Opinion
111,924.
04-10-2015
STATE of Kansas, Appellee, v. Roy Adrian WILLIAMS, Appellant.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Christopher W.D. Lyon, assistant county attorney, and Thomas J. Drees, county attorney, and Derek Schmidt, attorney general, for appellee.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
Christopher W.D. Lyon, assistant county attorney, and Thomas J. Drees, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Roy Adrian Williams appeals the district court's decision denying his motion to suppress the evidence of his blood test results used to support his conviction of driving under the influence (DUI). Williams claims the law enforcement officer violated his Fourth Amendment rights by subjecting him to a warrantless search pursuant to the Kansas implied consent law although no exceptions to the warrant requirement applied to his case. For the reasons stated herein, we affirm the district court's judgment.
On July 7, 2013, Williams was arrested for DUI in Ellis County, Kansas. The State subsequently charged Williams with alternative counts of DUI (first offense), a class B nonperson misdemeanor, and one count of transporting liquor in an open container, an unclassified misdemeanor. Williams filed a motion to suppress the evidence. In the motion, Williams argued that his consent to the law enforcement officer's request for a preliminary breath test (PBT) was not knowing, intelligent, or voluntary. Absent the PBT results, Williams argued that the officer lacked probable cause to believe he had committed the crime of DUI. Williams argued his subsequent consent to a blood draw was invalid, claiming that the officer should have obtained a search warrant before drawing his blood. He challenged as unconstitutional any portion of the Kansas implied consent law which implied his consent to an otherwise unconstitutional search.
At the suppression hearing, the parties agreed to submit the matter to the district court based upon a stipulation of facts, and the parties filed a document entitled Stipulation of Fact and Waiver of Jury Trial. Williams and the State asked the district court to first rule on Williams' motion to suppress, and if the district court overruled the motion, to use the remaining facts to determine Williams' guilt or innocence by a bench trial. The parties stipulated to the following facts:
“1. On July 7, 2013, defendant, Roy Adrian Williams, age 57, was stopped by Trooper Schulte of the Kansas Highway Patrol at 2:16 o'clock a.m. after observing the vehicle being driven by defendant failed to maintain a single lane of travel while eastbound on 8th Street, then stopped for a green light, in the City of Hays, Ellis County, Kansas.
“2. Defendant drove his vehicle into the parking lot of a closed business.
“3. Trooper Schulte initiated a traffic stop, defendant was slow to respond, and made contact with the defendant.
“4. Trooper Schulte noticed numerous indications of possible alcohol consumption, including a strong smell of alcoholic beverage, a 12–pack and a 30–pack of beer on the front passenger seat, although the defendant denied drinking anything that night.
“5. Trooper Schulte had the defendant exit the vehicle at which time he observed four (4) open Natural Light Beer cans one of which appeared to have been recently opened.
“6. After inquiry, the defendant acknowledged that he had recently opened the one Natural Light Beer can.
“7. Trooper Schulte smelled an odor of alcohol coming from William's [sic ] person.
“8. Trooper Schulte then subjected defendant to a series of field sobriety tests. On the walk-and-turn test, the defendant exhibited three (3) clues—could not make [sic ] maintain balance, walked during the instruction phase, and made an improper turn. On the one-leg stand test, defendant exhibited four (4) clues—dropped foot twice, hopped to gain balance, used arms to balance, swayed while balancing.
“9. Defendant was then subjected to a search of his deep lung air through the use of a preliminary breath test device.
“10. Prior to searching the defendant with the preliminary test Trooper Schulte provided him with his mandatory statutory warnings pursuant to K.S.A. 8–1012, including informing defendant that he did not have a constitutional right to speak with an attorney regarding testing, if he refused testing it would constitute a traffic infraction and that additional testing still may be necessary.
“11. At the time the preliminary breath test was administered the defendant was in Trooper Schulte's temporary custody and was not free to leave, additionally, Trooper Schulte was in possession of defendant's driver's license.
“12. The preliminary breath test indicated an alcohol level in excess of .08 grams of alcohol per 100 liters of breath, and defendant was placed under arrest.
“13. Defendant was transported to Quest Diagnostics where he was provided his Implied Consent Advisories through the use of a DC–70 form; Trooper Schulte both read defendant his Implied Consent Advisories and provided him with a written DC–70 form.
“14. The defendant agreed to take the blood test.
“15. Defendant's blood was drawn at 2:56 o'clock a.m. on July 7, 2013, well within 3 hours of last time defendant had operated a motor vehicle in Ellis County, Kansas.
“16. At the time defendant's blood was drawn he was under arrest driving under the influence of alcohol [sic ], was in Trooper Schulte's custody, and was not free to leave.
“17. The blood test results indicated a blood alcohol level of 0.25 grams of alcohol per 100 milliliters of blood, per the KBI Laboratory Report, date September 13, 2013, signed by Forensic Scientist JaQueya A. Ogilvie.
“18. As indicated above, the parties stipulate and agree that the defendant has contemporaneously objected to any portion of the above stipulation of fact for purposes of preserving the arguments and issues raised in his motion to suppress and that the defendant has preserved his right to appeal any denial of his motion to suppress to the Kansas Appellate Courts; the stipulation above should not in any way be deemed as a waiver of the defendant's arguments raised in his motion to suppress, or alternatively, a waiver of his right to appeal the potential denial of his motion to suppress to the Kansas Appellate Courts.”
On April 23, 2014, the district court filed a memorandum decision. First, the district court denied Williams' motion to suppress. Based upon the hour of the morning, Williams' erratic driving, the beer located in the vehicle, Williams' admission that he recently opened the beer, the odor of alcohol coming from Williams' person, and Williams' performance on the field sobriety tests, the district court found that Schulte had probable cause to arrest Williams for DUI. The district court also found that it did not need to reach the issue of the constitutionality of the PBT because more than sufficient grounds existed without the PBT for Schulte to arrest Williams for DUI. The district court also rejected Williams' argument that his consent to a blood draw was involuntary and that Schulte should have obtained a search warrant prior to obtaining a blood sample.
The district court found Williams guilty of DUI and transporting an open container of alcohol. The district court sentenced Williams to 90 days in the county jail but ordered that he be placed on probation for 6 months after serving 2 days of his sentence. Williams timely appealed the district court's judgment.
On appeal, Williams claims that Schulte violated his Fourth Amendment rights by subjecting him to a warrantless search pursuant to the Kansas implied consent law although no exceptions to the warrant requirement applied to his case. Williams argues that Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), changed the landscape of blood-alcohol testing by eliminating the previously accepted use of the probable cause plus exigent circumstances exception to the warrant requirement. He contends that as a result of McNeely, courts must now conduct a caseby-case Fourth Amendment analysis to determine if any of the exceptions to the warrant requirement apply. Williams briefly asserts that the State's reliance upon the consent exception is inappropriate because he was improperly coerced by the implied consent advisory, which informed him that refusing the test was an additional criminal act.
Although Williams challenged the admissibility of the PBT results in district court, he does not renew this challenge on appeal. An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
An appellate court reviews the district court's denial of a motion to suppress using a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
The Fourth Amendment to the United States Constitution provides: “The 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.” The protections of the Fourth Amendment are made applicable to the states through the Fourteenth Amendment to the United States Constitution. State v. Robinson, 293 Kan. 1002, 1013, 270 P.3d 1183 (2012). Additionally, § 15 of the Kansas Constitution Bill of Rights “provides the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution. [Citations omitted.]” State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114 (2011).
“The extraction of a blood sample is both a search of the person and a seizure of an effect. The extraction implicates constitutional guarantees against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution.” State v. Murry, 271 Kan. 223, 226, 21 P.3d 528 (2001) (citing Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 [1966] ). Moreover, 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).
Williams argues that the United States Supreme Court's decision in McNeely “completely changes the Fourth Amendment analysis of breath or blood test results obtained without a warrant in DUI cases .” In McNeely, a police officer stopped a driver who admitted that he had been drinking, performed poorly on field sobriety tests, and refused blood-alcohol testing with a portable breath-test device. The officer arrested the driver, and when he again refused to provide a breath sample, the officer took him to a hospital for blood testing. The officer did not attempt to obtain a warrant, and when the driver refused to submit to blood testing, the officer directed a lab technician to forcibly obtain a sample. The defendant's blood-alcohol content was above the legal limit, and he was charged with driving while intoxicated. McNeely, 133 S.Ct. at 1556–57.
The driver moved to suppress the results of the blood test, arguing that taking his blood without a search warrant violated his rights under the Fourth Amendment. The district court agreed, ruling that the exigency exception to the warrant requirement did not apply because, other than the metabolizing of the defendant's blood alcohol, there was nothing to suggest that the officer could not practicably obtain a warrant. The Missouri Supreme Court affirmed, concluding that Schmerber “ ‘requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol related case.’ [Citation omitted.]” McNeely, 133 S.Ct. at 1557.
The United States Supreme Court granted certiorari “on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.” 133 S.Ct. at 1558. After reviewing its prior decision in Schmerber, the United States Supreme Court rejected the claim that exigent circumstances always exist in drunk driving investigations due to the inherently evanescent nature of blood-alcohol evidence. 133 S.Ct. at 1560–61. The Court ultimately held: “[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” 133 S.Ct. at 1563.
As the State points out, McNeely addresses the narrow issue of whether the natural dissipation of alcohol in the body creates a per se exigent circumstance in order to compel a blood draw from a driver without his or her consent and without a warrant. See 133 S.Ct. at 1558. But unlike the defendant in McNeely, Williams did not have his blood forcibly withdrawn in a situation where the State failed to establish that exigent circumstances existed to obtain the blood sample without a warrant. Here, the State relies solely upon Williams' consent to the blood test to justify the warrantless search. Thus, the holding in McNeely has little application to the facts of Williams' case.
Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Consent is one recognized exception to the warrant requirement. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). Generally, 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).
But contrary to the general rule about consent being free of coercion, an apparent exception has long been recognized in the area of blood-alcohol testing to help curb the problem of drunk drivers on Kansas roadways. The Kansas Supreme Court has readily recognized that “ ‘[t]he purpose of the implied consent law ... is 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.’ [Citation omitted.]” Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995) ; see also State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013) ; Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 635, 176 P.3d 938 (2008).
Williams briefly argues that the State's reliance upon the consent exception is inappropriate because Williams was improperly coerced by the implied consent advisory, which informed him that refusing the test may be an additional criminal act. See K.S.A.2014 Supp. 8–1001(k)(4). The Kansas Supreme Court has not addressed the specific issue of whether the threat of additional criminal prosecution for refusing a blood-alcohol test renders involuntary a driver's subsequent consent, such that an ensuing warrantless blood-alcohol test violates the Fourth Amendment to the United States Constitution. But the portion of the Kansas implied consent advisory which informs a driver that refusing the test could lead to additional criminal charges only applies to a driver who previously refused a test or who previously was convicted or granted diversion on a charge of DUI. See K.S.A.2014 Supp. 8–1001(k)(4)(A), (B). Williams' refusal in this case would not have constituted an additional criminal act, as Williams had no prior DUI convictions and there is no evidence in the record to suggest that he previously refused a test requested by a law enforcement officer. Thus, the threat of additional criminal prosecution for refusing a blood-alcohol test did not apply to Williams and should not have affected the voluntariness of his consent to submit to the test.
Other than his misplaced argument that his consent to the blood test was improperly coerced by the threat of additional criminal prosecution for a refusal, Williams offers no reason why this court should not follow the long line of Kansas Supreme Court decisions which hold that a driver's consent to a blood-alcohol test obtained by the notification of adverse legal consequences for refusal does not render the consent involuntary. See, e.g., Johnson, 297 Kan. at 222. Thus, we reject Williams' claim that his consent to the blood test was invalid. For this reason, we conclude the district court did not err in denying Williams' motion to suppress the evidence.
Affirmed.