State v. Elder

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NOT DESIGNATED FOR PUBLICATION

No. 113,932


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KYLE ELDER,
Appellant.


MEMORANDUM OPINION

Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion filed March 9, 2018.
Affirmed.

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

Curtis Brown, special prosecutor, of Hays, Kristafer R. Ailslieger, deputy solicitor general, and
Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MCANANY and ATCHESON, JJ.

PER CURIAM: Defendant Kyle Elder challenges the Ellis County District Court's
ruling denying his motion to suppress the results of a breathalyzer test used to support his
conviction for driving under the influence in violation of K.S.A. 2012 Supp. 8-1567.
Elder contends his consent to the testing was impermissibly coerced because of the
criminal penalties imposed in K.S.A. 2012 Supp. 8-1025, a statute the Kansas Supreme
Court has since held to be unconstitutional. The State counters with dual arguments: (1)
The district court's ruling may be affirmed because the arresting officer acted in good-
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faith reliance on K.S.A. 2012 Supp. 8-1025, thereby overriding the exclusionary rule
applied to bar evidence government agents obtain in violation of the Fourth Amendment
to the United States Constitution; and (2) the ruling may be affirmed because the breath
test was administered as a search incident to Elder's arrest for driving under the influence.

The district court heard the motion to suppress and the trial of the DUI charge
simultaneously based on stipulated facts. The stipulation established that an officer
arrested Elder on suspicion of DUI after the officer pulled him over driving the wrong
way down a one-way street. Elder subsequently agreed to submit to breath-alcohol testing
after hearing and reading the implied consent advisories. The parties further agreed that
the officer had probable cause to make the arrest; that the officer did not attempt to obtain
a warrant prior to requesting the breath-alcohol test; and that Elder's blood-alcohol
content exceeded the legal limit. The district court denied the motion to suppress, found
Elder guilty, and duly sentenced him. Elder appealed. The appeal has been held awaiting
rulings in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-86, 195 L. Ed.
2d 560 (2016); State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g
306 Kan. 682, 396 P.3d 711 (2017) (Ryce II); 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), and
supplemental briefing from the parties on those cases. The Kansas Supreme Court held
K.S.A. 2016 Supp. 8-1025 to be unconstitutional in Ryce II, 306 Kan. at 700, and held
consent given on threat of the criminal prosecution under K.S.A. 2016 Supp. 8-1025 to be
invalid in Nece II, 306 Kan. at 681. These conclusions render Elder's consent in this case
legally tainted.

In its present factual and legal posture, this case presents precisely the same
controlling issues that this court recently addressed in State v. Perkins, 55 Kan. App. 2d
___, Syl. ¶¶ 5-6 (No. 112,449, filed March 2, 2018). We find the reasoning and result in
Perkins persuasive. We, therefore, affirm the district court's denial of Elder's motion to
suppress because the breathalyzer test was a constitutionally proper warrantless search
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incident to Elder's arrest and, alternatively, because the arresting officer relied in good
faith on K.S.A. 2012 Supp. 8-1025, before it was declared unconstitutional, to inform
Elder about the legal consequences of declining to take the test. In turn, we affirm Elder's
conviction and sentence.

Affirmed.

* * *

ATCHESON, J., concurring: For the reasons set out in my concurring opinion in
State v. Perkins, 55 Kan. App. 2d ___, slip op. at 14-19 (No. 112,449, filed March 2,
2018) (Atcheson, J., concurring), I would affirm the Ellis County District Court's ruling
on the motion to suppress based solely on the good-faith exception to the exclusionary
rule applicable to violations of the Fourth Amendment to the United States Constitution.
That alone is sufficient to uphold the district court in all respects.