal penalties upon driver for refusal to submit to chemical test does not violate driver's Fourth Amendment rights).

Nece cites no appellate case from anywhere in the country holding that the notification of a criminal penalty for a driver's refusal to consent to a blood-alcohol test renders such a consent involuntary under the Fourth Amendment. Instead, Nece argues that the United States Supreme Court's decision in McNeely “completely changes the Fourth Amendment analysis of breath or blood test results obtained without a warrant in DUI cases.” In McNeely, a police officer stopped a driver who admitted that he had been drinking, performed poorly on field sobriety tests, and refused blood-alcohol testing with a portable breath-test device. The officer arrested the driver, and when he again refused to provide a breath sample, the officer took him to a hospital for blood testing. The officer did not attempt to obtain a warrant, and when the driver refused to submit to blood testing, the officer directed a lab technician to forcibly obtain a sample. The defendant's blood-alcohol content was above the legal limit, and he was charged with driving while intoxicated.

The driver moved to suppress the results of the blood test, arguing that taking his blood without a search warrant violated his rights under the Fourth Amendment. The trial court agreed, ruling that the exigency exception to the warrant requirement did not apply because, other than the metabolizing of the defendant's blood alcohol, there was nothing to suggest that the officer could not practicably obtain a warrant. The Missouri Supreme Court affirmed, concluding that Schmerber, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, “ ‘requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.’ [Citation omitted.]” McNeely, 133 S.Ct. at 1557.

The United States Supreme Court granted certiorari “on the question whether the natural dissipation of alcohol in the blood stream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.” 133 S.Ct. at 1558. After reviewing its prior decision in Schmerber, the United States Supreme Court rejected the claim that exigent circumstances always exist in drunk driving investigations due to the inherently evanescent nature of blood-alcohol evidence. 133 S.Ct. at 1560–61. The Court ultimately held: “[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” 133 S.Ct. at 1563.

As the State points out, McNeely addresses the narrow issue of whether the natural dissipation of alcohol in the body creates a per se exigent circumstance in order to compel a blood draw from a driver without his or her consent and without a warrant. See 133 S.Ct. at 1558. McNeely does not involve a situation where a driver consents to a breath test after being advised of potential criminal penalties for refusal to consent. McNeely certainly does not hold that a driver's consent to a breath test under such circumstances is inherently coerced and involuntary under the Fourth Amendment.

Unlike the defendant in McNeely, Nece did not have his blood forcibly withdrawn in a situation where the State failed to establish that exigent circumstances existed to obtain the blood sample without a warrant. The case herein addresses the narrow issue of whether Nece's consent to the breath test was coerced and rendered involuntary solely because Nece had been advised of the potential criminal consequences of refusing such a test under the Kansas implied consent law. When Nece was asked to submit to the breath test, he had been arrested for DUI, and he does not challenge the fact that there was probable cause for the arrest. We decline Nece's request to extend the holding in McNeely to support the district court's suppression of Nece's breath test results.

As previously indicated, Kansas Supreme Court decisions that have long held that a driver's consent to a blood-alcohol test obtained by the notification of adverse legal consequences for refusal does not render the consent involuntary and is reasonable in light of the State's compelling interest in safety on the public roads. See e.g., Martin, 285 Kan. at 635, 176 P.3d 938. Although no Kansas case has directly addressed whether the notification that a driver's test refusal may result in a separate crime renders a subsequent consent to the test involuntary, we are persuaded by decisions in other jurisdictions which have held that it does not do so. Under the circumstances of this case, the fact that Hornseth informed Nece about the potential for criminal prosecution of a test refusal under the implied consent advisories did not render Nece's consent involuntary. We conclude the district court erred in finding otherwise and in granting Nece's motion to suppress the test results.

Finally, in granting Nece's motion to suppress the evidence, the district court did not declare Kansas' implied consent law unconstitutional. The district court merely ruled that Nece's consent to the Intoxilyzer test was involuntary. Although Nece makes the conclusory assertion on appeal that the Kansas implied consent law is unconstitutional, he does not develop this argument further. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). Without an articulated argument regarding the constitutionality of either the Kansas implied consent law or the statute criminalizing test refusal, we conclude that a constitutional challenge to the Kansas statutes is not squarely before this court on appeal.

Reversed and remanded.

MALONE, C.J., concurring:

I agree with the majority that the district court erred by granting Gregory Michael Nece's motion to suppress his breath test results, but I reach this conclusion for a different reason than that expressed by the majority. Simply stated, I find it hard to imagine how Nece's consent to the breath test can be deemed voluntary when he was advised that refusal to consent would be a crime for someone in his situation. It is one thing for the Kansas implied consent law to coerce submission to chemical testing through the threat of the statutory penalties of license revocation and the admission into evidence of the fact of refusal in a prosecution for driving under the influence of alcohol (DUI). See Furthmyer v. Kansas Department of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995). But I believe the legislature crossed the line when it made test refusal a crime under K.S.A.2013 Supp. 8–1025. Thus, I believe that Officer Crystal Hunseth violated Nece's rights under the Fourth Amendment to the United States Constitution by administering a breath test without obtaining a search warrant or properly applying a recognized exception to the warrant requirement.

Nevertheless, based on my view of the exclusionary rule, I would not suppress the evidence of Nece's breath test results in this particular case. Here, the district court suppressed the breath test results solely because “the current refusal law criminalizes the refusal to a warrantless search and therefore violates the voluntariness requirement for consent searches.” There is no assertion that Nece's consent to the breath test was not otherwise voluntary under the totality of the circumstances. When Nece was asked to submit to the breath test, he had been arrested for DUI and he does not challenge the fact that there was probable cause for the arrest. Likewise, the record is clear that Officer Hornseth acted in good faith when she advised Nece of the potential legal consequences of his test refusal. In fact, Hornseth was required by law to advise Nece of all the consequences of a test refusal, including the potential of being charged with a crime. See K.S.A.2013 Supp. 8–1001(k)(4).

Under these circumstances, I believe United States Supreme Court precedent compels our recognition of the good-faith exception to the exclusionary rule articulated in Illinois v. Krull, 480 U.S. 340, 349–50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), for objectively reasonable reliance by law enforcement on a statute. See State v. Daniel, 291 Kan. 490, Syl. ¶ 7, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011). Application of the good-faith exception in this case presents a pure legal question based on undisputed facts. Here, Officer Hornseth had the right to reasonably rely on K.S.A.2013 Supp. 8–1001(k)(4) when she provided Nece with the implied consent advisories. If the Kansas Supreme Court ultimately rules that a driver's consent to a breath test is rendered involuntary based solely on a law enforcement officer's objective good-faith reliance on K.S.A.2013 Supp. 8–1001(k)(4) in giving the implied consent advisories, then such a ruling should be applied prospectively only to all drunk driving investigations conducted in Kansas after the filing of the opinion.