BY THE COURT
Sixth Amendment to the United States Constitution and §
10 of the Kansas Constitution Bill of Rights guarantee a
criminal defendant the right to a speedy and public trial.
The purpose of K.S.A. 2018 Supp. 22-3402 is to implement the
accused's constitutional right to a speedy trial.
K.S.A. 2018 Supp. 22-3402(b) requires the accused to be
brought to trial within 180 days after his or her
arraignment. The remedy for the State's failure to bring
the accused to trial within the required time is dismissal of
the pending charges. The speedy trial clock begins to run at
the defendant's arraignment.
State bears the responsibility for ensuring that the accused
is provided with a speedy trial in accordance with K.S.A.
2018 Supp. 22-3402. The defendant is not required to take any
affirmative action to ensure that his or her right to a
speedy trial is observed. Yet, if a delay is caused by a
defendant's application or fault, including the filing of
a motion to suppress, that delay pauses the running of the
speedy trial clock.
speedy trial purposes, the time chargeable to the defendant
begins on the date the defendant's motion is filed, but
the defendant can only be charged with the reasonable amount
of time the district court has the motion under advisement.
Judicial procrastination cannot be attributed to the
defendant as any party filing a motion has a right to assume
it will be acted upon expeditiously after submission.
K.S.A. 2018 Supp. 22-3402(g) bars dismissal of a case on
statutory speedy trial grounds when a delay is initially
attributed to the defendant but is subsequently charged to
the State for any reason, unless not considering the delay
would result in a violation of the constitutional right to a
speedy trial or there is prosecutorial misconduct related to
from Ellis District Court; Blake A. Bittel, judge.
J. Obermeier, assistant solicitor general, and Derek Schmidt,
attorney general, for appellant.
C. Herman, of Herman Law Office, P.A., of Hays, for appellee.
Powell, P.J., Hill and Warner, JJ.
Hammerschmidt was charged with misdemeanor driving under the
influence (DUI). He moved to suppress the evidence derived
from the stop in which he argued that he was not given the
proper notices before the breath test. The district court
granted a series of continuances on its own initiative in
anticipation of two Kansas Supreme Court decisions addressing
the propriety of the informed consent notice statute. Over
600 days after the motion to suppress was filed and 360 days
after those decisions were issued, the district court denied
Hammerschmidt's motion to suppress. Hammerschmidt then
moved to dismiss the complaint based on statutory speedy
trial grounds. The district court granted this motion, and
the State now appeals, arguing K.S.A. 2018 Supp. 22-3402(g)
bars dismissal. We agree with the State and reverse.
and Procedural Background
October 2016, Hammerschmidt was issued a citation and notice
to appear before the Ellis County District Court on a
misdemeanor charge of DUI. The offense was alleged to have
occurred on September 28, 2016. Hammerschmidt appeared in
court on October 25, 2016, for his first appearance and
arraignment and entered a plea of not guilty.
next day, Hammerschmidt moved to suppress the evidence
derived from his breath test due to the lack of substantial
compliance with the required notice procedure before the
breath test. The motion referenced two pending decisions
awaiting rehearing by the Kansas Supreme Court: State v.
Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece
I), and State v. Ryce, 303 Kan. 899, 368 P.3d
342 (2016) (Ryce I).
requested continuance by Hammerschmidt on October 28, 2016, a
status conference was held on December 13, 2016. At that
hearing, Hammerschmidt requested another continuance, and the
matter was set again for January 9, 2017. At the hearing on
January 9, 2017, at which Hammerschmidt was not required to
appear, the district court ordered the State to file a
responsive pleading to Hammerschmidt's motion to suppress
within 30 days and gave Hammerschmidt 15 days to respond. The
matter was set for oral argument on March 22, 2017. The
parties duly filed their briefs.
March 22, 2017, the district court held a hearing on
Hammerschmidt's motion to suppress at which the State put
forth evidence in the form of testimony from Deputy Lance
Fisher from the Ellis County Sheriff's Office and
admitted Hammerschmidt's DC-70 form. At the hearing, the
district judge told the parties, "I will put it on my
calendar to issue a ruling by March 31st, which is a Friday,
so about a week and a half." The district judge then
remarked, "If something happens to where I don't get
the ruling on the 31st, I'll just put it on the record
[at the status conference]." The district court took the
matter under advisement and scheduled a status conference for
April 10, 2017.
district court continued the April 10, 2017 status conference
sua sponte, stating the matter was still under advisement.
Another status conference was held on May 8, 2017; the
district court determined no further oral argument on the
motion to suppress was needed and stated, "The Court
will issue a ruling on this matter." Another status
conference was scheduled for June 12, 2017. At the June
status conference the district court acknowledged that it had
yet to issue a ruling and again continued the case to August
30, 2017, the Kansas Supreme Court issued its opinions in
State v. Nece, 306 Kan. 679, 396 P.3d 709 (2017)
(Nece II), and State v. Ryce, 306 Kan. 682,
396 P.3d 711 (2017) (Ryce II). Nece II
reaffirmed the Supreme Court's earlier pronouncement in
Nece I that the statutory implied consent notice was
unconstitutional as it inaccurately advised a suspect that he
or she could be subject to criminal penalties for refusing to
submit to a breath alcohol test. 306 Kan. at 681. Ryce
II reaffirmed Ryce I's holding that the
statute criminalizing a suspect's refusal to submit to a
chemical test for alcohol was unconstitutional. 306 Kan. at
August status conference, the following exchange occurred:
"THE COURT: . . . I believe we were waiting on some
decisions from the . . . Kansas Supreme Court. Where I am at
on this, those have come down, and I have scheduled and
blocked off the 23rd and 24th ...