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State v. Robinson

Court of Appeals of Kansas

December 22, 2017

State of Kansas, Appellee,
v.
Michael Anthony Robinson, Appellant.

         SYLLABUS BY THE COURT

         1. Whether a statute is constitutional involves a question of law subject to unlimited appellate review.

         2. K.S.A. 2016 Supp. 8-1012 is unconstitutional because the statute criminalizes a person's right to withdraw his or her consent to a warrantless search and it is not narrowly tailored to serve a compelling state interest.

         Appeal from Johnson District Court; Sara Welch, judge.

          Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

          Alex M. Scott and Shawn E. Minihan, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Hill, P.J., Malone, J., and Merlin G. Wheeler, District Judge, assigned.

          Malone, J.

         Michael Anthony Robinson appeals his convictions and sentences for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, refusal to submit to a preliminary breath test (PBT) in violation of K.S.A. 2016 Supp. 8-1012, and driving under the influence of alcohol (DUI). Robinson first argues that his conviction for refusal to submit to testing is based on an unconstitutional statute and must be reversed. Second, Robinson argues that his conviction for refusal to submit to a PBT also is based on an unconstitutional statute and must be reversed. Third, Robinson argues that the district court erred by using his prior out-of-state DUI convictions to sentence him as a fourth or subsequent DUI offender. Finally, Robinson argues that the district court erred when it imposed the mandatory $2, 500 fine for his DUI conviction without first considering community service as an alternative method of paying the fine.

         The State concedes that Robinson's conviction for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025 must be reversed because the statute is facially unconstitutional as held by our Supreme Court in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g, 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II). In this case of first impression, we hold that K.S.A. 2016 Supp. 8-1012 is unconstitutional for the same reasons that K.S.A. 2016 Supp. 8-1025 was found to be unconstitutional in Ryce I and Ryce II, i.e., the statute criminalizes a person's right to withdraw his or her consent to a warrantless search and it is not narrowly tailored to serve a compelling state interest. As for the DUI sentence, the parties agree that the case must be remanded for the district court to determine whether Robinson's California DUI convictions can be used to enhance his sentence under the Kansas DUI statute. As a result, we do not need to reach Robinson's final issue about the fine for the DUI.

         Factual and Procedural Background

         The relevant facts are straightforward and undisputed. On October 20, 2013, police responded to a call about a possible drunk driver parked in front of a convenience store. When the officers arrived, they found Robinson passed out in the driver's seat of his car. A police officer had to yell to wake up Robinson, who had bloodshot and watery eyes, smelled of consumed alcoholic beverage, and appeared lethargic. Robinson told the officer he had come from a bar and admitted he had been drinking. The officer ran Robinson's driver's license and found it was suspended.

         In the ensuing investigation, Robinson exhibited many signs of impairment in the field sobriety tests. Robinson refused to submit to a PBT even though the officer advised him that the refusal was a traffic infraction. Robinson also refused to submit to an evidentiary breath test even though the officer advised him that the refusal could be prosecuted as a separate crime with penalties comparable to a DUI conviction. The officer later found an open container of alcohol in Robinson's vehicle.

         The State charged Robinson with DUI as a fourth or subsequent offender, refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025, driving on a suspended license, transporting an open container, and refusal to submit to a PBT in violation of K.S.A. 2016 Supp. 8-1012. The jury acquitted Robinson of the driving while suspended charge but found him guilty of the remaining charges.

         Before sentencing, Robinson moved to vacate his conviction for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025 based on the Kansas Supreme Court's decision in Ryce I, which held that the statute was facially unconstitutional. Noting that the ruling in Ryce I was not final, the district court denied Robinson's motion.

         At sentencing, Robinson's presentence investigation (PSI) report indicated that he had a prior DUI conviction in Kansas in July 2013 and that he had been convicted of four DUI offenses in California and three DUI offenses in Arizona. Robinson asserted no objection to his criminal history as reflected in the PSI report.

         The district court sentenced Robinson to one year in jail and imposed a $2, 500 fine for his DUI conviction. The district court also sentenced Robinson to one year in jail and imposed a $2, 500 fine for his refusal to submit to testing conviction. The district court sentenced Robinson to six months in jail for his transporting an open container conviction. Finally, the district court imposed a $105 fine for the refusal to submit to the PBT. The district court ordered that each of Robinson's sentences run consecutive to one another as well as other cases. Robinson timely filed a notice of appeal.

         Refusal to Submit to Testing in Violation of K.S.A. 2016 Supp. 8-1025

         Robinson first argues that his conviction for refusal to submit to testing in violation of K.S.A. 2016 Supp. 8-1025 must be reversed because the statute is unconstitutional. Robinson filed his brief after the Supreme Court heard arguments on the State's motion for rehearing in Ryce I, but before the Supreme Court issued its decision in Ryce II. In Ryce I, the Kansas Supreme Court held that 8-1025, which imposes criminal penalties upon a motorist for refusing to submit to any method of blood-alcohol testing, is facially unconstitutional because the statute criminalizes a defendant's right to withdraw his or her consent to a warrantless search and it is not narrowly tailored to serve a compelling state interest. 303 Kan. at 963. In Ryce II, our Supreme Court reaffirmed its prior decision that 8-1025 is facially unconstitutional. 306 Kan. at 699-700.

         The State concedes that this court must reverse Robinson's conviction for refusal to submit to testing based on Ryce I and Ryce II. Thus, Robinson's conviction for refusal to submit to testing ...


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