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.
2016 Supp. 8-1025 is facially unconstitutional.
OPINION ON REHEARING
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.
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.
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.
Previous Decision in Ryce I
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
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.
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 ). 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.
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.
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.
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], [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.
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.
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.  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.
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
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.
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, ...