Review of the judgment of the Court of Appeals in an
unpublished opinion filed September 28, 2012.
Appeal from Russell District Court; JACK L. BURR,
Judgment of the Court of Appeals affirming the district court is remanded with directions. Judgment of the district court is remanded with directions.
BY THE COURT
1. Under Kansas' Implied Consent Law, any person who operates a vehicle within this state is deemed to have given consent 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, provided that the person has been given certain mandatory notices before a law enforcement officer administers such a test.
2. The mandatory implied consent notices that must be given to a person before a law enforcement officer can administer a drug or alcohol test include the advice that there is no constitutional right to consult with an attorney regarding whether to submit to testing, but that after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing.
3. The scope of an administrative hearing on a driver's license suspension is restricted to those issues set forth in K.S.A. 2009 Supp. 8-1020(h). Whether a driver has been denied her or his statutory right to consult with an attorney after alcohol or drug testing is germane to those issues permitted to be addressed at a driver's license suspension administrative hearing.
4. A person who has been given the implied consent advisory notice that he or she has the right to consult with an attorney after completion of the alcohol or drug testing, may invoke that post-testing right prior to testing. The only statutory constraint on the right to counsel in the Implied Consent Law involves when the person may actually communicate with a lawyer, i.e., after the completion of the alcohol or drug testing.
5. The statutorily mandated implied consent advisory under K.S.A. 2009 Supp. 8-1001(k)(10)--that after the completion of alcohol or drug testing the person has the right to consult with an attorney--does not restrict the subject matter of the attorney consultation to which the person is entitled.
6. In a driver's license suspension administrative hearing, if the district court finds that the driver requested, but was denied, counsel pursuant to the statutory right to counsel contained in K.S.A. 2009 Supp. 8-1001(k)(10), the proper remedy is to suppress the State's testing results.
Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellant.
John D. Shultz, of Kansas Department of Revenue, argued the cause, and James G. Keller, of the same office, was on the brief for appellee.
Robert Blake Dumler challenges the administrative suspension of his driving privileges based on driving under the influence of alcohol. Dumler contends he was denied his statutory right under K.S.A. 2009 Supp. 8-1001(k)(10) to consult with an attorney after he completed a breath alcohol test. The district court and Court of Appeals affirmed Dumler's administrative suspension after concluding that his pre-test request for counsel was insufficient to invoke his statutory right. We granted Dumler's petition for review and now hold that there is no bright-line rule requiring a person to invoke his or her statutory right to counsel after the completion of breath or blood alcohol testing, so long as the request pertained to post-testing consultation. We remand to the district court to apply the standard we set forth in this opinion.
Factual and Procedural Overview
The facts relevant to Dumler's issue on appeal were established at a de novo hearing in the district court and are not in material dispute. On April 17, 2010, a law enforcement officer stopped Dumler for committing a traffic violation, which led to his arrest for driving under the influence (DUI). The officer transported Dumler to the sheriff's office and provided Dumler with the implied consent notices under K.S.A. 2009 Supp. 8-1001(k)(1) through (10), before requesting that he submit to a breath alcohol test. One of the implied consent notices informed Dumler that he had the right, after the completion of testing, to consult with an attorney and secure additional testing. The officer also read Dumler his Miranda rights, which, of course, include the right to an attorney.
The Court of Appeals opinion related that " [o]n several occasions before the breath test was administered Dumler requested that he be permitted to confer with an attorney," with the last request coming after the oral and written implied consent advisories and the Miranda warnings. Dumler v. Kansas Dept. of Revenue, 285 P.3d 1045, 2012 WL 4679128, at *1 (Kan. App. 2012) (unpublished opinion), rev. granted298 Kan. 1201 (2014). The arresting officer acknowledged that he never gave Dumler an ...