State v. Braun

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NOT DESIGNATED FOR PUBLICATION

No. 113,762

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT L. BRAUN,
Appellant.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 15, 2017.
Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and POWELL, JJ.

PER CURIAM: Robert L. Braun was convicted of driving under the influence of
alcohol (DUI) for having a blood alcohol content over .08, in violation of K.S.A. 2012
Supp. 8-1567(a)(2). But in light of two recent Kansas Supreme Court decisions, his
motion to suppress the blood test result should have been granted. Accordingly, there was
insufficient evidence to convict him of a violation of K.S.A. 2012 Supp. 8-1567(a)(2).
But based on the stipulated facts presented, there was sufficient evidence from which the
district court could find Braun guilty of the alternative charge of operating a vehicle
while under the influence of alcohol to a degree that rendered him incapable of safely
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driving a vehicle, in violation of K.S.A. 2012 Supp. 8-1567(a)(3). Accordingly, the error
was harmless. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Braun was arrested in April 2013 for DUI. Braun was charged with one count of
DUI for operating a vehicle while his blood alcohol content was at least .08 grams of
alcohol per 100 milliliters or greater, in violation of K.S.A. 2012 Supp. 8-1567(a)(2). In
the alternative, Braun was charged with DUI for operating a vehicle while under the
influence of alcohol to a degree that rendered him incapable of safely driving a vehicle, in
violation of K.S.A. 2012 Supp. 8-1567(a)(3).

Braun filed a motion to suppress the breath test result alleging that Braun's
constitutional rights were violated when officers obtained a blood sample from him
without a warrant because Braun's consent was not voluntary nor was it free from
coercion. The district court denied Braun's motion.

Subsequently, the parties agreed to a stipulation of facts and submitted it to the
court for a bench trial. The stipulation read as follows:

"1. On April 6, 2013 at 9:28pm, while on a traffic stop . . . in Ellis County, Kansas,
Trooper Summers observed a white Ford pick-up pull up behind his patrol vehicle.
The truck was driven by Robert Lee Braun, age 66.

"2. Trooper Summers walked to the rear of the vehicle and motioned with his arms for
Braun to proceed around his vehicle, just as the other traffic had been doing.

"3. Braun remained approximately 30 feet behind Trooper Summers vehicle and Trooper
Summers walked towards Braun's vehicle.

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"4. Braun's window was down approximately 3 inches. Trooper Summers asked Braun to
put down the window.

"5. Braun attempted to put down the window and was placing both of the back windows
down and seemed to be having trouble with locating the driver's side window control.

"6. During his attempts to get the window down, Braun was mumbling something
Trooper Summers could not understand. Braun raised his hands in confusion to
operating the windows.

"7. Trooper Summers asked Braun to open his door to communicate with him. As Braun
opened the door, Trooper Summers immediately detected [an] odor of an alcoholic
beverage coming from the vehicle.

"8. Trooper Summers had Braun turn off his vehicle. Trooper Summers advised the
driver he could smell the odor of an alcoholic beverage coming from the vehicle and
asked the driver how much he had been drinking.

"9. Braun grabbed an open bottle of water and started drinking it and said 'nothing, just
water'.

"10. Trooper Summers asked Braun to exit his vehicle and to walk to the front of the
patrol vehicle so that field sobriety tests could be performed. As Braun exited his
vehicle, Trooper Summers noticed the driver was grabbing his door and swaying
back and forth.

"11. While Trooper Summers was explaining the test, Braun took several deep breaths
and made several moans. Braun was also rubbing his head, raising his arms,
crossing his arms, and even stumbled backwards.

"12. During the field sobriety test Braun asked Trooper Summers several times why
Trooper Summers had pulled Braun over.

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"13. Trooper Summers told Braun that he had never pulled him over and that Braun had
stopped behind the patrol vehicle. Braun even asked 'if you didn't pull me over, then
who did?'

"14. Trooper Summers again told Braun that he had stopped on his own behind the patrol
vehicle. Braun also stated, 'I should not be driving, officer. I'm sorry.'

"15. Braun stated that he had also been drinking but he was trying to chase down the lady
in the truck ahead of him to save her because she had really been drinking.

"16. Braun attempted to do field sobriety, however, he stated he had a bad hip and he
wasn't able to do the test. When Trooper Summers advised Braun to turn around and
to place his hands on his head, Braun stated in a concerned voice, 'Oh my God, are
you gonna give me a DUI?'

"17. Trooper Summers placed handcuffs on Braun and placed him in the front seat of the
patrol vehicle. While Braun was in the patrol vehicle[,] Trooper Summers could still
smell a strong odor of alcoholic beverage coming from the breath of Braun. While
Braun was in the patrol vehicle, Braun stated several times 'this ain't good, I can't
believe this, this can't happen, I'm sorry.'

"18. Trooper Summers gave Braun a copy of the Implied Consent form at 9:53 hours and
read it to Braun.

"19. Trooper Summers asked Braun to give a blood test and Braun stated 'yea, sure,
whatever.' Braun was transported to Quest Diagnostics where Trooper Summers
observed Lisa Chappell take . . . blood [] from the left arm of Braun. The blood was
drawn from Braun at 10[:]50pm . . . . The blood was sent to the KBI for testing.

"20. KBI lab results indicated Braun had a blood alcohol level of 0.24 grams per 100
milliliters of blood, drawn 1 hour and 20 minutes after driving."

The district court found Braun guilty of driving under the influence of alcohol, in
violation of K.S.A. 2012 Supp. 8-1567(a)(2). Braun timely appeals.
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ANALYSIS

The district court erred in denying Braun’s motion to suppress.

On appeal, Braun argues that the district court erred by not excluding the results of
the blood test from evidence. Specifically, Braun argues that the Kansas implied consent
laws are unconstitutional.

Determining the constitutionality of a statute is a question of law subject to
unlimited review. State v. Ryce, 303 Kan. 899, 905-06, 368 P.3d 242 (2016). In this case
that review is easy because in the time since Braun filed his appeal, the Kansas Supreme
Court decided that K.S.A. 2014 Supp. 8-1025 is facially unconstitutional. 303 Kan. at
903. In Ryce, the court held:

"Applying the Due Process Clause of the Fourteenth Amendment to the United States
Constitution, we recognize Kansas has compelling interests in combatting drunk driving
and prosecuting DUI offenders. Nevertheless, by criminally punishing a driver's
withdrawal of consent, 8-1025 infringes on fundamental rights arising under the Fourth
Amendment. K.S.A. 2014 Supp. 8-1025, therefore, must withstand strict scrutiny by
being narrowly tailored to serve the State's interests. We hold that K.S.A. 2014 Supp. 8-
1025 does not meet this test and is facially unconstitutional." 303 Kan. at 902-03.

This holding was reaffirmed on rehearing in State v. Ryce, 306 Kan. 682, 700, 396 P.3d
711 (2017).

Moreover, in State v. Nece, 303 Kan. 888, 889, 367 P.3d 1260 (2016), the Kansas
Supreme Court held that a driver's consent to testing was "unduly coerced because,
contrary to the informed consent advisory, the State could not have constitutionally
imposed criminal penalties if [the driver] had refused to submit to breath-alcohol testing.
Thus, because [the] consent was premised on the inaccurate information in the advisory,
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[the] consent was involuntary." The Kansas Supreme Court affirmed the district court's
order suppressing Nece's test results. 303 Kan. at 897. This holding was reaffirmed on
rehearing in State v. Nece, 306 Kan. 679, 681, 396 P.3d 709 (2017).

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent,
absent some indication the Supreme Court is departing from its previous position. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Because Braun's consent was
obtained after reading an advisory that incorrectly informed him he could face criminal
penalties for refusing to undergo further testing the results of the blood test must be
suppressed. See Nece, 303 Kan. at 897.

The error was harmless.

The State argues that even if the district court erred in not suppressing the blood
test results, the error was harmless because Braun was charged in the alternative with
being under the influence of alcohol to a degree that rendered him incapable of safely
operating a vehicle under K.S.A. 2012 Supp. 8-1567(a)(3). The State argues that there
was sufficient evidence in the stipulated facts to find Braun guilty under this alternative
count.

The State is correct that the erroneous admission of evidence is subject to review
for harmless error under K.S.A. 2016 Supp. 60-261. See State v. Longstaff, 296 Kan. 884,
895, 299 P.3d 268 (2013). If the error implicates a constitutional right, which it does here,
the effect of that error must be assessed under the constitutional harmless error standard:
whether the party benefiting from the error proves beyond a reasonable doubt that the
error would not or did not affect the outcome of the trial in light of the entire record. State
v. Santos-Vega, 299 Kan. 11, 23-24, 321 P.3d 1 (2014). Such is the case here.


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There was sufficient evidence for the district court to find Braun guilty beyond a
reasonable doubt under K.S.A. 2012 Supp. 8-1567(a)(3) based on the evidence presented
in the stipulated facts. Evidence was presented that Braun stopped behind Summers'
patrol vehicle for no apparent reason and did not move around it as directed by Summers.
When Summers asked Braun to put down his window Braun was unable to comply.
When Braun opened the door to his vehicle Summers immediately smelled alcohol
coming from the vehicle. Braun was having trouble standing and walking. Braun
appeared confused and was unable to remember how he came in contact with Summers.
Braun told Summers, "I should not be driving, officer. I'm sorry." When Braun was
placed in the patrol vehicle Summers smelled alcohol coming from Braun's breath. Under
these facts, there is no reasonable doubt that the ultimate outcome of the case was not
impacted by the error. See State v. Smith, 46 Kan. App. 2d 939, 943-44, 268 P.3d 1206
(2011) (Arnold-Burger, J., concurring) (stating that even if breath test results were
suppressed, the remaining evidence was so overwhelming that the defendant could still
have been convicted of DUI).

Accordingly, the district court's error in admitting the blood test results was
ultimately harmless.

Affirmed.