Defendant Gregory Kelly appeals his jury conviction of driving
under the influence of alcohol, in violation of K.S.A. 1987 Supp.
8-1567. Although 8-1567 was amended in both 1988 and 1989, those
amendments, while significant, are not germane to the issue in
The sole issue presented is whether defendant was denied his
statutory right to consult with counsel as provided in K.S.A.
1987 Supp. 8-1001(f)(1)(E), and, if he was denied counsel in
violation of this statute, whether the proper remedy is
suppression of the State's breath test or dismissal of the
charge. Upon review of the
facts presented, we conclude defendant's statutory right to
consult with counsel as provided by 8-1001(f)(1)(E) was violated.
We reverse defendant's conviction and remand the case for a new
On May 28, 1988, at 2:18 a.m., Trooper Phillip Bostian stopped
defendant's 1949 automobile, which was factory equipped with only
one taillight. Bostian had observed the automobile weave from the
right lane to the left lane without signaling. After Bostian
asked defendant to produce his license and get out of the
automobile, Bostian noticed defendant was swaying, his eyes were
bloodshot, and his speech was slurry or mushy. Bostian also
smelled the odor of intoxicants.
Defendant was asked to perform some field sobriety tests,
including the horizontal gaze nystagmus test, the alphabet test,
the one-leg stand test, and the walk and turn test. Bostian
placed defendant under arrest after he was unable to pay
attention and follow the directions on the walk and turn test.
Bostian reported that defendant failed the nystagmus test and the
one-leg stand test and did not attempt the walk and turn test,
but passed the alphabet test. Defendant testified he was unable
to perform the balancing tests because he had problems with his
knees and because a gunshot wound to his head had affected his
As they were driving to jail, Bostian observed that defendant
was sleeping. When they arrived at the jail, defendant stumbled
and swayed as he got out of the automobile. At the jail booking
desk, Bostian read defendant the implied consent advisory form,
"1. Kansas law (K.S.A. 8-1001) requires you to
submit to and complete one or more tests of breath,
blood or urine to determine if you are under the
influence of alcohol, drugs, or both.
"2. If you refuse to submit to and complete any
test of breath, blood or urine hereafter requested by
a law enforcement officer, your refusal will result
in the suspension of your driver's license for six
"3. You have no right to consult with an attorney
regarding whether to submit to testing.
"4. If you refuse to submit to and complete
testing, your refusal may be used against you at any
trial on a charge arising out of the operation or
attempted operation of a motor vehicle while under
the influence of alcohol and/or drugs.
"5. If you decide to submit to testing, after
testing is completed you have the right to consult
with an attorney and you may secure additional
which, if desired, should be done as soon as possible
and is customarily available from hospitals, medical
care facilities and physicians.
"6. If you submit to the testing requested of you,
the results of the test or tests may be used against
you at any trial on a charge arising out of the
operation or attempted operation of a motor vehicle
while under the influence of alcohol and/or drugs."
When Bostian asked defendant to submit to a breath test, he
refused unless his attorney was present. After defendant was told
he did not have the right to consult his attorney at that point,
defendant agreed to be tested because he believed he could
consult his attorney after he submitted to testing.
Defendant was observed for 20 minutes, after which he gave two
breath samples, one incomplete and one successful. Bostian
testified the second test was satisfactory and that he would not
have requested additional testing. After completing the breath
test, defendant requested a blood test and to see his attorney.
Bostian took defendant to St. Joseph's Hospital and tape-recorded
their conversation en route. Bostian testified that, at various
times, defendant asked to speak to an attorney before the breath
test and after the breath test, and that he asked to have his
attorney present. The taped conversation indicates defendant
asked several times to have his attorney present during the blood
test, and at least once he indicated he was being denied his
right to communicate with his attorney. Bostian also testified
that defendant was handcuffed and therefore could not have called
his attorney, and that he asked both Bostian and a physician at
the hospital to call his attorney for him. After being told his
attorney could not be present and having failed to elicit any
help in communicating with his attorney, defendant refused to
take the blood test, and he was returned to jail.
Defendant was charged with driving under the influence, K.S.A.
1987 Supp. 8-1567(a)(1) and (2); failing to drive within a single
lane, K.S.A. 8-1522: failing to signal when changing lanes,
K.S.A. 8-1548; and driving while his driving privileges were
suspended or revoked, K.S.A. 1987 Supp. 8-262(a)(1).
Defendant filed two motions to suppress the results of the
breath test and one motion to dismiss. In support of his motions,
he argued the results of the breath test and all statements
should be suppressed on the grounds that custodial interrogation
place without defendant first being advised of his Miranda
rights. In addition, defendant argued his right to consult with
counsel under K.S.A. 1987 Supp. 8-1001(f)(1)(E) was violated,
warranting dismissal of the charges. He also challenged the
State's procedures in conducting his breath test, claiming he had
belched or slightly regurgitated prior to the test, making the
After a hearing, the court denied the motions and found
defendant had not invoked his right to consult with counsel under
8-1001(f)(1)(E), stating: "The words are magic. The words are
absolutely magic and are a creature of law. He has to have stated
that before deciding to take the test, I want to consult with an
attorney on whether or not to take the second test." The court
also read the statute to mean that consulting with an attorney
was only for the limited purpose of deciding whether to take the
second test. Since defendant had already decided to take the
test, the court found he could not consult with an attorney.
Defendant filed a motion to reconsider his previous motions to
suppress and dismiss, which was denied.
Prior to trial, all counts except driving under the influence
were dismissed on the State's motion. Following a jury trial,
defendant was convicted and sentenced to imprisonment for 270
days and fined $750. Following oral application, defendant was
placed on probation. Defendant's motion for new trial was denied.
Denial of Right to Consult with Counsel
Defendant contends the denial of his request to consult with
counsel after he had submitted to a breath test requested by the
State violated his statutory right to consult with counsel. While
defendant contends such denial is violative of the United States
Constitution, the Kansas Constitution, and ...