Appeal from Ford District Court; DANIEL L. LOVE, judge.
1. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or " deep lung" breath for chemical analysis, is a search under the Fourth Amendment to the United States Constitution.
2. Compulsory testing for alcohol or drugs based on drivers' implied, even coerced, consent does not violate the United States Constitution; it is reasonable in light of the State's compelling interest in safety on the public roads.
3. When consent is obtained by threat of consequences without justification in law, such consent cannot be said to be voluntary. Moreover, a threat to obtain a search warrant rather than notification of intent to seek a search warrant will invalidate a subsequent consent if there was not probable cause upon which a warrant could issue.
4. Under the Kansas implied consent law, law enforcement personnel are statutorily entitled to obtain a warrant to draw blood from a driver even after the driver refuses to submit to a breathalyzer test if the warrant is supported by probable cause.
5. Under the facts of the present case, where probable cause supported law enforcement's threat to obtain a warrant in order to secure a sample of the driver's blood after the driver refused to submit to a breathalyzer test, the driver's subsequent consent to submit to the breathalyzer test was not unlawfully coerced.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
Terry J. Malone, of Williams, Malone & Ralph, P.A., of Dodge City, for appellee.
Before MCANANY, P.J., GREEN and POWELL, JJ.
Orie J. Webb appeals his second conviction for driving under the influence (DUI), arguing the preliminary breath test (PBT) administered to him was illegally obtained in violation of the Fourth Amendment to the United States Constitution. Specifically, Webb argues K.S.A. 2011 Supp. 8-1012(b) is unconstitutional because it allows an officer to request a PBT upon reasonable suspicion--rather than probable cause--that the driver was operating a vehicle while under the influence of alcohol or drugs or both. Webb claims the officer did not have probable cause to arrest him for DUI without the PBT results. Webb also claims the district court should have suppressed the breathalyzer test results because the officer improperly coerced him into submitting to the test by threatening to obtain a search warrant to draw his blood if he refused.
Because the officer had probable cause without the PBT results to believe Webb was driving under the influence and because the officer had legal justification for threatening to obtain a search warrant after Webb's initial refusal to take the breathalyzer test, we conclude Webb was not improperly coerced into ultimately submitting to the breathalyzer test, and we affirm the district court's denial of Webb's motion to suppress and Webb's conviction for DUI.
Factual and Procedural History
On November 24, 2011, at 1:56 a.m., Officer Justin Warkentin of the Dodge City Police Department stopped a vehicle for an insufficiently illuminated license plate;
Warkentin could not read the expiration date on the plate. At the time of the stop, Warkentin did not ...