Tests by the police for alcohol content of blood and breath
are searches under the Fourth Amendment to the United States
Drivers who have consented to a blood-alcohol content test
based on the threat that they may be charged with a criminal
offense if they refused to take the test have not validly
warrantless search is intrinsically unreasonable unless it
falls within one of the recognized exceptions to the search
warrant requirement, which include: probable cause plus
exigent circumstances; consent to be searched; and a search
incident to arrest.
Ordinarily, issues not raised before the trial court cannot
be raised for the first time on appeal. An exception to this
rule is when the newly asserted theory involves only a
question of law arising on proved or admitted facts and is
finally determinative of the case.
search-incident-to-arrest exception to the search warrant
requirement is a categorical exception to the warrant
requirement and permits an officer to demand a breath test
from a person arrested for a driving under the influence
violation. Thus, a breath test-but not a blood test because
it is more intrusive-may be administered as a search incident
to lawful arrest for drunk driving.
good-faith exception to the exclusionary rule applies when an
officer acts in an objectively reasonable reliance on a
statute that is later determined to be unconstitutional.
from Ellis District Court; Edward E. Bouker, judge.
Michael S. Holland II, of Holland and Holland, of Russell,
Brown, special prosecutor, of Hays, Kristafer R. Ailslieger,
deputy solicitor general, and Derek Schmidt, attorney
general, for appellee.
Hill, P.J., McANANY and Atcheson, JJ.
time to time, the law changes while cases are awaiting
appellate review. This is such a case. Dustin Dean Perkins
appeals his conviction for driving under the influence of
alcohol arising from a trial to the court on stipulated
facts. The issue for us to consider is whether his breath
test was constitutional and its results admissible under the
search-incident-to-arrest exception to the search warrant
requirement of the Fourth Amendment to the United States
Constitution. Following binding United States Supreme Court
precedent, we hold that the breath test was a permissible
search incident to arrest and thus, its results were
admissible. Additionally, we hold the results were also
admissible under the good-faith exception to the exclusionary
rule. Accordingly, we affirm Perkins' conviction.
begin with a brief summary of the facts that led to
Perkins' conviction and follow with a review of three
important appellate opinions that control our decision. We
conclude with our analysis and explanation on why we affirm
police officer witnessed a traffic infraction.
1:30 one morning in July 2012, an investigator from the Hays
Police Department saw Perkins disobey a red traffic signal at
an intersection. When the investigator stopped Perkins'
car, he noticed that Perkins had bloodshot eyes and he
detected a moderate odor of alcohol coming from Perkins'
person. Perkins told him that he drank three beers that
evening. When the investigator asked Perkins to get out of
the car to perform field sobriety tests, he spotted an open,
partially crushed, beer can on the floorboard between the
driver's seat and door.
field tests were informative. In the investigator's view,
Perkins exhibited at least four "clues of
impairment" on the walk-and-turn test. Perkins could not
maintain his balance during the instructional phase of the
test; he stopped walking before completing the second set of
nine steps; he missed making heel-to-toe contact on both sets
of nine steps; and, he did not turn around properly. On the
one-legged-stand test, Perkins exhibited two clues of
impairment-he swayed and hopped during all three 10-second
these facts led the investigator to arrest Perkins for
driving under the influence of alcohol. He then transported
him to the law enforcement center for testing. He gave
Perkins the oral and written notices required by the Kansas
implied-consent law and, in due course, Perkins agreed to
submit to a breath test. Perkins' breath test result
indicated a breath-alcohol concentration of .158 grams of
alcohol per 210 liters of breath, which is above the legal
limit. The State charged him with a class A nonperson
misdemeanor, driving under the influence of alcohol in
violation of K.S.A. 2012 Supp. 8-1567(a)(2), or in the
alternative (a)(3), and (b)(1)(B).
trial, Perkins moved to suppress the breath test results,
contending that his consent for the test was coerced and
involuntary. He argued that the breath test was an
unreasonable search in violation of the Fourth Amendment to
the United States Constitution. The district court denied his
motion to suppress and found Perkins guilty on stipulated
facts. Perkins appealed to this court.
this appeal was pending, two Supreme Courts made important
Kansas law at the time of Perkins' arrest, a driver's
consent to the testing of his or her blood, breath, urine, or
other bodily substances for possible alcohol content was
implied by statute. According to K.S.A. 2016 Supp. 8-1001, if
a person is operating or attempting to operate a vehicle in
Kansas, the law deems that person has consented to alcohol
testing. Consent for testing is implied from that conduct.
But, along with that law, K.S.A. 2016 Supp. 8-1025 made it a
crime for a person to withdraw that implied consent by
refusing the test. Our Kansas Supreme Court's treatment
of the second statute- making it a crime to refuse the breath
test-leads directly to the issue arising in this case. We now
examine two cases from the Kansas Supreme Court and one from
the United States Supreme Court.
Perkins' appeal was pending, the Kansas Supreme Court
struck down one of Kansas alcohol testing laws. The court
held that K.S.A. 2014 Supp. 8-1025 was facially
unconstitutional because by punishing an individual for
withdrawing his or her consent to search, it violated the
fundamental right to be free from an unreasonable search. It
further held that the statute was not narrowly tailored to
serve the State's interests. State v. Ryce, 303
Kan. 899, Syl. ¶¶ 9, 12, 368 P.3d 342 (2016)
(Ryce I), aff'd on reh'g 306 Kan.
682, 396 P.3d 711 (2017) (Ryce II). The court did
not stop there.
same day in another case, the court affirmed the suppression
of a defendant's breath-alcohol test result in a case
factually similar to this one. The court decided that the
test resulted from involuntary consent because the defendant
was told before consenting to the test that she might be
charged with a separate crime for refusing to submit to a
breath-alcohol test. In the court's view, since the State
could not have constitutionally imposed criminal penalties if
the defendant refused the test, the defendant's consent
to submit to the test was obtained by means of an inaccurate
and, therefore, coercive advisement. In other words, consent
obtained through a falsehood is coercive and is no consent at
all. State v. Nece, 303 Kan. 888, 889, 897, 367 P.3d
1260 (2016) (Nece I), aff'd on
reh'g 306 Kan. 679, 396 P.3d 709 (2017) (Nece
II). The Kansas Supreme Court was not the only appellate
court to address this subject.
after these two Kansas rulings, the United States Supreme
Court went deeper into the subject. It held that courts
cannot deem drivers to have validly consented to a
blood-alcohol content test based on the threat that they may
be charged with a criminal offense if they refused to take
the test. This is consistent with the Kansas Supreme
Court's rulings in Ryce I and II. Importantly,
the Court went further than the Kansas court and held that
warrantless breath tests are permitted as a search
incident to arrest-another exception to the requirement for a
search warrant. Birchfield v. North Dakota, 579
U.S.__, 136 S.Ct. 2160, 2185-86, 195 L.Ed.2d 560 (2016).
language in Birchfield could not be clearer. Breath
tests are constitutionally acceptable ...