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State v. Ryce

Supreme Court of Kansas

June 30, 2017

State of Kansas, Appellant,
v.
David Lee Ryce, Appellee.

         Appeal from Sedgwick District Court; Gregory L. Waller, judge. Original opinion filed 303 Kan. 899, 368 P.3d 342 (2016).

          Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the supplemental brief for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the original brief for appellant.

          Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee.

         SYLLABUS

         K.S.A. 2016 Supp. 8-1025 is facially unconstitutional.

          OPINION ON REHEARING

          LUCKERT, J.

         A Sedgwick County sheriff's deputy arrested David Lee Ryce and asked Ryce to submit to a breath test to determine his blood alcohol content. The deputy gave Ryce the written and oral notice required under Kansas' implied consent law, specifically K.S.A. 2016 Supp. 8-1001(k). Ryce refused testing, and the State charged him with violating K.S.A. 2016 Supp. 8-1025(a), which makes it a crime under certain circumstances to refuse "to submit to or complete a [blood alcohol content] test or tests deemed consented to under K.S.A. 8-1001(a)." In the district court and on appeal, Ryce challenged the constitutionality of 8-1025, leading to our decision in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I). We agreed with Ryce's arguments and held the statute was facially unconstitutional because it punishes an individual for withdrawing his or her consent to a search, even though the right to withdraw consent has been recognized in cases applying the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. 303 Kan. at 902-03.

         After we issued our decision in Ryce I, the State timely filed a motion seeking to stay the mandate until the United States Supreme Court issued a decision in three consolidated cases addressing a similar issue regarding Minnesota and North Dakota statutes that made it a crime to refuse blood alcohol content testing. We granted that motion and, once the United States Supreme Court issued its decision in Birchfield v. North Dakota, 579 U.S.__, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), allowed the parties to submit additional briefs and oral arguments.

         After considering those additional arguments and the effect of Birchfield on Ryce I, we now, once again, determine that K.S.A. 2016 Supp. 8-1025 is facially unconstitutional. While Birchfield requires some modification of our analysis, nothing in the United States Supreme Court's decision alters the ultimate basis for Ryce I: the state law grounds of statutory interpretation of 8-1025 and the statute on which it depends, K.S.A. 2016 Supp. 8-1001.

         Our Previous Decision in Ryce I

         We will not recount, here, the full factual and procedural history involved in Ryce I. Suffice it to say, it presents a standard DUI fact pattern: erratic driving and traffic infractions, failed field sobriety tests, arrest, the giving of the consent advisory required by K.S.A. 2016 Supp. 8-1001(k), and a test refusal. Before Ryce's trial on charges of various traffic violations and test refusal, he filed a motion to dismiss the test refusal count on the grounds that 8-1025 unconstitutionally punished the exercise of his right to withdraw consent to a warrantless search. The district court ruled the statute was unconstitutional, and the State appealed. Before us, Ryce recognized that under Kansas law he had provided consent to blood alcohol content testing by driving on Kansas roadways. But he contended he had a right to withdraw that consent-a right he argued arose under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights and was further protected by due process.

         In affirming the district court, we began our analysis by examining the wording of K.S.A. 2016 Supp. 8-1025, which we noted "essentially stands on the shoulders of the implied consent provision, " K.S.A. 2016 Supp. 8-1001. Ryce I, 303 Kan. at 906. The interpretation of 8-1025 "seem[ed] straightforward enough-8-1025 penalizes drivers who refuse to submit to a test that they have impliedly consented to under 8-1001." 303 Kan. at 907. But the reach of the statute depended on the provisions of 8-1001 because a driver is only "deemed to have given consent to submit to testing 'subject to the provisions' of article 10 of chapter 8 of the Kansas statutes." 303 Kan. at 907 (quoting K.S.A. 2016 Supp. 8-1001[a]). Thus, 8-1025 applies in a very narrow set of circumstances: It only criminalizes a DUI suspect's express withdrawal of consent to a search. 303 Kan. at 909.

         We next examined the provisions of K.S.A. 2016 Supp. 8-1001 and this court's interpretation and application of that statute. We will discuss the statutory provisions in more detail, but at this point we simply summarize "[o]ur caselaw[, which] has explained that a test taken after the driver receives the advisory required by 8-1001(k) 'is the product of the consent exception to the warrant requirement.'" Ryce I, 303 Kan. at 907-08 (quoting State v. Johnson, 297 Kan. 210, Syl. ¶ 8, 301 P.3d 287');">301 P.3d 287 [2013]). And "[w]e have equated an express refusal with a withdrawal of implied consent. E.g., State v. Garner, 227 Kan. 566, 572, 608 P.2d 1321 (1980)." Ryce I, 303 Kan. at 908.

         Turning to the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights to discuss the consent exception to the warrant requirement, we concluded: (1) Both a breath and blood test for blood alcohol content constitute a search; (2) both the United States and Kansas Constitutions protect citizens from unreasonable searches; (3) searches conducted without a warrant are per se unreasonable unless conducted pursuant to a recognized warrant exception; and (4) recognized warrant exceptions that might be implicated in a DUI case include consent, search incident to a lawful arrest, and probable cause plus exigent circumstances based on the evanescent nature of blood alcohol content evidence. Ryce I, 303 Kan. at 909-14, 919.

         We also considered the State's argument that K.S.A. 2016 Supp. 8-1025 was constitutional because a driver could always be compelled to cooperate with a blood alcohol content test. The State offered numerous theories supporting this assertion, including the categorical application of the search-incident-to-lawful-arrest exception. Reviewing Kansas caselaw, we noted that after the adoption of 8-1001, this court had upheld its constitutionality by concluding that a search conducted through a breath test could occur without a warrant because the search was conducted incident to an arrest. Subsequently, in State v. Murry, 271 Kan. 223, 225-26, 21 P.3d 528 (2001), this court recognized that, as of 1985, various legislative amendments meant that "8-1001 no longer requires an arrest." In light of these legislative changes, the Murry court recognized the constitutionality of Kansas' implied consent law could no longer depend on the categorical application of the search-incident-to-lawful-arrest exception. See K.S.A. 2016 Supp. 8-1001(b)(1)(B), (b)(2); 303 Kan. at 908, 920-23. As we will discuss in more detail below, in our Ryce I analysis we also interpreted United States Supreme Court precedent as indicating the search-incident-to-lawful-arrest exception would not categorically apply to a search for evidence of blood alcohol content. See Ryce I, 303 Kan. at 922.

         Once this court moved away from the search-incident-to-lawful-arrest exception as a categorical basis for all searches conducted under K.S.A. 2016 Supp. 8-1001, Kansas courts instead relied on a categorical exception to the warrant requirement based on the evanescent nature of blood alcohol content giving rise to an exigent circumstance. Murry, 271 Kan. at 223, Syl. ¶ 2. Police must have probable cause that a crime has been committed in order to utilize this exception, but the Kansas Legislature amended 8-1001 so as to provide that probable cause of impaired driving is not required in all the circumstances where the implied consent provisions apply. See K.S.A. 2016 Supp. 8-1001(b)(1)(B), (b)(2); State v. Declerck, 49 Kan.App.2d 908, 919, 317 P.3d 794, rev. denied 299 Kan. 1271 (2014) (holding 8-1001[b][2], [d] unconstitutional to the extent it allows a search after a traffic infraction combined with an accident resulting in injury or death, if there is no probable cause that drugs or alcohol were involved). As a result of these changes and the factual nature of the exigent circumstances exception, this court adopted consent as the constitutional basis for Kansas' implied consent statute. See Johnson, 297 Kan. 210, Syl. ¶ 8. But the United States Supreme Court held in Missouri v. McNeely, 569 U.S.__, 133 S.Ct. 1552, 1561, 185 L.Ed.2d 696 (2013), that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk driving situations.

         In Ryce I, this historical review of caselaw led us back to consent as the only constitutional basis upholding all searches under K.S.A. 2016 Supp. 8-1001. We also recognized that the presence of a warrant or the application of a warrant exception might, if applied on a case-by-case basis, justify a warrantless search. Nevertheless, K.S.A. 2016 Supp. 8-1025 "narrowly and unambiguously penalizes a driver for refusing to submit to a search 'deemed consented to.'" Ryce I, 303 Kan. at 918 (quoting K.S.A. 2016 Supp. 8-1025). We concluded that "given the wording of 8-1025 and our caselaw indicating that refusal to submit to testing is really withdrawal of consent, our decision regarding whether 8-1025 is constitutional under Fourth Amendment principles ultimately depends on the application of the consent exception alone." 303 Kan. at 931.

         Referring to the "deemed consented to" wording of K.S.A. 2016 Supp. 8-1025, we further explained that "if an officer requested to search a DUI suspect based on a warrant or some . . . warrant exception, the officer would not be 'deeming' the person to have consented. Consent would be irrelevant." Ryce I, 303 Kan. at 931; see also Garner, 227 Kan. at 572 (equating an express refusal to submit to a test with withdrawal of implied consent). In such a case, we noted: "Kansas' general obstruction statute, K.S.A. [2016] Supp. 21-5904(a)(3), might punish those situations as interfering with the execution of a warrant or otherwise interfering in the 'discharge of official duty' without need to resort to 8-1025." Ryce I, 303 Kan. at 918.

         Nevertheless, we interpreted K.S.A. 2016 Supp. 8-1001 as going beyond those circumstances so that its categorical application depended on consent. 303 Kan. at 915-18 (explaining that when considering the facial constitutionality of a statute a court must "look to the circumstances actually affected by the challenged statute, " not whether there is any possible set of circumstances for which a statute might be constitutional). This became important to our analysis because, as the United States Supreme Court had discussed in Los Angeles v. Patel, 576 U.S.__, 135 S.Ct. 2443, 2451, 192 L.Ed.2d 435 (2015), "when assessing whether a statute meets [the facially unconstitutional standard, where a law is unconstitutional in all its applications], the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct." K.S.A. 2016 Supp. 8-1025 does not make it a crime to refuse a law enforcement officer's lawful order to submit to a blood alcohol content test; it makes it a crime to refuse to submit to a test deemed consented to-i.e., to withdraw consent.

         Applying the text of K.S.A. 2016 Supp. 8-1025 to the constitutional principles regarding reasonable searches, we held the State could not criminally punish a defendant for withdrawing his or her implied consent. Using due process analysis, we readily agreed with the State that it has a compelling interest in combating drunk driving problems. But K.S.A. 2016 Supp. 8-1025 was not narrowly tailored to serve those compelling interests. 303 Kan. at 957-63. Accordingly, we held 8-1025 "violates a suspect's Fourth and Fourteenth Amendment rights and . . . § 15 of the Kansas Constitution Bill of Rights." 303 Kan. at 963. We specifically declined to address whether the statute violated the Fifth Amendment prohibition against compelled self-incrimination, whether Miranda warnings needed to be given along with an implied consent advisory, or whether the statute violated the doctrine of unconstitutional conditions. 303 Kan. at 963-64.

         On the same day we filed our decision in Ryce I, we also filed decisions in State v. Wilson, 303 Kan. 973, 368 P.3d 1086 (2016), and State v. Wycoff, 303 Kan. 885, 367 P.3d 1258 (2016). In both Wilson and Wycoff, we relied on our analysis in Ryce I and concluded the defendants in those cases could not be prosecuted for violating K.S.A. 2016 Supp. 8-1025. Wilson, 303 Kan. at 975; Wycoff, 303 Kan. at 886. In a fourth decision, State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016), we affirmed a district court's decision to suppress blood alcohol content testing results because the driver's consent, which was partially based on the statutorily required advisory that explained the effect of 8-1025, was not voluntarily given. We explained that the "consent was involuntary because it was obtained by means of an inaccurate, ...


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