K.S.A. 8-1001 provides that officers can require a driver to take an evidentiary breath test in the following circumstances:
the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, . . . in violation of a state statute or a city ordinance . . .The question in Sloop was whether a valid arrest was a predicate to such a demand. The question in Shrader was whether the arrest had to be for a DUI offense. The KSC answered each case in favor of the driver. In Shrader, the KSC held that while the officer had reasonable suspicion to detain, he lacked probable case to arrest:
We conclude the officer's statutory authority to request Sloop to take the breath test depends upon a valid arrest. We additionally conclude the arrest was invalid because the officer had no probable cause to support it. And we further conclude Sloop's refusal to take a breath test the officer had no statutory authority to request cannot be the basis for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(1).In Shrader, the KSC overruled previous COA caselaw that stood for the proposition that arrest for any offense would trigger the mandatory evidentiary breath test:
The Counseller panel's interpretation of this same phrase—that the mandatory condition is instead an "arrest arising out of the operation of a vehicle for any offense in violation of a state statute or a city ordinance"—ignores the statute's plain language. More specifically, it reads the limiting language out of the statute.
This interpretation may have reflected the Counseller panel's conclusion that the district court's reading of K.S.A. 1995 Supp. 8-1001(b)(1) ("the person has been arrested . . . for any offense involving operation . . . of a vehicle while under the influence") was redundant with the condition mentioned earlier in subsection (b). More specifically, that condition in subsection (b) somewhat similarly states that "the officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol."
We not only conclude that the Counseller panel was wrong to disregard the plain language of 8-1001(b)(1), but we also conclude that the two provisions—(b) and (b)(1)— can peacefully coexist. Redundancy, if any, is legislatively purposeful. Simply put, under K.S.A. 8-1001(b), if (1) the officer believes the person is operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, and (2) the officer arrests the person for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, then (3) the officer becomes authorized to request the test.As an aside the KSC noted its recent rule change that letters of additional authority must be filed at least 14 days before argument. In the Shrader decsion, the KSC chastised the KDOR for filing a letter the day before argument. Appellate practioners would be wise to review their cases well before that deadline if argument is approaching!
Here is coverage of the cases in the Topeka Capital-Journal.