State v. Edgar (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,028

STATE OF KANSAS,
Appellee,

v.

BRUNO EDGAR,
Appellant.


SYLLABUS BY THE COURT

1.
Under K.S.A. 2010 Supp. 8-1012(b), a law enforcement officer may request a
preliminary breath test from a person who is operating or attempting to operate a vehicle
if the officer has reasonable suspicion to believe that person has been operating or
attempting to operate a vehicle while under the influence of alcohol or drugs, or both.

2.
Whether a law enforcement officer has the statutorily required reasonable
suspicion to request a preliminary breath test is determined by examining the totality of
the circumstances existing at the time of the request. A person's performance on field
sobriety tests administered prior to a request for a preliminary breath test is part of the
totality of the circumstances that must be examined.

3.
Under K.S.A. 2010 Supp. 8-1012(c), at the time a preliminary breath test is
requested, a law enforcement officer must provide oral notice that (a) there is no right to
consult with an attorney regarding whether to submit to testing; (b) refusal to submit to
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testing is a traffic infraction; and (c) further testing may be required after the preliminary
test. The statute further provides that the officer's failure to give this notice shall not be an
issue or defense in any action.

4.
When a law enforcement officer instructs a driver that he or she has no right to
refuse a preliminary breath test, the officer has contradicted the statutory provisions that
make a refusal to take the test a traffic infraction under K.S.A. 2010 Supp. 8-1012(d).
This cannot be considered substantial compliance with the statute, nor does it equate to a
failure to give the notice under K.S.A. 2010 Supp. 8-1012(c).

5.
When a law enforcement officer instructs a driver that he or she has no right to
refuse a preliminary breath test, it transforms the request for a preliminary breath test
contemplated by K.S.A. 2010 Supp. 8-1012(b) into an involuntary search because the
driver would understand there is no choice.

Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 340, 246 P.3d 1013 (2011).
Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed February 1, 2013.
Judgment of the Court of Appeals affirming the district court on the issues subject to our review is
affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded
to the district court.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

James R. Spring, deputy county attorney, argued the cause, and Steve Six, attorney general, was
with him on the brief for appellee.

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The opinion of the court was delivered by

BILES, J.: On petition for review from the district court's denial of a suppression
motion, this case presents two questions affecting investigations for driving under the
influence of alcohol (DUI). The first is whether a driver's favorable results from field
sobriety tests administered prior to a request for a preliminary breath test (PBT) dissipate
the reasonable suspicion statutorily required to support a request for a PBT. The second is
whether the investigating officer in this case substantially complied with K.S.A. 2010
Supp. 8-1012(c), which requires oral notice that refusal to take a PBT is a traffic
infraction, when the officer incorrectly told the suspect he had no right to refuse.

We hold that field sobriety tests administered prior to a PBT request are part of the
totality of circumstances examined by a court when determining whether there was
reasonable suspicion to support the PBT request under K.S.A. 2010 Supp. 8-1012(b). We
hold further that the officer in this case failed to comply with the notice requirements in
K.S.A. 2010 Supp. 8-1012(c) by incorrectly informing the suspect he had no right to
refuse the PBT. We reverse the Court of Appeals on the notice issue. We reverse and
remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Bruno Edgar was charged with DUI in violation of K.S.A. 8-1567 (fourth or
subsequent violation) and driving while his license was suspended or revoked in violation
of K.S.A. 8-262 (third or subsequent violation). The undisputed facts underlying these
charges were presented at a preliminary hearing, in which the arresting officer testified as
follows:

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On July 29, 2007, a police officer was working a driver's license check lane, where
every car driving through was stopped. Around 12:45 a.m., the officer saw Edgar pull up
to the check lane in a white Dodge pickup. The officer said Edgar acted confused when
asked for his information and told the officer he did not have a driver's license. The
officer waved Edgar onto the shoulder because there was traffic behind him.

When the officer again asked Edgar for his driver's license, Edgar presented an
identification card. The officer asked again if Edgar had a regular driver's license, and
Edgar replied yes. The officer said he took Edgar's identification card and ran it through
dispatch, which advised that Edgar's driver's license was suspended.

The officer testified that during his conversation with Edgar, he could smell a "real
light smell of alcoholic beverage" coming from Edgar's truck. The officer asked Edgar if
he had consumed any alcohol, and Edgar said "just beer" but did not say how much. The
officer decided Edgar needed to undergo sobriety testing and had Edgar initially perform
the following tests:

1. Horizontal gaze nystagmus test. The officer said this test showed a 45-degree
nystagmus with no maximum deviation present and no vertical deviation.

2. Nine-step walk and turn. The officer testified that Edgar said he understood the
instructions, but that the officer did not believe Edgar actually understood them
because he seemed "a little confused" and remained in the same position. The
officer explained the test to Edgar again, after which Edgar correctly followed
instructions. During the test, the officer said Edgar "did fine," except that
during the second set of nine steps, Edgar was not walking heel to toe on the
fourth and fifth steps.

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3. One-leg stand. Edgar said he understood the instructions, and the officer said
Edgar passed the test.

The final test the officer administered was a PBT because, he said, it was part of
his agency's standard procedures. The officer testified the PBT tells him whether he
wants to continue investigating and that he would have asked for a PBT even if he did not
believe Edgar was impaired after the field sobriety tests. The PBT administered in this
case required a sample of deep lung air that may be extracted only after a person forcibly
blows air into the PBT device for a period of 3 to 5 seconds. The breath sample is then
chemically analyzed.

The officer said he advised Edgar that he did not have a right to refuse the PBT,
did not have a right to consult an attorney about taking the test, and could be subject to
further testing. After those instructions, Edgar agreed to take a PBT, which showed a .122
blood-alcohol content level. Edgar was arrested for DUI and driving on a suspended
driver's license. Importantly, the officer said he would not have arrested Edgar if it were
not for the PBT results. Edgar later submitted to a blood test, which showed a blood
alcohol level of 1.1 grams per 100 milliliters of blood.

At the conclusion of evidence at the preliminary hearing, the district court found
probable cause to believe Edgar committed felonious driving under the influence of
alcohol and bound him over for trial.

Following the preliminary hearing, Edgar filed the motion to suppress at issue in
this appeal. He argued the purpose of the initial stop—to check for a driver's license—
had been completed when dispatch advised Edgar's license was suspended and that
further seizure of Edgar for DUI investigation required probable cause and consent.
Edgar alternatively argued that he was not properly advised of his rights before the PBT
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was administered and that the officer did not have probable cause or consent to
administer the test. The motion to suppress argued:

"7. The Defendant asserts that the purpose of the initial stop to check his driver's
license had been completed when dispatch returned the license status as being suspended.
The further seizure of Mr. Edgar lacked the requisite probable cause and consent.
Alternatively, the Defendant contests that he not was properly advised of his rights before
the [PBT] was administered, and that the officer did not have probable cause or consent
to administer the [PBT] and that the officer's reliance on the [PBT] in seeking the
subsequent blood test invalidates it."

The State did not file a response.

At the hearing on the motion to suppress, the district court heard no additional
arguments from counsel. It revisited the facts presented at the preliminary hearing. It held
that absent the PBT results there was no probable cause to place Edgar under arrest or ask
him to take an alcohol test because there was no evidence of bad driving and because
Edgar had passed three earlier sobriety tests. The only evidence of intoxication, the
district court found, was an odor of alcohol.

The district court ultimately denied Edgar's motion. It found the officer was not
required to revisit his reasonable suspicion after each sobriety test. The district court
explained that it found no caselaw on point but believed if the officer had reasonable
suspicion to begin field sobriety testing in the first place, he also had suspicion to run the
gamut of testing, particularly because each person tolerates alcohol differently and might
pass the one-leg-stand test, but not the PBT. It also noted PBT administration could occur
either before or after other testing.

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The district court primarily relied on this court's decision in State v. Pollman, 286
Kan. 881, 190 P.3d 234 (2008), which held that an investigation for obstruction together
with the smell and admission of alcohol consumption created reasonable articulable
suspicion to pursue a DUI investigation. The district court found there was reasonable
articulable suspicion to justify the officer's request for a PBT based on Edgar operating
his car on a suspended license, his admission to drinking, and the odor of alcohol on his
person.

As to the argument that Edgar did not properly consent to the PBT because the
officer told him he had no right to refuse, the district court agreed that the officer did not
provide the correct notice under the PBT statute, K.S.A. 2010 Supp. 8-1012. But it held
there was no error justifying suppression because the statute provided implied consent in
subsection (a) and stated in subsection (c) that failure to provide notice is not a defense.

The parties stipulated to the facts, and at a bench trial the district court convicted
Edgar of DUI. The State and Edgar agreed to dismiss the driving while suspended charge.
Edgar was sentenced to 8 months in jail, with 12 months' postrelease supervision. He
filed a timely notice of appeal.

Court of Appeals Decision

The Court of Appeals upheld the district court's denial of the motion to suppress.
State v. Edgar, 45 Kan. App. 2d 340, 246 P.3d 1013 (2011). It noted the State's
arguments that there was nothing precluding the officer from beginning his investigation
with the PBT before the sobriety tests and that the smell of alcohol by itself warranted
reasonable suspicion for the officer to request a PBT. But it also noted the State ignored
Edgar's underlying argument on appeal: that the officer's initial suspicion dissipated once
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Edgar passed his field sobriety tests—an issue of first impression in Kansas. 45 Kan.
App. 2d at 345.

The panel relied on a Vermont decision, State v. Mara, 186 Vt. 389, 987 A.2d 939
(2009), because it found no Kansas caselaw applicable. In Mara, the Vermont Supreme
Court held that a state trooper could order a PBT immediately after smelling an odor of
alcohol on the driver, noticing the driver had bloodshot eyes, and the driver's admission
to drinking. Most notably, the Vermont court said that even though the driver had passed
two prior sobriety tests, the trooper could still consider the other circumstances itemized
above. It held that passing the sobriety tests did not, as a matter of law, compel the
trooper to stop the DUI investigation. 186 Vt. at 394-95.

Based on Mara, the Edgar panel held:

"In conducting a DUI investigation, a law enforcement officer is not required to reweigh
reasonable suspicion after each field sobriety test. If reasonable suspicion exists at the
outset of an investigation, an officer should be allowed to run the usual array of tests,
within a reasonable number, to determine if the officer's reasonable suspicion leads to
arrest or release of the person detained." 45 Kan. App. 2d at 346.

It further held that passing one or more field sobriety tests does not necessarily
dispel reasonable suspicion if there is other evidence justifying the officer's PBT request.
Here, the panel determined that other evidence included: an odor of alcohol, Edgar's
admission to drinking, Edgar's initial confusion when asked for his driver's license, and
his missing two steps on the walk-and-turn test. 45 Kan. App. 2d at 347.

As for Edgar's second argument—that his consent to the PBT was involuntary
because the officer told him he did not have a right to refuse it—the Court of Appeals
noted first that the PBT statute, K.S.A. 2010 Supp. 8-1012(a), states that anyone who
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drives consents to taking a PBT. And based on this, the panel held that Edgar's consent
was not required to be knowing or voluntary because consent was statutorily implied. 45
Kan. App. 2d at 348. It also cited language from K.S.A. 2010 Supp. 8-1012(c) and
interpreted it to mean that failure to provide the "proper" notice would not be an issue or
defense in any action. 45 Kan. App. 2d at 349.

Edgar sought review from this court, raising two challenges to the panel's decision.
He argued the panel erred because (1) the officer lacked a reasonable articulable
suspicion to continue to detain Edgar and request the PBT after Edgar passed the three
field sobriety tests; and (2) Edgar's consent to the PBT was not voluntary because the
officer improperly informed Edgar he had no right to refuse the test. We granted review
on both questions. This court's jurisdiction arises under K.S.A. 21-3018 (review of a
Court of Appeals decision).

DISCUSSION

Edgar appeals from the denial of his motion to suppress because the investigating
officer lacked a reasonable articulable suspicion to request a PBT and his consent to the
PBT was involuntary.

Standard of Review

Appellate courts review a district court's decision on a motion to suppress
evidence using a bifurcated standard. First, we review the factual findings underlying the
trial court's suppression decision by a substantial competent evidence standard. We then
review the legal conclusion drawn from those factual findings de novo. Appellate courts
do not reweigh evidence. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).
The facts in this case are undisputed, so we exercise unlimited de novo review of the
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district court's legal conclusions. 294 Kan. at 54. We apply this standard to both of
Edgar's issues since they challenge the district court's denial of the motion to suppress.

Reasonable Suspicion Impacted by Successive Field Sobriety Tests

Edgar first argues that because he passed his initial field sobriety tests, the officer
no longer had reasonable suspicion to request that Edgar take a PBT. The State responds
that there is no requirement that an officer reweigh reasonable suspicion after each
sobriety test or that the PBT must be administered only after field sobriety testing. The
Court of Appeals panel agreed with the State. Edgar, 45 Kan. App. 2d at 346-47.

In Kansas, it is illegal for a person with a blood- or breath-alcohol concentration of
.08 or higher to operate or attempt to operate a vehicle. K.S.A. 8-1567(a)(1). And while
investigating whether someone is operating a vehicle over the legal limit, officers may
engage drivers suspected of DUI in a series of field sobriety tests, including the walk-
and-turn, one-leg stand, and horizontal gaze nystagmus. These tests are designed to
assess a variety of skills, including "'balance, large muscle coordination, cognitive skills,
and oculomotor control'" in determining whether a driver is impaired. Rubenzer, The
Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues, 32 Law &
Hum. Behav. 293, 295 (2008). The PBT may be part of this investigative process.

PBT administration is controlled by K.S.A. 2010 Supp. 8-1012, which provided at
the time of Edgar's arrest:

"(a) Any person who operates or attempts to operate a vehicle within this state is
deemed to have given consent to submit to a preliminary screening test of the person's
breath subject to the provisions set out in subsection (b).
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"(b) A law enforcement officer may request a person who is operating or
attempting to operate a vehicle within this state to submit to a preliminary screening test
of the person's breath to determine the alcohol concentration of the person's breath if the
officer has reasonable suspicion to believe the person has been operating or attempting to
operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs.
"(c) At the time the test is requested, the person shall be given oral notice that:
(1) There is no right to consult with an attorney regarding whether to submit to testing;
(2) refusal to submit to testing is a traffic infraction; and (3) further testing may be
required after the preliminary screening test. Failure to provide the notice shall not be an
issue or defense in any action. The law enforcement officer then shall request the person
to submit to the test.
"(d) Refusal to take and complete the test as requested is a traffic infraction. If
the person submits to the test, the results shall be used for the purpose of assisting law
enforcement officers in determining whether an arrest should be made and whether to
request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law
enforcement officer may arrest a person based in whole or in part upon the results of a
preliminary screening test. . . . Following the preliminary screening test, additional tests
may be requested pursuant to K.S.A. 8-1001 and amendments thereto."

Section (b) is key. It requires an officer to have "reasonable suspicion" the person
is operating or attempting to operate a vehicle under the influence before requesting a
PBT. Reasonable suspicion is a less demanding standard than probable cause and
requires considerably less than preponderance of the evidence. Pollman, 286 Kan. 881,
Syl. ¶ 6. Reasonable suspicion has been defined by this court to mean

"'a particularized and objective basis for suspecting the person stopped is involved in
criminal activity. Something more than an unparticularized suspicion or hunch must be
articulated. Reasonable suspicion can arise from information that is less reliable than that
required to show probable cause. Both reasonable suspicion and probable cause are
dependent upon the content of information possessed by the detaining authority and the
information's degree of reliability. Quantity and quality are considered in the totality of
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the circumstances—the whole picture that must be taken into account when evaluating
whether there is reasonable suspicion.'" Pollman, 286 Kan. at 890 (quoting State v.
Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 [1999]).
Reasonable suspicion is determined by looking at the totality of circumstances as
viewed by a reasonable law enforcement officer. 286 Kan. at 890. And as is often
repeated:

"'''[W]e judge the officer's conduct in light of common sense and ordinary human
experience. [Citation omitted.] 'Our task . . . is not to pigeonhole each purported fact as
either consistent with innocent travel or manifestly suspicious,' [citation omitted], but to
determine whether the totality of the circumstances justify the detention. [Citation
omitted.] We make our determination with deference to a trained law enforcement
officer's ability to distinguish between innocent and suspicious circumstances, [citation
omitted], remembering that reasonable suspicion represents a 'minimum level of
objective justification' which is 'considerably less than proof of wrongdoing by a
preponderance of the evidence.'" [Citation omitted.]'" Pollman, 286 Kan. at 890 (quoting
State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 [1998]) (quoting United States
v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997]).

Using this as the applicable standard necessary for a PBT request, we turn to
Edgar's argument on appeal. Edgar does not directly distinguish or address Mara, the
Vermont case relied upon by the Court of Appeals. But he indirectly downplays it by
comparing it to another Court of Appeals decision, State v. Diaz-Ruiz, 42 Kan. App. 2d.
325, 211 P.3d 836 (2009). In Diaz-Ruiz, an officer stopped a car under the suspicion that
a ladder in the back was not secured. The panel found that once the officer approached
the car and dispelled that suspicion, he unlawfully extended the scope of the stop by
questioning the defendants about their travel plans and asking for identification. 42 Kan.
App. 2d at 337.

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Edgar uses the Diaz-Ruiz case to contend that the officer's initial DUI suspicion
was dispelled after Edgar successfully completed three different field sobriety tests, so
his request for a PBT unlawfully extended the DUI investigation. But Edgar's reliance on
this analogy is misplaced because Diaz-Ruiz is about extending the length of the traffic
stop after dispelling suspicion almost immediately and on the officer's own accord before
making contact with the driver. Edgar's case is distinguishable because the officer
became suspicious of Edgar after he began talking to him, so there was not an
opportunity to dispel suspicion before making contact. Moreover, the officer here was
conducting an investigation under K.S.A. 2010 Supp. 8-1012.

Compare Mara, 186 Vt. at 394-96, with State v. Whitney, 889 N.E.2d 823, 829
(Ind. App. 2008), in which the Indiana Court of Appeals held PBTs cannot be
administered randomly but can be administered based on reasonable suspicion after
looking at the totality of circumstances. In Whitney, reasonable suspicion existed because
the driver was speeding late at night and although the officer could not tell if he was
smelling alcohol or the car's leather interior, the court found nothing unreasonable about
the officer reversing his usual order of testing by administering a PBT before conducting
field sobriety tests. 889 N.E.2d at 829-30; see also State v. Brandenburg, 41 Ohio. App.
3d 109, 110-11, 534 N.E.2d 906 (1987) (although defendant performed well on some
sobriety testing, totality of circumstances would allow a reasonable person to believe
crime had been committed).

The State and Court of Appeals rely heavily on this court's Pollman decision in
their analysis. Pollman, 286 Kan. 881. In that case, Pollman was riding his motorcycle
alongside his wife, when his wife was pulled over for failing to signal. The officer told
Pollman he was not being stopped and to "move along." 286 Kan. at 883. Pollman
refused and stayed nearby, prompting the officer to ask for back-up assistance. Another
officer confronted Pollman and smelled alcohol on his breath. Pollman admitted he had
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been drinking; although the officer did not know how much or when, the officer said
Pollman had been "coherent and cooperative." 286 Kan. at 883. The officer said that
other than the smell of alcohol, Pollman showed no other indicators signaling that he had
been drinking. The smell of alcohol prompted the officer to administer a PBT on
Pollman, which returned a positive reading. Afterwards, the officer administered several
field sobriety tests, including the walk-and-turn and the one-leg-stand. The officer was
"dissatisfied" with Pollman's performance and arrested him. 286 Kan. at 884. A later
blood test confirmed that Pollman's alcohol level was over the legal limit.

On appeal, Pollman claimed the officer lacked reasonable suspicion to detain him
or probable cause to arrest him for DUI. This court declined to focus on whether the odor
of alcohol alone creates reasonable suspicion that Pollman was driving while intoxicated
because such a narrow focus would be inappropriate in light of other factors also present,
including that Pollman refused to leave the scene when asked, which might indicate
impaired judgment because of intoxication, and Pollman's admission to drinking. We
noted the smell of alcohol coming from Pollman to be significant, even if it was not
strong, because this would go to the weight of the evidence. But we held the totality of
the circumstances did not erase reasonable suspicion. 286 Kan. at 894-97; see also Smith
v. Kansas Dept. of Revenue, 291 Kan. 510, 513-15, 242 P.3d 1179 (2010) (probable
cause existed to request an evidentiary breath test even though driver performed some
things correctly during some of the field sobriety tests; positive facts did not negate the
others in determining whether the trooper should have requested the PBT or other
evidentiary breath test).

A number of other Kansas cases similarly hold that competing evidence of
sobriety does not negate initial evidence of intoxication. See, e.g., Hansen v. Kansas
Dept. of Revenue, No. 106,752, WL 3136517, at *2-3 (Kan. App. 2012) (unpublished
opinion) (perfect performance on sobriety testing did not negate presence of other factors
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including alcohol odor, bloodshot eyes, admission to drinking); Dorzweiler v. Kansas
Dept. of Revenue, No. 104,170, 2011 WL 1197206, at *2 (Kan. App. 2011) (unpublished
opinion) (adequate performance on field sobriety testing did not dispel reasonable
suspicion of DUI when driver was speeding, had slow reaction to emergency lights,
strong odor of alcohol, bloodshot eyes, was crying, and had antagonistic behavior); State
v. Anderson, No. 93,083, 2006 WL 265227, at *2 (Kan. App. 2006) (unpublished
opinion) (officer had reasonable suspicion to require field sobriety testing outside the car
even though the driver performed well on tests while sitting down); cf. State v.
Bojorquez, No. 105,019, 2011 WL 4357848, at *5-6 (Kan. App. 2011) (unpublished
opinion) (driver's performance on sobriety testing was not great, but still did not
"substantially dissipate" officer's suspicion in light of other factors including alcoholic
odor and admission to drinking), rev. denied 294 Kan. ___ (May 21, 2012).

The crux of Edgar's argument is that the officer's initial reasonable suspicion for
requesting the PBT disappeared as a matter of law once Edgar successfully completed the
three field sobriety tests. But that is not our caselaw. Reasonable suspicion must be
determined in each case on the basis of the totality of the circumstances as viewed by a
reasonable law enforcement officer. Pollman, 286 Kan. at 890. And in this case Edgar
still exhibited symptoms of intoxication because the officer detected the odor of alcohol
and Edgar admitted to drinking, initially displayed confusion, and had made minor
missteps during the walk-and-turn test.

The problem is that the district court reasoned that under the statute governing
administration of the PBT it did not need to consider the field sobriety test results when
evaluating the totality of circumstances. The district court held that "if the officer had a
reasonable articulable suspicion to do field sobriety tests, . . . the officer would have that
suspicion to run a gamut of tests to divine whether that reasonable articulable suspicion
16



had any basis to support, or not support[,] probable cause to arrest." Those tests, it held,
would include the PBT.

The Court of Appeals panel disagreed and declared that a "driver's performance on
field sobriety tests may be considered along with all the other evidence available to the
officer" to determine whether the officer had a reasonable suspicion to request a PBT
under the totality of the circumstances. 45 Kan. App. 2d at 347. We agree with the panel.

As we held in Pollman, the "whole picture" must be taken into account when
evaluating whether there is reasonable suspicion for requesting a PBT. 286 Kan. at 890.
And just as law enforcement uses field sobriety tests and PBTs in an incremental process
for evaluating whether there are "reasonable grounds" for evidentiary testing under
K.S.A. 2010 Supp. 8-1001, or as probable cause for an arrest, evidence gathered in that
same process that might point in the opposite direction must be analyzed as well. To
conclude, as the district court did, that it need not consider the field sobriety test results in
determining whether the officer had reasonable suspicion to request a PBT misinterprets
our caselaw and the statute. That statute specifically requires reasonable suspicion when
requesting a PBT. The quantity and quality of all information available to the officer that
leads up to that PBT request comprises the "whole picture" described in Pollman, 286
Kan. at 890.

Certainly, as the State argues, there is no requirement that other field sobriety
testing must precede a PBT. And there is no language in K.S.A. 2010 Supp. 8-1012 that
an officer may only ask for a PBT after the driver has performed field sobriety tests. But
neither argument answers the question posed on appeal.

We are asked simply whether the results from Edgar's three successful field
sobriety tests should have been considered in deciding whether reasonable suspicion
17



existed to request the PBT. The answer to that question is yes. And while the Court of
Appeals continued the analysis to consider whether there was reasonable suspicion in
light of the field sobriety test results in Edgar's case, we need not address that question,
which may be a close call at best, given our holding on the next issue.

Proper Notice under K.S.A. 2010 Supp. 8-1012(c)

Edgar's second argument is that when the officer told him he "didn't have a right to
refuse [the PBT]," this obvious misstatement of notice under the statute rendered his
subsequent consent to the test invalid. Edgar claims that had he not taken the PBT, he
would have received the statutorily required traffic infraction but might not have taken
the evidentiary blood test. He notes that at the preliminary hearing the officer testified
Edgar performed well on the field sobriety tests and would not have arrested him but for
the PBT results. This testimony, he contends, necessarily justifies our scrutiny of the
statutory notice requirements for PBT administration. We agree.

The PBT given in this case is considered a search and cannot be administered
absent an exception to the general rule requiring search warrants. One of those exceptions
occurs if the subject provides voluntary, knowing, and intelligent consent. See State v.
Jones, 279 Kan. 71, 75-76, 106 P.3d 1 (2005) (quoting Skinner v. Railway Labor
Executives' Assn., 489 U.S. 602, 616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 [1989])
("'Subjecting a person to a breathalyzer test, which generally requires the production of
alveolar or "deep lung" breath for chemical analysis . . . implicates similar concerns about
bodily integrity and, like the blood-alcohol test . . . [citation omitted], should also be
deemed a search.'"). PBT results are used to help law enforcement officers determine
whether they should arrest someone for DUI and whether to request additional testing
under K.S.A. 2010 Supp. 8-1001 once the person is in custody. The officer can arrest
someone in whole or in part based on PBT results. K.S.A. 2010 Supp. 8-1012(d).
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But before a PBT may be administered, an officer is required first to provide oral
notice to the subject that: (1) there is no right to consult with an attorney regarding
whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3)
further testing may be required after the preliminary screening test. K.S.A. 2010 Supp. 8-
1012(c). The statute also states that failure to give this notice shall not be an issue or
defense in any action. K.S.A. 2010 Supp. 8-1012(c). Edgar's argument is that the officer
incorrectly told him he did not have a right to refuse the test, thus invalidating any
consent for the deep air sample that followed.

The district court agreed the officer provided incorrect notice to Edgar, which is
obvious. But despite this, the district court held the incorrect warning did not warrant
suppression based on a Court of Appeals decision, Prewett v. Kansas Dept. of Revenue,
No. 90,950, 2004 WL 1041355, at *2 (Kan. App. 2004) (unpublished opinion), which
held that consent was not invalidated when an officer told the driver that not taking the
test would be a traffic infraction and then added that he "had no constitutional right to
refuse the test." In Edgar's case, the district court held the officer's warning did not
invalidate consent, but that it "was a darn close question."

The Court of Appeals agreed with the district court and rejected Edgar's claim by
finding that his consent was implied under K.S.A. 2010 Supp. 8-1012(a), which states
that any person who operates or attempts to operate a vehicle consents to submit to a
PBT. Edgar, 45 Kan. App. 2d at 348 (citing K.S.A. 2010 Supp. 8-1012[a]). And like the
district court's finding, the panel also held the statute precluded Edgar from challenging
the officer's incorrect notice. 45 Kan. App. 2d at 350-51 (citing K.S.A. 2010 Supp. 8-
1012[c]).

19



But the PBT statute provides that a driver's refusal to take the test is a traffic
infraction, which means that refusal is always an option for the driver. See K.S.A. 2010
Supp. 8-1012(d). And as for the statutory language providing that all drivers consent to a
PBT, it is well established that consent to search may be withdrawn in other contexts
when warrantless Fourth Amendment searches are premised on that consent. See United
States v. Ortiz, 669 F.3d 439, 445 (4th Cir. 2012) (any consent to search is valid until it is
withdrawn); United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) (the right to
withdraw consent to search is a constitutional right). The same is true here. So even
though Edgar impliedly consented to the PBT under the terms of the statute by driving,
such consent may always be withdrawn—an event made unlikely when a driver is
affirmatively misinformed by a law enforcement officer that he or she cannot refuse,
which effectively contradicts the statute.

The State argues there is a seeming inconsistency within the statute because
subsection (a) states that any driver consents, yet subsection (c) states that a person must
be informed that he or she cannot consult an attorney about whether to take the test. This,
the State contends, alerted Edgar that he had a right to refuse, even though Edgar was
specifically told otherwise by the officer. But the State's point is countered by our
caselaw, which holds that an officer cannot provide wholly incorrect information.

The benchmark for statutory notice is whether an officer "substantially complied"
with the statutory language. See Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755
P.2d 1337 (2008). In Barnhart, this court discussed notice under K.S.A. 1985 Supp. 8-
1001. And although that statute is not directly relevant to this case, the court made a
blanket statement regarding statutory notice generally:

"As with any notice required by statute, the provisions of K.S.A. 1985 Supp. 8-1001(f)
need not be given in the exact words of the statute. While using the statutory language
20



would have negated the issue now before us, it is generally recognized that substantial
compliance with statutory notice provisions will usually be sufficient. To substantially
comply with the requirements of the statute, a notice must be sufficient to advise the party
to whom it is directed of the essentials of the statute." (Emphasis added.) 243 Kan. at 213.

See also Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 680-81, 840 P.2d 448 (1992)
(adopting "substantially complied" language to find officer's notice sufficient even
though it provided incorrect term of suspension upon test refusal). An officer may deviate
from the statutory language so long as the gist of the statute is conveyed. But, here, the
officer did not just deviate—he made misstatements expressly contrary to K.S.A. 2010
Supp. 8-1012.

This precise issue has not been addressed by this court. The Court of Appeals
appears to have conflicting decisions from different panels. Compare Prewett, 2004 WL
1041355, at *2, with City of Lenexa v. Gross, No. 96,367, 2007 WL 2043580, at *3-4
(Kan. App. 2007) (unpublished opinion) (officer's statement that the driver was required
by law to take the PBT did not constitute a request and the driver was coerced into taking
the test.).

Other states have struck breath tests for incorrect notice. See, e.g., Cunningham v.
State, 150 Idaho 687, 693, 249 P.3d 880 (2011) (information provided repeatedly to
driver that he would automatically lose his license upon refusal did not comport with
statute and defeated purpose of advisory); State v. Serrano, 894 S.W.2d 74, 75-76 (Tex.
App. 1995) (warning intoxicated drivers of consequences not provided by statute could
easily coerce suspects into submission to breath tests); State v. Sells, 798 S.W.2d 865,
866-67 (Tex. App. 1990) (driver's consent not voluntary if induced by officer's
misstatement of consequences flowing from refusal); cf., Ewerokeh v. State, 835 S.W.2d
796, 797 (Tex. App. 1992) (consent not invalidated where no evidence suspect relied on
incorrect notice to submit to breath test).
21




The State claims the officer's omission of the exact wording of K.S.A. 2010 Supp.
8-1012(c)'s statutory notice does not give rise to a defense under 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.

The statute states that failure to give notice shall not be a defense in any action.
K.S.A. 2010 Supp. 8-1012(c). But here there is no failure to inform. The officer explicitly
misstated the law. Accordingly, the panel was incorrect to rely on this language that
excuses only the failure to inform because outright failure is not at issue in this case.
Incorrect notice does not equate to failure in this instance.

We hold that the officer's misstatement that Edgar had no right to refuse the PBT
rendered the test involuntary. K.S.A. 2010 Supp. 8-1012(b) provides that a law
enforcement officer "may request" a PBT, but not that such a test may be coerced. Telling
Edgar he had no right to refuse the test transformed the test into an involuntary search by
depriving Edgar of the opportunity to revoke his statutorily implied consent—an
opportunity expressly contemplated by K.S.A. 2010 Supp. 8-1012(c)(2), (d). Based on
the officer's misinformation, Edgar would understand he had no choice but to submit to
the PBT.

22



Accordingly, the district court erred by not suppressing the PBT results. And that
error also invalidates Edgar's DUI arrest and the subsequent blood-alcohol test. See
Schrader v. Kansas Dept. of Revenue, 296 Kan. __, Syl. ¶¶ 4-5, 290 P.3d 549 (2012)
(ability of officer to request breath test depends on whether there was an alcohol-related
arrest); Sloop v. Kansas Dept. of Revenue, 296 Kan.__, Syl. ¶¶ 3-6, 290 P.3d 555 (2012)
(request to take evidentiary breath test relies on a valid arrest based on probable cause).
As the district judge conceded:

"I think everyone pretty much agrees if the PBT does not come in you'd have no bad
driving. You'd have an odor of alcohol. You'd have [a] statement that he had consumed
alcohol. Three passed field sobriety tests, which I think most would agree would not
support probable cause to place him under arrest, to ask him to take the blood alcohol
test, which he eventually did take."

This acknowledgment is supported by the officer's testimony at the preliminary
hearing in which he agreed that without the PBT results Edgar "probably would not have
been arrested on DUI."

Edgar's motion to suppress should have been granted. The judgment of the Court
of Appeals is affirmed in part and reversed in part on the issues subject to our review.
The judgment of the district court is reversed, and the case is remanded to the district
court.