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State v. Richmeier

Court of Appeals of Kansas

November 22, 2013

STATE of Kansas, Appellant,
v.
Andrew Lynn RICHMEIER, Appellee.

Page 100

Syllabus by the Court

1. K.S.A.2011 Supp. 8-1001(b) permits law enforcement officers to request that a driver provide a breath, blood, or urine sample for blood-alcohol testing if the officer has reasonable grounds to believe the person has been operating a vehicle while under the influence of drugs or alcohol. The driver has no constitutional right to consult with an attorney regarding whether to submit to testing.

2. K.S.A.2011 Supp. 8-1001(k)(9) provides a statutory right to consult with an attorney. According to this statute, the driver must be notified that " after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing."

3. A driver's right to consult with an attorney is not confined to the issue of whether the driver should seek additional testing.

4. Under the facts of this case, the 15- to 20-minute delay between the driver's request to consult with an attorney and his opportunity to do so after completion of the booking and bail process did not deprive him of his right to consult with an attorney under K.S.A.2011 Supp. 8-1001(k)(9).

Thomas J. Drees, county attorney, and Derek Schmidt, attorney general, for appellant.

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

Before LEBEN, P.J., McANANY and POWELL, JJ.

McANANY, J.

In this appeal the State contends that the district court erred in suppressing the results of a blood-alcohol test which the State intended to use in prosecuting its case against Andrew Lynn Richmeier for driving under the influence (DUI) of alcohol in violation of K.S.A.2011 Supp. 8-1567. We agree and reverse

Page 101

and remand the case for further proceedings.

On November 26, 2011, Deputy Brian Shannon stopped Richmeier for speeding. In the course of the stop, Shannon concluded that Richmeier was intoxicated. He arrested Richmeier and took him to the sheriff's office for processing. Shannon requested that Richmeier submit to a blood-alcohol test. As required by the Kansas Implied Consent statute, Shannon read the Implied Consent Advisory form to Richmeier and provided him with a copy of the form. Richmeier agreed to submit to blood-alcohol testing. See K.S.A.2011 Supp. 8-1001(k). Deputy Shannon told Richmeier that after taking the test he could speak with counsel and that he could request an independent test if he chose. See K.S.A.2011 Supp. 8-1001(k)(9).

Shannon drove Richmeier to Quest Diagnostics, and a blood sample was drawn at 2:05 a.m. Shannon then returned Richmeier to the jail for processing. Richmeier later testified at the suppression hearing that upon returning to the jail, he asked to speak to a lawyer because he thought his " rights had been violated at that point." He testified that he told the jailer, " I believe my rights have been violated. I need to talk to an attorney, and I specifically asked for [Michael Holland] or Greg Schwartz." ...


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