STATE OF KANSAS, Appellant, v. DAVID LEE RYCE, Appellee.
No. 111,698
IN THE SUPREME COURT OF THE STATE OF KANSAS
June 30, 2017
Opinion on rehearing filed June 30, 2017.
303 Kan. 899 | 368 P.3d 342
LUCKERT, J.
OPINION ON REHEARING
SYLLABUS BY THE COURT
Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Original opinion filed 303 Kan. 899, 368 P.3d 342 (2016). Opinion on rehearing filed June 30, 2017. Affirmed.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the supplemental brief for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the original brief for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellee.
The opinion of the court was delivered by
LUCKERT, J.: A Sedgwick County sheriff‘s deputy arrested David Lee Ryce and asked Ryce to submit to a breath test to determine his blood alcohol content. The deputy gave Ryce the written and oral notice required under Kansas’ implied consent law, specifically
After we issued our decision in Ryce I, the State timely filed a motion seeking to stay the mandate until the United States Supreme Court issued a decision in three consolidated cases addressing a similar issue regarding Minnesota and North Dakota statutes that made it a crime to refuse blood alcohol content testing. We granted that motion and, once the United States Supreme Court issued its decision in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), allowed the parties to submit additional briefs and oral arguments.
After considering those additional arguments and the effect of Birchfield on Ryce I, we now, once again, determine that
OUR PREVIOUS DECISION IN RYCE I
We will not recount, here, the full factual and procedural history involved in Ryce I. Suffice it to say, it presents a standard DUI fact pattern: erratic driving and traffic infractions, failed field sobriety tests, arrest, the giving of the consent advisory required by
In affirming the district court, we began our analysis by examining the wording of
We next examined the provisions of
Turning to the
We also considered the State‘s argument that
Once this court moved away from the search-incident-to-lawful-arrest exception as a categorical basis for all searches conducted under
In Ryce I, this historical review of caselaw led us back to consent as the only constitutional basis upholding all searches under
Referring to the “deemed consented to” wording of
Nevertheless, we interpreted
Applying the text of
On the same day we filed our decision in Ryce I, we also filed decisions in State v. Wilson, 303 Kan. 973, 368 P.3d 1086 (2016), and State v. Wycoff, 303 Kan. 885, 367 P.3d 1258 (2016). In both Wilson and Wycoff, we relied on our analysis in Ryce I and concluded the defendants in those cases could not be prosecuted for violating
BIRCHFIELD
As we mentioned, after our decision in Ryce I the United States Supreme Court decided Birchfield, 136 S. Ct. 2160. In hearing Birchfield, the Supreme Court consolidated two cases from North Dakota and one from
In one of the cases from North Dakota, a state trooper administered a roadside test of blood alcohol content and arrested Danny Birchfield. The trooper informed Birchfield that state law required him to undergo further testing and that a test refusal would expose him to criminal penalties. Birchfield refused a blood test and was charged under a North Dakota law that made it a crime to refuse to submit to a blood alcohol content test.
In the other North Dakota case, an officer arrested Steve Beylund for DUI and had Beylund transported to a hospital. At the hospital, the officer read an implied consent advisory and asked for a blood draw. Beylund agreed. Consequently, the State suspended his license but did not charge him with refusing a test. Beylund defended and appealed his license suspension on the grounds that his consent was coerced by the officer‘s warning that a refusal to submit to the blood test would be a crime.
Finally, in the case from Minnesota, officers arrested William Bernard, Jr., for driving while impaired and, at a police station, provided him with Minnesota‘s implied consent advisory. Minnesota‘s advisory, like North Dakota‘s, informed Bernard it was a crime to refuse to submit to a legally required test of blood alcohol content. Bernard refused officers’ requests for a breath test.
When these cases reached the United States Supreme Court, the Court framed the issue as “whether the warrantless searches at issue here were reasonable.” Birchfield, 136 S. Ct. at 2173. If such warrantless searches “comport[ed] with the Fourth Amendment,” the Court stated, a state “may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.” 136 S. Ct. at 2172.
In analyzing the root issue of whether the tests were, or would have been, reasonable, the Birchfield majority distinguished between breath and blood tests. Regarding warrantless breath tests, the Court held such tests are reasonable under the
The Birchfield Court reached a different holding with regard to blood tests, which the Court determined were “significantly more intrusive, and their reasonableness must be judged in light of the availability of the less intrusive alternative of a breath test.” 136 S. Ct. at 2184. Ultimately, the Court held that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” 136 S. Ct. at 2185. See generally 136 S. Ct. at 2174-83 (discussing the history of the search-incident-to-lawful-arrest exception and balancing privacy intrusions against governmental interests to see if the search-incident-to-lawful-arrest exception would apply to modern blood alcohol content searches).
Apart from these holdings, the Supreme Court made several other rulings which are of import to Ryce I and its companion cases. First, the Court firmly expressed its understanding that breath tests, as well as blood tests, are indeed “searches.” Birchfield, 136 S. Ct. at 2173; see Ryce I, 303 Kan. at 912 (reaching the same conclusion). Second, the Court did not depart from its holding in McNeely, in which it refused to adopt an across-the-board rule applying the probable-cause-plus-exigent-circumstances exception to blood alcohol content tests. Birchfield, 136 S. Ct. at 2174 (asserting that this exception still relies on a case-by-case analysis); see Ryce I, 303 Kan. at 924-25. Third, the Supreme Court rejected the States’ argument that warrantless blood tests were “justified based on the driver‘s legally implied consent to submit to them.” Birchfield, 136 S. Ct. at 2185-86. Finally, the Court held that “motorists cannot be deemed to have consented to submit to a blood test
As to this last point, in discussing whether the consent exception saved the legality of the demand for blood testing in the North Dakota cases, the United States Supreme Court recognized that a suspect‘s consent to a search generally renders that search reasonable. 136 S. Ct. at 2185; see Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The Supreme Court also acknowledged it had previously approved of “the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield, 136 S. Ct. at 2185; see McNeely, 133 S. Ct. at 1565-66 (plurality opinion). Nevertheless, “[i]t is another matter . . . for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test.” Birchfield, 136 S. Ct. at 2185. The Birchfield Court concluded that “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads” and drew the line at criminal penalties. 136 S. Ct. at 2185-86.
Ultimately, the Supreme Court reversed Birchfield‘s conviction because he was criminally prosecuted for refusing a warrantless blood test. Birchfield, 136 S. Ct. at 2186. But Bernard, who had been prosecuted in Minnesota for refusing a warrantless breath test, did not receive similar relief. Because the
Birchfield thus held that the search-incident-to-lawful-arrest exception is a categorical exception to the warrant requirement permitting an officer to demand a breath test from a person arrested for a DUI violation. See 136 S. Ct. at 2185. Birchfield does not, however, answer the specific question of statutory interpretation upon which Ryce I was decided. See Ryce I, 303 Kan. at 918 (“[
OUR INTERPRETATION OF THE TEST REFUSAL STATUTE STANDS
We now consider how Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), affects our holding in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I). To assist us, we asked the parties to provide supplemental briefs limited to the following issues:
“Q1: Whether
K.S.A. [2016] Supp. 8-1025 limits the application of the criminal refusal penalties so as to punish only individuals who withdraw implied consent to a test contemplated byK.S.A. [2016] Supp. 8-1001 [.]“Q2: Whether . . . [Birchfield] requires a different outcome in [Ryce I] regarding warrantless breath tests[.]”
We specifically instructed the parties to “support their arguments with standard principles of statutory interpretation/construction, including the use of legislative history if appropriate” and also permitted the parties to address how
Our standard of review of these questions remains the same as in Ryce I, where we explained that the constitutionality of a statute is a question of law subject to unlimited review. Here, the question of law depends, at least in part, on the interpretation of
The State contends the Birchfield decision “undermines both the rationale of the majority opinion [in Ryce I] and this [c]ourt‘s conclusion that the search incident to arrest exception would not apply to searches for blood alcohol content.” The State advocates that under Birchfield there is no right to refuse a breath test that is performed incident to a lawful arrest, which means “the State can legally punish a breath test refusal.” In response to our questions, the State argued that
At the outset, we agree with one portion of the State‘s argument. As it correctly observes, Birchfield requires us to modify a portion of our decision in which we applied past United States Supreme Court decisions to hold that a blood alcohol content test— whether testing breath, blood, urine, or other bodily substance—could not be justified under the search-incident-to-lawful-arrest warrant exception. We stated:
“[N]either of the two purposes traditionally underlying the search incident to lawful arrest exception (officer safety and preservation of evidence) applies to the testing of blood alcohol content. See Riley v. California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2484, 189 L. Ed. 2d 430 (2014) (discussing cases beginning with Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969], establishing and applying two-part test for search incident to arrest: officer safety and destruction of evidence within the control of the arrestee). Alcohol in the bloodstream poses no threat to officer safety, and when discussing preservation of evidence with respect to the search incident to lawful arrest exception (as distinct from the evanescent evidence exception), the reasoning is to prevent destruction of evidence within a suspect‘s control. See, e.g., Arizona v. Gant, 556 U.S. 332, 335, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Evidence of alcohol within the bloodstream is not in a suspect‘s control once he or she is monitored and will diminish at a predictable rate. See State v. Milligan, 304 Or. 659, 671, 748 P.2d 130 (1988).” Ryce I, 303 Kan. at 922.
We also noted the United States Supreme Court had recently rejected the argument that the evanescent nature of blood alcohol content meant evidence could be lost and, therefore, DUI cases presented probable cause plus an exigent circumstance justifying categorical application of the warrant exception to all DUI cases. 303 Kan. at 925 (citing Missouri v. McNeely, 569 U.S. 141, ___, ___, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 [2013]).
Nevertheless, as the State notes, Birchfield held “a breath test, but not a blood test, may be administered as a search incident to lawful arrest for drunk driving.” Birchfield v. North Dakota, 136 S. Ct. at 2185. We, therefore, modify our decision in Ryce I to the extent our discussion of State v. Birchfield, 2015 ND 6, 858 N.W.2d 302 (2015), rev‘d and remanded 136 S. Ct. 2160, vacated 885 N.W.2d 62 (2016), and State v. Bernard, 859 N.W.2d 762 (Minn. 2015), aff‘d 136 S. Ct. 2160 (2016), is inconsistent with the United States Supreme Court‘s decision in Birchfield. See Ryce I, 303 Kan. at 950-55. We further modify Ryce I to reflect the validity of conducting a breath test in a DUI case where an arrest is made under the warrant exception of a search incident to lawful arrest. See Ryce I, 303 Kan. at 922.
The
First, regarding blood tests, Birchfield reinforces our conclusion that the search-incident-to-lawful-arrest exception does not always apply when an officer demands submission to a blood alcohol content test. This means, at a minimum, that
Second, we disagree with the State‘s recasting of the issue in this case. Our decision did not rest on whether a blood alcohol content test could be reasonable under the
Third, the difficulty with the State‘s overarching argument—i.e., that
This caselaw rested, at least in part, on pre-Birchfield holdings of the United States Supreme Court, holdings which led this court some 15 years ago to conclude that the search-incident-to-lawful-arrest exception to the warrant requirement did not apply to all the circumstances covered by
Certain provisions of
Furthermore, contrary to the State‘s position, it is not at all apparent, from the plain language of the statute, that the legislature meant to criminalize a general act of test refusal as opposed to a specific refusal to undergo a blood alcohol content test previously “consented to” under the implied consent statute. The State supports its argument with
The State‘s point would be more compelling if this were the sole statutory definition for test refusal. But the legislature more particularly defined the specific crime of test refusal in
Nor are we persuaded by the State‘s legislative history argument, which cites to a district attorney‘s testimony before a legislative committee. In that testimony, the attorney referred to the importance of “criminalizing . . . the refusal” to submit to blood alcohol content tests. The State‘s argument demands we ignore the plain language of the statute and instead seek to divine legislative intent from one phrase in the testimony of one witness at a legislative hearing. We have noted that we must proceed cautiously when declarations of legislative purpose appear in testimony or other legislative history but are not included in the text of legislation. See Merryfield v. Sullivan, 301 Kan. 397, 401, 343 P.3d 515 (2015); Brennan v. Kansas Insurance Guaranty Ass‘n, 293 Kan. 446, 459, 264 P.3d 102 (2011). In part, because of the difficulties of ascertaining legislative intent from the testimony of those appearing before legislative committees, this court deems the language of a statute to be the primary consideration in ascertaining the intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language they have chosen to use. See, e.g., Spencer Gifts, 304 Kan. at 761.
Finally, even looking to Birchfield as persuasive authority, it does not prompt us to reconsider our previous interpretation of
Regarding the shared characteristics of the North Dakota and Kansas penalty statutes for test refusal, each penalty statute refers to tests requested pursuant to an implied consent statute. As to differences,
More differences emerge when comparing the implied consent statutes of the two states: North Dakota requires a suspect be arrested and informed he or she is or will be charged with DUI, for example, whereas Kansas does not. See
These differences bolster our conclusion that
Minnesota also more directly makes it a crime “to refuse to submit to a chemical test of the person‘s blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).”
We do note that the Minnesota implied consent statute, like Kansas‘, allows officers to search without an arrest. But, in Minnesota, there must be probable cause that the driver had been operating the vehicle while impaired and the driver was either involved in “a motor vehicle accident or collision resulting in property damage, personal injury, or death“; the driver refused a preliminary screening test; or the driver took a preliminary screening test and the results show an alcohol concentration of .08 or more.
Nevertheless, these similarities are offset by the notable differences between the Kansas and Minnesota statutes. Specifically, as we have discussed, where the Minnesota implied consent statute allows a law enforcement officer to “require[]” a breath test and punishes a driver for refusing a required test (
We thus are not persuaded to depart from the holding of State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I); we continue our previous interpretation of
K.S.A. 2016 SUPP. 8-1025 IS FACIALLY UNCONSTITUTIONAL.
The State next argues that regardless of how we resolved the statutory interpretation issue, Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), still established our premise in Ryce I was incorrect, as some blood alcohol content testing may be done pursuant to the search-incident-to-lawful-arrest exception to the warrant requirement. “Hence,” the State contends, “even if the majority continues to construe the statute to criminalize the withdrawal of consent, that would not make the statute unconstitutional.”
As we have discussed, the United States Supreme Court extended the search-incident-to-lawful-arrest exception to “warrantless breath tests incident to arrest for drunk driving.” Birchfield, 136 S. Ct. at 2184. But this clarification of search-and-seizure law does not change our decision about the constitutionality of
The State theoretically may enact a statute and, under Birchfield, require submission to a breath test as a search incident to arrest—but that is true for statutes that more broadly criminalize refusal to submit to any test that is constitutionally valid, not for a statute like
Thus, our previous reasoning in Ryce I as to how and why
Given this holding, we need not decide Ryce‘s alternative arguments as to why
Affirmed.
MICHAEL J. MALONE, Senior Judge, assigned.1
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STEGALL, J., dissenting: For the reasons set forth in my earlier dissent in State v. Ryce, 303 Kan. 899, 964-72, 368 P.3d 342 (2016), I dissent.