State v. Ryce, 111698

Background

Sedgwick County deputy arrested David Ryce for DUI, gave the statutory implied‑consent advisory, and Ryce refused chemical testing; State charged him under K.S.A. 2016 Supp. 8‑1025 for test refusal.
Ryce challenged 8‑1025 as facially unconstitutional because, under Kansas caselaw, refusing a test equates to withdrawing implied consent to a warrantless search protected by the Fourth and §15 of the Kansas Constitution.
In State v. Ryce (Ryce I), the Kansas Supreme Court held 8‑1025 criminalizes withdrawal of consent and therefore is facially unconstitutional; the State sought rehearing after the U.S. Supreme Court decided Birchfield v. North Dakota.
Birchfield distinguished breath and blood tests: breath tests may be lawfully administered as a search incident to a lawful arrest; blood tests generally require case‑by‑case exigency/warrant analysis, and motorists cannot be criminally punished for refusing a warrantless blood test.
On rehearing the Kansas Supreme Court modified parts of Ryce I to account for Birchfield (recognizing breath tests can be incident to arrest) but reaffirmed its holding that 8‑1025 is premised on the implied‑consent scheme and is facially unconstitutional because it criminalizes withdrawal of consent.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether K.S.A. 2016 Supp. 8‑1025 penalizes only withdrawal of implied consent (i.e., refusal of tests "deemed consented to")	Ryce: 8‑1025 is limited by its text and caselaw to refusal as withdrawal of implied consent; criminalizing withdrawal of consent violates the Fourth and Fourteenth Amendments and §15.	State: 8‑1025 should be read to criminalize refusal to submit to a category of tests (blood, breath, urine) — not just withdrawal of consent; the "deemed consented to" phrase merely identifies the subject matter.	Court: Agrees with Ryce. Statutory text, structure, and Kansas precedent show 8‑1025 penalizes withdrawal of implied consent; cannot be read to strip those words out.
Whether Birchfield requires reversal of Ryce I as to breath tests (i.e., State may punish breath‑test refusals incident to arrest)	Ryce: Even with Birchfield, statutory interpretation controls; 8‑1025 is tied to the implied‑consent regime and still criminalizes withdrawal of consent.	State: Birchfield allows breath tests as search incident to arrest, so refusal to a lawful breath test may be criminally punished; Ryce I reasoning is undermined.	Court: Modifies Ryce I to accept Birchfield that breath tests may be incident to arrest, but holds this does not change statutory interpretation: 8‑1025 still targets withdrawal of consent and remains facially unconstitutional in its current form.
Whether Birchfield saves 8‑1025 by validating some warrantless testing	State: Because some tests (breath incident to arrest) can be reasonable, 8‑1025 could constitutionally criminalize refusals in those circumstances.	Ryce: The statute, as written, penalizes withdrawal of consent including in many contexts where incident‑to‑arrest does not apply; Birchfield does not rewrite Kansas statutes.	Court: Rejects State; even post‑Birchfield there remain many applications of 8‑1025 (e.g., warrantless blood tests or requests without arrest) that rest solely on implied consent, so the statute is facially unconstitutional.
Whether legislative history or definitional statutes (K.S.A. 8‑1013) change interpretation	State: Legislative testimony and broader definitions suggest the legislature intended to criminalize general test refusal.	Ryce: Plain statutory language controls; the specific 8‑1025 text governs and 8‑1013 definitions do not apply to 8‑1025.	Court: Agrees with Ryce — statutory text and precedent control; isolated committee testimony and 8‑1013 do not alter interpretation.

Key Cases Cited

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (distinguishes breath and blood tests; breath tests may be administered as search incident to lawful arrest; motorists cannot be criminally punished for refusing a warrantless blood test)
Missouri v. McNeely, 133 S. Ct. 1552 (2013) (natural dissipation of alcohol does not create a per se exigency; exigency is case‑by‑case)
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent renders a warrantless search reasonable if voluntary)
State v. Ryce, 303 Kan. 899 (Kan. 2016) (Ryce I) (Kansas Supreme Court held K.S.A. 2016 Supp. 8‑1025 facially unconstitutional for criminalizing withdrawal of implied consent)
State v. Johnson, 297 Kan. 210 (Kan. 2013) (tests given after the 8‑1001(k) advisory are products of the consent exception to the warrant requirement)
State v. Garner, 227 Kan. 566 (Kan. 1980) (equates express refusal to submit to testing with withdrawal of implied consent)