BY THE COURT
Unsafe driving and the odor of alcohol can each suggest a
person was driving while legally impaired and contribute to a
finding of probable cause.
Schmerber v. California, 384 U.S. 757, 770-71, 86
S.Ct. 1826, 16 L.Ed.2d 908 (1966) established a three-prong
test for fitting a warrantless blood draw into the probable
cause plus exigent circumstances exception to the warrant
requirement: (1) there must be exigent circumstances that
justify the taking of the blood sample; (2) there must be
probable cause to believe the defendant has been driving
while legally impaired; and (3) the procedure used to extract
blood must be reasonable.
natural dissipation of alcohol in the blood does not
establish exigency per se.
of the judgment of the Court of Appeals in 54 Kan.App.2d 543,
402 P.3d 1168 (2017).
from Butler District Court; David A. Ricke, judge.
of the Court of Appeals affirming the district court on the
issue subject to review is affirmed in part and the case is
remanded to the district court with directions.
Kittel, of Kansas Appellate Defender Office, argued the cause
and was on the brief for appellant.
D. Sweeney, assistant county attorney, argued the cause, and
Derek Schmidt, attorney general, was with him on the brief
Chavez-Majors was convicted of aggravated battery while
driving under the influence of alcohol after the district
court denied his motion to suppress evidence obtained from a
warrantless blood draw. The Court of Appeals reversed the
conviction based on a violation of the right to jury trial
but affirmed the district court's denial of the motion to
suppress. Chavez-Majors challenges the portion of the
panel's decision affirming the denial of the motion to
24, 2014, at approximately 9:22 p.m., Wildlife and Parks
Ranger Tyler Burt received a call regarding a motorcycle
accident in a parking lot in El Dorado State Park. When Burt
arrived, there were 15 to 20 people and numerous alcoholic
containers throughout the parking lot. Burt observed a
motorcycle on its side and two people who appeared to be
injured. Burt first checked on Jenilee Christy. She was
sitting up and talking and had lacerations on one of her
legs. After asking Christy if she was okay, Burt turned his
attention to the other injured individual-Chavez-Majors-who
was lying on the ground. Chavez-Majors was nonresponsive and
appeared to have suffered a head wound, resulting in
blood-soaked hair. Burt leaned close to Chavez-Majors and
while checking for signs of breathing smelled a strong odor
of alcohol on his breath. After confirming that Chavez-Majors
was breathing, Burt remained with him until emergency medical
services (EMS) personnel arrived.
EMS arrived, Burt had them attend to Chavez-Majors and went
to speak with Isaiah McElhone, who had witnessed the
accident. McElhone told Officer Burt that Chavez-Majors had
been driving the motorcycle at a high rate of speed down a
road that led into the parking lot when he lost control, fell
off the motorcycle, which then slid into Christy in the
point after EMS arrived, Burt read an implied consent form to
the unconscious Chavez-Majors and then directed EMS personnel
to draw Chavez-Majors' blood. The blood sample eventually
revealed that Chavez-Majors had a blood alcohol level of .14.
was charged with aggravated battery while driving under the
influence; driving while license canceled, suspended, or
revoked; no proof of liability insurance; and illegal
moved to suppress the results of the blood test, arguing that
the blood draw was an unreasonable search under the Fourth
Amendment to the United States Constitution. At a hearing on
the motion, Burt testified about the events surrounding the
blood draw. He explained that he was familiar with the
parking lot where the accident occurred and that it was
typically referred to as the "party cove." Burt
testified that "a lot of people go there and party and
consume alcohol and just . . . enjoy the lake." Burt
described the parking lot as 150 feet wide by 50 feet deep.
He explained that one paved road with a speed limit of 45
leads up to the parking lot, curves to the right, and then
dead-ends in the parking lot.
estimated that it took him 10 minutes to arrive on the scene
after receiving a call about the accident. There were no
other officers at the scene when he arrived. Based on skid
marks that he observed on the road, Burt stated that it
appeared the motorcycle had been traveling at a high rate of
speed when it ran off of the road to the left, traveled a
short distance, and then fell on its side and skidded across
the parking lot. Burt testified that he believed
Chavez-Majors had serious head injuries and was in critical
condition. At some point after EMS arrived, Burt learned that
Chavez-Majors was going to be transported by ambulance to a
hospital in Wichita. He understood that EMS personnel
considered Chavez-Majors' injuries too serious for the
testified that he requested EMS perform a blood draw because
he believed Chavez-Majors had been driving under the
influence of alcohol. He based this belief on the accident,
Chavez-Majors' high rate of speed, and the strong odor of
alcohol coming from Chavez-Majors' breath. On
cross-examination, Officer Burt admitted that it is possible
for someone with a strong odor of alcohol on his or her
breath to be only minimally intoxicated and for someone with
very little ...