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STATE v. KELLY

January 26, 1990.

STATE OF KANSAS, Appellee,
v.
GREGORY EUGENE KELLY, Appellant.



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 this case.

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

[14 Kan. App. 2d 183]

      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 trial.

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 balance.

  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, which states:
"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 (6) months.
"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 testing,

[14 Kan. App. 2d 184]

      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 took

[14 Kan. App. 2d 185]

      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 results unreliable.

  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 ...


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