Here, it is undisputed that Officer Morse read the DC-70 form word for word with the exception of omitting paragraph 7. Thus, unlike Schilling or Menke, we clearly have an omission while reading the DC-70 form, not a misstatement. When dealing with an omission, this court has found no error when the omitted paragraph did not apply to the driver in any way. However, paragraph 7 clearly applied to Lull—Officer Morse in fact testified that Lull had told her it was his second DUI.
The district court's finding that notice to Lull did not have to include the actual duration of the applicable driving license suspension or civil penalty for failing an evidentiary test is erroneous and does not comply with the mandatory statutory requirements that certain notices be given. The purpose of the implied consent law is to coerce submission to chemical testing in part by the threat of statutory penalties of license suspension. To accomplish this, the legislature sought to convey to a driver the distinction between the specific penalties for refusing to take an evidentiary test and those penalties for having no prior occurrence or a second or subsequent occurrence.
The district court, in its ruling, and the City on appeal suggest that we should look at whether a driver refuses or elects to take the evidentiary test first and then determine if he or she had proper notice. However, K.S.A. 2012 Supp. 8-1001(k) clearly and unambiguously provides that all the required notices be given before asking the driver to submit to a breath test. By omitting paragraph 7, Officer Morse did not inform Lull that the statutory penalty for him as a repeat DUI offender was more severe for him than those described in paragraph 6, i.e., automatic suspension of driving license for 1 year instead of an automatic suspension of either 30 days or 1 year depending on his blood alcohol level. Thus, Lull did not receive the information necessary for him to make an informed decision as to whether to take the test or not.The COA held that the district court should have suppressed Mr. Lull's refusal and that the error was not harmless. As a result, the COA remanded for a new trial.
[Update: the state did not file a PR and the mandate issued April 16, 2015.]
[Further update: the KSC granted a motion to publish on May 26, 2015 and the case was published on June 9, 2015.]