Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Perkins

Court of Appeals of Kansas

March 2, 2018

State of Kansas, Appellee,
v.
Dustin Dean Perkins, Appellant.

          SYLLABUS

         1. Tests by the police for alcohol content of blood and breath are searches under the Fourth Amendment to the United States Constitution.

         2. 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 consented.

         3. Any 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.

          4. 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.

         5. The 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.

         6. A 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.

         Appeal from Ellis District Court; Edward E. Bouker, judge.

          Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

          Curtis Brown, special prosecutor, of Hays, Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.

          Before Hill, P.J., McANANY and Atcheson, JJ.

          Hill, J.

         From 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.

         We 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 his conviction.

         A police officer witnessed a traffic infraction.

         Around 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.

         The 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 standing periods.

          All of 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).

         Before 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.

         While this appeal was pending, two Supreme Courts made important rulings.

         Under 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.

          While 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.

         On the 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.

         Shortly 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).

          The language in Birchfield could not be clearer. Breath tests are constitutionally acceptable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.