Wednesday, August 23, 2017

Criminal refusal statute is facially unconstitutional

Patrick H. Dunn won in State v. Ryce, No. 111,698 (Kan. June 30, 2017), affirming Judge Waller's dismissal order in a Sedgwick County criminal refusal prosecution. The KSC had affirmed the dismissal on February 26, 2016, but the state filed a motion for rehearing including a request to stay proceedings pending a decision from the United States Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (here is coverage of that case on SCOTUSblog). After the decision in Birchfield, the KSC granted the motion for rehearing and ordered additional briefing. 

Mr. Ryce had refused to consent to blood alcohol testing and the state charged him with criminal refusal under K.S.A. 2106 Supp. 8-1025. After the additional briefing and argument, the KSC held that its first decision was not substantially altered by Birchfield and that the criminal refusal statute was still facially unconstitutional:

We thus are not persuaded to depart from the holding of State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I); we continue our previous interpretation of K.S.A. 2016 Supp. 8-1025. "[A] warrant or some warrant exception . . . might sometimes justify the State demanding a DUI suspect submit to testing, irrespective of any implied consent provided by 8-1001." Ryce I, 303 Kan. at 918. But 8-1025 "does not contain broad language penalizing failure to cooperate with a warrant search or a search conducted pursuant to a warrant exception" and instead criminalizes refusal to submit to a test that could proceed only with consent. 303 Kan. at 918. Birchfield established that the law may be able to compel a DUI suspect to submit to a chemical test for alcohol through a search incident to a lawful arrest or a warrant (or punish resistance through an obstruction of justice charge), but the only conduct criminalized by 8-1025 is withdrawal of implied consent to a search when the police were relying on that consent to justify the search in the first place. Birchfield does not require, or persuade us, to adopt a contrary interpretation of Kansas' statutes.

The KSC also rejected the state's argument that Birchfield established that some blood alcohol testing could be required pursuant to a warrant exception:

As we have discussed, the United States Supreme Court extended the search incident-to-lawful-arrest exception to "warrantless breath tests incident to arrest for drunk driving." But this clarification of search-and-seizure law does not change our decision about the constitutionality of K.S.A. 2016 Supp. 8-1025. As we discussed at length in the preceding section, the key to Ryce I and its sister cases is an issue of statutory interpretation: The Kansas implied consent and criminal refusal statutes are "[p]remised on [the] consent exception" to the warrant requirement. Ryce I, 303 Kan. at 902 (discussing K.S.A. 2016 Supp. 8-1001 and 8-1025, which refer to tests that are "deemed consented to"). The question in Ryce I was whether Kansas could criminalize a suspect's withdrawal of implied consent—not, as in Birchfield, whether warrantless blood and breath tests were reasonable under the Fourth Amendment. 

The State theoretically may enact a statute and, under Birchfield, require submission to a breath test as a search incident to arrest—but that is true for statutes that more broadly criminalize refusal to submit to any test that is constitutionally valid, not for a statute like K.S.A. 2016 Supp. 8-1025 which only criminalizes withdrawal of consent. We think it worthwhile, too, to note that even if we were to depart from this interpretation, Birchfield would not serve to insulate K.S.A. 2016 Supp. 8-1025 from constitutional challenges. For example, officers need not arrest a suspect before requesting a breath test, and 8-1001 contemplates warrantless blood tests—all situations where the search-incident-to-lawful-arrest exception would not apply.

As a result, the district court's dismissal was affirmed.


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