Fischer v. Kansas Dept. of Revenue, 410 P.3d 933

Background

Officer responded to report of a reckless driver late at night and located Tyler Fischer parked; officer smelled alcohol and observed bloodshot eyes.
Fischer admitted drinking (but said he had not drunk after leaving his vehicle), performed poorly on walk-and-turn and one-leg-stand tests, and acknowledged he likely would not pass a PBT.
Officer administered a preliminary breath test (PBT) after reading advisories; PBT showed breath alcohol > .02.
Administrative hearing introduced Intoxilyzer 8000 blood-alcohol result (.147); ALJ found officer had reasonable grounds to request the PBT and suspended Fischer’s license.
District court affirmed suspension on judicial review, finding reasonable grounds/probable cause based on totality of circumstances.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether K.S.A. 2016 Supp. 8-1012 is unconstitutional because it permits a PBT on only reasonable suspicion (alleged warrantless search without probable cause)	Fischer: statute is facially unconstitutional; PBT is a search and requires probable cause, not mere reasonable suspicion, so test and subsequent suspension invalid	State: even if statute uses reasonable suspicion for PBT, the officer had facts amounting to probable cause here, so no constitutional question necessary	Court: declined to reach facial constitutional claim because facts here amounted to probable cause to request the PBT; suspension affirmed
Whether consent to PBT was coerced by threat of prosecution for withdrawal of consent (involuntary consent)	Fischer: statutory threat of criminal penalty for withdrawing consent makes any consent involuntary and violates Fourth Amendment	State: even if constitutional violation occurred, exclusionary rule does not apply in administrative license suspensions, so any error is harmless	Court: even assuming a violation, error is harmless because exclusionary rule is not available in civil administrative license proceedings; suspension affirmed

Key Cases Cited

Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008) (exclusionary rule does not apply to administrative driver’s license suspensions)
Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 242 P.3d 1179 (2010) (totality-of-circumstances facts can establish probable cause to request breath testing)
Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012) (no authority to request breath sample means refusal cannot be penalized)
Draper v. United States, 358 U.S. 307 (1959) (probable cause defined by facts and circumstances within officer’s knowledge)
State v. Jones, 279 Kan. 71, 106 P.3d 1 (2005) (PBT that samples deep lung air is a search)
City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015) (distinguishing reasonable suspicion and probable cause on continuum of proof)
Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 281 P.3d 135 (2012) (reasonable grounds equated to probable cause in warrantless-search context)
State v. Hill, 281 Kan. 136, 130 P.3d 1 (2006) (probable cause judged by totality of circumstances)
State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (discussing refusal and related coercion issues for evidentiary breath tests)
State v. Bolze-Sann, 302 Kan. 198, 352 P.3d 5118 (2015) (assumption of constitutional error and application of harmless-error analysis)
State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011) (harmless-error standard for constitutional violations)
State v. Logsdon, 304 Kan. 3, 371 P.3d 836 (2016) (burden on party benefitting from error to prove harmlessness)