Opinion
No. 110,816.
2014-12-5
STATE of Kansas, Appellee, v. Scott A. JANSSEN, Appellant.
Appeal from Jewell District Court; Kim W. Cudney, Judge.Edward C. Gillette, Michael Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant.Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Jewell District Court; Kim W. Cudney, Judge.
Edward C. Gillette, Michael Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant. Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott Janssen appeals from his jury trial conviction of driving under the influence of alcohol (DUI). On appeal, Janssen raises three issues: (1) Did the trial court err in denying his motion to suppress; (2) did the trial court err in admitting evidence; and (3) did the trial judge commit judicial misconduct. Finding no error, we affirm Janssen's conviction.
On November 9, 2012, John Johnson was hunting in Jewell County, Kansas. While he was leaving the location where he had been hunting, he came across a van parked in the middle of the road. Johnson then saw the van swerve into a ditch, back out of the ditch, and eventually pull over on the side of the road. Johnson pulled up next to the van and asked the driver and passenger if “they were safe to drive.” The driver of the van, who appeared incoherent, did not orally respond; he simply nodded his head a bit. Johnson then got out of his car and again tried to speak to the individuals in the van. Johnson could smell alcohol as he got closer to the van. Based on these events, Johnson called the undersheriff, who was an acquaintance of his, to tell him that he was “sitting next to a vehicle alongside the road and these guys were drunk.” After Johnson called the undersheriff, he said the van “took off like a rocket.” Those events occurred about 4:25 p.m.
Undersheriff Donald Jacobs was off duty when he received Johnson's call. When Johnson told Jacobs that the van's driver had been driving erratically and that the van smelled of alcohol, Jacobs decided to look for the van. Jacobs and Johnson exchanged several calls while Jacobs tried to locate the van. When Jacobs located the van, he followed it for a short distance. He turned on his emergency lights. The van continued down the road another 1/2 mile before coming to a stop. Those events occurred around 4:42 p.m.
After stopping the van, Undersheriff Jacobs spoke with Janssen, the driver of the van, and explained why he had stopped him. Janssen admitted that he was aware that a complaint had been called in against him. Jacobs asked Janssen if he had been drinking. Janssen responded that he had been drinking “Miller Light” beers but that he had stopped drinking about an hour before the stop. Jacobs asked Janssen to get out of the van. In doing so, Janssen stumbled. Moreover, Jacobs saw that Janssen's eyes were “bloodshot” and “watery.” Jacobs asked Janssen to perform field sobriety tests.
When doing the walk-and-turn test, Janssen displayed two signs that indicated that he was intoxicated, but he did not display any signs on the one-leg stand. Undersheriff Jacobs had Janssen take a preliminary breath test (PBT). The test showed an alcohol content of .154. Officers then searched Janssen's van and found three empty Miller Light cans. Janssen was then transported to the jail for further testing. Those events occurred about 5:17 p.m.
Once at the jail, Undersheriff Jacobs read the implied consent form to Janssen and began the 20–minute observation period at 5:25 p .m. The results of Janssen's breath test were .136. The breath test was taken at 5:47 p.m.
A jury found Janssen guilty of operating a vehicle while the alcohol concentration in blood or breath was at least .08 but not guilty of driving under the influence of alcohol to a degree that rendered him incapable of safely driving.
Did the Trial Court Err in Denying Janssen's Motion to Suppress?
Janssen appeals from an order of the trial court denying his motion to suppress evidence. The evidence that Janssen complains about was discovered during the traffic stop. He contends that this evidence was illegally seized.
The standard of review of a trial court's decision on a motion to suppress uses a bifurcated standard. An appellate court reviews the trial court's findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, an appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013) (reasonable suspicion to stop and search defendant). The State bears the burden of proof on a suppression motion and must prove to the trial court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence when it is offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). Here, Janssen renewed his objection to the evidence at the start of trial before any testimony was given. Janssen requested a standing objection to all testimony which was previously raised and discussed. The State and the court agreed to give Janssen a standing objection. Thus, this issue has been properly preserved.
The Legality of the Stop
Janssen contends that the stop of his van was not justified because any reasonable suspicion that existed was negated by the good driving observed by Undersheriff Jacobs. Janssen maintains that Jacobs was required to consider all of the evidence in determining whether reasonable suspicion existed.
A traffic stop is considered a seizure under the Fourth Amendment to the United States Constitution. City of Norton v. Wonderly, 38 Kan.App.2d 797, 802, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008). An officer must have reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed to stop a moving vehicle. See K.S.A. 22–2402(1); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008).
“Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.” State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).
The trial court determined that the stop of Janssen's van was a valid investigatory stop based on the amount and specificity of information provided by Johnson. The trial court noted that Undersheriff Jacobs knew Johnson and that Johnson described firsthand that what he had seen led him to believe the driver was under the influence of alcohol. The trial court held that “[u]nder the totality of circumstances, these facts were sufficient to provide reasonable suspicion to stop the van even without observing any traffic violations.”
To determine whether a third-party telephone call may justify a traffic stop, our Supreme Court has held that a reviewing court should consider the following: “(1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the police officer's personal observations corroborate the information supplied in the tip.” State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999).
The most reliable tip is one provided by an individual who gives the police his or her name and address or identifies him or herself in such a way that he or she can be held accountable for the information. Kansas courts have consistently held that these types of tips may support a traffic stop. Tips provided by identified informants are found to be highly reliable because the informant is exposed to possible criminal and civil prosecution if the report is false. See Slater, 267 Kan. at 700–01.
Here, Johnson clearly meets the first Slater factor. In this case, Johnson called Undersheriff Jacobs, who was a friend of his; thus, the informant was clearly identified. Under the second factor, a tip is more reliable if it is apparent that the informant observed the details personally instead of simply relying on information from a third party. 267 Kan. at 702. Here, Johnson called Undersheriff Jacobs to tell him that he had seen a van, with four occupants, being operated erratically because it almost struck a guardrail. Johnson gave Jacobs specific details about the type of vehicle involved. Moreover, Johnson continued to follow the van until Undersheriff Jacobs arrived on the scene. Thus, Johnson clearly personally observed the alleged criminal activity.
Under the third Slater factor, an officer may corroborate the tip by observing illegal activity or by finding the person, vehicle, and the location as substantially described by the informant. Although it is true that Undersheriff Jacobs did not observe Janssen engaging in any erratic driving, Undersheriff Jacobs did observe other details that corroborated the information provided by Johnson.
Janssen argues that any reasonable suspicion Undersheriff Jacobs may have had when he initially saw Janssen's vehicle was negated by Undersheriff Jacobs' failure to observe Janssen commit any traffic infractions while following him for 4 miles before stopping him. A similar argument was raised and rejected in Wonderly, 38 Kan.App.2d at 803–04. In Wonderly, this court held that reasonable suspicion based on a tip existed even though the officer failed to observe any traffic infractions. The Wonderly court held that “[t]hree minutes of good driving within the city limits did not dissipate [the officer's] reasonable suspicion based on the information conveyed to him that Wonderly had driven his truck in a reckless manner.” 38 Kan.App.2d at 804.
Janssen's good driving argument is flawed. Janssen knew that a complaint had been called in regarding his driving and thus he knew he needed to focus on his driving from that point on. For example, when people see police cars, they naturally slow down; they make sure they are driving the speed limit; and they do their best to follow all traffic laws. Thus, when Janssen was being followed by Undersheriff Jacobs' marked patrol car for 4 miles, it is not surprising that he did not violate any traffic laws.
Applying Wonderly, we reject Janssen's good driving argument. In this case, reasonable suspicion existed even though Undersheriff Jacobs did not see Janssen commit any traffic infractions during the period he followed Janssen before stopping him. Undersheriff Jacobs had a tip from a known informant that Janssen had been driving recklessly. Moreover, the informant believed that the driver was under the influence of alcohol. The informant's belief was based on seeing the driver almost collide into a guardrail. The informant also noted the smell of alcohol coming from the driver's van. A few miles of good driving did not dissipate Undersheriff Jacobs' reasonable suspicion based on the information conveyed to him by a known informant that Janssen had been driving his van in a reckless manner.
The facts in this case satisfy all three of the Slater factors. Based on the reliability of the information provided by Johnson, Undersheriff Jacobs had reasonable suspicion to perform an investigatory stop of Janssen's van. As a result, Janssen's argument fails.
Probable Cause for Arrest
Next, Janssen argues that Undersheriff Jacobs lacked probable cause to arrest him for DUI. Janssen maintains that he did well on the field sobriety tests, was polite and courteous, stopped appropriately, did not commit any traffic violations, and did not have slurred speech. Consequently, Janssen contends that there was no probable cause to arrest him.
Probable cause to arrest requires that an officer have knowledge of facts which would lead a prudent person to believe an offense had been or was being committed. State v. Dunn, 233 Kan. 411, 414, 662 P.2d 1286 (1983). Probable cause exists where the officer's knowledge of the surrounding facts and circumstances creates a reasonable belief the defendant committed a specific crime. “Probable cause is determined by evaluating the totality of the circumstances,” and “does not require an officer have evidence of every element of the crime. [Citations omitted.]” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010).
In finding that there was probable cause to arrest Janssen, the trial court relied on the preliminary breath test (PBT). The trial court held as follows: “The Court finds that the PBT test alone provided probable cause for a DUI arrest.” Nevertheless, it seems that the trial court ruled that even without the PBT, the officer would have had probable cause to arrest Janssen for DUI: “Further, the Court finds that even without the PBT, the officer had reasonable suspicion to arrest Janssen for DUI.” Although the trial court used the phrase “reasonable suspicion,” Janssen's counsel conceded at oral argument that the trial court probably meant to say probable cause instead of speaking the phrase “reasonable suspicion .” Otherwise, the trial court's use of the phrase “reasonable suspicion” would have been an incorrect statement of the law because probable cause is the prerequisite for all arrests. Thus, the trial court must have meant to say that even without the PBT, probable cause was present to arrest Janssen for DUI. There is evidence in the record to support the trial court's ruling.
In support of his argument that the officer lacked probable cause to arrest him, Janssen relies on two cases: Sloop v. Kansas Dept. of Revenue, p296 Kan. 13, 20, 290 P.3d 55 (2012), and City of Norton v. Wonderly, 38 Kan.App.2d 797. Under Sloop, he cites the following facts which were held insufficient to support probable cause to arrest for DUI:
(1) The Defendant was observed sitting unusually close to his steering wheel while driving;
(2) the Defendant made a left hand turn in a hesitant fashion by starting to turn, stopping, and then starting to turn again;
(3) the Defendant's eyes were watery and bloodshot;
(4) the Defendant smelled of alcohol;
(5) the vehicle smelled of alcohol;
(6) the Defendant initially responded to the question of whether he had been drinking by saying “Nothing really” and then said “[L]ike one beer”;
(7) the Defendant's speech was “impaired”; and
(8) the Defendant was stopped in the early morning hours.
Here, the facts giving rise to Undersheriff Jacobs' probable cause to arrest Janssen were the following:
(a) Jacobs had received a call from Johnson that Janssen was driving erratically and had almost collided with a guardrail;
(b) after Jacobs turned on his emergency lights, it took Janssen 1/2 mile to come to a stop;
(c) Janssen's eyes were bloodshot and watery;
(d) Jacobs could smell alcohol coming from the vehicle;
(e) Janssen wobbled as he exited from the van; and
(f) Janssen admitted that he had been drinking Miller Light beer—although Janssen initially stated that he did not know how much alcohol he had consumed, he later said he had consumed “maybe 6 beers.”
Unlike Sloop, where Kenneth W. Sloop, Jr., had admitted to consuming one beer, Janssen stated that he may have consumed as many as six beers. Moreover, Janssen's balance was unstable when he was asked to get out of the van. On the other hand, in Sloop there was no suggestion that Sloop's balance was wobbly or unstable. In fact, the case indicates that “Sloop did not stumble upon exiting” the car. 296 Kan. at 15. Moreover, the case further states that Sloop walked steadily to the back of the car. Thus, Sloop is factually distinguishable from this case.
Moreover, this case is factually distinguishable from the Wonderly decision. Like the defendant in Sloop, Joshua D. Wonderly had no problem with his balance after being asked to step outside the truck he was driving. In addition, Wonderly had no problem walking back to the patrol car. As a result, Janssen's reliance on Sloop and Wonderly are misplaced and do not bear the weight of reliance which he places upon them. Thus, Janssen's lack of probable cause argument fails.
The Preliminary Breath Test
Next, Janssen argues that there are three reasons why his PBT should have been suppressed: (1) Janssen did not provide consent; (2) Undersheriff Jacobs' failed to follow the manufacturer's instruction; and (3) Undersheriff Jacobs had no reasonable suspicion to request the PBT.
Janssen maintains that there was no reasonable suspicion to request the PBT because his actions negated any previous reasonable suspicion. Janssen further contends that an officer cannot ignore the factors that dispel suspicion of DUI.
The trial court agreed with Janssen that the officer could not ignore factors that tend to dispel suspicion of DUI, but the trial court noted that “giving weight to such factors as performing reasonably well on the field sobriety tests and proper driving does not negate other evidence of intoxication.” The trial court relied on State v. Edgar, 296 Kan. 513, 524, 294 P.3d 251 (2013), to reject Janssen's argument that reasonable suspicion disappeared once he passed the field sobriety tests. The Edgar court explained that the “whole picture” must be taken into account but that “competing evidence of sobriety does not negate initial evidence of intoxication.” 296 Kan. at 524–25.
The trial court held that, under the totality of the circumstances, Undersheriff Jacobs had reasonable suspicion to request the PBT. The court found that “bloodshot watery eyes, an odor of alcohol, wobbly balance, and an admission of consumption [of alcohol] created reasonable suspicion that Janssen was driving under the influence. [Undersheriff] Jacobs had sufficient grounds to request a PBT.”
Based on Edgar, we determine that Undersheriff Jacobs had reasonable suspicion to request that Janssen take a PBT. In addition to the information relayed to him by the informant Johnson, Undersheriff Jacobs also observed that Janssen had responded slowly to his emergency lights, that Janssen had bloodshot and watery eyes, that Janssen had difficulty exiting the van, and that the interior of the van had an odor of alcohol about it. Moreover, the undersheriff noted that Janssen had admitted to consuming as many as six beers. All of these facts help establish reasonable suspicion to request a PBT. See State v. Pollman, 286 Kan. 881, Syl. ¶ 7, 190 P.3d 234 (2008) (failure to follow officer's directions, smell of alcohol, and admission to drinking provided reasonable suspicion sufficient to justify officer's request for PBT). While it is true that Janssen performed “reasonably well” on his field sobriety tests, we cannot ignore the other evidence of intoxication seen by Undersheriff Jacobs. Thus, reasonable suspicion existed to request the PBT.
Next, we must address whether Janssen consented to the PBT. The notice requirements regarding a PBT are controlled by K.S.A.2013 Supp. 8–1012(c).
“Under K.S.A.2010 Supp. 8–1012(c), at the time a preliminary breath test is requested, a law enforcement officer must provide oral notice that (a) there is no right to consult with an attorney regarding whether to submit to testing; (b) refusal to submit to testing is a traffic infraction; and (c) further testing may be required after the preliminary test. The statute further provides that the officer's failure to give this notice shall not be an issue or defense in any action.” Edgar, 296 Kan. 513, Syl. ¶ 3.
In this case, it is undisputed that Undersheriff Jacobs failed to provide any notice to Janssen before administering the PBT. Thus, this is exactly the type of situation covered under K.S.A.2013 Supp. 8–1012(c), which states that the officer's failure to give this notice shall not be an issue or a defense in any action. The statute clearly requires an officer to provide the notice when requesting an individual to submit to a PBT. Nevertheless, the statute also clearly states that failure to do so is of no consequence. As a result, this argument fails.
Finally, we need to determine whether the PBT should have been suppressed because Undersheriff Jacobs failed to follow the manufacturer's instructions.
K.A.R. 28–32–14(c) provides that each approved preliminary breath-screening test device shall be operated according to the procedures specified in the manufacturer's instruction manual for this device. The manual recommends a 15–minute deprivation period.
Janssen maintains that his PBT should have been suppressed because Undersheriff Jacobs failed to observe the 15–minute observation period before administering the test. In rejecting this argument, the trial court stated:
“Jacobs initially testified that he observed a 15 minute deprivation period.... However, Jacobs acknowledged that he did not record the time of his observation period.
“... [Jacob's] testimony is corroborated by the time logs available.... Although Jacobs did not record the time of the PBT, the failure to document the time does not refute his testimony that he waited 15 minutes. In addition, the 15 minute deprivation period is a manufacturer's recommendation, not a requirement.”
Based on the trial court's finding, it seems that the trial court made a credibility determination regarding the 15–minute deprivation period. As the record shows, the stop occurred at 4:42 p.m. and at 5:17 Janssen was arrested and transported to the jail following his failed PBT. Considering these facts in addition to Undersheriff Jacobs' testimony that he waited the 15–minute deprivation period, this supports the trial court's finding. See State v. Engard, No. 108,348, 2013 WL 4778156, at *4–6 (Kan.App.2013) (unpublished opinion) (upholding determination that, despite evidence to the contrary, substantial evidence supported the conclusion that the officer waited the required 20 minutes).
Because that there was reasonable suspicion to request the PBT and because the PBT was properly admitted into evidence, Janssen's arguments fail.
The Validity of the Vehicle Search
Next, Janssen argues that the beer cans found in his car should have been suppressed because they were found during an illegal search of his vehicle. Janssen maintains that it was not a valid search incident to arrest because the search was not done close in time to his arrest and because there was no “reason to believe” that evidence relevant to the crime of arrest might be found in his vehicle.
Under the Fourth Amendment to the United States Constitution all unreasonable searches and seizures are prohibited. A search conducted without a valid search warrant is per se unreasonable unless the circumstances of the search fall within one of the exceptions to the search warrant requirement. These exceptions include: (1) consent, (2) search incident to a lawful arrest, (3) stop and frisk, (4) probable cause to search with exigent circumstances, (5) the emergency doctrine, (6) an inventory search, (7) plain view, and (8) an administrative search of a closely regulated business. State v. Vandevelde, 36 Kan.App.2d 262, 267–68, 138 P.3d 771 (2006). The State bears the burden of proving the lawfulness of the search and seizure by a preponderance of the evidence. Pollman, 286 Kan. at 886.
The State argued to the trial court that the search of Janssen's car fell under the “search incident to a lawful arrest” exception. In Arizona v. Gant, 556 U.S. 332, 343–44, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the United States Supreme Court laid out the parameters of this exception. Specifically, the Court held that a vehicle may be searched incident to a recent occupant's arrest only when (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or (2) it is “ ‘reasonable to believe’ evidence relevant to the crime of arrest might be found in the vehicle.” 556 U.S. at 343–44 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 [2004] [Scalia and Ginsburg, JJ., concurring in judgment.] ). The Gant Court determined that it was not reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle; specifically, the defendant “was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of his car”—unlike the drug offenses in some of the Court's prior cases. 556 U.S. at 344; see Thornton, 541 U.S. 615 (search of car conducted after recent occupant of car arrested for possession of drugs); New Yorkv. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (same).
In this case, the trial court held that the search incident to arrest was justified under the second Gant exception because it was reasonable to believe that evidence relevant to the crime of arrest (DUI) might be found in Janssen's van. On appeal, Janssen contends that the facts do not support the trial court's conclusion in this regard.
Thus, we must determine whether it was “reasonable to believe” that evidence relevant to the crime of DUI might be found in Janssen's van.
In this case, the trial court relied on the following facts to determine that it was reasonable to believe that evidence relevant to Janssen's DUI might be found in his van: (1) Janssen had bloodshot and watery eyes; (2) Undersheriff Jacobs smelled the odor of alcohol in the van; (3) Janssen had admitted to consuming as many as six beers; and (4) Janssen had failed a PBT. The trial court held that “[a]ll of these factors provided [Undersheriff] Jacobs a reasonable belief there may be evidence relevant to DUI within the van. Open containers of beer are evidence relevant to the crime of DUI.”
We determine that substantial competent evidence existed that both the informant Johnson and Undersheriff Jacobs had smelled the odor of alcohol coming from Janssen's van, that Undersheriff Jacobs had seen Janssen struggle to keep his balance as he got out of his van, that Janssen had bloodshot and watery eyes, that Janssen had admitted to consuming alcohol an hour before being stopped; and that Janssen had failed a PBT with a test result of .154. Based on those facts, we conclude that that the trial court properly determined that it was reasonable to believe that evidence relevant to the crime of DUI might be found in Janssen's vehicle.
The Validity of the Breath Test
Next, Janssen contends that he was improperly coerced by the implied consent advisories informing him that refusing the breath test was an additional criminal act. Janssen further argues that implied consent is not true consent in a constitutional sense because it is the product of coercion: the threat of criminal prosecution. Therefore, Janssen maintains that the threat of criminal penalties rendered his consent to the bodily search invalid due to duress and coercion; thus, the results should be suppressed.
K.S.A.2013 Supp. 8–1001, also known as the Kansas Implied Consent Law, states in applicable part that any person who operates or attempts to operate a vehicle within Kansas “is deemed to have given consent” to submit to testing of his or her blood, breath, urine, or other bodily substance for drugs or alcohol. K.S.A.2013 Supp. 8–1001(a). An officer may request that a person submit to such testing when, as here, a person is taken into custody and the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol. K.S.A.2013 Supp. 8–1001(b). Before any test is administered, however, the person must receive oral and written notice about the testing, including notice that if the person refuses to submit to testing, “the person may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence.” K.S.A.2013 Supp. 8–1001(k)(4); see K.S.A.2013 Supp. 8–1025.
This notification is generally given through the use of a form called a DC–70. Here, the officer used a DC–70, which contained the warning—which Janssen now characterizes as overly coercive—that
“ if on or after July 1, 2001, at a time when you were 18 years of age or older, you refused a test or were convicted or granted diversion on a charge of driving under the influence of alcohol and/or drugs or were convicted of driving a commercial motor vehicle with an alcohol concentration of .04 or more, and you refuse to submit to and complete any test of breath, blood or urine hereinafter requested by a law enforcement officer, you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties equal to or greater than those for the crime of driving under the influence.”
Janssen contends that the State cannot rely upon his consent to the Intoxilyzer breath test because it is impossible for the State to prove voluntary consent free of coercion when the implied consent law coerces drivers into consenting to these very tests.
Thus, we must determine whether the implied consent advisories (such as to obtain a voluntary consent to a breath-alcohol test free from unreasonable coercion) is impermissible under the Fourth Amendment.
“The Fourth Amendment provides in relevant part that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.’ “ Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 696 (2013). Kansas appellate courts “interpret § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution. [Citation omitted.]” State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011). Moreover, the United States Supreme Court has held—and the Kansas Supreme Court has adopted the holding—that subjecting a person to a breathalyzer test is a search that falls under the purview of the Fourth Amendment. See State v. Jones, 279 Kan. 71, 76, 106 P.3d 1 (2005) (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 [1989] ).
Under the Fourth Amendment, “a warrantless search of the person is reasonable only if it falls within a recognized exception. [Citation omitted.]” McNeely, 133 S.Ct. at 1558. Those exceptions include “consent, search incident to a lawful arrest, stop and frisk, probable cause plus exigent circumstances, the emergency doctrine, inventory searches, plain view or feel, and administrative searches of closely regulated businesses. [Citation omitted.]” State v. Dennis, 297 Kan. 229, 234, 300 P.3d 81 (2013). Here, as stated earlier, there is no dispute that Janssen consented to the Intoxilyzer breath test; the issue is whether that consent was valid. Finding valid consent requires (1) “clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied. [Citation omitted.]” State v. Spagnola, 295 Kan. 1098, 1107, 289 P.3d 68 (2012).
Specifically, Janssen contends that the notification under the implied consent advisories that refusing testing could lead to criminal prosecution coerced his consent. As a result, Janssen argues that this notification was per se coercive and rendered his consent to the search involuntary.
Nevertheless, Kansas courts have previously held that consent obtained by the threat of adverse legal consequences for refusal is valid. For example, as far back as 1989, our Supreme Court has held that an officer's threat to obtain a search warrant did not invalidate a subsequent consent to a search if, in fact, there were grounds for the issuance of the warrant. See State v. Brown, 245 Kan. 604, 612–13, 783 P.2d 1278 (1989). Recently, in City of Dodge City v. Webb, 50 Kan.App.2d 393, 329 P.3d 515 (2014), this court applied this holding in the context of a DUI prosecution; whether an officer's threat to obtain a warrant to draw blood for alcohol testing “had justification in law” was determinative of whether the threat was coercive and rendered the later consent involuntary. See 50 Kan.App.2d at 400–01, 403–04.
We are guided in this inquiry by a previous decision of this court in City of Kingman v. Lubbers, 31 Kan.App.2d 426, 65 P.3d 1075, rev. denied 276 Kan. 967 (2003). On appeal, Lubbers argued that his consent to a preliminary breath test (PBT) was not voluntary because the officer told him that if he refused to consent to the PBT, this would result in a traffic violation. The Lubbers court rejected this argument. The Lubbers court held that because the officer had properly told Lubbers about the legal consequence of refusing the PBT and that because Lubbers had freely consented to the PBT, his argument failed. In addition, the Lubbers court noted that the “threat” of a traffic violation did not render his consent involuntary. 31 Kan.App.2d at 428–29.
In a like manner, Janssen makes the same kind of argument that was presented in Lubbers. For instance, Janssen contends that his consent was obtained only after he was told about the possible legal consequences if he refused to submit to a breath-alcohol test. For example, K.S.A.2013 Supp. 8–1025 criminalizes test refusal under certain circumstances. Like Lubbers, the officer properly told Janssen about the possible legal consequences of a test refusal. Thus, this was not coercion. Moreover, as noted in Lubbers, the “threat” of a possible criminal violation did not render Janssen's consent involuntary. As a result, we determine that the trial court properly denied Janssen's motion to suppress the test results.
Although our research has revealed no Kansas case directly on point, we draw guidance from decisions dealing with this issue from other jurisdictions. See People v. Harris, 225 Cal.App. 4th 1, 4, 170 Cal.Rptr.3d 729 (2014) (“The fact that there are [enhanced criminal penalties for DUI conviction if the person convicted refused a request for testing] upon arrest does not render the consent illusory or coercive.”); State v. Yong Shik Won, 134 Hawaii 59, 78–80, 332 P.3d 661 (Hawaii App.2014) (holding that under Hawaii's implied consent law, a driver consents to breath testing by driving on a public road and the legislature's decision to create sanctions—even criminal ones—for the withdrawal of that consent does not render the consent invalid for Fourth Amendment purposes), cert. granted ––– Hawaii –––– (June 24, 2014); State v. Smith, 2014 N.D. 152, ¶ 21, 849 N.W.2d 599, 606 (2014) (citing State v. Brooks, 838 N.W.2d 563, 570–72 [Minn.2013], cert. denied 134 S.Ct. 1799 [2014], and stating that “an individual's consent is not coerced simply because a criminal penalty has been attached to refusing the test or that law enforcement advises the driver of that law”); Brooks, 838 N.W.2d at 570 (“[A] driver's decision to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test.”).
Constitutionality of the Implied Consent Law
In the alternative to his argument that he did not consent to the search, Janssen argues that even if it were determined that he had consented by operation of the implied consent statute, K.S.A.2013 Supp. 8–1001, that statute is unconstitutional. Specifically, Janssen maintains that the legislature does not have the power to imply someone's consent to waive his or her Fourth Amendment rights as a condition of granting the privilege to drive in Kansas. Janssen's constitutional argument fails.
A statute's constitutionality is a question of law subject to unlimited review. This court “presume[s] statutes are constitutional and must resolve all doubts in favor of a statute's validity.” State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). Additionally, this court “must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature's apparent intent.” Soto, 299 Kan. at 121 (citing State v. Gaona, 293 Kan. 930, 957–58, 270 P.3d 1165 [2012] ).
Janssen's constitutional argument is inconsistent with the United States Supreme Court's discussion of implied consent laws in McNeely. In McNeely, the Supreme Court recognized that implied consent laws, which “require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood-alcohol concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense,” are “legal tools” states continue to have to enforce their drunk driving laws. 133 S.Ct. at 1566. The McNeely Court noted that these laws often impose significant consequences when a motorist refuses to consent, such as suspending or revoking the motorist's driver's license or allowing the motorist's refusal to take the test to be used as evidence against the motorist in a subsequent criminal prosecution. 133 S.Ct. at 1566.
By using these legal tools to revoke a driver's license for refusing a test or by using the test to initiate additional criminal charges, the State is doing the exact thing Janssen claims it cannot do—conditioning the privilege of driving on agreeing to a warrantless search. Moreover, the implied consent statute requires, in relevant part, that police have reasonable grounds to believe a driver is under the influence before a chemical test can be requested and that the driver consent before the test can be administered. K.S.A.2013 Supp. 8–1001(b). Thus, we hold that Janssen has not demonstrated that Kansas' Implied Consent statute is unconstitutional.
The Doctrine of Unconstitutional Conditions
Next, Janssen argues that the implied consent law is unconstitutional because it violates the doctrine of unconstitutional conditions. Janssen maintains that the exercise of a constitutional right cannot be converted into a criminal offense, such as is done in the new law criminalizing the refusal of a breath test under the implied consent law.
The unconstitutional conditions doctrine is a creature of federal law that may be invoked to protect or vindicate a constitutional right in some situations. See Frost Trucking Co. v. R. Com., 271 U.S. 583, 592–93, 46 S.Ct. 605, 70 L.Ed. 1101 (1926).
The doctrine of unconstitutional conditions has been described as follows:
“The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt.' [Citations omitted.]” State v. Wahweotten, 36 Kan.App.2d 568, 579, 143 P.3d 58, rev. denied 283 Kan. 933 (2007).
For Janssen's argument to be successful, the court must find that Janssen had a constitutional right to refuse the breath test.
The first issue that arises with Janssen's argument is that the implied consent statute clearly states that “the opportunity to consent to or refuse a test is not a constitutional right.” K.S.A.2013 Supp. 8–1001(k)(2). Additionally, in State v. Bussart–Savaloja, 40 Kan.App.2d 916, 928, 198 P.3d 163 (2008), (quoting and citing South Dakota v. Neville, 459 U.S. 553, 560 N. 10, 563–64, 103 S.Ct. 916, 74 L.Ed.2d 748 [1983] ), rev. denied 288 Kan. 833 (2009), our court held that a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test.
Another issue is that the United States Supreme Court has not held that the unconstitutional conditions doctrine may be invoked to protect Fourth Amendment rights. In one case that involved a Fourth Amendment challenge, the Supreme Court briefly mentioned the unconstitutional conditions doctrine but ultimately declined to apply it. See United States v. Knights, 534 U.S. 112, 118 & n. 4, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (upholding condition of probation that required probationer to consent to warrantless searches of home).
Alaska, which charges a person with a misdemeanor when he or she refuses a breath test under the implied consent laws, previously addressed a similar unconstitutional condition argument in McCracken v. State, 685 P.2d 1275 (Alaska App.1984). In McCracken, the defendant argued that the State may not constitutionally condition the grant of a privilege or right, such as the right to operate a motor vehicle, on the prospective surrender or relinquishment of a constitutional right, such as the right to be free of illegal searches and seizures. Thus, the defendant argued that the statute penalizing the refusal to submit to a breath test was unconstitutional. The McCracken court rejected this argument finding that a defendant has no constitutional right to refuse to submit to a breath test. The court explained that the implied consent statute creates a “power” not a “right” to refuse testing but the consequence of exercising that power is a statutory penalty for refusal. 685 P.2d at 1277–1278.The McCracken court further stated the following:
“[T]he only fourth amendment interest is the defendant's right to be protected against arrest on less than probable cause. If he is properly arrested, he has no further fourth amendment right to refuse the breathalyzer examination. It appears clear that requiring him to take the test and later challenge the legality of his arrest at trial adequately protects the defendant's fourth amendment rights while meeting the state's legitimate need to gather evidence.” 685 P.2d at 1282. (Singleton, J., and Bryner, C.J., concurring).
The McCracken majority ultimately held that because the defendant “does not relinquish any fourth or fifth amendment right to refuse to consent by actually consenting to the breathalyzer examination, it is not unconstitutional to condition his driving privilege on his giving that consent.” 685 P.2d at 1278.
More recently, in State v. Chasingbear, No. A14–0301, 2014 WL 3802616, (Minn.App.2014) (unpublished opinion), rev. granted October 14, 2014, the Court of Appeals of Minnesota rejected a similar unconstitutional conditions argument. The Chasingbear court explained that when analyzing whether a statute violates the unconstitutional conditions doctrine, the court must determine whether the legislation requires the recipient to surrender a constitutional right. The court held, as we hold in this case, that there is no constitutional right to refuse to be tested. 2014 WL 3802616, at *3–8.
Additionally, the Chasingbear court further explained that the court must also consider “the purpose of the challenged condition, and it invalidates only those laws whose challenged condition bears no significant relevance to the governmental objective of the privilege that the government is conditionally conferring.” 2014 WL 3802616, at *6. Under this analysis, the court held that the condition imposed is tightly related to the privilege conferred. Specifically, the court stated: “The statutory condition that every arrested, apparently drunk, driver agrees to submit to a chemical test or be penalized for refusing the test directly and only furthers the state's interest in the sober use of public highways.” 2014 WL 3802616, at *7.
Therefore, because Janssen did not have a constitutional right to refuse the breath test and because the United States Supreme Court has yet to apply the unconstitutional conditions doctrine to the Fourth Amendment, we determine that Janssen's argument fails. We also reject the application of the unconstitutional conditions doctrine in this case because even if a driver does have a constitutional right to refuse testing, the limited encroachment on that right by conditioning the privilege to drive on a driver's consent to testing or face criminal penalties is closely related to the statute's valid purpose.
Failure to Give the Proper Implied Consent Notice
Next, Janssen argues that his breath test results should have been suppressed because the officer failed to give the proper implied consent notice. Specifically, Janssen maintains that the DC–70 form which is used to inform people of the implied consent statute, fails to specify what it means by a “prior test refusal.” Janssen argues that based on the statute, a “prior test refusal” refers to a person's failure to submit to or complete any test of the person's blood, breath, urine or other bodily substance, other than a preliminary screening test. Because the DC–70 form fails to inform the person that a refusal of a PBT does not qualify as a “prior test refusal,” Janssen contends that the notice fails to meet the statutory requirements.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. We may only resort to legislative history or to the rules of statutory construction if the plain language of the statute is ambiguous. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Under the implied consent statute there are specific notices that officers are required to give a person before a test can be administered. These notices are laid out in K.S.A.2013 Supp. 8–1001(k)(1)–(9) and state in relevant part as follows:
“(k) Before a test or tests are administered under this section, the person shall be given oral and written notice that:
“(4) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence, if such person has:
(A) Any prior test refusal as defined in K.S.A. 8–1013, and amendments thereto, which occurred: (i) On or after July 1, 2001; and (ii) when such person was 18 years of age or older; or
(B) any prior conviction for a violation of K.S.A. 8–1567 or 8–2,144, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, which occurred: (i) On or after July 1, 2001; and (ii) when such person was 18 years of age or older.”
In this case, Undersheriff Jacobs read verbatim from the DC–70 form to provide Janssen with the required advisories. Janssen does not dispute this fact. The DC–70 form stated in relevant part:
“5. In addition, if on or after July 1, 2001, at a time when you were 18 years of age or older, you refused a test ... and you refuse to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties equal to or great than those for the crime of driving under the influence.”
Janssen contends that the DC–70 advisory does not comply with K.S .A.2013 Supp. 8–1001(k)(4)(A) because the DC–70 does not advise that a prior refusal of a preliminary screening test (PBT) is not considered a refusal under K.S.A.2013 Supp. 8–1013(i).
The trial court rejected Janssen's argument, holding as follows:
“At this point, the parties were far past the stage of preliminary testing. There is no reason to believe the officer or the Defendant was discussing preliminary testing. Further, no test results shall be suppressed because of technical irregularities. K.S.A. [2013 Supp.] 8–1001(s). Here, the Defendant was advised of the consequences of refusal in the event there was a prior refusal. The advisory substantially conformed to the requirements of K.S.A. [2013 Supp.] 8–1001 and no breath test results are suppressed for this reason.”
The State responds to Janssen's argument by correctly calling this argument a red herring. The evidence shows that Undersheriff Jacobs properly read the DC–70 implied consent advisories and that Janssen willingly consented to both the PBT and later breath test. Janssen's argument appears to argue that despite his willingness to take both the PBT and the breath test, he should have been told that had he refused to take the PBT it would not have been held against him. Yet, the facts clearly state that Janssen consented to the PBT test, so it was immaterial to Janssen whether a previous refusal to take a PBT would count against him. Thus, based on the facts of this case, the notice Janssen received complied with the requirements of K.S.A.2013 Supp. 8–1001(k)(4) and any additional information Janssen was requesting is immaterial and meaningless.
Breath Test Results Were Not Obtained Within the Statutory Time Frame
Next, Janssen contends that the court erred in admitting the results of his breath test because the test was not obtained within the statutory time frame. To support his argument, Janssen relies on Undersheriff Jacobs' probable cause affidavit which stated that Janssen was asked to take the breath test at 9:47 p.m. Janssen then points out that Undersheriff Jacobs testified that he pulled Janssen over at 4:42 p.m. Based on these two pieces of evidence, Janssen maintains that the breath-test results should have been suppressed because they were not obtained within the 3–hour time frame required by statute.
Under K.S.A.2013 Supp. 8–1567(a)(2), the alcohol concentration in a person's blood or breath must be measured within 3 hours of driving or attempting to drive in order to be competent evidence to sustain a per se DUI violation. K.S.A.2013 Supp. 8–1567(a)(2) specifically states:
“(a) Driving under the influence is operating or attempting to operate any vehicle within this state while:
“(2) the alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is .08 or more.”
If the test occurs outside the 3 hours, the test cannot be used to support a per se DUI conviction. See State v. Pendleton, 18 Kan.App.2d 179, Syl. ¶¶ 2–3. 849 P.2d 143 (1993) (time limit previously was 2 hours); but see K.S.A.2013 Supp. 8–1567(a)(1).
There are numerous problems with Janssen's argument. First, it is disingenuous. Janssen cherry picks the evidence in the record which supports his theory. For example, he points to the officer's probable cause affidavit to show the time the test was obtained; yet, he does not want to use the affidavit to show when he was stopped. The affidavit states that Janssen was stopped at 8:23 p.m. and that the test was obtained at 9:47 p.m. Based on this evidence, Janssen's argument fails. Moreover, Undersheriff Jacobs testified that his affidavit was incorrect. Undersheriff Jacobs testified that the police logs and the actual printout from the breath test results should be used to determine the timeline. Reviewing the police logs shows that Janssen was stopped at 4:42 p.m.; that Janssen was taken to the jail at 5:17 p.m.; and that the breath-test printout shows that Janssen's breath test was administered at 5:47 p .m.
Janssen completely ignores all of this evidence in his brief. Janssen fails to deal with the facts that detract from his argument. He simply begs the question for us to assume that what he says is true. After a review of the record, it is quite clear that the facts Janssen presents are not all of the relevant facts needed to determine whether the test was given within the statutory timeframe. Based on Janssen's argument, he has failed to show that the test was given outside the 3–hour time frame. There is competent evidence in the record to support a finding that the test was given within the statutory timeframe. As a result, Janssen's argument fails.
Did the Trial Court Err in Admitting Evidence?
Janssen argues that the trial court erred in allowing the consideration of the open containers as evidence despite the court's directed verdict on the open container charge. Janssen maintains that because the court dismissed the charge of open container, the evidence regarding the open containers should not have been admitted at trial. Janssen contends that he is entitled to a new trial because this evidence was irrelevant and unduly prejudicial.
We begin our analysis with the admissibility of the evidence. There are two overall considerations here. First, the evidence must be relevant to be admitted. The general rule is that all relevant evidence is admissible unless statutorily prohibited. K.S.A. 60–407(f); State v. Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d 680 (2013). Our Supreme Court has explained that we separately consider whether the evidence is probative, i.e., tending to prove a fact, and whether it is material, i.e., whether that fact has a legitimate place in the dispute:
“Evidence is relevant if it has any tendency in reason to prove any material fact. Accordingly, there are two elements of relevancy: a materiality element and a probative element. Materiality addresses whether a fact has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency in reason to prove a fact. An appellate court reviews a district court's determination that evidence is probative for abuse of discretion whereas the district court's decision regarding materiality is reviewed de novo.” 297 Kan. 610, Syl. ¶ 1.
Janssen argues that when the trial judge granted a directed verdict on the open container charge, the judge determined that no reasonable mind could reach a different conclusion than that there was no alcohol in the cans. Therefore, Janssen maintains that the open container evidence should not have been admitted because it was irrelevant and unduly prejudicial.
In response, the State argues that Janssen assumes that, but for the existence of alcohol in the beer cans, the cans themselves had little probative value. The State maintains that this argument is flawed. The State contends that the beer cans were relevant to the question of the DUI and also because Janssen admitted to drinking “Miller Light” beer, which was the brand found in his van. Thus, the State argues that the beer cans were relevant and probative and that the trial court did not err in admitting this evidence.
In granting the directed verdict on the open container charge, the trial judge held:
“[O]n the transporting open container, the fluid within the cans, there's no evidence presented that it has been tested either to be an alcohol, alcoholic beverage or cereal malt beverage.
“The officer testified that there was liquid in the cans and that it smelled like alcohol. I'm not sure the smell of alcohol would be sufficient to make a finding legally that there is alcohol.
“The request for the directed verdict on the transporting open container is granted.”
The fact that the trial court granted a directed verdict on the open container charge does not, in and of itself, prove that the open container evidence should not have been admitted into evidence. Moreover, it seems that the trial court incorrectly granted a directed verdict on the open container charge.
According to caselaw, it is not necessary to show that the liquid in a container was actually alcohol to be admissible into evidence. An officer's testimony that an open container was found with liquid in it that looked and smelled like alcohol was sufficient to support an open container conviction. See State v. Pollman, No. 105,227, 2012 WL 309072, at *5 (Kan.App.2012) (unpublished opinion) (upheld open container conviction based on officer's testimony that he found numerous alcoholic beverages in the car and the surveillance video that showed the driver pouring out the liquid contents of a can); State v. Fuller, No. 100,714, 2009 WL 2242442, at *3 (Kan.App.2009) (unpublished opinion) (upheld open container conviction based on circumstantial evidence that showed that vodka bottle had been opened and the officer's testimony that it smelled like vodka), rev. denied 290 Kan. 1098 (2010); State v. Vanbibber, No. 96,473, 2007 WL 3275898, at *2 (Kan.App.2007) (unpublished opinion) (2008) (upheld open container conviction where containers were not admitted into evidence and the substance in the containers was never tested, finding that “from the description of the bottles, their labels, and the officer's testimony that they contained alcohol, and absent any evidence challenging the nature of the substances therein, the jury could reasonably infer that the substances were alcoholic in nature”), rev. denied 286 Kan. 1185; City of Liberal v. Chappell, No. 90,174, 2004 WL 1176594, at *3 (Kan.App.2004) (unpublished opinion) (upheld open container conviction based on officer's testimony that he found an open can of Coors Light which was cool to the touch and which contained a small amount of liquid that looked and smelled like beer).
Based on the relevant caselaw, the trial court incorrectly granted a directed verdict on the open container charge. Notwithstanding that error, the cans of Miller Light beer were relevant and probative in this case. As the State correctly noted, Janssen admitted to drinking Miller Light beer before being stopped. Thus, when the Miller Light beer cans were found in his van, it was relevant to show that Janssen had been drinking. As a result, we determine that the trial court properly admitted the beer cans as evidence because it was relevant to the charge of DUI.
Did the Trial Judge Commit Judicial Misconduct?
Finally, Janssen contends that the trial court committed judicial misconduct when it commented on the lack of a video recording of the arrest. Janssen argues that the lack of a video was a major part of his defense and when the trial judge assured the jurors that “Jewell County doesn't have any video” that the judge improperly gave her personal testimony to answer for a testifying witness.
Appellate courts have unlimited review over allegations of judicial misconduct. State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010).
Janssen's issue arose after the trial judge interjected herself into the questioning by assuring the jury that Jewell County did not have any video recording of the arrest. After defense counsel had asked Undersheriff Jacobs three separate times whether there was a video to show the arrest and field sobriety tests, the State objected, arguing that the question had been asked and answered. The trial judge then assured the jury that Jewell County did not have any video recording of the incident and further informed the jury that the question had been asked and answered:
“Q. [Defense Counsel:] Again, we don't have the video to show the performance.
1”[State:] Object to it as asked and answered as this is the third time.
“[Defense Counsel:] I just want to make sure—I'll rephrase the question.
“THE COURT: I can assure you that Jewell County doesn't have any video, Mr. Gillette. The jury should know that it's been asked and answered.” (Emphasis added.)
Janssen argues on appeal that the trial court “testified and offered personal assurances about the video-recording capacities of Jewell County. In doing this, the judge shifted the responsibility for the provision of video from the sheriff's department and transferred it to the County, repairing the officer's credibility in relation to the lack of video.”
When reviewing allegations of judicial misconduct, we must first determine whether the complaining party has met his or her burden to establish that misconduct occurred and, second, that it prejudiced the party's substantial rights. Kemble, 291 Kan. at 113.
An appellate court must review the particular facts and circumstances of each case to determine whether judicial comments, other than jury instructions, rise to the level of judicial misconduct. If a proper and reasonable interpretation will render the judge's remark unobjectionable, the remark cannot be found to be prejudicial. 291 Kan. at 113. The mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict or judgment. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).
The State disputes Janssen's contention that the trial judge's comment amounted to judicial misconduct. The State maintains that the judge's comment was made simply to keep the testimony moving forward and that it was a single isolated statement that did not constitute judicial misconduct.
We agree with the State. After reviewing the judge's comment in the full context of cross-examination, it is clear that the judge wanted to put an end to defense counsel's repeated questions regarding the video and simply let the jury know that the question had been asked and answered. Consequently, it was unnecessary for the defense to clarify or question Undersheriff Jacobs about that fact. Additionally, defense counsel's question was not a proper question because it was a statement. Defense counsel was improperly giving undue emphasis to the fact that there was no video. Moreover, the State's objection was a proper objection. The trial court correctly sustained the State's objection. See State v. Belote, 213 Kan. 291, 296, 516 P.2d 159 (1973) (If the same question in another form has been asked and answered by the witness, excluding the repetitive testimony was not error.); see also Callahan v. United States, 35 F.2d 633, 634 (10th Cir.1929) (The court has discretion to limit examination to prevent unnecessary repetition.). Finally, Janssen has failed to show how he was prejudiced by the trial judge's comment. A review of the entire record reveals that the alleged judicial misconduct here did not actually constitute misconduct and did not affect the outcome of the trial. As a result, this argument fails.
Affirmed. MALONE, C.J., concurring:
I agree with the majority that we should affirm Scott Janssen's conviction of driving under the influence of alcohol (DUI). However, I agree with Janssen's claim that he was improperly coerced by the implied consent advisories informing him that refusing the breath test was an additional criminal act.
Simply stated, I find it hard to imagine how Janssen's consent to the breath test can be deemed voluntary when he was advised that refusal to consent would be a crime for someone in his situation. It is one thing for the Kansas Implied Consent Law to coerce submission to chemical testing through the threat of the statutory penalties of license revocation and the admission into evidence in a DUI proceeding of the fact of refusal. See Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995). But I believe the legislature crossed the line when it made a test refusal a crime under K.S.A.2013 Supp. 8–1025. Thus, under the facts of this case, I believe that Undersheriff Donald Jacobs violated Janssen's rights under the Fourth Amendment to the United States Constitution by administering a breath test without obtaining a search warrant or properly applying a recognized exception to the warrant requirement.
Nevertheless, based on my view of the exclusionary rule, I would not suppress the evidence of Janssen's breath test results in this particular case. Other than Janssen's claim that he was improperly coerced by the implied consent advisories, there is no assertion that his consent to the breath test was not otherwise voluntary under the totality of the circumstances. When Janssen was asked to submit to the breath test, he had been arrested for DUI and there was probable cause to support the arrest. Likewise, the record is clear that Jacobs acted in good faith when he advised Janssen of the potential legal consequences of his test refusal. In fact, Jacobs was required by law to advise Janssen of all the consequences of a test refusal, including the potential of being charged with a crime. See K.S.A.2013 Supp. 8–1001(k)(4).
Under these circumstances, I believe United States Supreme Court precedent compels our recognition of the good-faith exception to the exclusionary rule articulated in Illinois v. Krull, 480 U.S. 340, 349–50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), for objectively reasonable reliance by law enforcement on a statute. See State v. Daniel, 291 Kan. 490, Syl. ¶ 7, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011). Application of the good-faith exception in this case presents a pure legal question based on undisputed facts. Here, Jacobs had the right to reasonably rely on K.S.A.2013 Supp. 8–1001(k)(4) when he provided Janssen with the implied consent advisories. If the Kansas Supreme Court ultimately rules that a driver's consent to a breath test is rendered involuntary based solely on a law enforcement officer's objective good-faith reliance on K.S.A.2013 Supp. 8–1001(k)(4) in giving the implied consent advisories, then such a ruling should be applied prospectively only to all drunk driving investigations conducted in Kansas after the filing of the opinion.