Opinion
No. 106,748.
2012-09-28
Robert Blake DUMLER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Russell District Court; Jack L. Burr, Judge. Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Russell District Court; Jack L. Burr, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Robert Blake Dumler was arrested for driving under the influence of alcohol on April 17, 2010, and subsequently failed a breath test with a reading of .145. As a result of the breath test failure, the Kansas Department of Revenue suspended his driving privileges. The suspension was upheld by the district court. Dumler has filed a timely appeal contending he was denied his statutory right to consult with an attorney as provided in K.S.A.2009 Supp. 8–1001(k)(10).
The underlying facts are not in material dispute on the narrow issue presented. On several occasions before the breath test was administered Dumler requested that he be permitted to confer with an attorney. The arresting officer acknowledged that he never gave Dumler an opportunity to consult with an attorney prior to administering the breath test. Dumler's last request was after he had been given orally and in writing the implied consent advisories under K.S.A.2009 Supp. 8–1001(k)(1) through (10), followed immediately by Miranda warnings. The arresting officer testified that Dumler stated he wanted to consult with an attorney before answering any questions. Thus there was no interrogational questioning during the required waiting period before the breath test was administered. After Dumler took and failed the breath test he did not request access to an attorney or indicate that he wanted to secure additional testing. Although not entirely clear from the evidentiary record, it appears Dumler was placed in a holding cell where he remained for 1 to 1 1/2 hours before posting bond and being released.
The district court found that although the better practice would have been to allow Dumler access to an attorney after the breath test was completed, suspension of his driving privileges should be upheld because the arresting officer complied with paragraph 9 of the implied consent advisories and Dumler did not ask to speak with an attorney after the breath test failure. Dumler has timely appealed from the district court's decision.
The wording of the implied consent advisories includes the provisions of K.S.A.2009 Supp. 8–1001(k)(3) and (k)(10) which state: “[T]here is no constitutional right to consult with an attorney regarding whether to submit to testing,” and “after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.”
Dumler argues that his several requests before the breath test was administered were sufficient to invoke his statutory right to consult with an attorney subsequent to the failed test. The issue raised on the uncontroverted facts requires that we decide whether the statutory right to consult with an attorney must be specifically invoked after the completion of testing. This is an issue of law.
The Kansas Judicial Review Act, K.S.A. 77–601 et seq. , is applicable in this proceeding. Interpretation or construction of a statute is a question of law over which we have unlimited review. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 904, 249 P.3d 434 (2011); see K.S.A.2011 Supp. 77–621(c)(4).
“The fundamental rule of statutory construction is to ascertain the legislature's intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature's intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
Dumler relies primarily on two appellate decisions to support his argument—State v. Kelly, 14 Kan.App.2d 182, 786 P.2d 623 (1990), and State v. Lynch, No. 85,915, (Kan.App.2001) (unpublished opinion).
Kelly was an appeal of a criminal conviction for driving under the influence. The defendant had requested to speak with an attorney both before and after the evidentiary breath alcohol test. The court determined that Kelly's request to speak with an attorney made after the breath test invoked his statutory right to counsel and because he was not provided an opportunity, the test results were suppressed. 14 Kan.App.2d at 189–92. Thus the holding in Kelly, a criminal case, is not supportive of Dumler's argument.
Dumler's reliance on Lynch is not sustainable. Unpublished memorandum opinions are not favored for citation. However, an unpublished decision may be cited if it has persuasive value with regard to a material issue not addressed in a published opinion. Supreme Court Rule 7.04(f)(2)(ii) (2011 Kan. Ct. R. Annot. 57). But subsequent to Lynch, a panel of our court did decide the very issue now presented, in State v. Tedder, 38 Kan.App.2d 141, 142–43, 163 P.3d 311 (2007), holding that “a request for counsel must be made after completion of the breath test before there can be a violation of a defendant's statutory right to confer with an attorney.”
Tedder had been arrested for illegal transportation of liquor and taken to the police station. He was given his Miranda warnings and was requested to perform field sobriety tests. He refused to do the field tests and asked to speak with an attorney. Tedder was then given the implied consent notices and agreed to the breath test. After the results, he was arrested for driving under the influence. At the suppression hearing, the district court suppressed the results of the breath test, finding that his constitutional right to speak with an attorney before the tests had been violated. The State appealed the decision.
On appeal, a panel of this court correctly found that Tedder had no constitutional right to an attorney prior to submitting to or refusing the breath test. 38 Kan.App.2d at 142. Tedder also argued that his statutory right to consult with an attorney had been violated. The panel recognized that Tedder did have a statutory right to speak with an attorney after completion of the testing, but noted that Tedder “failed to invoke his right to counsel after performing the breath test.” 38 Kan.App.2d at 142.
The record in this appeal is clear that the arresting officer did not prevent Dumler from attempting to contact an attorney or obtain an additional test after failing the breath test given while he was in custody. What Dumler asks is for us to find that the request for an attorney before the breath test was taken triggers an affirmative requirement on the part of a law enforcement officer to see that his statutory right is exercised, despite the fact that Dumler made no request for either an attorney or a further test after he learned of the .145 reading.
We agree with the reasoning in Tedder and conclude Dumler's statutory right to consult with an attorney was not violated. After Dumler failed the breath test, he did not make a request to consult with an attorney or obtain additional testing. Accordingly, the district court's decision to uphold the administrative suspension of Dumler's driving privileges is affirmed.
Affirmed. ATCHESON, J., concurring:
I agree with the majority that Robert Blake Dumler had no viable legal argument for suppressing the results of his breath test in the driver's license suspension hearing because he was not permitted to contact a lawyer after taking that test. Based on the governing statutes, the reason is not that he asked at the wrong time, as the majority says, but that he had no such remedy regardless of when he asked.
The relevant facts are undisputed and may be stated briefly. A law enforcement officer stopped and then arrested Dumler in Russell County for driving under the influence, in violation of K.S.A.2009 Supp. 8–1567. During the arrest process, Dumler asked to speak to a lawyer, maybe more than once. After being arrested, Dumler was transported to the Sheriff's office. The arresting officer informed Dumler about his rights and obligations under the Kansas implied consent statute. K.S.A.2009 Supp. 8–1001(k). As required, the officer told Dumler that after taking the test he could speak with a lawyer and he could obtain a second blood-alcohol test if he chose. See K.S.A.2009 Supp. 8–1001(k)(10). Dumler then took a breath test that showed he was over the legal limit. Afterward, Dumler did not make another request to speak with a lawyer.
Based on the failed test, the Kansas Department of Revenue initiated administrative proceedings to suspend Dumler's driving privileges. Dumler argued that the test results should have been excluded, effectively requiring dismissal of the administrative action, because, before the breath test, he had asked to speak with a lawyer and, after the breath test, he had not been allowed to do so. The administrative law judge and the district court refused to suppress the test results and upheld the suspension. Dumler has appealed that decision.
The majority affirms the rulings below because Dumler did not make a request to speak with a lawyer after taking the test and his earlier request counts for nothing. The controlling statutes, however, impose no restrictions on when the request must be made. They only limit when the person may actually communicate with a lawyer. But the controlling statutes provide no remedy for a violation of that right. And at least for a civil administrative proceeding, the courts should not create a remedy where the legislature appears to have deliberately allowed none. For that reason, I concur in the result here.
Everybody acknowledges the suspension proceeding constitutes a civil action, and Dumler, therefore, has no constitutional right to counsel. Any right he may have is purely statutory. As the majority correctly notes, the issue here presents a question of law dependent upon the interpretation of the applicable statutes to undisputed facts. Two statutes inform the issue.
K.S.A.2009 Supp. 8–1001(k)(10) provides that before a breath test is administered,
“the person shall be given oral and written notice that ... after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.”
And K.S.A. 8–1004 provides:
“Without limiting or affecting the provisions of K.S.A. 8–1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8–1001 and amendments thereto shall not be competent in evidence.”
K.S.A. 8–1004 does not address a law enforcement officer's refusal to allow a person to speak with a lawyer after the breath test. Dumler has not cited some other statute that does, and I have found none.
The majority relies on a brief opinion from this court in State v. Tedder, 38 Kan.App.2d 141, 142–43, 163 P.3d 311 (2007), holding breath test results may be suppressed under K.S.A. 8–1001(k)(10) if—but only if—the person makes the request to speak with counsel after taking the test. That is, according to Tedder, “a request for counsel must be made after completion of the breath test before there can be a violation of the defendant's statutory right to confer with an attorney.” 38 Kan.App.2d at 142–43. Under Tedder, a person's request made before the test to speak with a lawyer at some unspecified time or specifically after the test would be wholly ineffective. While the Tedder rule may have some limited virtue in drawing a bright line and, thus, facilitating easy application of K.S.A.2009 Supp. 8–1001(k)(10), it has no support in the relevant statutory language and therefore must be rejected, virtuous or not. Nothing in K.S.A.2009 Supp. 8–1001 suggests, let alone states, when the request has to be made—only when it must be honored. The statute simply provides that a person must be informed that he or she may speak with a lawyer only after the testing has been completed.
The majority here and the Tedder panel read into the statute a restriction on when the request must be made that has no discernible basis in the language the legislature enacted. That sort of embellishment cannot be squared with fundamental rules of statutory construction. The appellate courts should construe and apply the words the legislature has used. It is not the courts' business or function to add to or take away from the language of a statute. Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court “will not speculate on legislative intent and will not read the [statutory] provision to add something not readily found in it.”); Unruh v. Purina Mills, 289 Kan. 1185, 1201, 221 P.3d 1130 (2009) (rejecting an argument that “asks the court to read into the statute language that is not present”). The Kansas Supreme Court encapsulated the rule of interpretation this way: “A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute.” Casco v. Armour Swift–Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007).
Had the legislature meant to say a valid request to speak to a lawyer could be made only after a person completes the breath test, it would have included words to that effect in K.S.A.2009 Supp. 8–1001(k)(10). The legislature might have said, “After the completion of testing, the person has the right to consult with an attorney if the person then makes a request to do so. ...” Absent that sort of language, this court may not find and enforce such a restriction, no matter how much it arguably might improve the statute or make its application easier. That's judicial divination, not statutory interpretation.
Here, Dumler made a request to speak with a lawyer as he was being arrested and well before the testing. The officer did not have to allow Dumler to immediately speak with a lawyer. But Dumler's request secured his right to do so after he completed the breath test. In those circumstances, the officer would have to keep track of a request and remember to honor it later. But that is hardly an onerous burden. And the legislature could have drafted a statute to avoid that imposition on law enforcement officers, but it did not.
The Tedder rule also creates confusion for a person who makes a request early in the arrest process to speak with a lawyer. A person familiar with that process or generally knowledgeable about the right to counsel might make such a request before being read the notice mandated in K.S.A.2009 Supp. 8–1001(k). More commonly perhaps, a person might make a request to speak with a lawyer upon being read the Miranda warnings during the arrest process. In any event, the request would be sufficient under K.S.A.2009 Supp. 8–1001(k)(10) to secure the opportunity to speak with a lawyer later. Upon being read the statutory notice, that person reasonably might conclude no further request to be necessary, since he or she had already so informed the officer. And that person might also conclude the officer would take a reiteration of the request as displaying a disagreeable persistence or unruliness. Not necessarily the best way to interact with a law enforcement officer. The Tedder rule would allow the right to evaporate—needlessly and improvidently—in those circumstances. The better course lies in judicial recognition of what the legislature enacted.
So, in my view, Dumler made a legally sufficient request to communicate with a lawyer after completing the breath test. The facts establish he was denied that opportunity. How does that affect the civil proceeding to suspend his driving privileges? The short answer: It doesn't. The legislature provided no remedy for a law enforcement officer's failure to honor a person's statutory request to speak with a lawyer after taking a breath test.
Again, review of the operative statutes provides that answer in their readily discernible language. Both the right to speak with counsel and the right to secure a second blood-alcohol test are made part of the required notice in a single statutory provision. K.S.A.2009 Supp. 8–1001(k)(10). The legislature linked them to that extent. And they are cognate provisions in the sense a person might benefit from speaking with a lawyer in deciding whether to exercise the right to seek a second test.
In K.S.A. 8–1004, the legislature provided an explicit remedy for a law enforcement officer's failure to permit a person to obtain a second test after requesting to do so. The remedy requires exclusion of the government's initial breath test as incompetent evidence. The exclusion is not limited to criminal prosecutions; it applies to any proceedings, including license suspension hearings. But K.S.A. 8–1004 does not so much as mention the right to speak with counsel, let alone provide a remedy of some sort for the loss of that right.
The two statutes need to be considered in tandem. They both address the same general subject matter: rights and obligations under the implied consent statute. But they also deal with a particularized aspect of implied consent focusing on a person's opportunity to talk with a lawyer and to secure a second test. The legislature plainly considered relief when those opportunities are lost to the inaction of government agents and provided a remedy for testing but not for consultation with a lawyer. The courts are bound to abide by and apply those legislative choices.
In general, courts should avoid finding implied remedies for purely statutory rights and ought to do otherwise only with considerable caution and careful consideration. See Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (“Statutory rights are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner.”). The admonition takes on greater vigor in this civil proceeding because the legislature has addressed remedy and, thus, does not simply present a statutory void that arguably might be characterized as inscrutable rather than definitive. See Thompson v. Thompson, 484 U.S. 174, 179–80, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988); Davis, 442 U.S. at 241 (“In each case, however, the question is the nature of the legislative intent informing a particular statute [.]”); cf. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 316–17 (2012) (private causes of action for statutory rights should not be implied “unless the implication both is clear and is based on the text of the statute”).
As Dumler suggests, my reading of the statutes creates a right without a remedy in driver's license revocation proceedings. He declares that result “flies in the face of common sense.” Maybe. But, if so, any lack of common sense rests with the legislature and not with me. I am diligently applying what the legislature has enacted. The result, however, is neither absurd nor inexplicable. In theory, a second blood-alcohol test could provide exonerating evidence that might cause a prosecutor to refrain from charging a DUI or sway a jury to acquit. If the opportunity for developing that evidence has been lost because a government agent failed to honor a request for the testing, precluding the State from relying on the breath test it procured under the implied consent statute reflects a reasonable result. Neither side gets to use a blood-alcohol test in the case at hand, and the offending officer presumably gets set straight about honoring the request in future cases. Speaking with a lawyer after taking a breath test doesn't carry the same direct evidentiary implications. So the legislature reasonably could have concluded no direct penalty ought to be imposed on the State for a failure to honor that request. Hence, K.S.A. 8–1004 contains no remedy for the lost opportunity to speak with a lawyer after completing a breath test.
For those reasons, I concur in the result in this case.
But my comments should not be extrapolated beyond the issues presented here. I have considered the statutes as they were at the time of Dumler's arrest and not as they have been amended. Moreover, I do not intend to suggest the absence of a judicially-created remedy in DUI or other criminal prosecutions when a law enforcement officer fails to honor a person's request, whenever made, to speak with a lawyer upon completing a breath test. In criminal cases, the statutory right to speak with a lawyer established in K.S.A.2009 Supp. 1001(k)(10) may be sufficiently intertwined with defendants' rights protected in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and their counterparts in the Kansas Constitution Bill of Rights to warrant relief for a breach. Those considerations, in part, appear to animate the decision in State v. Kelly, 14 Kan.App.2d 182, 191–92, 786 P.2d 623 (1990), recognizing suppression of breath test results in a DUI prosecution to be an appropriate remedy when a law enforcement officer fails to honor a person's request to speak with counsel upon completion of the test. The Kelly court analogized the situation to a criminal defendant's Fifth Amendment rights. Courts, rather than legislative bodies, typically fashion remedies for constitutional violations. See Davis, 442 U.S. at 241–42. But the issue of statutory rights and judicial remedies in criminal prosecutions is altogether another matter without direct analogy to the civil administrative proceeding we consider today.