Friday, February 01, 2013

Incorrect advice about ability to refuse PBT requires suppression

Joanna Labastida won in State v. Edgar, No. 103,028 (Kan. Feb. 1, 2013), obtaining reversal of a Cowley County DUI conviction.  The conviction stemmed from a stop at a license check lane.  During investigation of suspected DUI, the officer told Mr. Bruno that he "didn't have a right to refuse [the PBT]" which was incorrect under the statute.  The KSC held that a person can withdraw the implied consent given to a PBT under the statute.  The KSC also held that the error in this case rendered the notice substantially out of compliance with the statute:
But as the district court noted, the statute concerns the failure to give notice—not failing to provide the correct notice. Edgar also points out that the Court of Appeals inserted the word "proper" in the statute when it read the statute as "clearly and unambiguously" providing that "a law enforcement officer's failure to giver proper notice shall not be an issue or defense in any action." (Emphasis added.) Edgar, 45 Kan. App. 2d at 351. Edgar argues that in doing so the Court of Appeals misinterpreted the PBT implied consent statute to say that providing incorrect notice is the same as providing no notice at all. Edgar is correct. The Court of Appeals misstated the statute and then premised its holding based upon that misstatement.
Because the officer told Mr. Edgar that he could not refuse consent, the KSC held that the consent was not voluntary and the evidence obtained from the PBT illegal.


Carl Folsom said...

The court continues to call the PBT a search. And yet the statute only requires the officer to have a reasonable suspicion of guilt in order to request the search. If the driver refuses the PBT (search), they are guilty of a traffic infraction. I'm still not sure how that is constitutional.

It seems like every request for the PBT (and the accompanying threat of a traffic infraction for refusing) based only on a reasonable suspicion of DUI would be an unlawfully obtained consent to search. Any statutory "implied consent" cannot be constitutional if the consent is coerced after only a reasonable suspicion of guilt.

Jay Norton, Attorney at Law said...

I agree that it cannot be a crime to refuse a PBT because it cannot be a crime to refuse consent to a warrantless search. I continue to argue this issue to courts. Regardless, this Edgar case is an AWESOME result for Kansas DUI law.