473 P.3d 961
Kan. Ct. App.2020Background
- Trooper Sperry stopped Wesley Cousins after observing an open beer can and signs of impairment; Cousins was arrested for DUI and taken to the police station.
- At the station Sperry read the statutory DC-70 implied-consent advisory, which stated (among other things) that "Kansas law requires you to submit to and complete" testing and that "refusal . . . may be used against you" at trial.
- Cousins consented to an Intoxilyzer breath test; result = .112. He was charged with misdemeanor DUI and transporting an open container.
- Cousins moved to suppress the breath-test results, arguing the DC-70 misstatements coerced his consent; the district court denied suppression and convicted him after a stipulated-facts bench trial.
- On appeal the court held the DC-70 advisory that Kansas law "requires" testing misstated the law and rendered consent involuntary (Fourth Amendment violation), but applied the good-faith exception to admit the results; Cousins’ constitutional challenge to the statute permitting refusal-evidence was dismissed for lack of standing because he did not refuse testing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DC-70 statement that "Kansas law requires you" to submit to testing made Cousins' consent involuntary | Cousins: The advisory misstates law and coerces consent because drivers have a Fourth Amendment right to refuse testing (per Ryce). | State: Language not coercive—the form also explains civil consequences, and district court found it not misleading. | Court: Advisory inaccurately stated law; misstatement rendered consent involuntary and the breath test was a Fourth Amendment violation. |
| Whether the good-faith exception permits admission of the breath-test results despite the constitutional violation | Cousins: Good-faith exception should not apply; officer should have known advisories were invalid. | State: Officer reasonably relied on the statutory DC-70 as written; precedent (Perkins/Daniel) supports excluding suppression. | Court: Good-faith exception applies; officer’s reliance on the statute was objectively reasonable, so results are admissible. |
| Whether the statutory provision permitting testimony that a driver refused testing is unconstitutional | Cousins: The provision is unconstitutional. | State: Provision is valid. | Court: Dismissed for lack of standing because Cousins submitted to testing and thus suffered no injury from use of refusal evidence. |
Key Cases Cited
- State v. Ryce, 306 Kan. 682, 396 P.3d 711 (Kan. 2017) (recognition that a driver has a right to withdraw implied consent)
- State v. Nece, 303 Kan. 888, 367 P.3d 1260 (Kan. 2016) (consent is involuntary if obtained by inaccurate, coercive advisement)
- State v. Edgar, 296 Kan. 513, 294 P.3d 251 (Kan. 2013) (misstatement of right to refuse transformed request into involuntary search)
- State v. Perkins, 310 Kan. 764, 449 P.3d 756 (Kan. 2019) (applied good-faith exception where officer followed statutory advisory later found coercive)
- State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (Kan. 2010) (adoption of good-faith exception for reasonable reliance on statute)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (establishing good-faith exception to exclusionary rule)
- Illinois v. Krull, 480 U.S. 340 (U.S. 1987) (extending good-faith exception to reasonable reliance on statute)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (breath tests may be permissible as searches incident to arrest while warrantless blood draws are not)