Opinion
No. 102,889.
2012-07-27
STATE of Kansas, Appellee, v. Jeremy A. COUSE, Appellant.
Appeal from Rooks District Court; Thomas L. Toepfer, Judge. Michael S, Holland, II, of Holland and Holland, of Russell, for appellant. Edward C. Hageman, county attorney, and Steve Six, attorney general, for appellee.
Appeal from Rooks District Court; Thomas L. Toepfer, Judge.
Michael S, Holland, II, of Holland and Holland, of Russell, for appellant. Edward C. Hageman, county attorney, and Steve Six, attorney general, for appellee.
Before MALONE, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
Jeremy A. Couse was convicted of driving under the influence of alcohol (DUI), transporting an open container, driving in violation of license restrictions, and having a defective tail lamp. On appeal, Couse raises a constitutional challenge to K.S.A.2010 Supp. 8–1012, the statute controlling the preliminary breath test (PBT). Because it is unnecessary to address the constitutional issue, we affirm on other grounds.
Factual and Procedural Background
At the outset, the trial court held a suppression hearing, but inexplicably, a transcript of the hearing was unavailable for appeal. As a result, the trial court prepared a statement of the evidence pursuant to Supreme Court Rule 3.04 (2010 Kan. Ct. R. Annot. 26). Many of the facts stated below are taken from this statement of the evidence.
Couse was stopped in the early morning hours of June 1, 2008, by Officer James Phlieger for a defective taillight. The traffic stop evolved into a DUI investigation when the officer noted that Couse smelled of alcohol, had bloodshot eyes, and had an open can of beer in his vehicle. However, Couse passed field sobriety tests.
Officer Phlieger next asked Couse to take the PBT. At this point, according to the trial court's findings, Couse was being “detained” and was “not free to leave.” The trial court made no specific findings regarding whether Couse consented to the PBT, only that he “took the PBT.”
The PBT “showed a B.A.C. of .096,” and Couse was arrested for DUI. Couse then took a breath test on the Intoxilyzer 8000, which returned a reading of “0.094 grams of alcohol per 210 liters of breath.” Couse moved to suppress this evidentiary breath test based on the circumstances surrounding the PBT.
In the trial court, Couse contended “[a]bsent the illegally and improperly obtained [PBT] results the officer lacked probable cause to arrest ... for [DUI].” Couse claimed he did not voluntarily consent to the PBT and that the implied consent provision of the PBT statute, K.S.A.2010 Supp. 8–1012(a), was unconstitutional. Thus, Couse argued “any and all evidence seized subsequent to the initial illegal arrest ... must be suppressed.”
The trial court agreed with Couse that “absent the [PBT] results, the officer lacked probable cause to arrest ... for [DUI], because of the lack of signs of physical impairment.” The trial court disagreed with Couse on the constitutional issue, however, holding that K.S.A.2010 Supp. 8–1012(a) validly supplied implied consent to the PBT. After the denial of his motion to suppress, Couse waived jury trial and, together with the State, submitted a stipulation of evidence for trial to the bench.
Couse stipulated “[a]fter reading the implied consent advisory, [he] voluntarily consented to take the PBT.” Couse also stipulated he “voluntarily submitted” to the evidentiary breath test. The trial court found Couse guilty “based upon the parties' jointly filed Stipulation of Fact and Waiver of Jury Trial.” Couse appeals.
Discussion
For his sole issue on appeal, Couse contends “the [PBT] statute is unconstitutional as it ‘implies consent’ to an otherwise unconstitutional search under the Fourth Amendment to the United States Constitution.” The State counters that implied consent is not at issue in this case given the stipulation of the parties. “After being advised of his rights, Couse voluntarily consented to take the PBT. It's that simple.”
A question regarding the constitutionality of a statute is a question of law for which an appellate court's scope of review is unlimited. In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, Syl. ¶ 3, 112 P.3d 138 (2005). Similarly, when a case is submitted solely on stipulated facts, an appellate court has unlimited review of the question of whether to suppress evidence. State v. Jones, 279 Kan. 71, Syl. ¶ 1, 106 P.3d 1 (2005).
In Allen v. Kansas Dept. of Revenue, 292 Kan. 653, Syl. ¶ 3, 256 P.3d 845 (2011), our Supreme Court observed: “Appellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge to a statute.” In Allen, our Supreme Court declined to address the constitutionality of the PBT in a driver's license suspension case because other evidence established reasonable grounds for the evidentiary test. 292 Kan. at 660. Our Supreme Court took the same approach in Smith v. Kansas Dept of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010). We will follow the guidance set forth in Allen and Smith.
The PBT is a search. Jones, 279 Kan. 71, Syl. ¶ 2. Absent an exception to the Fourth Amendment's warrant requirement, it is presumptively unreasonable. Jones, 279 Kan. at 76;State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied ––– U.S. –––– (2011); State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007). Since it is uncontroverted that the PBT here was not supported by probable cause, the issue is whether Couse consented to the test. See State v. Davis, 41 Kan.App.2d 1034, 1038–39, 207 P.3d 281 (2009). The voluntariness of consent is a question of fact. State v. Parker, 282 Kan. 584, Syl. ¶ 5, 147 P.3d 115 (2006).
A driver may voluntarily consent to the PBT. City of Kingman v. Lubbers, 31 Kan.App.2d 426, 429, 65 P.3d 1075,rev. denied 276 Kan. 967 (2003). “For a consent to search to be valid, two conditions must be met: (1) There must be 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.” Thompson, 284 Kan. at 776.
Couse stipulated in writing to voluntary consent in the district court. He relies on the written stipulation in his statement of facts on appeal. The State agrees with Couse's statement of facts and, in fact, joined in the stipulation. As a result, the State contends Couse voluntarily consented to the PBT. Of note, Couse did not respond to the State's argument. Indeed, he did not file a reply brief to challenge the State's understanding of the plain words of the stipulation or seek a release from his written stipulation.
Couse did challenge the voluntariness of his consent at the suppression stage below, and there was evidence which may have supported his argument below that Couse did not voluntarily consent. See Jones, 279 Kan. 71, Syl. ¶ 3 (“Mere acquiescence to a[PBT] does not establish voluntary consent.”). Couse's written stipulation for trial, however, did not incorporate the evidence from the suppression hearing and the record on appeal does not show the trial court made any finding on the voluntariness issue.
Couse did reserve an objection in the stipulation “to any and all evidence contained in the following stipulation of fact which would have been suppressed had [his] motion to suppress been granted .” But Couse's stipulation to voluntary consent was not evidence which would have been suppressed. Indeed, Couse's stipulation to voluntary consent was not seized by the police but was specifically pled by Couse. This stipulation provided an exception to the Fourth Amendment's warrant requirement.
Parties are generally held to stipulations in criminal trials. State v. Downey, 27 Kan.App.2d 350, 359, 2 P.3d 191,rev. denied 269 Kan. 936 (2000). After careful consideration, we see no reason to relieve Couse of his stipulation to voluntary consent. The State, therefore, met its “burden to show such consent or waiver is voluntarily, intelligently, and knowingly given.” Jones, 279 Kan. at 77.
Finally, even if Couse had shown the PBT was unconstitutional, he further stipulated in writing that he voluntarily consented to the evidentiary breath test. Because the PBT is inadmissible at trial, K.S.A.2010 Supp. 8–1012(d), any unconstitutionality associated with the PBT would become material only if the evidentiary breath test was tainted by the resulting illegal arrest. See State v. Hill, 281 Kan. 136, 152, 130 P.3d 1 (2006); State v. Carver, 577 N.W.2d 245 (Minn.App.1998). But Couse's voluntary consent to the evidentiary breath test would tend to purge any taint. See Parker, 282 Kan. 584, Syl. ¶ 4;State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (1997).
Based on this record and the arguments raised by the parties, we do not find reversible error. Because it is unnecessary to address the constitutional issue, we affirm the district court on other grounds.
Affirmed.