State v. Declerck

1
No. 109,759

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

ARYANNA PHILATINA DECLERCK,
Appellee.

SYLLABUS BY THE COURT

1.
The extraction of a blood sample is both a search of the person and a seizure of an
effect. The extraction implicates constitutional guarantees against unreasonable searches
and seizures under the Fourth and Fourteenth Amendments to the United States
Constitution.

2.
Under the United States and Kansas Constitutions, a search conducted without a
warrant is per se unreasonable, unless a specifically established exception applies. Those
exceptions include consent, search incident to a lawful arrest, stop and frisk, probable
cause plus exigent circumstances, the emergency doctrine, inventory searches, plain view
or feel, and administrative searches of closely regulated businesses.

3.
Probable cause to arrest is the reasonable belief, drawn from the totality of
information and reasonable inferences available to the arresting officer, that the defendant
has committed or is committing a specific crime.
2

4.
There is a three-part test to determine when a warrantless blood draw can be taken:
(1) There must be exigent circumstances in which the delay necessary to obtain a warrant
would threaten the destruction of the evidence; (2) the officer must have probable cause
to believe that the suspect has been driving under the influence of alcohol; and (3) the
procedures used to extract the blood must be reasonable.

5.
Despite statutory language authorizing the taking of a blood sample, any such
bodily invasion must still be constitutionally sound.

6.
K.S.A. 2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a
search and seizure absent probable cause that the person was operating or attempting to
operate a vehicle under the influence of drugs or alcohol. A traffic infraction, plus an
injury or fatality, without more, does not constitute probable cause that drugs or alcohol
were involved in the accident.

7.
A driver's consent under Kansas' implied consent statute, without more, does not
constitute valid consent under the Fourth Amendment.

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed February 7, 2014.
Affirmed.

Jodi Litfin and Jose V. Guerra, assistant district attorneys, Chadwick J. Taylor, district attorney,
and Derek Schmidt, attorney general, for appellant.

Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellee.
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Before POWELL, P.J., ATCHESON, J., and ERNEST L. JOHNSON, District Judge Retired,
assigned.

POWELL, J.: In this appeal, we confront the question of whether drivers on our
state's highways relinquish their Fourth Amendment rights under Kansas' implied consent
statute. Following a single-vehicle fatality accident and as allowed by statute, an officer
directed medical personnel to withdraw blood without a warrant from the driver of the
vehicle, Aryanna Declerck, despite her refusal. After receiving the blood test results, the
Shawnee County District Attorney charged Declerck with involuntary manslaughter-
DUI, a severity level 4 person felony. Declerck filed two motions to suppress, alleging
the blood test results were obtained without a warrant and without probable cause. After a
hearing, the district court granted Declerck's motions.

The State subsequently filed this interlocutory appeal concerning the suppression
of evidence, arguing (1) K.S.A. 2011 Supp. 8-1001 clearly authorized the blood draw, (2)
the consent exception to the warrant requirement was met because Declerck had
impliedly consented to the blood draw under Kansas' implied consent statute, and (3)
even if the search was prohibited by the Fourth Amendment, the good faith exception
should apply to allow admission of the blood test results because law enforcement
reasonably relied on the statute when obtaining Declerck's blood.

We hold that the warrantless blood draw, though done in accordance with K.S.A.
2011 Supp. 8-1001, violated Declerck's Fourth Amendment rights because it was not
done pursuant to probable cause that Declerck had been operating her motor vehicle
while under the influence of drugs or alcohol and because Declerck's implied consent to
such a blood draw under Kansas' implied consent statute did not constitute consent for
the purposes of a valid exception to the warrant requirement under the Fourth
Amendment. We decline to address the State's good faith exception argument, asserted
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for the first time on appeal, because the State did not establish an adequate record below
plus there are disputed facts which prevent us from properly addressing this question.
Accordingly, we affirm the district court.

FACTUAL AND PROCEDURAL HISTORY

On November 5, 2011, at approximately 2 p.m., Declerck was involved in a single
vehicle fatality accident in which she was the driver. The passenger, Shaylee Oxy, who
was not wearing her seatbelt, was ejected from the vehicle and ultimately died from her
injuries. The State subsequently charged Declerck with involuntary manslaughter while
driving under the influence of alcohol or drugs pursuant to K.S.A. 2011 Supp.
21-5405(a)(3), a severity level 4, person felony.

At the preliminary hearing, two witnesses of the accident, Tom Parish and
Gregory Roy; phlebotomist Dave Cunningham, Jr.; Larry Mann from the Kansas Bureau
of Investigation (KBI) Forensic Laboratory; Officer DominicYancy; and lead investigator
Trooper Marcus Seirer testified.

Parish testified he was heading eastbound on I-470 on November 5, 2011, when he
noticed a black pickup truck coming off the right shoulder in front of him. He described
Declerck's driving as "very reckless."

Next, Roy testified he was behind Declerck's truck in the left turn lane on 21st
street waiting to turn onto I-470. He followed Declerck as she merged onto the highway
and stayed in the right lane. There was a small sedan to the left and a vehicle in front of
Declerck. Her truck slowly started to drift over to the left, so Roy slowed down because
he thought Declerck's truck was going to make contact with the sedan. The truck all of a
sudden swerved over to the right and out of the lane slightly onto the right shoulder. The
truck then quickly whipped back to the left and crossed into the left lane. Declerck started
5
to lose control and whipped back to the right. Declerck appeared to overcorrect; the
truck's left rear tire caught the turf or median, and the vehicle began to barrel roll. Clothes
and other debris flew out of the truck and littered the road. As Roy drove past the
accident, he noticed an individual lying on the ground. The sedan pulled over to the right
side of the road; Roy parked in front of the sedan and exited his vehicle. Roy headed
towards the accident scene and noticed the driver of the sedan was still in his vehicle.
Roy made a mental note of the sedan's tag. The sedan drove off. Roy immediately
approached an officer and told him that a vehicle involved in the accident drove off. The
officer handed him a clipboard and asked him to record what he had seen. Roy said there
was nothing irregular or reckless about Declerck's driving.

Declerck was transported to Stormont-Vail Hospital as a result of the injuries she
sustained in the accident. Seirer requested an officer obtain a blood draw from Declerck
pursuant to K.S.A. 2011 Supp. 8-1001—a traffic fatality occurred and Declerck could
have been cited for a traffic offense. Yancy went to Stormont-Vail to obtain a blood
draw. He read and provided a copy of the Implied Consent Advisory to Declerck, but she
declined to provide a blood sample.

Yancy contacted his supervising officer, who was at the scene of the accident,
regarding Declerck's declination. The officer directed Yancy to proceed with a custodial
blood draw.

Cunningham drew Declerck's blood pursuant to Yancy's request. Cunningham
gave the blood sample to Yancy who later submitted it to the KBI for testing. Mann
reviewed the lab results and testified there were marijuana chemicals in Declerck's blood.
He indicated based on the levels of THC—a psychoactive substance found in
marijuana—in Declerck's blood, there was some level of impairment.

6
At the conclusion of the preliminary hearing, the district court bound Declerck
over for trial.

Shortly thereafter, Declerck filed two motions to suppress evidence. The first
motion dealt with law enforcement's failure to seek a search warrant prior to drawing her
blood. The motion alleged, inter alia, there were no exigent circumstances present to
excuse the warrant requirement. The second motion alleged law enforcement did not
have probable cause to believe Declerck was under the influence of drugs.

The district court held a suppression hearing on the two motions. The State
conceded the officers did not have probable cause to support a request for a warrant.
Nonetheless, the State argued the blood draw was legal pursuant to K.S.A. 2011 Supp.
8-1001(b)(2), which provides an officer shall request a test in the event of a vehicle
accident that results in serious injury or death and the driver could be cited for any traffic
infraction. Yancy and Seirer testified similar to their preliminary hearing testimony.

Yancy testified he read Declerck her rights pursuant to Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), after the blood draw, and she declined
to speak to him. Yancy testified he was with Declerck for an hour and did not notice any
signs of impairment.

Seirer testified that he arrived on the accident scene after Oxy and Declerck had
been transported to Stormont-Vail. At approximately 3:17 p.m., while at the scene of the
accident, Seirer learned that Oxy had passed away. At 4:21 p.m. he drove to Stormont-
Vail to take a statement from Declerck. Before he met with Declerck, he talked to Yancy
who was on his way out of the hospital. Yancy told Seirer that a blood draw had been
taken and Declerck invoked Miranda. Seirer proceeded to Declerck's hospital room and
told her that Oxy had passed away.

7
Upon a search of Declerck's truck, Officer Shawn Taylor found rolling papers and
marijuana in a purse that also contained Oxy's driver's license. Based on eyewitness
accounts and Seirer's own investigation, he concluded that Declerck attempted to pass a
white vehicle, then for some unknown reason lost control of the vehicle, entered the
grassy median, and then rolled multiple times. Seirer testified that Declerck could have
been cited for unsafe lane change and failure to maintain a single lane of traffic.
However, Seirer's conclusion did not indicate that Declerck was impaired from drugs or
alcohol.

At the conclusion of the hearing, the district court granted the State's request for
additional time to file a written response to Declerck's motion and to review recent
caselaw. The district court also allowed Declerck to file a reply to the State's brief.

In the State's response to Declerck's motions to suppress, it once again argued law
enforcement had the authority to draw Declerck's blood pursuant to K.S.A. 2011 Supp.
8-1001(b)(2)—if a vehicle has been involved in an accident involving serious injury or
death and the driver could be cited for any traffic infraction—and K.S.A. 2011 Supp.
8-1001(d)(3)—law enforcement can direct medical professionals to draw blood from a
person if the person refuses and the person meets the requirements of K.S.A. 2011 Supp.
8-1001(b)(2). Declerck's reply brief again argued the evidence from the blood draw
should be suppressed because she was not under arrest, no warrant was issued, and
officers lacked probable cause to believe she was driving under the influence.

On March 27, 2013, the district court issued a memorandum decision and order
granting Declerck's motions to suppress. The court concluded officers had authority to
order a blood draw pursuant to K.S.A. 2011 Supp. 8-1001(b)(2) and K.S.A. 2011 Supp.
8-1001(d)(3) but, based on the facts presented, the blood draw violated the Fourth
Amendment and the requirements set out in Schmerber v. California, 384 U.S. 757, 766-
72, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The court concluded that, based on the
8
evidence, officers did not have probable cause to believe that Declerck had been driving
under the influence of alcohol or drugs and suppressed the evidence from the blood draw.

On April 8, 2013, the State timely filed an interlocutory appeal challenging the
suppression of the blood test.

DID THE DISTRICT COURT PROPERLY GRANT DECLERCK'S
MOTION TO SUPPRESS EVIDENCE OF THE BLOOD TEST?

Standard of Review

When reviewing a motion to suppress evidence, appellate courts do not reweigh
the evidence or reassess the credibility of the witnesses. An appellate court determines
whether the factual findings underlying the district court's decision are supported by
substantial competent evidence. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718
(2013). Substantial evidence refers to legal and relevant evidence that a reasonable
person could accept as being adequate to support a conclusion. State v. May, 293 Kan.
858, 862, 269 P.3d 1260 (2012). However, the ultimate legal conclusions drawn from
those factual findings are reviewed de novo. Martinez, 296 Kan. at 485. The State bears
the burden to prove to the district court the lawfulness of a warrantless search and seizure
by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234
(2008).

To the extent this appeal involves the constitutionality of K.S.A. 2011 Supp.
8-1001, appellate courts exercise unlimited review over questions of law. Moreover,
appellate courts presume statutes are constitutional and must resolve all doubts in favor
of a statute's validity. Appellate courts must also interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the legislature's
apparent intent. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).
9

Analysis

"Our state and federal Constitutions protect citizens from unlawful searches and
seizures." State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.
Ct. 2114 (2011). The Fourth Amendment to the United States Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall
issue, but upon probable cause, supported by [o]ath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."

"We interpret § 15 of the Kansas Constitution Bill of Rights to provide the same
protection from unlawful government searches and seizures as the Fourth Amendment to
the federal Constitution. [Citations omitted.] '[R]egardless of whether the statute is
challenged under the federal or state Constitution, we consider ourselves bound by
United States Supreme Court precedent.' [Citation omitted.]" 291 Kan. at 498.

"The extraction of a blood sample is both a search of the person and a seizure of
an effect. The extraction implicates constitutional guarantees against unreasonable
searches and seizures under the Fourth and Fourteenth Amendments to the United States
Constitution. Schmerber v. California, 384 U.S. [at] 767." State v. Murry, 271 Kan. 223,
226, 21 P.3d 528 (2001). Under the United States and Kansas Constitutions, a search
conducted without a warrant is per se unreasonable, unless a specifically established
exception applies. State v. Damm, 246 Kan. 220, 221, 787 P.2d 1185 (1990). Those
exceptions include "'consent; search incident to a lawful arrest; stop and frisk; probable
cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view
or feel; and administrative searches of closely regulated businesses.' [Citation omitted.]"
State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012).

10
In Murry, 271 Kan. at 227, our Supreme Court adopted the Schmerber three-part
test to determine when a warrantless blood draw can be taken:

"(1) There must be exigent circumstances in which the delay necessary to obtain a
warrant would threaten the destruction of the evidence; (2) the officer must have probable
cause to believe that the suspect has been driving under the influence of alcohol; and (3)
the procedures used to extract the blood must be reasonable."

However, "while the natural dissipation of alcohol in the blood may support a
finding of exigency in a specific case, . . . it does not do so categorically. Whether a
warrantless blood test of a drunk-driving suspect is reasonable must be determined case
by case based on the totality of the circumstances." Missouri v. McNeely, 569 U.S. ___,
133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696 (2013). "Probable cause to arrest is the
reasonable belief, drawn from the totality of information and reasonable inferences
available to the arresting officer, that the defendant has committed or is committing a
specific crime." State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). "It is the
State's burden to validate a warrantless search by fitting it within one of the recognized
exceptions . . . ." 297 Kan. at 223.

1. Did Probable Cause Exist to Justify the Blood Draw?

Interestingly, other than consent, the State concedes probable cause (as well as the
other exceptions) did not exist to believe that Declerck had operated or attempted to
operate a motor vehicle while under the influence of drugs or alcohol at the time the
custodial blood draw was taken. Instead, the State argues: "[P]robable cause is clearly set
out by the statute [K.S.A. 2011 Supp. 8-1001(b)]." Accordingly, the State contends the
second prong of the Schmerber test—probable cause to believe the suspect was driving
under the influence—was met.

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The statute at issue is K.S.A. 2011 Supp. 8-1001 and provides in relevant part:

"(a) Any person who operates or attempts to operate a vehicle within this state is
deemed to have given consent . . . to submit to one or more tests of the person’s blood,
breath, urine or other bodily substance to determine the presence of alcohol or drugs. . . .
"(b) A law enforcement officer shall request a person to submit to a test or tests
deemed consented to under subsection (a): . . . (2) if the person was operating or
attempting to operate a vehicle and such vehicle has been involved in an accident or
collision resulting in serious injury or death of any person and the operator could be cited
for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic
offense violation shall constitute probable cause for purposes of paragraph (2)."
(Emphasis added.)

The State argues that pursuant to the plain language of K.S.A. 2011 Supp.
8-1001(b)(2), Yancy and Seirer had probable cause to request a custodial blood draw
because Declerck was involved in a traffic fatality accident and could have been cited
with unsafe lane change and failure to maintain a single lane of traffic. However, the
question on appeal is whether K.S.A. 2011 Supp. 8-1001 as enacted deprived Declerck of
her rights guaranteed by the United States and Kansas Constitutions. See Ybarra v.
Illinois, 444 U.S. 85, 96 n.11, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (legislature cannot
abrogate a person's Fourth Amendment right to be free from unreasonable searches and
seizures, and United States Supreme Court will not hesitate to hold such statutes
unconstitutional); State v. Lambert, 238 Kan. 444, 450, 710 P.2d 693 (1985) (legislature
cannot enact a statute that effectively deprives individuals of rights guaranteed by the
United States Constitution); Martin v. Kansas Dept. of Revenue, 36 Kan. App. 2d 561,
566, 142 P.3d 735 (2006) (statute that defines rules in criminal, administrative, and civil
cases cannot stand if statute infringes on constitutional rights), aff'd 285 Kan. 625, 176
P.3d 938 (2008).

12
In 2008, the Kansas Legislature amended K.S.A. 8-1001 by limiting application
of the phrase "[i]f 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" to
K.S.A. 8-1001(b)(1) and adding "[t]he traffic offense shall constitute probable cause for
purposes of paragraph (2)" to K.S.A. 8-1001(b)(2) (Emphasis added.) L. 2008, ch. 170,
sec. 1. "The reasonable grounds test of K.S.A. 2007 Supp. 8-1001(b) is strongly related to
the standard for determining probable cause to arrest." Johnson, 297 Kan. at 222.

Our Supreme Court has held: "Despite statutory language authorizing the taking of
the blood sample, any such bodily invasion must still be constitutionally sound." Murry,
271 Kan. at 226. The State argues the Kansas Legislature examined outside authority
when formulating the amendments to K.S.A. 8-1001. The State cites Oklahoma Statute,
Okla. Stat. tit. 47, § 10-104(B) (1998 Supp.)—Drug and alcohol testing, which states:

"B. Any driver of any vehicle involved in an accident who could be cited for any
traffic offense where said accident resulted in the immediate death of any person shall
submit to drug and alcohol testing as soon as practicable after such accident occurs. The
traffic offense violation shall constitute probable cause for purposes of . . . this title . . . ."

Okla. Stat. tit. 47, § 10-104(B) (1998 Supp.) was upheld in Guest v. State, 2002
OK CR 5, ¶ 8, 42 P.3d 289 ("[I]t is enough that Appellant was the driver of a vehicle
involved in an accident, that he could be cited for a traffic offense and that the accident
resulted in the immediate death of a person. Appellant's blood was [not] withdrawn . . . in
violation of his constitutional rights under the Fourth Amendment."). In Bemo v. State,
2013 OK CR 4, ¶¶ 4, 6, 298 P.3d 1190, the court noted the defendant did not properly
raise a Fourth Amendment challenge to the admission of the blood test and ultimately
found the blood draw was permissible because "[he] was the driver of a vehicle involved
in a fatality accident; he could have been cited for a traffic offense . . . ; and . . . his blood
was properly withdrawn under the provisions of § 10-104(B)."
13

We find our sister court's reasoning in Guest to be unsatisfying and, therefore,
unpersuasive. The Court of Criminal Appeals of Oklahoma explained in detail how the
blood draw in that case comported with the statute but then made the conclusory
statement that the blood draw did not violate the Fourth Amendment. Guest, 2002 OK
CR 5, ¶ 8. This opinion leaves us guessing as to how that is so because we still question
how an injury or fatality accident by a driver who commits one or more traffic offenses,
without more, constitutes probable cause that the driver was unlawfully impaired at the
time he or she was operating a motor vehicle.

Moreover, every other state to consider this question, such as Alaska, Arizona,
Georgia, Illinois, Indiana, Maine, Mississippi, and Pennsylvania, has found statutes
similar to K.S.A. 2012 Supp. 8-1001(b) unconstitutional. See, e.g., State v. Blank, 90
P.3d 156, 161-62 (Alaska 2004) (interpreted statute similar to K.S.A. 2011 Supp. 8-
1001[b][2] to incorporate requirements of Schmerber); State v. Quinn, 218 Ariz. 66, 68,
178 P.3d 1190 (Ct. App. 2008) (statute cannot authorize blood draw following traffic
accident involving serious injury or fatality absent probable cause driver impaired);
Cooper v. State, 277 Ga. 282, 291, 587 S.E.2d 605 (2003) ("[T]o the extent [the statute]
requires chemical testing of the operator of a motor vehicle involved in a traffic accident
resulting in serious injuries or fatalities regardless of any determination of probable
cause, it authorizes unreasonable searches and seizures in violation of the State and
Federal Constitutions."); King v. Ryan, 153 Ill. 2d 449, 463-64, 607 N.E.2d 154 (1992)
(officer needs more than probable cause driver partially at fault for death or injury
accident to request blood test; probable cause driver under the influence required);
Hannoy v. State, 789 N.E.2d 977, 992 (Ind. App. 2003) (law enforcement may forcibly
obtain blood sample from driver without warrant or consent but only when they have
probable cause to believe driver was intoxicated); State v. Roche, 681 A.2d 472, 472 n.1,
475 (Me. 1996) (statute prohibits use of evidence from administrative blood draw in
criminal prosecution unless State can establish independent probable cause driver
14
impaired at time of accident); McDuff v. State, 763 So. 2d 850, 855 (Miss. 2000) ("[T]he
tragic fact that a fatality arises out of a motor vehicle accident is in no way, standing
alone, an indicator that alcohol or drugs were involved."); Com. v. Kohl, 532 Pa. 152,
164, 615 A.2d 308 (1992) (drawing blood sample pursuant to implied consent law from
driver who had been involved in automobile accident violated Fourth Amendment when
driver was not under arrest and no probable cause driver was operating vehicle under the
influence).

In light of this overwhelming and persuasive authority, we must conclude K.S.A.
2011 Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure
absent probable cause the person was operating or attempting to operate a vehicle under
the influence of drugs or alcohol. We are acutely aware the statute in question attempts to
address the terrible toll impaired drivers inflict on our state's highways, but we are
reminded of the "truism that constitutional protections have costs." Coy v. Iowa, 487 U.S.
1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). While the State does have a
significant interest in preventing accidents involving drugs and alcohol on the road,
K.S.A. 2011 Supp. 8-1001(b)(2) does not further that interest. See Hannoy, 789 N.E.2d at
984 (special needs exception inapplicable where search performed by law enforcement or
for law enforcement purposes); McDuff, 763 So. 2d at 855 (statute with public safety and
law enforcement purpose does not fall within special needs exception); see also State v.
Childs, 275 Kan. 338, 347, 64 P.3d 389 (2003) (exclusive sanction for highly regulated
business refusing entry to law enforcement is license revocation). A traffic infraction plus
an injury or fatality, without more, does not constitute probable cause that drugs or
alcohol were involved in the accident.

2. Does the Kansas Implied Consent Law Provide Consent to a Blood Draw?

Next, the State argues even if this court finds there was no probable cause, a valid
exception to the warrant requirement applies—consent. Specifically, the State asserts that
15
consent to a chemical test is given by every driver of a vehicle upon our state's roads
under the conditions set forth in our implied consent statute. The State concedes that it
did not raise this issue below and, generally, constitutional issues cannot be raised for the
first time on appeal. Nonetheless, the State argues two exceptions to the general rule
apply: (1) the newly asserted claim involves only a question of law arising on proved or
admitted facts and is determinative of the case and (2) consideration of the claim is
necessary to serve the ends of justice or to prevent the denial of fundamental rights. We
agree. Accordingly, this court shall review the State's challenge for the first time on
appeal because it involves a question of law and may be finally determinative of this
case. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).

The State argues the Kansas implied consent statute is premised on the theory that
anyone who operates a vehicle in Kansas consents in advance to submission to a
chemical test to determine the amount of alcohol in the driver's blood. K.S.A. 2011 Supp.
8-1001(a) states in relevant part:

"Any person who operates or attempts to operate a vehicle within this state is
deemed to have given consent, subject to the provisions of this act, to submit to one or
more tests of the person's blood, breath, urine or other bodily substance to determine the
presence of alcohol or drugs."

Moreover, the State, relying on precedent from our Supreme Court, contends
"compulsory testing for alcohol or drugs through drivers' implied, even coerced, consent
does not violate the Constitution; it is reasonable in light of the State's compelling interest
in safety on the public roads." Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 635,
176 P.3d 938 (2008); see also Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835,
888 P.2d 832 (1995) (purpose of implied consent law to coerce submission to chemical
testing through threat of statutory penalties and admission into evidence in DUI
proceeding fact of test refusal). The State further asserts that because our court has
16
previously described the Kansas implied consent law as "remedial" and one which
"should be liberally construed to promote the health, safety, and welfare of the public,"
Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 323, 916 P.2d 47, rev. denied 260
Kan. 994 (1996), a driver suspected of driving under the influence has no constitutional
right to refuse a blood alcohol test. State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 927-
28, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009).

We have no quarrel with these authorities—as far as they go. "But the fact that
people are 'accorded less privacy in . . . automobiles because of th[e] compelling
governmental need for regulation,' [citation omitted], does not diminish a motorist's
privacy interest in preventing an agent of the government from piercing his skin."
McNeely, 133 S. Ct. at 1565. In all of the cases relied upon by the State, law enforcement
had probable cause or reasonable grounds to believe the driver was operating a vehicle
under the influence, and none of the cases stand for the proposition that the implied
consent to chemical testing given by drivers on our state's roads under the Kansas implied
consent law constitutes consent under the Fourth Amendment.

The State's most persuasive case to support its theory is the recently decided
Kansas Supreme Court case of Johnson, 297 Kan. 210. In Johnson, the defendant was
stopped at a sobriety checkpoint, and an officer noticed the defendant's bloodshot and
watery eyes and the strong odor of alcohol. The defendant admitted to drinking two
beers. As he stepped out of his vehicle, he swayed from side to side, and then he
exhibited signs of intoxication during two field sobriety tests. Based on these
observations, the officer requested and the defendant consented to a breath test, which he
failed. On appeal, the defendant alleged the implied consent laws violate the Fourth
Amendment. Our Supreme Court held:

"The search resulting from a test listed in K.S.A. 2007 Supp. 8-1001(a) is the product of
the consent exception to the warrant requirement. The State need not make an additional
17
showing of probable cause plus exigent circumstances in order to use the results of a
warrantless K.S.A. 2007 Supp. 8-1001(a) test as evidence." 297 Kan. 210, ¶ 8.

Our Supreme Court went on to note: "Although probable cause comes into play in
determining whether the law enforcement officer shall request one of the tests listed in
K.S.A. 2007 Supp. 8-1001(a), the statute is all about implied consent to the testing." 297
Kan. at 223.

The State fails to acknowledge, however, that Johnson was based on K.S.A. 2007
Supp. 8-1001, which stated an officer shall request a person to submit to a test if the
officer has reasonable grounds to believe the person was operating a vehicle under the
influence of alcohol or drugs. Moreover, unlike in the present case, Johnson personally
and specifically consented to the breath test, plus the officer had probable cause to
believe Johnson was operating a vehicle under the influence based on his observations.

Ultimately, other than the statements from Johnson referred to above, the State
presents us with no cases which have held consent is valid for Fourth Amendment
purposes based on the implied consent statute alone. Without more authority, we are
unwilling to take the leap the State asks us to make. And, even if we were so inclined to
accept the State's view, it is immaterial because Declerck withdrew her consent. See
United States v. Brown, No. 13-po-01557, 2013 WL 5604589, at *4 n.1 (D. Md. 2013)
(unpublished opinion) ("Assuming arguendo that consent to the blood draw could be
derived from the implied consent law, it is clear that the defendant withdrew that
consent.").

3. Does the Good Faith Exception to the Exclusionary Rule Allow for Admission of
the Blood Test Results?

Finally, the State argues if K.S.A. 2011 Supp. 8-1001(b)(2) is found
unconstitutional as applied in this case, then the requirements of the good faith exception
18
to the exclusionary rule apply. Relying on Daniel, the State argues that law enforcement's
good faith reliance on an unconstitutional statute should prohibit application of the
exclusionary rule, a judicially created remedy designed to deter law enforcement from
infringing on a person's rights, because in this instance law enforcement would not be
deterred. See Daniel, 291 Kan. at 499-500. Like its argument on consent, the State is
raising this issue for the first time on appeal.

We certainly recognize there is a good faith exception to the exclusionary rule
when law enforcement reasonably relies on an unconstitutional statute. Illinois v. Krull,
480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). However, unlike the
State's consent argument, resolving this question does not only involve questions of law.
A review of the record before the district court reveals the State did not present a clear
case of reliance on K.S.A. 2011 Supp. 8-1001 alone to support the blood draw, creating
questions of fact. While Trooper Seirer, the lead investigator of the accident and who
initially requested the blood draw, testified he relied upon K.S.A. 2011 Supp. 8-1001, he
specifically stated his reason for requesting the blood draw was the injury accident.
Moreover, on the State's redirect, Seirer testified he also relied upon the fact rolling
papers were found in Declerck's vehicle. Although Seirer testified he could have cited
Declerck for a number of traffic violations, he did not assert this as a reason he requested
the blood draw.

Complicating the analysis is the fact that Seirer did not direct the blood draw
himself but requested Topeka police dispatch to send an officer to the hospital where
Declerck was located; Yancy ultimately responded. Further complicating the matter is
that when Yancy was confronted with Declerck's refusal, he sought guidance from his
supervisor, Zimmerman, not from Seirer. Zimmerman never testified, and we do not
know the substance of the conversation between Yancy and Zimmerman other than, as a
result of the conversation, Yancy proceeded to direct the blood draw.

19
This chain of events leaves us with factual questions that we cannot resolve on
appeal. We are left to question whether Seirer was relying on the elements of K.S.A.
2011 Supp. 8-1001(b)(2) or some form of probable cause as the basis for his requesting
the blood draw, and we cannot determine the import of Zimmerman's direction to Yancy
because Zimmerman did not testify. Therefore, we decline to address the State's good
faith exception argument.

The district court's suppression of the evidence from the blood draw is affirmed.