State v. Arellano

1

NOT DESIGNATED FOR PUBLICATION

No. 116,448


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSEPH A. ARELLANO,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; WENDEL W. WURST, judge. Opinion filed March 16, 2018.
Affirmed.

William A. Wright, of Garden City, for appellant.

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: Joseph Arellano was pulled over after a Kansas state trooper
observed him commit two driving infractions. After displaying signs of intoxication,
Arellano failed two field sobriety tests. Arellano told the officer that he had "been out"
and had "had a couple." At the station, the officer provided Arellano with informed
consent warnings, and Arellano refused to take the breath test. Eventually, Arellano was
charged with driving under the influence, refusal of a breath test (as a traffic infraction),
and two counts of improper turns. The district court denied Arellano's motion to suppress
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evidence and his motion in limine regarding evidence of his refusal to take a breath test.
A jury convicted Arellano of driving under the influence of alcohol or drugs, refusal of
the breath test, and one count of improper turn. On appeal, Arellano argues that K.S.A.
2014 Supp. 8-1001(n), the provision in Kansas' implied consent law that allows refusal
evidence to be admitted at trial, is unconstitutional. For reasons set forth below, we reject
this argument. Accordingly, we affirm.

On August 30, 2014, Kansas State Trooper Dillon Barnes observed a Chevy
Blazer, driven by Joe Arellano, commit two driving infractions. When Trooper Barnes
stopped Arellano and walked up to his vehicle, he noticed the Blazer was about two feet
from the curb. When Barnes asked for Arellano's driver's license, he saw that his eyes
were bloodshot, watery, and glazed over. When he asked Arellano whether he had been
drinking, Arellano told Barnes that he had "been out" and that "he had a couple."

When Barnes had Arellano move to his patrol vehicle so he could run his driver's
license, he noticed an alcoholic odor coming from Arellano.

Barnes conducted two field sobriety tests with Arellano. During the first field test,
the walk-and-turn test, Barnes observed Arellano exhibit six of the eight indicators of
impairment: beginning the test before the instructions were completed, stopping while
walking during the test, not touching heel to toe while walking, stepping off line,
improperly turning on the test, and failing to do the correct amount of steps required. The
second field test was the one-leg-stand test. Barnes observed Arellano exhibit three of the
four indicators of impairment: swaying while attempting to balance, using his arms to
maintain balance, and putting his foot down before the required 30 seconds. In addition to
these two field sobriety tests, Barnes noticed Arellano leaning on his patrol vehicle to
help maintain his balance.

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After Barnes conducted the field sobriety tests, he brought Arellano back to his
patrol vehicle to administer the preliminary breath test (PBT). Barnes informed Arellano
what would happen if he refused to take the PBT, but Arellano continued to ask what
would happen if he refused. Eventually, Barnes told Arellano that he would be charged
for refusing to take the PBT. Arellano avoided Barnes' questions and did not agree to
taking the PBT.

Barnes arrested Arellano for driving under the influence of alcohol and took him
to the Finney County Law Enforcement Center to take an Intoxilyzer 8000 breath test. At
the law enforcement center, Barnes read the DC-70 form to Arellano as required by law.
The DC-70 form is an implied consent form from the Department of Revenue. One
portion of the form lists the various consequences that could occur, depending on the
present facts and how many times the individual has been arrested or convicted for this
offense before. After reading the informed consent form, Barnes requested Arellano take
the breath test, and Arellano again asked what would happen if he refused the breath test
and what would happen to his license. Arellano seemed most concerned with what would
happen with his driver's license, so Barnes again read the parts of the DC-27 form that
pertained to consequences regarding drivers' licenses. When Barnes got to one portion of
the form which reads "if paragraph 4 of the certification on the reverse side indicates you
failed a test and the test result was .15 or above, the following action will be taken on
your driving privileges." Arellano interrupted Barnes and said, "I'll be over. I'm not going
to lie to you."

As Barnes again reviewed Arellano's options, Arellano continued asking questions
but never responded to whether he would take the test. Eventually, Barnes told Arellano
he was going to consider it a refusal, and Arellano said, "Okay."

Arellano was charged with driving under the influence, refusal of a breath test (a
traffic infraction under K.S.A. 2014 Supp. 8-1012), and two counts of improper turns.
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Arellano entered a plea of not guilty. The court heard several pretrial motions,
including Arellano's motion to suppress evidence and "motion in limine test refusal." The
district court denied Arellano's motion in limine regarding his test refusal. The court also
denied Arellano's motion to suppress, which cited K.S.A. 2014 Supp. 8-1001(n) in its
determination that evidence of Arellano's refusal to submit to alcohol testing was
admissible in his DUI trial. In ruling on Arellano's test refusal, the trial court stated:

"Here, the Defendant was accurately advised of one of the consequences should he refuse
to submit to alcohol content testing (admissibility of evidence of such refusal) and
Defendant was able to make an informed decision how to proceed.

"Because of the State's compelling interests in obtaining reliable alcohol content testing
in appropriate circumstances; because K.S.A. [2014 Supp.] 8-1001(n) does not involve
criminal sanctions for withdrawing implied consent nor admissibility of test results
involuntarily consented to; and because the Defendant was accurately advised of the
admissibility of evidence at trial of a refusal to submit to alcohol content testing;
evidence of Defendant's refusal to submit to alcohol testing will be admissible at trial."

At trial, the State introduced evidence that Arellano was stopped by law
enforcement after observation of a driving error. When asked by the officer, Arellano
admitted to consuming alcohol and the officer testified that he smelled a strong odor of
alcohol and that Arellano's eyes were watery and bloodshot. The officer also testified to
the intoxication indicators observed during the field sobriety tests. The officer testified
that he requested Arellano take a PBT but that he eventually refused. He testified that he
took Arellano to the police station where they discussed his options. Without specific
answers coming from Arellano, the officer informed Arellano he was going to be charged
with refusal to take the Intoxilyzer and Arellano replied okay.

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The district court noted Arellano's statement made in the patrol car and statements
made while the implied consent was being read were admissible at trial. The court also
stated that the evidence regarding Arellano's test refusal would also be admissible at trial.
Defense counsel stated that he wanted to renew his motion to not allow the Intoxilyzer
refusal, but this was done before the jury was sworn in and impaneled. Defense counsel
did not object during the trial when the evidence of Arellano's test refusal was admitted
or when his statements to Barnes were admitted.

A six-person jury convicted Arellano of driving under the influence of alcohol or
drugs, refusal of the PBT, and one count of improper turn. The court sentenced Arellano
and he filed a timely notice of appeal.

Did the Trial Court Err in Allowing the State to Introduce Evidence of Arellano's Refusal
to Take a Breath Test in His DUI Case?

Standard of Review

Arellano does not specify which standard of review he believes applies to his
claims on appeal, which makes it difficult to clearly understand his argument. He begins
the argument section of his brief by saying that "[t]he issue presented on appeal is
whether the district court should have granted the defendant's motion to exclude or make
inadmissible evidence of the defendant's refusal of chemical testing pursuant to K.S.A.
[2014 Supp.] 8-1001(n)." Nevertheless, he does not mention the court's denial of his
motion again. Instead, he argues that Kansas' implied consent statute is unconstitutional
and violates his Fourth and Fifth Amendment rights under the United States Constitution.
Further, in his conclusion he asks this court to "prohibit the State from tendering or using
that same refusal as evidence of intoxication" and argues that K.S.A. 2014 Supp. 8-
1001(n) is unconstitutional.
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The State analyzes this argument under a motion to suppress standard.
Nevertheless, because Arellano really seems to be arguing that Kansas' implied consent
statute is at least partially unconstitutional because it violates a defendant's Fourth and
Fifth Amendment rights under the United States Constitution, this court should review
Arellano's claims regarding the statute's constitutionality de novo.

Preservation

The State argues that Arellano's claims regarding his motion to suppress are not
preserved through a specific and contemporaneous objection and may not be raised on
appeal. The State agrees that Arellano's attorney indicated that he wanted to renew his
motion not to allow the breath test refusal evidence before the jury was impaneled and
sworn in. Nevertheless, the State claims that Arellano did not object during trial when the
evidence of his breath test refusal was admitted.

Despite the State's claims, we will assume that Arellano preserved this issue for
our consideration. For example, when the State moved to admit its exhibits into evidence,
Arellano objected to the exhibit that indicated that he refused the breath test. The
objection was specific and contemporaneous to the State's presentation of its exhibits into
evidence.

Turning to Arellano's main argument, we note he asserts that this court should
determine that the State's use of his refusal to take a breath test under K.S.A. 2014 Supp.
8-1001(n) is a violation of his Fourth and Fifth Amendment rights under the United
States Constitution. Cases from both the United States Supreme Court and the Kansas
Supreme Court have settled this issue, and his argument that Kansas' implied consent
statute, found in K.S.A. 2016 Supp. 8-1001, is partially unconstitutional because it
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violates a defendant's Fourth and Fifth Amendment rights under the United States
Constitution is unconvincing.

The admission of evidence of a refusal to take a breath test does not violate
Arellano's Fourth Amendment rights under the United States Constitution.

The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights protect citizens from unreasonable searches and seizures. State
v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). All warrantless searches are per se
unreasonable subject to a few specific exceptions. State v. Estrada-Vital, 302 Kan. 549,
555-56, 356 P.3d 1058 (2015). The exceptions to the warrant requirement 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.'" State v. Sanchez-Loredo, 294
Kan. 50, 55, 272 P.3d 34 (2012) (quoting State v. Fitzgerald, 286 Kan. 1124, 1127, 192
P.3d 171 [2008]).

Subjecting a person to a breath-alcohol test is a search for Fourth Amendment
purposes. State v. Ryce, 303 Kan. 899, 910, 368 P.3d 342 (2016) (Ryce I) ("Regardless of
implied consent laws, individuals have an expectation of privacy in bodily substances and
fluids, and a breath test remains a search under the Fourth Amendment."), aff'd on reh'g
306 Kan. 682, 396 P.3d 711 (2017) (Ryce II); State v. Edgar, 296 Kan. 513, 526, 294
P.3d 251 (2013). Importantly, Arellano never performed a breath test so there was no
warrantless search. Instead, Arellano's argument centers around the idea that by using
evidence of his refusal at trial, he is being punished for exercising his Fourth Amendment
right to refuse to consent to a warrantless search.

He compares his situation to the "chilling effect" the United States Supreme Court
addressed in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138
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(1968). There, the defendant challenged a provision in the Federal Kidnapping Act which
provided that if the defendant pled guilty under the Act, he could not face the death
penalty, but if he exercised his right to plead not guilty, the jury could impose the death
penalty. Because this provision created an "increased hazard" for individuals who choose
to continue their case through trial, it created a "chilling effect." The United States
Supreme Court held that this effect was unnecessary and, therefore, excessive compared
to the goals of the Act. The Court held that Congress may not "impose a penalty in a
manner that needlessly penalizes the assertion of a constitutional right." 390 U.S. at 582-
83.

Arellano argues that the informed consent statute has a similar chilling effect as
the statute in Jackson because refusing the test results is another form of punishment.
Nevertheless, the purpose of the statutes is different and thus so are the effects. Kansas'
informed consent statute does not have the same punishment effect as the death penalty
provision in Jackson. The effect of the Jackson statute was that individuals were deterred
from asserting their Fifth Amendment right to not plead guilty and from exercising their
Sixth Amendment right to demand a jury trial. 390 U.S. at 582. Although by including
this provision in the Act, Congress sought to mitigate the severity of defendants'
punishments by imposing a more selective death penalty procedure, the chilling effect the
provision had on the exercise of constitutional rights was "unnecessary and therefore
excessive." 390 U.S. at 582. Instead, the Court said: "The goal of limiting the death
penalty to cases in which a jury recommends it . . . can be achieved without penalizing
those defendants who plead not guilty and demand jury trial." 390 U.S. at 582.

Kansas' informed consent statute, though, has not been held to unnecessarily and
excessively chill a defendant's ability or willingness to exercise his or her rights. Its
purpose is "to protect the health and safety of Kansas citizens by reducing the incidences
of drinking and driving, alcohol-related crashes, injuries, and fatalities." State v. Mertz,
258 Kan. 745, 757-58, 907 P.2d 847 (1995). Further, breath tests are tools that law
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enforcement may use to protect the health and safety of citizens by determining whether
an arrest should be made. State v. Chacon-Bringuez, 28 Kan. App. 2d 625, 631, 18 P.3d
970 (2001). Kansas' implied consent laws generally have been characterized as "legal
tools to enforce [states'] drunk-driving laws and to secure BAC evidence without
undertaking warrantless nonconsensual blood draws." Missouri v. McNeely, 569 U.S.
141, 160-61, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Most states, then, permit the
prosecution to use a motorist's refusal to take a breath test as evidence against him or her
in a subsequent trial. 569 U.S. at 161.

Evidence of a breath-test refusal does not implicate the Fifth Amendment privilege
against self-incrimination.

Arellano argues that Kansas' implied consent law, which allows an individual's
breath- or blood-test refusal to be admissible as evidence at his or her DUI trial, violates
his Fifth Amendment privilege against self-incrimination. Nevertheless, breath tests do
not implicate the Fifth Amendment.

The Fifth Amendment privilege against self-incrimination applies only to
communications or testimony. State v. Haze, 218 Kan. 60, Syl. ¶ 1, 542 P.2d 720 (1975).
The United States Supreme Court has long held that a blood-alcohol test is neither
communication nor testimony. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16
L. Ed. 2d 908 (1966). Therefore, the results of blood and breath tests do not implicate the
Fifth Amendment privilege against self-incrimination, and cases from the United States
Supreme Court and Kansas courts have confirmed this principle.

In Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), the
Court held that admitting evidence of a defendant's refusal to submit to a blood-alcohol
test does not infringe on his or her Fifth Amendment right against self-incrimination or
the Due Process Clause of the Fourteenth Amendment. The Court stated that the
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admission into evidence of a defendant's refusal to submit to a blood-alcohol test does not
offend the Fifth Amendment right against self-incrimination. 459 U.S. at 554. A refusal
to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act
coerced by the officer, and thus is not protected by the privilege against self-
incrimination. 459 U.S. at 564. The offer of taking the test is clearly legitimate and
becomes no less legitimate when the State offers a second option of refusing the test, with
the attendant penalties for making that choice. 459 U.S. at 563.

The Court further stated it would not be fundamentally unfair in violation
of due process to use a respondent's refusal to take the blood-alcohol test as
evidence of guilt, even though the police failed to warn him or her that the refusal
could be used against him or her at trial. Such a failure to warn was not the sort of
implicit promise to forego use of evidence that would unfairly trick respondent if
the evidence were later offered against him at trial." 459 U.S. at 565-66.

The United States Supreme Court extended this reasoning when it held that the
defendant's remarks regarding his refusal to take a breath test were admissible and
explained that the privilege against self-incrimination does not protect a suspect from
being compelled by the State to produce real or physical evidence. Rather, the privilege
"'protects an accused only from being compelled to testify against himself, or otherwise
provide the State with evidence of a testimonial or communicative nature.' [Citation
omitted.]" Pennsylvania v. Muniz, 496 U.S. 582, 589, 110 S. Ct. 2638, 110 L. Ed. 2d 528
(1990).

Kansas courts have also held that the admission of evidence of a refusal to take a
blood or breath test is not a Fifth Amendment violation. In State v. Compton, 233 Kan.
690, 694, 664 P.2d 1370 (1983), our Supreme Court held that admission of test refusal
evidence does not offend an individual's Fifth Amendment rights.

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"The taking or the refusal to take the test is an option provided by the legislature.
Both the results of the test, if taken, or the refusal to take it, if declined, are admissible in
evidence, and the admission of such evidence does not offend the Fifth Amendment
privilege against self-incrimination or the right to due process." Compton, 233 Kan. at
694.

Additionally, this court has rejected the argument that breath test refusals are
communicative statements deserving Fifth Amendment protections. State v. Wahweotten,
36 Kan. App. 2d 568, Syl. ¶ 4, 143 P.3d 58 (2006); State v. Leroy, 15 Kan. App. 2d 68,
Syl. ¶ 3, 803 P.2d 577 (1990). In doing so, this court confirmed that the results or refusal
of a breath test do not invoke a defendant's Fifth Amendment privilege against self-
incrimination.

Arellano compares his refusal to other rights that a defendant may invoke before
or during trial. He first equates his situation with a Doyle violation, which occurs when
the State attempts to use evidence of an accused's post-Miranda silence at trial. Doyle v.
Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Edwards, 264
Kan. 177, 195, 955 P.2d 1276 (1988) (Explaining that a Doyle violation is when the State
attempts to introduce "evidence that the defendant did not avail himself or herself of the
first opportunity to clear his or her name . . . but instead invoked his or her constitutional
right to remain silent."). This is not a comparable analogy, though. A Doyle violation
occurs after an individual is told he or she has those particular rights. In this case, not
only are Arellano's Fifth Amendment rights not implicated, but he was fully aware that
evidence of his refusal carried evidentiary consequences.

The doctrine of unconstitutional conditions does not apply.

Arellano argues that the doctrine of unconstitutional conditions applies, as he was
"forced to [choose] between the assertion of his Constitutional rights and a potentially
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incriminating test which would have invaded his body or bodily fluids." This was not the
case here, and the doctrine of unconstitutional conditions does not apply.

The doctrine of unconstitutional conditions occurs when an individual must give
up a constitutional right to obtain a different constitutional right. Wahweotten, 36 Kan.
App. 2d at 578-79.

Here, Arellano seems to argue that he was forced to forgo his Fifth Amendment
right against self-incrimination when he chose to exercise his Fourth Amendment right to
refuse a search. Nevertheless, as discussed earlier, refusal to submit to a breath test is not
a communicative statement and thus is not protected by the Fifth Amendment. See
Schmerber, 384 U.S. at 765. Because his Fifth Amendment privilege is not at issue here,
he was not faced with the decision to choose between his Fifth Amendment privilege
against self-incrimination and his Fourth Amendment rights when asked to take a breath
test. Therefore, the doctrine of unconstitutional conditions does not apply here.

The implied consent law Arellano challenges has been previously upheld, and
evidence of a refusal to take a breath test brought under its provisions is admissible at
trial.

Arellano seems to request that this court find that the provision in Kansas' implied
consent law allowing evidence of an individual's refusal of a breath test to be admissible
at trial is unconstitutional. Kansas' implied consent law provides that any person who
operates a vehicle in Kansas is deemed to have consented to alcohol testing. A penalty
section of the statute provides that a person's refusal to submit to such testing is
admissible at trial for the underlying DUI.

The parts of Kansas' implied consent statute relevant to Arellano's claim are as
follows:
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"(a) 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 article, 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. The testing deemed consented to herein shall include all
quantitative and qualitative tests for alcohol and drugs. A person who is dead or
unconscious shall be deemed not to have withdrawn the person's consent to such test or
tests, which shall be administered in the manner provided by this section.
. . . .
"(n) The person's refusal shall be admissible in evidence against the person at any
trial on a charge arising out of the alleged operation or attempted operation of a vehicle
while under the influence of alcohol or drugs, or both. The person's refusal shall be
admissible in evidence against the person at any trial on a charge arising out of the
alleged violation of K.S.A. 2014 Supp. 8-1025, and amendments thereto." K.S.A. 2014
Supp. 8-1001 (a) and (n).

Arellano argues that our Supreme Court cases of Ryce I, 303 Kan. 899, and State
v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece I), aff'd on reh'g 306 Kan. 679, 396
P.3d 709 (2017) (Nece II), support his contention that this court should determine that
evidence of his refusal of a breath test should be inadmissible at trial. Nevertheless,
neither of these cases supports his claim.

In Ryce I, the court held that K.S.A. 2014 Supp. 8-1025, which imposed criminal
penalties upon an individual who refused to submit to any test that is deemed consented
to, is facially unconstitutional because it criminalizes an individual's right to withdraw
consent to a warrantless search. Using a due process analysis, the court agreed that the
State has a compelling interest in preventing drunk driving, but the court held that K.S.A.
2014 Supp. 8-1025 was not narrowly tailored to serve those compelling interests. 303
Kan. at 963. Although the court clearly specified that drivers have privacy interests
regardless of implied consent laws, as well as the ability to withdraw consent, it also
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acknowledged the validity of implied consent laws and that every state has a statutory
scheme codifying implied consent driving laws. 303 Kan. at 910-11.

In Nece I, our Supreme Court reflected on its holding in Ryce I and held that
breath tests obtained with consent, but the consent was given following an inaccurate
written and oral advisory informing the defendant that he or she may be criminally
charged with a separate crime of refusal of a blood or breath test, are involuntarily
obtained and, thus, inadmissible. 303 Kan. at 888-89. After Nece I, therefore, breath tests
obtained following a warning from law enforcement that his or her refusal could result in
further criminal charges are inadmissible at trial. The holding in Nece I is not applicable
to Arellano's case either. Although Arellano was given inaccurate advisories informing
him that he may be criminally charged with a separate crime of refusal, he still refused to
participate in a blood or breath test, meaning there is no involuntarily obtained test result
at issue.

Further, Kansas courts and the United States Supreme Court have upheld laws
allowing for refusal evidence to be admitted at trial, as well as implied consent laws in
general.

In Compton, 233 Kan. at 694, our Supreme Court upheld a statute providing that a
person's refusal to submit to a breath or blood test is admissible evidence at trial. In doing
so, it said that "[b]oth the results of the test, if taken, or the refusal to take it, if declined,
are admissible in evidence, and the admission of such does not offend the Fifth
Amendment privilege against self-incrimination or the right to due process."

Recently, the United States Supreme Court has seemingly expressed its approval
of implied consent laws, stating that they are good tools to prevent unsafe driving and
that refusals may be used as evidence. In McNeely, 569 U.S. 141, the Court said that
implied consent laws are "legal tools to enforce [states'] drunk-driving laws and to secure
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BAC evidence without undertaking warrantless nonconsensual blood draws." 569 U.S. at
160-61. Additionally, the Court noted that most states use evidence of a refusal at trial:

"States have a broad range of legal tools to enforce their drunk-driving laws and to secure
BAC [blood-alcohol concentration] evidence without undertaking warrantless
nonconsensual blood draws. For example, all 50 states have adopted implied consent
laws that require motorists, as a condition of operating a motor vehicle within the State,
to consent to BAC testing if they are arrested or otherwise detained on suspicion of a
drunk-driving offense. [Citation omitted.] Such laws impose significant consequences
when a motorist withdraws consent; typically the motorist's driver's license is
immediately suspended or revoked, and most States allow the motorist's refusal to take a
BAC test to be used as evidence against him in a subsequent criminal prosecution." 569
U.S. at 160-61.

In Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560
(2016), the United States Supreme Court held that the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving, but not warrantless blood
tests. 136 S. Ct. at 2184-85. Importantly for Arellano's case, it also confirmed that
McNeely and Neville "referred approvingly to the general concept of implied consent
laws that impose civil penalties and evidentiary consequences on motorists who refuse to
comply." 136 S. Ct. at 2185.

"Our prior opinions have referred approvingly to the general concept of implied-consent
laws that impose civil penalties and evidentiary consequences on motorists who refuse to
comply. See, e.g., McNeely [citation omitted]; Neville [citation omitted]. Petitioners do
not question the constitutionality of those laws, and nothing we say here should be read to
cast doubt on them." 136 S. Ct. at 2185.

We note that our Supreme Court granted motions for rehearings in both Ryce I and
Nece I in light of the Birchfield decision. The court essentially reaffirmed its holding in
each case. Ryce II, 306 Kan. at 699-700; Nece II, 306 Kan. at 681. The court did, though,
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"modify Ryce I to reflect the validity of conducting a breath test in a DUI case where an
arrest is made under the warrant exception of a search incident to lawful arrest." Ryce II,
306 Kan. at 693. It upheld the holding that K.S.A. 2016 Supp. 8-1025 is facially
unconstitutional.

With cases from the United States Supreme Court and our Supreme Court guiding
this court's decision, Arellano's contention that evidence of his refusal should not be
admissible as evidence against him in his DUI case is unconvincing. Nevertheless,
Arellano asks this court to "revisit this issue by moving to the next logical step." He
argues that a defendant's refusal to take a test should be protected and inadmissible at
trial.

Nevertheless, this court is bound to follow our Supreme Court precedent absent
some indication that our Supreme Court is departing from its previous position. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Further, "[t]he United States
Supreme Court's interpretation of the United States Constitution is controlling upon and
must be followed by state courts." State v. Lawson, 296 Kan. 1084, Syl. ¶ 1, 297 P.3d
1164 (2013). Arellano has not demonstrated that controlling law has overruled any of the
previous holdings, nor does he argue that we have any indication that our Supreme Court
is departing from prior holdings. Because this court is bound by previous decisions and
the law is settled in this area, Arellano's request that this court hold otherwise is rejected.

The good-faith exception

The State contends that if this court determines that Arellano's Fourth Amendment
rights were infringed upon, the good-faith exception to the exclusionary rule applies. The
exclusionary rule is a judicially created remedy that exists to prevent the use of
unconstitutionally obtained evidence in a criminal proceeding against the subject of the
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illegal search. The rule applies when it would act as a deterrent. State v. Pettay, 299 Kan.
763, 769, 326 P.3d 1039 (2014).

The United States Supreme Court established the good-faith exception to the
exclusionary rule in United States v. Leon, 468 U.S. 897, 920-22, 104 S. Ct. 3405, 82 L.
Ed. 2d 677 (1984). The Leon good-faith exception applies when an affidavit does not
supply a substantial basis for the determination of probable cause but does provide some
indicia of probable cause sufficient to render official reliance reasonable. State v. Daniel,
291 Kan. 490, 498-500, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011); see
also Davis v. United States, 564 U.S. 229, 238-39, 131 S. Ct. 2419, 180 L. Ed. 2d 285
(2011). In Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364
(1987), the United Sates Supreme Court extended the good-faith exception to the
exclusionary rule to situations when a law enforcement officer reasonably and in good
faith relies on a statute later found to be unconstitutional.

Our Supreme Court adopted the exception to the exclusionary rule from Krull in
Daniel, 291 Kan. at 496. The Daniel court specified that the exception is limited to
situations in which the officer's reliance on the statute be objectively reasonable. 291
Kan. at 500. Whether an officer's reliance on a statute was objectively reasonable
depends on whether the officer should have known the statute was unconstitutional and
whether the Legislature "wholly abandoned its responsibility to enact constitutional laws"
when it passed the statute in question. 291 Kan. at 500.

In State v. Kraemer, 52 Kan. App. 2d 686, 371 P.3d 954 (2016), rev. denied 306
Kan. 954 (2017), the defendant was arrested for DUI and a breath test was obtained under
the same statutory scheme as the one in this case. In applying the good-faith exception,
this court noted:

18

"We find nothing here to suggest either that the Kansas Legislature wholly abandoned its
responsibility to enact constitutional laws or that the statute was so clearly
unconstitutional at the time of Kraemer's arrest that a reasonably well-trained officer
would have known that it was unconstitutional; thus, Officer Constantino would not have
known the written and oral implied consent advisory informing Kraemer that he might be
charged with a separate criminal offense for refusal of requested testing was coercive. As
such, suppressing the evidence in this case would do nothing to deter police from
violating a defendant's Fourth Amendment rights because the officer acted in good faith
in following the statute in effect at the time. [Citation omitted.] The district court
correctly applied the good-faith exception to the exclusionary rule." 52 Kan. App. 2d at
699.

There are similarities between these cases and Arellano's case. Officer Barnes
provided the same implied consent warnings as in Kraemer, and because Ryce I and Nece
I were decided later, Barnes acted in good faith while informing Arellano of the laws at
that time. Nevertheless, this case is premised around that fact that law enforcement
obtained consent to the breath test after providing the implied consent warning that was
later determined to be inaccurate and unconstitutional. Although Arellano was provided
the same implied consent warning as Kraemer, Arellano did not rely on that warning
when consenting to a breath test. Instead, Arellano still withdrew his consent. Therefore,
there was no breath test performed and no breath test results to suppress. As a result,
Arellano's argument fails.

Harmless error

Assuming for argument sake that the trial court erred in denying Arellano's motion
to suppress evidence, the State argues harmless error. The erroneous admission of
evidence is subject to review for harmless error under K.S.A. 2016 Supp. 60-261 and
K.S.A. 60-2105. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013).

19

When an appellate court reviews a constitutional challenge to the admission of
evidence, it applies the federal constitutional rule under which an error is not harmless
unless the appellate court is willing to declare beyond a reasonable doubt the error will
not or did not affect substantial rights and the result of the trial. The party benefitting
from the error must persuade the court there is no reasonable probability that the error
affected the trial's outcome in light of the entire record for it to be deemed harmless. State
v. Santos-Vega, 299 Kan. 11, 23-24, 321 P.3d 1 (2014).

Without evidence of his refusal, there was still plenty of evidence against
Arellano. When Barnes pulled him over, he did not pull over all the way to the side of the
road; instead, he stopped his vehicle a couple of feet away from the curb. Barnes
observed that Arellano's eyes were bloodshot, watery, and glazed over, and he had to lean
against the police vehicle for stability. Arellano fumbled with his wallet and smelled of
alcohol. Arellano failed two field sobriety tests, presenting six of eight impairment
indicators on the first test and three of four impairment indicators on the second. He made
verbal statements to Barnes throughout the night—he told Barnes that he had "been out"
and "had a couple," and at the police station later he told Barnes, "I'll be over, I'm not
going to lie to you."

Arellano uses City of Overland Park v. Lull, 51 Kan. App. 2d 588, 349 P.3d 1278
(2015), to bolster his argument, but the two cases are not analogous. In Lull, the district
court denied the defendant's motion to suppress refusal evidence after the officer failed to
give proper notice of Kansas' implied consent law when he omitted a paragraph
explaining the consequences for a repeat DUI offender. The paragraph applied to the
defendant, as he informed the officer that it was his second DUI. The Lull court held that
because the defendant did not receive the information necessary for him to make a fully
informed decision, the evidence was not voluntarily obtained and, therefore,
inadmissible, and the error by the district court was not harmless. 51 Kan. App. 2d at
594-95.
20


Nevertheless, although the court in Lull determined that the admission of refusal
evidence was not harmless, this case is distinguishable from Lull. Arellano claims that
this case also "involved an improper and confusing notice" as well. This is not the case.
Barnes complied with the implied consent law provisions, reading the then-accurate
statements in full multiple times. Arellano was not in a position like the defendant in Lull
in which he was not fully informed of the penalties and consequences outlined in the
implied consent statute. Therefore, Arellano's argument that Lull supports his position is
unconvincing.

Instead, the evidence shows that even if there was error, there is no real probability
that it affected the outcome of the trial.

Affirmed.