Opinion
No. 112,229.
2015-02-6
STATE of Kansas, Appellant, v. Kenneth Alain GROSS, Appellee.
Appeal from Ellis District Court; EDWARD E. BOUKER, Judge.Christopher W. Lyon, assistant county attorney, and Derek Schmidt, attorney general, for appellant.John C. Herman, of Herman Law Office, P.A., of Hays, for appellee.
Appeal from Ellis District Court; EDWARD E. BOUKER, Judge.
Christopher W. Lyon, assistant county attorney, and Derek Schmidt, attorney general, for appellant. John C. Herman, of Herman Law Office, P.A., of Hays, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
The State appeals an order suppressing evidence of a blood test indicating that Kenneth Gross was driving under the influence of alcohol. It contends that the district court should not have suppressed the results of the blood test because the July 2012 version of the DC–70 form was sufficient to advise Gross of his rights under K.S.A.2012 Supp. 8–1001(k). However, we conclude that Gross was not adequately informed of the rights applicable to him prior to consenting to the blood test. In particular, the form failed to advise him of the distinction between a prior refusal to consent to a preliminary test and a prior refusal to consent to an evidentiary blood test under K.S.A.2012 Supp. 8–1001(k). Thus, we affirm the suppression.
Facts
Around 12:30 a.m. on January 12, 2013, Officer William A. Poland stopped Gross for driving his truck without using his headlights. During the stop, Officer Poland noticed a strong odor of alcohol coming from the vehicle. He also observed that Gross' speech was slurred, that he had bloodshot eyes, and that his eyes were watery. Officer Poland later testified that Gross did not comply with his repeated requests to exit the vehicle, so he reached into the truck and turned off the ignition. He also physically removed him from the vehicle and placed him in handcuffs. Once Gross began to cooperate, Officer Poland removed the handcuffs and noted that Gross was unable to walk or stand unassisted. Officer Poland then placed Gross under arrest for driving under the influence of alcohol.
Officer Poland then placed Gross in the front seat of his patrol car where he read aloud and gave Gross a copy of an implied consent advisory form—commonly referred to as the DC–70 form—required by K .S.A.2012 Supp. 8–1001(k). Although Gross initially refused, he agreed to submit to a blood test. Officer Poland then transported Gross to a testing center where a blood draw was obtained.
Thereafter, Officer Poland took Gross to the Ellis County jail. After he had been advised of Miranda warnings, Gross admitted that he had consumed about three beers at a friend's house. He also stated that he had taken medicine for a cold. In addition, Gross was unable to provide proof of liability insurance, and his car was not equipped with an interlock device, which he was required to install as a result of prior DUI convictions.
Accordingly, the State charged Gross with driving under the influence of alcohol, driving in violation of license restrictions, and driving without proof of insurance. Prior to trial, Gross filed a motion to suppress the results of his blood test. Specifically, he argued that the version of the DC–70 form provided to him was materially different from the requirements listed in K.S.A.2012 Supp. 8–1001(k), so it failed to provide him with adequate notice of his rights.
On July 11, 2014, the district court granted Gross' motion to suppress. In its order, the district court noted that the parties had stipulated to the facts in the probable cause affidavit and that Gross was served with the July 2012 version of the DC–70 form. Because the district court found that version of the DC–70 form did not make a distinction between a prior refusal of a preliminary breath test and prior refusal of an evidentiary breath, blood, or urine test (evidentiary test), it did not adequately advise Gross of his rights. In particular, the district court reasoned that this distinction was essential because under K.S.A.2012 Supp. 8–1001(k), a person who had previously refused a preliminary test could refuse a subsequent request for evidentiary test without fear of criminal charges, but a person who previously refused to take an evidentiary test could face an additional criminal charge if he or she refused to consent to a subsequent request for an evidentiary test.
Thereafter, the State filed a timely notice of interlocutory appeal.
Analysis
On appeal, the State contends that the version of the DC–70 form served on Gross substantially complied with the provisions of K.S.A.2012 Supp. 8–1001(k) and, as such, adequately informed him of his rights. The parties agree that paragraph 5 of the July 2012 version of the DC–70 form is at issue in this appeal. Likewise, the State agreed during oral argument that paragraph 5 is applicable to Gross. Although appellate courts traditionally use a bifurcated standard when reviewing a district court's order suppressing evidence, because the parties have stipulated to the facts, we exercise unlimited review in this case. State v. Fewell, 286 Kan. 370, 376, 184 P.3d 903 (2008).
K.S.A.2012 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.2012 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 that the person was operating a vehicle while under the influence of alcohol. K.S.A.2012 Supp. 8–1001(b). 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.2012 Supp. 8–1001(k)(4).
In addition, the 2012 Kansas Legislature made it a crime to refuse to submit to a test if the person has “any prior test refusal” as an adult that occurred on or after July 1, 2001. K.S.A.2012 Supp. 8–1001(k)(4)(A). Moreover, the legislature has defined “test refusal” to mean “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, in accordance with this act....” (Emphasis added.) K.S.A.2012 Supp. 8–1013(i). Accordingly, only those who have previously refused to consent to an evidentiary test can be charged with this new crime.
Before any test is administered, the person suspected of driving under the influence must receive oral and written notice about the testing. K.S.A.2012 Supp. 1001(k). This notification is generally given through the use of a form called a DC–70, which is prepared by the Kansas Department of Revenue. Here, the officer used a version of the form that contained the following warning in paragraph 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 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 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 greater than those for the crime of driving under the influence.”
Because the warning contained in paragraph 5 of the DC–70 form served on Gross did not distinguish between preliminary screening tests and evidentiary tests, he contends that he was not provided with adequate notice as required by K.S.A.2012 Supp. 8–1001(k).
Generally, the failure to give the required statutory notices warrants suppression of the test results. See State v. Luft, 248 Kan. 911, Syl. ¶ 2, 811 P.2d 873 (1991). This stems from the recognition that “ ‘the statute was designed to advise a party of the specific consequences of refusing testing.’ “ Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 681, 840 P.2d 448 (1992). However, substantial compliance with the statutory notice provisions is generally acceptable. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988). Substantial compliance means that the “notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.” 243 Kan. at 213, 755 P.2d 1337.
K.S.A.2012 Supp. 8–1001(r) states: “It shall not be a defense that the person did not understand the written or oral notice required by this section.” Moreover, K.S.A.2012 8–1001(s) provides: “No test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.” And K.S.A.2012 Supp. 8–1001(v) directs courts to liberally construe the implied consent law to promote the public health, safety, and welfare. Notwithstanding, the Kansas appellate courts have found the statutory notice requirements in subsection (k) to be mandatory and not merely directory. Barnhart, 243 Kan. at 212–13, 755 P.2d 1337; see State v. Kogler, 38 Kan.App.2d 159, 162, 163 P.3d 330 (2007).
The present case does not involve a failure to understand the DC–70 form that was served, nor does it involve a technical irregularity. Instead, this case involves a complete failure to distinguish between a prior refusal to submit to a preliminary test and a prior refusal to submit to an evidentiary test. Even when employing a liberal interpretation of the implied consent law, we do not find that paragraph 5 of the DC–70 form served on Gross to substantially comply with the implied consent law because it did not advise him of the specific consequences that could result if he refused consent on this occasion.
Indeed, there are drastically different possible outcomes depending on whether a suspect had previously refused to consent to a preliminary test or whether a suspect previously refused to consent to an evidentiary test. If a suspect has previously refused an evidentiary test and refuses to consent to a subsequent request for an evidentiary test, the State may charge the suspect with a separate crime that carries criminal penalties that are greater than or equal to the criminal penalties for driving under the influence. See K.S.A.2012 Supp. 8–1001(k)(4); see State v. Nece, No. 111,401, 2014 WL 5313744, at *5–6 (Kan.App.2014) (unpublished opinion). On the other hand, if a suspect has previously refused to consent to a preliminary test and refuses to consent to a subsequent request for an evidentiary test, the State cannot charge the suspect with the separate crime for refusal of an evidentiary test.
In sum, we conclude that the State failed to adequately notify Gross of the specific consequences that could result if he refused to consent to the blood test in this case because the version of the DC–70 form served on him did not convey the distinction between previously refusing to consent to a preliminary test and previously refusing to consent to an evidentiary test. Because we conclude that Gross was not given adequate notice of the specific consequences applicable to him, we do not address whether this particular version of the DC–70 form may substantially comply with the notice provisions K.S.A.2012 Supp. 8–1001(k) under other circumstances.
We, therefore, conclude that the district court did not err in granting Gross' motion to suppress the results of the blood-alcohol test administered to him on January 12, 2013.
Affirmed.