Bynum v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 117,874

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CADELL LEROY BYNUM,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed June 1, 2018.
Affirmed.

Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellant.

Ashley R. Iverson, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before ARNOLD-BURGER, C.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: Cadell Leroy Bynum appeals from the suspension of his driver's
license for refusal to take a requested breath-alcohol test. We find no error and affirm the
suspension.

Factual and Procedural Background

While working at a sobriety checkpoint on September 10, 2016, Detective Spencer
Parsons with the Riley County Police Department made contact with Bynum. Parsons
smelled the odor of alcoholic beverages and observed Bynum had slurred speech,
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difficulty communicating, and poor balance or coordination. Bynum informed Parsons
that he had consumed a couple of gin and tonic beverages. Bynum attempted the walk-
and-turn field sobriety test, during which he made an improper turn and took an incorrect
number of steps. He also attempted the one-leg-stand test; however, he immediately put
his foot back down, stating he could not complete the test.

While at the checkpoint, Parsons provided Bynum with a DC-70 form, the implied
consent advisory. Parsons also read the advisory aloud. The implied consent advisory
included the following notices:

"1. Kansas law (K.S.A. 8-1001) requires you to submit to and complete one or
more tests of breath, blood or urine to determine if you are under the influence of alcohol
or drugs or both.
"2. You have no constitutional right to consult with an attorney regarding
whether to submit to testing.
"3. If you refuse to submit to and complete any test of breath, blood or urine
hereafter requested by a law enforcement officer, your driving privileges will be
suspended for 1 year.
"4. If you submit to a breath or blood test requested by a law enforcement officer
and produce a completed test result of .15 or greater, your driving privileges will be
suspended for 1 year.
"5. If you submit to a breath or blood test requested by a law enforcement officer
and produce a completed test result of .08 or greater, but less than .15, the length of
suspension will depend upon whether you have a prior occurrence. A prior occurrence is
a prior test refusal, test failure or conviction or diversion for an alcohol or drug related
conviction as defined in K.S.A. 8-1013, and amendments thereto, or any combination
thereof, whether before, on or after July 1, 2001.
"6. If you fail a test with an alcohol content of .08 or greater, but less than .15,
and do not have any prior occurrences, your driving privileges will be suspended for
30 days.
"7. If you have a prior occurrence and fail a test with an alcohol content of .08
or greater, but less than .15, your driving privileges will be suspended for one year.
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"8. Refusal to submit to testing may be used against you at any trial on a charge
arising out of the operation or attempted operation of a vehicle while under the influence
of alcohol or drugs, or both.
"9. The results of the testing may be used against you at any trial on a charge
arising out of the operation or attempted operation of a vehicle while under the influence
of alcohol or drugs, or both.
"10. After the completion of testing, you have the right to consult with an
attorney and may secure additional testing, which, if desired, should be done as soon as
possible and is customarily available from medical care facilities willing to conduct such
testing."

Parsons testified that he was aware the recent modifications to the DC-70 form
were the result of Kansas Supreme Court decisions and he used the form his superior
officers provided to him. After reading the form verbatim to Bynum, Parsons asked him
to submit to a breath-alcohol test. Bynum refused to submit to the test. Parsons then
personally served Bynum with the DC-27 form, the notice that his driver's license was
suspended for refusing to submit to the requested breath-alcohol test. Parsons arrested
Bynum for driving under the influence (DUI) and jail staff transported him to the Riley
County Police Department.

Bynum timely requested an administrative hearing to challenge his license
suspension. At the administrative hearing, Bynum argued that Parsons lacked reasonable
grounds to continue the investigation and he lacked probable cause to arrest Bynum. He
further preserved all constitutional issues and the issue that the revised DC-70 form does
not conform to the requirements set forth in K.S.A. 2017 Supp. 8-1001. The
administrative hearing officer affirmed the suspension of Bynum's driving privileges.

Bynum timely filed a petition for judicial review with the district court, asserting
the same issues he had preserved at the administrative level. KDOR submitted the agency
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record, which included Bynum's driver event history. His history showed the following
actions:

Action Action Date Occurrence Date Court Type
DUI Conviction 07/18/01 10/13/00 District court
Admin. 10/13/00 10/13/00 Admin.
DUI Conviction 05/27/97 02/07/97 Municipal
Admin. 08/15/95 06/04/95 Municipal

The district court conducted a bench trial on April 14, 2017. Bynum abandoned
the issue of whether Parsons had reasonable grounds to request a breath-alcohol test and
proceeded only with the issue of whether the implied consent advisory complied with the
statutory requirements. The court made the following findings: (1) Parsons substantially
complied with K.S.A. 2017 Supp. 8-1001 et seq.; (2) Parsons acted in good faith based on
the Kansas Attorney General's amendments to the DC-70 and the Kansas Supreme
Court's decision in State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017), and State v. Nece,
306 Kan. 679, 396 P.3d 709 (2017); and (3) Bynum had no cognizable prior DUI
convictions, diversions, or refusals.

Bynum timely appealed the district court decision.

The revised DC-70 advisory is in substantial compliance with K.S.A. 2017 Supp. 8-
1001(k).

Bynum's primary argument on appeal is that because the revised DC-70 advisory
read by Detective Parsons wholly omits two sections of the warnings required by K.S.A.
2017 Supp. 8-1001(k), the KDOR should be precluded from using his refusal to submit to
the breath-alcohol test as grounds for suspending his driver's license. The omitted
sections provided that the officer shall present oral and written notice that

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"(2) the opportunity to consent to or refuse a test is not a constitutional right;
. . . .
"(4) if the person refuses to submit to and complete any test of breath, blood or
urine hereafter requested by a law enforcement officer, the person may be charged with a
separate crime of refusing to submit to a test to determine the presence of alcohol or
drugs, which carries criminal penalties that are greater than or equal to the criminal
penalties of driving under the influence, if such person has:
(A) Any prior test refusal as defined in K.S.A. 8-1013, and amendments
thereto, which occurred: (i) On or after July 1, 2001; and (ii) when such person
was 18 years of age or older; or
(B) any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144, and
amendments thereto, or a violation of an ordinance of any city or resolution of
any county which prohibits the acts that such section prohibits, or entering into a
diversion agreement in lieu of further criminal proceedings on a complaint
alleging any such violations, which occurred: (i) On or after July 1, 2001; and (ii)
when such person was 18 years of age or older[.]" K.S.A. 2017 Supp. 8-1001(k).

Bynum contends that because of these omissions, the advisory does not
substantially comply with the statutory requirements because he was not informed of the
essentials of the statute.

The KDOR responds by first correctly pointing out that breath-alcohol test results
are not subject to the exclusionary rule in the context of civil administrative proceedings.
Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 8, 176 P.3d 938 (2008),
overruled on other grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048
(2015). Here, Bynum asserted his Fourth Amendment to the United States Constitution
right to refuse the requested test, so no search occurred and the exclusionary rule does not
apply.

Thus, resolution of Bynum's appeal rests solely on a determination of whether the
revised DC-70 advisory form substantially complied with the statutory requirements.
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This implicates interpretation of the statute and presents a question of law over which we
exercise unlimited review. Martin, 285 Kan. at 629.

KDOR notes that Bynum's challenge presents a "Catch-22" if law enforcement
continued to read the omitted statutory subsections K.S.A. 2017 Supp. 8-1001(k)(2) and
(4) in the advisory, the tests or the refusal could be considered to be unconstitutionally
coerced and inadmissible under the proscriptions announced in Ryce and Nece; however,
by not reading those subsections, the notice was arguably not in compliance with the
statute and any resulting license suspension should be considered void. Such "gotcha"
arguments are generally not favored and, in this instance, neither conclusion would
promote the purposes of public safety embodied in the implied consent statutes.

Arguments virtually identical to those raised by Bynum herein have recently been
considered and rejected by panels of this court. In State v. Barta, No. 117,990, 2018 WL
1883878 (Kan. App. 2018) (unpublished opinion), petition for rev. filed May 15, 2018,
the defendant consented to a breath-alcohol test after having been read the revised DC-70
advisory. He thereafter claimed his consent was coerced and involuntary because the
revised DC-70 omitted the language relating to the separate potential criminal
consequences for refusal set forth in subsection (k)(4) of the statute. In affirming the
district court's rejection of this challenge, the court found the revised DC-70 was in
substantial compliance with K.S.A. 2017 Supp. 8-1001(k). The court noted the omitted
advisory actually rendered the defendant's consent free from the very coercion
condemned in Ryce and Nece. The court also noted that the severability clause of K.S.A.
8-1007 supports the Attorney General's modification of the DC-70 to comply with the
constitutional determinations of Ryce and Nece, thereby avoiding the "Catch-22" of
giving an unconstitutional and misleading advisory.

In White v. Kansas Dept. of Revenue, No. 117,956, 2018 WL 1769396 (Kan. App.
2018) (unpublished opinion), petition for rev. filed May 9, 2018, the driver also
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consented to a breath-alcohol test after having been read the revised DC-70 advisory
which omitted the warnings regarding potential separate criminal penalties for refusal.
The driver challenged a resulting suspension, alleging that the revised advisory was
incorrect and misleading in violation of due process. The claims were rejected after an
administrative hearing, and the suspension was affirmed after appeal to the district court.
In an analysis mirroring that in Barta, the appellate panel held that the revised DC-70
substantially complied with the statutory requirements by eliminating language which
was condemned by Ryce and Nece as unduly coercive and unconstitutional. The court
dealt with the "Catch-22" by observing that "[w]e are not persuaded by White's creative
argument" that she was entitled to be read a facially unconstitutional warning simply
because the statute was still in effect despite the holdings in Ryce and Nece. 2018 WL
1769396, at *5-6.

We find the analysis and conclusions set forth in Barta and White to be pertinent,
persuasive, and determinative of the issues herein. Although Bynum had refused to take
the requested breath-alcohol test while Barta and White had consented, we find this is a
distinction without a difference since the arguments presented regarding the omission of
reference to potential criminal consequences are virtually indistinguishable.

Bynum can point to no prejudice resulting from the revised advisory. Certainly,
neither the KDOR nor the State attempted to subject him to the separate criminal
penalties for refusal. Indeed, the record does not conclusively establish that Bynum's
prior driving history would have subjected him to such penalties even if they had not
been ruled to be unconstitutional. Although Bynum's record recites a conviction for DUI
on July 18, 2001, the actual violation giving rise to the conviction had occurred on
October 13, 2000, and would fall outside the statutory time limit. See K.S.A. 2017 Supp.
8-1001(k)(4)(B). The revised DC-70 fully and correctly advised Bynum of all the
potential civil penalties for refusal. See City of Overland Park v. Lull, 51 Kan. App. 2d
588, 593-94, 349 P.3d 1278 (2015).
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Bynum also raises an issue regarding Parson's omission of (k)(2) of the statutory
advisory providing that "the opportunity to consent to or refuse a test is not a
constitutional right." Once again, it would have been misleading and in error for Parsons
to have included this advisory. In Ryce I, our Supreme Court had stated revocation of
implied consent—i.e. refusal to take a requested test—is a constitutional right. State v.
Ryce, 303 Kan. 899, 951, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682. Further,
Bynum was not under arrest when Parsons requested the breath-alcohol test. In
Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2184, 195 L. Ed. 2d 560
(2016), the United States Supreme Court held that until arrest, a driver has a
constitutional right to refuse a breath-alcohol test. Thus, K.S.A. 2017 Supp. 8-1001(k)(2)
was properly removed from the revised DC-70, resulting in substantial compliance with
the statutory intent to provide the driver with meaningful and correct advice.

We, therefore, conclude the revised DC-70 implied consent advisory read to
Bynum by Detective Parsons is in substantial compliance with the mandate of K.S.A.
2017 Supp. 8-1001(k), and the suspension of Bynum's driver's license for refusing the
requested breath-alcohol test is affirmed.

Affirmed.