No bright-line test for invocation of statutory right to counsel in DUI case

Michael S. Holland, II won in Dumler v. Kansas Department of Revenue, No. 106,748 (Kan. July 24, 2015), obtaining a new suppression hearing in a Russell County license revocation proceeding. The lower courts had held that a pre-test request for counsel was insufficient to invoke the statutory right to counsel from K.S.A. 8-1001(k)(10). The KSC held that there was no such bright-line and remanded for further proceedings:

Moreover, the plain language of the advisory tells the person that, after testing, he or she "has the right to consult with an attorney." (Emphasis added.) K.S.A. 2009 Supp. 8-1001(k)(10). The right is stated affirmatively and is not conditioned upon the person making a post-testing request. The State would apparently expect a layperson to intuit that the advisory actually means that, after the testing, the person has the right to request that he or she be allowed to consult with an attorney. We decline to contort the statutory language in that manner.

Consequently, we reject the court-made, bright-line timing rule set forth in Tedder and applied by the majority below. A person may invoke his or her post-testing right to consult with an attorney prior to testing. 

The KSC went on to hold that Mr. Dumler should get a new hearing with the district court determining whether he was invoking the statutory right.

Additionally, after closely reviewing the statute, the KSC held that, if the statute was violated, Mr. Dumler was entitled to suppression as a remedy:

Finally, as a practical matter, if we do not recognize a remedy for a violation of the statutory right to counsel, that provision would be essentially rendered meaningless. "As a general rule, courts should . . . presume that the legislature does not intend to enact useless or meaningless legislation."

Consequently, we hold that suppression of the alcohol testing result is the appropriate remedy for the denial of a driver's statutory right to counsel. Therefore, upon remand, if the district court finds that Dumler requested counsel pursuant to the statutory right to counsel contained in K.S.A. 2009 Supp. 8-1001(k)(10), the proper remedy is to suppress the breath test results in his administrative action.