State v. McClellan

1

NOT DESIGNATED FOR PUBLICATION

No. 115,164

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LAWRENCE J. MCCLELLAN,
Appellant.


MEMORANDUM OPINION

Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed March 3, 2017.
Affirmed in part, vacated in part, and remanded with directions.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Kevin M. Hill, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., GREEN, J., and BURGESS, S.J.

Per Curiam: Following a bench trial, Lawrence J. McClellan was convicted of
one count of possession of methamphetamine; one count of driving under the influence of
alcohol; one count of possession of drug paraphernalia; and one count of possession of an
open container. On direct appeal, McClellan contends the following: (1) that the trial
court erred in denying his motion to suppress all physical evidence resulting from the
traffic stop; (2) that he did not provide valid consent to have his blood drawn; (3) that the
State presented insufficient evidence to support his conviction for driving under the
influence of alcohol; and (4) that the trial court erred at sentencing when it considered his
prior Nebraska conviction for driving under the influence. Of these five issues, we find
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only the fourth to be meritorious. We therefore affirm in part, vacate the sentence in part,
and remand for resentencing with directions to disregard the Nebraska conviction for
driving under the influence for sentencing purposes.

On September 14, 2014, a Brown County patrol deputy stopped McClellan's car
near Hiawatha, Kansas. The deputy stopped McClellan because he could not see a license
plate or temporary tag on McClellan's car. After stopping McClellan's car, the deputy
could see the edge of a piece of paper affixed to the back window of McClellan's car.
Still, the deputy was unable to read the lettering on the paper because the car's spoiler
obstructed his view. The deputy was unable to read and identify the paper as a temporary
tag until he walked past the car to talk to McClellan.

As the deputy approached the car, McClellan stuck his head out of the window.
The deputy explained to McClellan why he had been stopped. The deputy told McClellan
that he needed to raise his temporary tag so that it was more visible. He told McClellan
that he could do so at a later time.

While the deputy spoke with McClellan, he could smell the faint odor of alcohol
coming from the car. The deputy also noticed that McClellan's eyes were bloodshot and
watery and that he was having difficulty speaking. The deputy asked McClellan how
much he had had to drink, and McClellan stated that he had not had a lot to drink that
night. The deputy took McClellan's driver's license to his patrol car to run a check on it.
McClellan's license was valid and did not show any warrants. The deputy decided that he
was not going to cite McClellan for any violation related to the temporary tag. At that
time, a sergeant with the Brown County Sheriff's Department arrived to help the deputy.

The deputy returned to McClellan's car and asked him to step out. McClellan told
the deputy that he was disabled and could not walk well without the use of a cane
because he had a prosthesis. The deputy, however, did not see a cane in McClellan's car,
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and he later learned that McClellan did not actually have a prosthetic leg. McClellan got
out of the car by steadying himself on the door and the pillar behind the door. When
McClellan stood up, he was staggering and having difficulty standing.

Once McClellan was out of his car, the deputy asked if he could pat him down for
weapons. McClellan had his hands in his pockets. He took his hands out of his pockets
and threw a clear plastic container that resembled a Tic-Tac container into his car. The
sergeant also witnessed McClellan throw a small object into his car. The deputy patted
him down and did not find any weapons. The deputy told McClellan to walk to his patrol
car. As McClellan walked, the deputy saw that he was walking with "heavy feet." Also,
McClellan was not walking straight and nearly fell down because he lost his balance. The
deputy had McClellan sit on the bumper of his patrol car.

The deputy then administered a Horizontal Gaze Nystagmus test. The deputy
explained how the test worked; McClellan had difficulty complying with the instructions.
The deputy attempted to administer the "walk and turn" test, but McClellan told him that
he was unable to perform the test. McClellan also told the deputy that he could not count
backwards. The deputy did not administer the "one-leg stand" test either because he
believed that McClellan had a prosthetic leg.

The deputy took McClellan to his patrol car. The deputy told McClellan that he
was not under arrest at that time. Still, the deputy gave McClellan his Miranda rights.
Inside the patrol car, the deputy noticed a stronger odor of alcohol coming from
McClellan. The deputy asked McClellan how much he had had to drink that night.
McClellan told the deputy that he had had three small drinks. McClellan acknowledged
that the drinks were mixed drinks. Meanwhile, the sergeant was questioning two female
occupants in McClellan's car. The sergeant asked the occupants if there were any open
containers of alcohol in the car. One of the occupants handed the sergeant a large bottle
of Rich and Rare Whisky and a white and green plastic cup with fluid in it. The passenger
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in the back seat of the car retrieved both items from the back passenger-side floor. The
sergeant placed the bottle of whisky on the roof of McClellan's car.

From his patrol car, the deputy saw the bottle of whisky on the roof and asked
McClellan to whom it belonged. McClellan told the deputy that it was his. The deputy
asked McClellan if he had been drinking while driving. Initially, McClellan told the
deputy that he had not been drinking while driving. McClellan eventually admitted that
he had been drinking while he was driving. The deputy asked McClellan to take a
preliminary breath test (PBT). The test showed a result of 0.112. The deputy left his
patrol car to speak with the sergeant about the contents of McClellan's car. Then the
deputy placed McClellan under arrest.

The sergeant noticed a small clear plastic container on the floor of McClellan's car.
The sergeant believed that the container was the item he had seen McClellan throw into
the car before the deputy patted him down. The sergeant recovered the small plastic
container and gave it to the deputy. The container appeared to have white crystal residue
in it. McClellan admitted to the deputy that the container appeared to have crystal meth in
it. McClellan also admitted to using methamphetamine. McClellan told the deputy that he
had snorted meth earlier that evening in Nebraska but denied that the container belonged
to him.

The deputy provided McClellan with a copy of the implied consent notices. The
deputy then read the notices to McClellan. After reading the notices, the deputy asked
McClellan if he would submit to a blood draw to test for alcohol in his system. Initially,
McClellan refused to consent to a blood test. The deputy told McClellan that he would
apply for a search warrant to draw the blood. McClellan acknowledged that he was likely
going to lose his driving privileges for 1 year whether he consented to the blood test or
not because he was a repeat offender. The deputy told McClellan that if he was granted
the search warrant, he would take McClellan's blood and then McClellan would be
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charged with driving under the influence and refusal. McClellan then consented to the
blood test.

McClellan's blood was drawn at Hiawatha Community Hospital within 3 hours of
the stop. The blood sample was delivered to the Kansas Bureau of Investigation (KBI) for
testing for the presence of ethyl alcohol. The blood was tested using the Headspace Gas
Chromatography method, which is "generally recognized in Forensic Toxicology as
reliable for the identification of ethyl alcohol in blood, and [has] been accepted by
Kansas courts in previous cases." The results of the KBI's test showed McClellan's blood
contained 0.08 grams of ethyl alcohol per 100 milliliters of blood. The report also
contained an "Uncertainty of Measurement," which stated that the uncertainty was 0.084
± 0.006 at a confidence level of 99.7%. The KBI was also able to confirm that the crystal-
like substance found in the small plastic container in McClellan's car was
methamphetamine.

McClellan was charged with one count of possession of methamphetamine, one
count of driving under the influence, one count of possession of drug paraphernalia, and
one count of transporting an open container of alcohol.

Before trial, McClellan moved to suppress evidence. He requested that the trial
court suppress all of the physical evidence obtained as a result of his traffic stop,
including the results of the Horizontal Gaze Nystagmus Test, the preliminary breath test,
the blood test, and the search of his car. After holding an evidentiary hearing on
McClellan's motion to suppress, the trial court denied the motion.

The matter proceeded to a bench trial. At the beginning of the trial, the parties
stipulated that McClellan would be granted a continuing objection to the admissibility of
evidence based on the arguments presented at the hearing on his prior motion to suppress.
McClellan did not, however, object to the foundation of the evidence. On June 15, 2015,
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the trial judge entered a memorandum decision finding McClellan guilty of one count of
driving under the influence, one count of possession of methamphetamine, one count of
possession of drug paraphernalia, and one count of transporting an open container of
alcohol.

At sentencing, McClellan was assigned a criminal history of I. McClellan had
previously been convicted of driving under the influence in Beatrice County, Nebraska,
in 2009. McClellan was sentenced to a total underlying prison term of 11 months. In
place of prison, the sentencing court imposed 12 months of probation. Ultimately, the
trial court ordered McClellan to serve 5 days in the Brown County jail and then be
released to the supervision of community corrections for a period of 12 months.

Did the Trial Court Err in Denying McClellan's Motion to Suppress All Physical
Evidence Resulting From His Traffic Stop?

Appellate courts apply a bifurcated standard of review when reviewing a trial
court's decision on a motion to suppress. State v. Patterson, 304 Kan. 272, 274, 371 P.3d
893 (2016). First, the court determines whether the trial court's findings are supported by
substantial competent evidence. 304 Kan. at 274. The court will not reweigh the evidence
or credibility of witnesses and will not generally resolve conflicting evidence. 304 Kan.
at 274. If the material facts relating to the motion to suppress are not disputed, the
question of whether to suppress the evidence is a question of law over which the
appellate court has unlimited review. 304 Kan. at 274.

McClellan first argues that the trial court erred in denying his motion to suppress
because the deputy lacked reasonable suspicion to extend the traffic stop after he decided
not to cite McClellan for his failure to display a visible tag on his car. McClellan next
argues that the trial court erred in denying his motion to suppress because the State failed
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to show that the search that resulted in the recovery of the methamphetamine was legal.
We will consider these arguments in the order presented.

Did the Deputy Have Reasonable Suspicion to Extend the Stop?

The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights protect against unreasonable searches and seizures. State v.
Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014). A seizure occurs when a law
enforcement officer stops a vehicle on a public roadway by a show of authority and
restrains an individual's liberty. 300 Kan. at 637. The seizure of an individual by a law
enforcement officer is not constitutionally reasonable unless the officer knows specific
and articulable facts that create reasonable suspicion that the individual is committing,
has committed, or is about to commit a crime. 300 Kan. at 637.

After a legal traffic stop is initiated, a law enforcement officer may request a
driver's license and registration, conduct a computer check on the driver's documentation,
and issue a citation. State v. Spagnola, 295 Kan. 1098, 1104, 289 P.3d 68 (2012). If the
length of the stop is prolonged, the officer must have objectively reasonable and
articulable suspicion that the individual is committing, has committed, or is about to
commit a crime, or the individual must consent to further questioning. 295 Kan. at 1105.

"'"[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.]'" State v.Pollman, 286 Kan. 881,
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890, 190 P.3d 234 (2008) (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)]).

McClellan argues that the deputy who stopped him did not have reasonable
suspicion that he was driving under the influence and, therefore, was not justified in
extending the traffic stop after the deputy decided not to issue McClellan a citation for
the temporary tag issue.

First, McClellan argues that "[a]n important factor . . . is the relationship between
the cause of the initial stop and driving under the influence." McClellan offers the
Pollman case in support of his argument. In Pollman, our Supreme Court found that an
officer was initially justified in investigating what motivated the defendant's refusal to
follow lawful instructions, including whether the defendant's conduct was motivated by
intoxication. 286 Kan. at 895. During the investigation, the defendant, who the officer
had seen driving a motorcycle before their encounter, admitted that he had consumed "a
few" beers. 286 Kan. at 895. The officer could also smell the odor of alcohol coming
from the defendant. The court found that "[a]s circumstances coalesced, a reasonable
suspicion of DUI existed." 286 Kan. at 895. The Pollman court held that the following
factors led to the officer's reasonable suspicion that the defendant had been driving under
the influence: (1) the defendant obstructed the officer's duties; (2) the defendant admitted
to drinking alcohol; and (3) the defendant smelled of alcohol. 286 Kan. at 894-96.

Thus, McClellan is correct that the relationship between the reason for the initial
stop and the investigation of driving under the influence can be an important factor
considered in the totality of the circumstances. It is not, however, a condition precedent
to an officer conducting a valid investigation of an individual suspected of driving under
the influence. See Pasek v. Kansas Dept. of Revenue, No. 91,933, 2004 WL 2694279, at
*3-4 (Kan. App. 2004) (unpublished opinion) (court expressly rejected argument that
officers do not have reasonable suspicion to conduct DUI investigation based on obvious
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odor of alcohol if engaged in a traffic stop for violations other than "the typical DUI
situation"); see also City of Norton v. Stewart, 31 Kan. App. 2d 645, 70 P.3d 707 (2003)
(stop for inoperable headlight properly extended to investigate DUI after officer smelled
alcohol coming from car).

McClellan extends his argument, asserting that "[w]hen a stop and investigation
for driving under the influence is not justified by detention for other illegal activity, the
analysis changes." McClellan maintains that his situation is similar to that of the
defendant in City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 54 P.3d 532
(2002). The Davenport court focused on whether the initial traffic stop of the defendant
was proper. See 30 Kan. App. 2d at 1098 ("The case presents a single question: Was the
stop of [the defendant] by the arresting officer proper under K.S.A. 22-2402?").
Nevertheless, we are considering a question that is wholly distinct from the single
question presented in Davenport. Here, we must determine whether the extension of the
valid traffic stop was supported by reasonable and articulable suspicion that McClellan
had been driving under the influence.

In Davenport, the defendant went to the Hutchinson Law Enforcement Center
(Center) after his daughter was arrested. An officer at the Center could smell the odor of
alcohol on the defendant's breath. The officer told the defendant not to drive when he left
the Center. The defendant told the officer that he was walking home, which the officer
thought was strange because the defendant said he lived in Wichita. The officer watched
the defendant leave the Center and eventually get into a pickup truck and drive away. The
officer called another patrol officer who was in the area and told him that the defendant
was possibly driving under the influence. The patrol officer then stopped the defendant.
The court affirmed the trial court's decision to grant the defendant's motion to suppress
the stop, finding that

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"[e]ven with the lesser requirements of the reasonable suspicion standard, the
trial court properly determined that there were no articulable facts which create[d] a
suspicion that [the defendant] was driving while under the influence or was involved in
any other criminal activity. . . . [T]he only facts suggestive of unusual conduct are that
[the defendant] had alcohol on his breath and that he stated he was walking. Neither of
these facts by themselves or together create[d] a reasonable suspicion that justified . . .
stopping [the defendant] in the absence of some indication that he was intoxicated and
too impaired to drive." Davenport, 30 Kan. App. 2d at 1101.

Here, however, there is no dispute that the initial stop of McClellan was valid. The
deputy could not see a license plate or temporary tag on McClellan's car when the stop
occurred, which gave him reasonable suspicion that a crime was being committed under
K.S.A. 2015 Supp. 8-133. This statute mandates that "[e]very license plate shall at all
times be securely fastened to the vehicle . . . in a place and position to be clearly visible
. . . ." McClellan argues, however, that "the quick resolution of the purpose for the initial
stop ended the lawful detention, requiring the subsequent [driving under the influence]
investigation be based solely on [the deputy's] interactions with . . . McClellan during that
brief period." Nevertheless, it is important to examine what was known by the deputy
when he interacted with McClellan.

McClellan concedes that when the deputy extended the stop, he had smelled a
faint odor of alcohol coming from McClellan; McClellan's eyes were bloodshot and
watery; McClellan slurred his words; McClellan fumbled with his driver's license; and
McClellan admitted to drinking alcohol, though he told the deputy that he had not had a
lot to drink. McClellan argues that the facts known to the deputy only tended to show that
McClellan had consumed alcohol, not that he was operating his car under the influence of
alcohol. McClellan cites City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015),
to support his assertion that "there is a notable distinction between suspecting a person
has alcohol in their system and suspecting a person of committing the crime of driving
under the influence."
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In Molitor, the defendant was pulled over after he failed to use his turn signal.
When the defendant pulled his car to the side of the road, he came to a stop with his tire
halfway up the curb.

"[The officer] approached the vehicle and observed that [the defendant's] eyes
were watery and bloodshot and that a strong odor of alcohol was emanating from the
vehicle. [The officer] asked [the defendant] if he had been drinking, and [the defendant]
responded that he had consumed two or three beers. [The defendant's] speech was not
slurred; he had no difficulty producing his driver's license, insurance information, and
vehicle registration; and he did not lose his balance while exiting his vehicle or walking
thereafter. The officer continued to smell a strong odor of alcohol as [the defendant]
exited the vehicle." 301 Kan. at 253.

The officer then administered the Horizontal Gaze Nystagmus test, the walk-and-turn
test, and the one-leg-stand test. The defendant passed two of the three field sobriety tests,
yet the officer still requested that the defendant submit to a PBT. Our Supreme Court held
that the officer did not have reasonable suspicion that the defendant was driving under the
influence when the officer requested the PBT because

"[a]fter stopping the vehicle, [the defendant] spoke without slurring his words, produced
his identifying documents without difficulty, exited and proceeded from his vehicle
without losing his balance, and, most importantly, passed the two admissible SFSTs. In
other words, under the totality of circumstances, one could not reasonably suspect that
[the defendant's] balance was impaired by alcohol to the point of being legally under the
influence of alcohol." 301 Kan. at 268.

Molitor is distinguishable from our situation for a multitude of reasons. First, the
officer in Molitor was required by statute to have reasonable suspicion that the defendant
was operating a vehicle under the influence of alcohol before he could request the
defendant take a PBT. Molitor, 301 Kan. at 257 (citing K.S.A. 2010 Supp. 8-1012[b]).
Here, we are not determining whether the deputy had reasonable suspicion to request a
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PBT. We are merely considering whether the deputy had reasonable suspicion to extend
the stop and investigate whether McClellan had been driving under the influence.

Second, the court in Molitor had ample evidence supporting the proposition that
the defendant was not intoxicated. Most importantly, the defendant passed two field
sobriety tests; he did not slur his speech; he did not have difficulty producing his
documentation; and he did not lose his balance when he got out of his vehicle or any time
afterwards. Here, the deputy had smelled the odor of alcohol coming from McClellan; he
heard McClellan slurring his words; he witnessed McClellan fumble with his
identification; he saw that McClellan's eyes were bloodshot and watery; he saw
McClellan lose his balance when he got out of his car; McClellan told the deputy he
could not perform the field sobriety tests; and McClellan admitted to consuming alcohol.
The only mitigating circumstance was that the officer did not see McClellan drive
erratically before he stopped him.

A law enforcement officer may properly request that a driver get out of his or her
vehicle when the vehicle has been stopped for a traffic violation. See Pennsylvania v.
Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). Although the deputy
could see that McClellan did have a temporary tag in the rear window when he
approached McClellan's car, his reasonable suspicion that a violation of 8-133 had
occurred was not dispelled simply by seeing the tag. See K.S.A. 2015 Supp. 8-133
("Every license plate shall at all times be securely fastened to the vehicle . . . in a place
and position to be clearly visible . . . ."); see also United States v. Lyons, 510 F.3d 1225,
1234 n.3 (10th Cir. 2007) (police officer had reasonable suspicion that traffic violation
had occurred when officer could not read the expiration date on license plate because it
was dirty).

Here, the deputy clearly testified that the temporary tag, though valid, was
obscured by the spoiler on McClellan's car. Thus, the deputy's reasonable suspicion was
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not dispelled when he saw that the tag was valid. Moreover, even if the deputy's
reasonable suspicion that a crime had been committed was dispelled by seeing the
temporary tag, it was proper for him to confront McClellan and explain the reason for
why he was being stopped. See State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 332, 211 P.3d
836 (2009) (citing United States v. McSwain, 29 F.3d 558, 561-62 [1994]) (officer who
had dispelled initial reasonable suspicion justifying stop could still explain reason for
stop and then let driver leave without further questioning). Either way, the deputy was in
a lawful position and had not unduly extended the duration of the stop when he smelled
the odor of alcohol coming from the car, along with the other factors indicating that
McClellan may have been operating his car under the influence of alcohol.

Thus, the totality of the circumstances show that the deputy had an objective
justification to extend the stop and investigate whether McClellan had been driving his
car under the influence of alcohol. The deputy smelled alcohol coming from McClellan;
McClellan's eyes were bloodshot and watery; McClellan had difficulty speaking and
producing documentation; and McClellan admitted to having consumed alcohol that
night. Furthermore, McClellan had difficulty maintaining his balance when he got out of
his car and refused to perform some sobriety tests. In considering whether these
circumstances provided the deputy with reasonable suspicion, we must give deference to
the deputy's training and ability to distinguish between lawful and suspicious conduct.
Therefore, we determine that the trial court did not err in denying McClellan's motion to
suppress all physical evidence relating to the traffic stop because the deputy had
reasonable suspicion to extend the stop and investigate whether McClellan had been
driving under the influence of alcohol.

Was the Search of McClellan's Car Legal?

McClellan next argues that the sergeant's recovery of physical evidence from
McCelllen's car while the deputy was interviewing him constituted an illegal search.
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McClellan specifically argues that the search was illegal because the passengers did not
have authority to consent to the search, the search occurred before his arrest, and the
sergeant did not have probable cause to search the car. McClellan also argues that the
State did not carry its burden to establish that an exception to the warrant requirement
existed because "the State presented no evidence or legal argument to establish the
legality" of the search.

The United States Constitution and the Kansas Constitution both protect citizens
against unreasonable searches and seizures. State v. Stevenson, 299 Kan. 53, 58, 321 P.3d
754 (2014). Unless an exception to the warrant requirement exists, a warrantless search
of a citizen is per se unreasonable under the Fourth Amendment to the United States
Constitution. Stevenson, 299 Kan. at 58. The exceptions to the warrant requirement
include the following: (1) consent; (2) search incident to a lawful arrest; (3) stop and
frisk; (4) probable cause plus exigent circumstances; (5) the emergency doctrine; (6)
inventory searches; (7) plain view or feel; and (8) administrative searches of closely
regulated businesses. State v. Sanchez-Laredo, 294 Kan. 50, 55, 272 P.3d 34 (2012).

The probable cause plus exigent circumstances exception includes what is
commonly referred to as the automobile exception. Stevenson, 299 Kan. at 58. If a law
enforcement officer has probable cause to believe that a vehicle contains contraband or
evidence of a crime, the Fourth Amendment to the United States Constitution does not
require a warrant to search the vehicle if it is readily mobile. Stevenson, 299 Kan. at 58.
Probable cause to search a vehicle is "'"established if the totality of the circumstances
indicates there is a "fair probability" that the vehicle contains contraband or evidence [of
a crime]."' [Citations omitted.]" Stevenson, 299 Kan. at 64.

Here, the sergeant asked the passengers if there were any open containers of
alcohol in McClellan's car. The passengers then produced one bottle of Rich & Rare
Whisky and one plastic cup that contained alcohol. Both containers were unsealed when
15

the sergeant recovered them from McClellan's car. K.S.A. 2015 Supp. 8-1599 makes it
illegal to transport open containers of alcohol. The totality of the circumstances indicated
that there was a fair probability that the car contained more open containers of alcohol
because three occupants were in the car. Therefore, the sergeant had probable cause to
search McClellan's car for additional open containers of alcohol.

Moreover, the sergeant's later recovery of the plastic container that contained
methamphetamine was likely supported by the plain view exception. The plain view
exception to the warrant requirement will apply when (1) an officer was in a lawful
position to view the recovered object; (2) the incriminating character of the item
recovered was immediately apparent; and (3) the officer had a lawful right to access the
recovered item. Horton v. California, 496 U.S. 128, 137, 110 S. Ct. 2301, 110 L. Ed. 2d
112 (1990); see State v. Fisher, 283 Kan. 272, 292-99, 154 P.3d 455 (2007).

Here, both the deputy and the sergeant saw McClellan empty his pockets and
throw a small plastic object into his car before the deputy patted him down. The sergeant
looked into McClellan's car and saw the small container on the floor. The sergeant
noticed that the container had the number "420" written on it multiple times. The sergeant
had learned through his training and experience that "420" was a symbol related to the
consumption of marijuana. The sergeant also could see that the plastic container held a
white or clear substance that he identified as narcotics.

Thus, based on the fact that the sergeant had probable cause to search the car for
open containers of alcohol, he was in a lawful position to view the plastic container on
the floorboard of McClellan's car. Also, the sergeant immediately saw the incriminating
nature of the contents of the plastic container. Finally, the sergeant had a lawful right to
access the plastic container because he had probable cause to search McClellan's car for
additional open containers of alcohol.

16

In conclusion, McClellan's assertion that the State did not present any evidence to
establish the legality of the search is incorrect. Based on the deputy's testimony at the
suppression hearing and the sergeant's report, which was an exhibit at the suppression
hearing, it becomes clear that the sergeant had probable cause to search McClellan's car
when the passengers produced two open containers of alcohol. When the sergeant had
probable cause to search McClellan's car for more open containers of alcohol, he saw the
small plastic container that McClellan had thrown into the car. The sergeant identified the
contents of the plastic container as narcotics and recovered the container from the driver's
side floorboard. The container was in plain view and its recovery was supported by the
plain view exception to the warrant requirement and the automobile exception to the
warrant requirement.

Alternatively, McClellan asserts that all the evidence obtained from the search—
the alcohol bottle, methamphetamine container, breath test results, blood test results—
should be suppressed as fruit of the poisonous tree. See State v. Deffenbaugh, 216 Kan.
593, 598-99, 533 P.2d 1328 (1975) (citing Wong Sun v. United States, 371 U.S. 471, 83
S. Ct. 407, 9 L. Ed. 2d 441 [1963]). As was established earlier, however, the sergeant's
search of McClellan's car and later recovery of the plastic container holding
methamphetamine was not an illegal search. Thus, McClellan's argument fails.

Did the Use of the Implied Consent Advisories Render the Results of McClellan's Blood
Test Inadmissible?

Before we address McClellan's argument, it must be noted that the State questions
whether McClellan properly preserved this issue for appeal. The State argues that
McClellan objected only to the admissibility of the State's exhibits based on the argument
that the stop and later search of his car was illegal. The State asserts that McClellan failed
to raise any foundation or consent issues relative to the implied consent advisory at the
trial court level.
17

Generally, issues not raised before the trial court cannot be raised for the first time
on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Exceptions to the
general rule include the following: (1) The new issue involves a question of law arising
out of proved or admitted facts and is finally determinative of the case; (2) the
consideration of the issue is necessary to serve the ends of justice or to prevent the denial
of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal
despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

McClellan concedes that he did not present an argument to the trial court that his
consent was involuntary. McClellan argues, however, that the first two exceptions to the
rule are applicable to his appeal. Specifically, McClellan argues that Nece, 303 Kan. 888,
decision makes it so that his issue involves a question of law arising out of admitted facts
that would be finally determinative in this appeal. He also argues that consideration of his
argument is necessary to avoid the denial of his fundamental right to not be subjected to
unreasonable searches and seizures under the Fourth Amendment to the United States
Constitution.

McClellan is correct that the issue of whether his consent was coerced is a
question of law. This is especially true after our Supreme Court's recent decisions relating
to the implied consent advisories addressed later. Also, it is essentially advanced on
admitted or proven facts. It is undisputed that McClellan provided the deputy with his
consent to submit to a blood test only after the deputy read McClellan the implied
consent advisories. Specifically, McClellan provided his consent after the deputy told
him that he could be charged with the separate crime of refusal to submit to the blood
test. Further, McClellan's conviction for driving under the influence was based on the
results of his blood test. So, the issue would likely be finally determinative of his case, at
least as it relates to the driving under the influence conviction. Moreover, McClellan is
certainly correct that the implied consent advisories implicate his fundamental right to
18

reasonable searches and seizures under the Fourth Amendment to the United States
Constitution. See Nece, 303 Kan. at 891. For these reasons, and in the interest of justice,
we will address this issue.

McClellan argues that his consent to the blood test was coerced, and therefore
involuntary, because it was given only after the deputy read the implied consent
advisories to him. McClellan asserts that our Supreme Court's decision in State v. Nece,
303 Kan. 888, 367 P.3d 1260 (2016), held that the implied consent advisories render
consent to a blood test involuntary and therefore invalid. Thus, McClellan argues that the
results of his blood test must be suppressed.

In Nece, our Supreme Court reconciled the implied consent advisories with State
v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016), in which it held that K.S.A. 2014 Supp. 8-
1025, which provided for the separate crime of refusing to submit to a test to determine
the presence of alcohol or drugs, was unconstitutional. The court in Nece stated:

"In State v. Ryce . . . we discussed K.S.A. 2014 Supp. 8-1025, which provides for
the separate crime of refusal to submit that was referenced by law enforcement's advisory
warning, and held that 8-1025 is facially unconstitutional. We must now decide whether
our holding in Ryce has any effect on the advisory notice law enforcement is required to
provide DUI suspects. In light of Ryce, we conclude that Nece's consent was unduly
coerced because, contrary to the informed consent advisory, the State could not have
constitutionally imposed criminal penalties if Nece had refused to submit to breath-
alcohol testing. Thus, because Nece's consent was premised on the inaccurate information
in the advisory, Nece's consent was involuntary." 303 Kan. at 889.

Thus, the facts of the present appeal lead us to conclude that, like the defendant in
Nece, McClellan's consent was based on the inaccurate information in the advisory that
he could be charged with the separate crime of refusal to submit, which was declared
19

unconstitutional in Ryce. Therefore, the State cannot rely on McClellan's consent to the
warrantless blood test because his consent was involuntary.

The State argues, however, that the deputy's reliance on the implied consent
advisories does not warrant suppression of the results of the blood test. Instead, the State
argues that the good-faith exception to the exclusionary rule applies to the deputy's
reliance on the implied consent advisories. The State argues that the deputy "had no
reason to question the judgment of the legislature in requiring the implied consent
advisory. [The deputy's] reliance on the statute was objectively reasonable: the statute
was not clearly unconstitutional . . . ." On the other hand, McClellan argues that the good-
faith exception should not apply because it "does not apply to unconstitutionally coerced
searches, and the statute was clearly unconstitutional so that any officer should have
realized that any consent obtained after the advisory was unconstitutional."

As was discussed earlier, warrantless searches are per se unreasonable unless they
fall within an exception to the warrant requirement. See Stevenson, 299 Kan. at 58.
Neither the United States Constitution nor the Kansas Constitution contain an express
prohibition of the use of evidence obtained in violation of their protections. State v.
Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010). The exclusionary rule is a judicially
fashioned remedy which prevents the State from using evidence obtained in violation of
the Fourth Amendment to the United States Constitution against the subject of the illegal
search in a criminal proceeding. State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039
(2014). The exclusionary rule is not a personal constitutional right. 299 Kan. at 769.
Instead, the rule aims to protect Fourth Amendment rights through deterrence. Daniel,
291 Kan. at 496. The United States Supreme Court has explained that the exclusionary
rule applies only when deterrence will be achieved:

"As with any remedial device, application of the exclusionary rule properly has
been restricted to those situations in which its remedial purpose is effectively advanced.
20

Thus, in various circumstances, the Court has examined whether the rule's deterrent
effect will be achieved, and has weighed the likelihood of such deterrence against the
costs of withholding reliable information from the truth-seeking process." Illinois v.
Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

In Krull, the Court announced an exception to the exclusionary rule for when a
law enforcement officer reasonably and in good faith relies on a statute that is later found
to be unconstitutional. The Court noted that the exclusionary rule's goal of deterrence
would not be served by excluding such evidence:

"The application of the exclusionary rule to suppress evidence obtained by an officer
acting in objectively reasonable reliance on a statute would have as little deterrent effect
on the officer's actions as would the exclusion of evidence when an officer acts in
objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional,
an officer cannot be expected to question the judgment of the legislature that passed the
law. If the statute is subsequently declared unconstitutional, excluding evidence obtained
pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment
violations by an officer who has simply fulfilled his responsibility to enforce the statute
as written." Krull, 480 U.S. at 349-50.

In Daniel, our own Supreme Court expressly adopted the exception to the
exclusionary rule set out in Krull. See Daniel, 291 Kan. at 500. Our Supreme Court noted
that the exception is not unlimited but rather is constrained by the requirement that the
officer's reliance on the statute be objectively reasonable. 291 Kan. at 500 (citing Krull,
480 U.S. at 355). The court noted that whether an officer's reliance on a statute was
objectively reasonable depends on whether the officer should have known that 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
(quoting Krull, 480 U.S. at 355).

21

Thus, we must first assess whether the deputy should have reasonably known that
the implied consent advisories were unconstitutional. Then, we must determine whether
the legislature wholly abandoned its responsibility to pass constitutional legislation
relating to the implied consent advisories. See State v. Meitler, 51 Kan. App. 2d 308, 314,
347 P.3d 670, rev. denied 302 Kan. 1017 (2015).

McClellan argues that the deputy should have recognized that threatening criminal
sanctions to obtain consent was unconstitutional. McClellan cites Birchfield v. North
Dakota, 579 U.S. __, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016); Camara v. Municipal
Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), and as authority for his
assertion. But Birchfield, the United States Supreme Court case that in large part led to
our Supreme Court's findings in Ryce, was not decided until 2016, long after the deputy
had read the implied consent advisories to McClellan. Moreover, Camara dealt with the
propriety of warrantless administrative searches, not consensual searches. See 387 U.S. at
540. Finally, McClellan argues that Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552,
185 L. Ed. 2d 696 (2013), which established that, absent exigent circumstances,
warrantless blood draws by law enforcement violate the Fourth Amendment to the United
States Constitution. McNeely dealt with an individual who refused to provide consent and
then was subjected to a warrantless blood draw. 133 S. Ct. at 1557. The United States
Supreme Court found that this violated the individual's rights under the Fourth
Amendment to the United States Constitution. 133 S. Ct. at 1557-58.

But the fact remains that when McClellan was arrested, the deputy obtained what
he thought was valid consent. In Camara, the individual did not consent to the search of
his home. See 387 U.S. at 540. In McNeely, the individual also withheld his consent to
the blood draw. See 133 S. Ct. at 1557. McClellan did provide his consent when he was
arrested. The fact that the deputy here obtained McClellan's consent, even though we now
know that the consent was involuntary, distinguishes this appeal from the authorities
22

cited. Still, we must consider whether the deputy should have known that the implied
consent advisories were unconstitutional.

To begin, the State urges us to look to State v. Kraemer, 52 Kan. App. 2d 686, 371
P.3d 954 (2016), to determine whether the deputy should have reasonably known that the
implied consent advisories were unconstitutional. In Kraemer, the court explained:

"[The officer] gave [the defendant] a written copy of the required implied consent
advisory in effect at the time, which stated—among other things—that if a person refuses
to submit to testing and other prerequisites are met, he or she 'may be charged with a
separate crime . . . which carries criminal penalties equal to or greater than those for the
crime of driving under the influence.' K.S.A. 2015 Supp. 8-1001(k)(4). After giving him
a written copy, [the officer] then read the implied consent advisory to [the defendant] out
loud. After reading the advisory, [the officer] then asked [the defendant] to submit to a
breath-alcohol test. [The defendant] consented to submit to the test as requested." 52 Kan.
App. 2d at 695.

The Kraemer court held that the trial court properly applied the good-faith
exception to the exclusionary rule:

"The criminal penalty statute was struck down by the Kansas Supreme Court as
unconstitutional only after Kraemer's arrest. At the time [the officer] arrested [the
defendant], K.S.A. 2015 Supp. 8-1001(k), a facially valid statute, required that the officer
advise [the defendant] of the criminal consequences of refusing to submit to the test
before asking [the defendant] to do so. At that time, the Kansas Supreme Court had not
yet found the statute unconstitutional. Although the Kansas Supreme Court ultimately
struck down the criminal penalty statute, similar statutes in other states have been deemed
constitutional by those states. [Citations omitted.]" 52 Kan. App. 2d at 698.

Furthermore, in State v. Rincon, No. 113,741, 2016 WL 3856670, at *5 (Kan.
App. 2016) (unpublished opinion), petition for rev. filed August 12, 2016, this court held
23

that an officer who gave the implied consent advisory had "'simply fulfill[ed] his
responsibility to enforce the statute as written.' [Citation omitted.]" Similar to Kraemer,
the defendant in Rincon provided his consent to a breath test after the officer read him the
implied consent advisories. Echoing the sentiment of the United States Supreme Court in
Krull, the Rincon court made clear that penalizing the officer for reading the implied
consent advisories would not serve the purpose of the exclusionary rule and deter future
violations of the Fourth Amendment to the United States Constitution. 2016 WL
3856670, at *5.

The overarching facts from Kraemer and Rincon are essentially identical to the
facts of our present appeal, except that the defendants in Kraemer and Rincon were asked
to consent to a breath test and McClellan was asked to consent to a blood test. This
distinction, however, is of no consequence. K.S.A. 2015 Supp. 8-1567(a)(2) provides that
an individual may be charged with driving under the influence if "the alcohol
concentration in the person's blood or breath . . . is .08 or more." (Emphasis added.) Both
McClellan and the defendants in Kraemer and Rincon were charged with driving under
the influence under K.S.A. 2015 Supp. 8-1567(a)(2). See Kramer, 52 Kan. App. 2d at
690; Rincon, 2016 WL 3856670, at *1.

Here, McClellan was pulled over in September 2014. The implied consent
advisories were not struck down until February 2016. Moreover, when McClellan was
arrested, our courts had consistently upheld the validity of consent obtained after giving
the implied consent advisories. See, e.g., Nece, 303 Kan. at 892-93; State v. Johnson, 297
Kan. 210, 223, 301 P.3d 287 (2013). The State urges us to find that the deputy was
"simply fulfill[ing] his responsibility to enforce the statute as written." See Krull, 480
U.S. at 350. After examination, the facts of this appeal tend to point us in such a
direction. For these reasons, there is no indication that the deputy, relying on the implied
consent law in September 2014, should have reasonably known that the law was
unconstitutional.
24

Next, we must consider whether the legislature wholly abandoned its
responsibility to pass constitutional legislation relating to the implied consent advisories.
But first, it must be understood that McClellan advances no argument relating to whether
the Kansas Legislature abandoned its responsibility in passing the implied consent law.
An issue that is not briefed by an appellant will be deemed waived or abandoned. State v.
Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

A brief discussion will show that even if McClellan had presented an argument
that the Kansas Legislature wholly abandoned its responsibility to pass constitutional
legislation, his argument would have failed. This court will generally presume that the
legislature acts with adequate knowledge of its statutory subject matter, including prior
and existing law, and judicial decisions interpreting the same. State v. Kershaw, 302 Kan.
772, 782, 359 P.3d 52 (2015). This court will further presume that statutes passed are
constitutional. State v. Petersen-Beard, 304 Kan. 192, 194, 377 P.3d 1127 (2016).

In Meitler, this court noted that "the Kansas implied consent law was originally
passed by the legislature in 1955[,] . . . [and] [s]ince that time, although it has undergone
numerous amendments, officers have become accustomed to the statutory scheme which
has essentially remained the same over the years." 51 Kan. App. 2d at 316. The Meitler
court further acknowledged that "in the 28 years since Krull was issued, there does not
appear to be any reported cases wherein a federal or state appellate court declined to
apply the good-faith exception because a legislative body wholly abandoned its
responsibility to enact constitutional laws. [Citations omitted.]" 51 Kan. App. 2d at 317.
Indeed, as the United States Supreme Court stated in Krull, "the exclusionary rule [is]
aimed at deterring police misconduct[; citation omitted,] . . . legislators, like judicial
officers, are not the focus of the rule." 480 U.S. at 350.

Again, Kansas courts presume that the legislature passes constitutional legislation.
Thus, where the implied consent law had existed in one form or another for about 60
25

years before it was invalidated, and where a finding that a legislature has wholly
abandoned its responsibility to pass constitutional legislation is exceptionally rare, it
cannot be said that the Kansas Legislature wholly abandoned its responsibility to do the
same here.

It is undisputed that McClellan's consent to the blood test was coerced in light of
the holdings from Ryce and Nece. Instead, the question before us was whether the
deputy's actions could be vindicated by the good-faith exception to the exclusionary rule.
There is no indication that the deputy, as a well-trained officer, should have known that
the implied consent law was unconstitutional. Nor is there any indication that the Kansas
Legislature wholly abandoned its responsibility to pass constitutional legislation.
Moreover, penalizing the deputy here would not serve the purpose of the exclusionary
rule—to deter future violations of the Fourth Amendment to the United States
Constitution.

McClellan argues, however, that we should render an officer's good-faith reliance
on a statute irrelevant, because allowing the good-faith exception to apply to situations
involving consent would fly in the face of established consent jurisprudence. McClellan
points out that for consent to be valid in Kansas, "(1)[t]here must be clear and positive
testimony that consent was unequivocal, specific, and freely given and (2) the consent
must have been given without duress or coercion, express or implied." State v. Thompson,
284 Kan. 763, 776, 166 P.3d 1015 (2007). McClellan is correct. Nevertheless, the good-
faith exception is narrowly tailored and only used when the purpose of the exclusionary
rule, deterrence of future Fourth Amendment violations, would not be served. Thus,
applying the good-faith exception to the deputy's reliance on the implied consent law is
not an affront on consent—it is simply a way of saying that excluding evidence obtained
as a result of the implied consent advisories would not deter future violations of the
Fourth Amendment to the United States Constitution. As a result, we determine that the
26

good faith exception to the exclusionary rule is applicable to this case. See State v.
Schmidt, 53 Kan. App. 2d 225, Syl. ¶ 2, 385 P.3d 936 (2016).

Did Sufficient Evidence Exist to Support McClellan's Conviction For Driving Under the
Influence?

When a criminal defendant challenges the sufficiency of the evidence supporting
his or her conviction, an appellate court will review all evidence in the light most
favorable to the State. An appellate court will uphold the conviction if it is convinced that
a rational factfinder could have found the defendant guilty beyond a reasonable doubt
based on the evidence presented at trial. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080
(2015). It is generally not within the authority of an appellate court to reweigh the
evidence or assess the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368
P.3d 1074 (2016). An appellate court will only reverse a guilty verdict in the exceptional
case where testimony is so incredible that no reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d
945 (1983).

K.S.A. 2015 Supp. 8-1567(a)(2), the statute under which McClellan was charged,
states that "[d]riving under the influence is operating or attempting to operate any vehicle
within this state while: . . . the alcohol concentration in the person's blood or breath, as
measured within three hours of the time of operating or attempting to operate a vehicle, is
.08 or more." To establish a violation of K.S.A. 2015 Supp. 8-1567(a)(2), the State must
prove: (1) the individual charged operated or drove or attempted to operate or drive the
vehicle; (2) while driving or attempting to drive, the individual's BAC was .08 or more,
as measured within 3 hours of operating or driving or attempting to do so; and (3) the
driving occurred on the date alleged and in the county alleged. See State v. Finch, 291
Kan. 665, Syl. ¶ 4, 244 P.3d 673 (2011).

27

McClellan bases his sufficiency argument on the KBI's blood test results.
McClellan specifically argues that "the sole evidence establishing the blood alcohol
concentration was a KBI report showing 'Uncertainty of Measurement is .084 ± 0.006'
resulting in a range of measurement from .078 to .090." The test listed 0.08 BAC as the
final result. The KBI's test results also listed that the test had a confidence level of 99.7%.
Thus, McClellan argues that the evidence is insufficient to support his conviction because
his test results may have been as low as .078 BAC, which would not support a conviction
under K.S.A. 2015 Supp. 8-1567(a)(2) which requires a BAC of .08.

McClellan begins his analysis with a useful bit of information about uncertainty of
measurement from a Washington state court of appeals decision:

"Every measurement is 'uncertain,' in that no instrument is infinitely precise or accurate.
The concept of measurement uncertainty is similar to the concept of margin of error and
expresses the idea that a true value of a measurement can never be known. Even the best
instruments yield only an estimate of the true value. Uncertainty indicates a range in
which the true value of a measurement is likely to occur." State v. King County Dist.
Court West Div., 175 Wash. App. 630, 638, 307 P.3d 765 (2013).

In Finch, our own Supreme Court acknowledged that a margin of error or
uncertainty measurement could give rise to issues in cases involving driving under the
influence:

"A defendant in a prosecution under K.S.A. 8-1567(a)(2) may raise and argue margin of
error or other questions about the reliability or accuracy of his or her blood- or breath-
alcohol concentration 'as measured,' in the same way he or she can challenge whether the
test was conducted within 2 hours of operating or attempting to operate a vehicle.
[Citation omitted.]" 291 Kan. at 673.

28

Of course, the time limitation in K.S.A. 2015 Supp. 8-1567(a)(2) is now 3 hours, and not
2 hours, but the principle remains the same.

In Ruble v. Kansas Dept. of Revenue, 26 Kan. App. 2d 1, 6, 973 P.2d 213 (1999),
this court held that "[t]he statutes [relating to revocation of a driver's license after a DUI
conviction] do not require the test result to pass the threshold alcohol limit of .08 within a
margin of error. If the legislature had intended for the margin of error to be a factor, it
could have easily included such a requirement in the statutes." In City of Hutchinson v.
Minor, No. 90,088, 2003 WL 22831740, at *2 (Kan. App. 2003) (unpublished opinion),
this court extended the same analysis to K.S.A. 8-1567(a)(2), holding that

"[s]imilar to the statute analyzed in Ruble, K.S.A. 8-1567(a)(2) does not require
the breath test result to be above the margin of error. K.S.A. 8-1567(a)(2) simply requires
that 'the alcohol concentration in the person's blood or breath, as measured within two
hours of the time of operating or attempting to operate a vehicle, is .08 or more.'"

Instead, margin of error, or in our case "Uncertainty of Measurement," is only one
factor to be considered by the factfinder and is not dispositive for the State or the
defendant. See Finch, 291 Kan. at 673 (citing State v. Miller, No. 99,460, 2009 WL
1766150, at *1 [Kan. App. 2009] [unpublished opinion]; Minor, 2003 WL 22831740, at
*2-4).

McClellan argues, though, that his case is unique in that "Kansas [c]ases have not
addressed an undisputed margin of error." He extends his argument, positing that "this is
the rare case where the uncontroverted evidence in the KBI's report establishes that the
margin of error places the test results below the legal limit and finding insufficient
evidence is appropriate." McClellan argues that State v. Pendleton, 18 Kan. App. 2d 179,
849 P.2d 143 (1993), should be our guide in making the determination that the evidence
was insufficient.
29

In Pendleton, the defendant was charged with driving under the influence under
K.S.A.. 8-1567(a)(2) (Furse 1991)after being involved in an accident. The defendant later
consented to a blood test, which showed his BAC was .19. The court found that to obtain
a conviction under 8-1567(a)(2), the State must prove that the defendant's blood had been
tested within 2 hours of the last time the defendant operated or attempted to operate his
vehicle. 18 Kan. App. 2d 179, Syl. ¶ 2. The court held that "whether the State complied
with the two-hour time limitation is a foundational question to be determined by the trial
court." 18 Kan. App. 2d 179, Syl. ¶ 3. The trial court in Pendleton had found "that the
blood test was administered 'approximately' 2 hours from the time of the accident." 18
Kan. App. 2d at 181. On appeal, the defendant argued that the State could not prove that
the blood test was administered within 2 hours of the accident. The State even admitted
that the accident may have occurred more than 2 hours before the blood test was
conducted. On appeal, the court reversed the defendant's conviction and vacated his
sentence, finding that the critical point was "the trial court's factual finding that the test
was administered approximately two hours after the accident." 18 Kan. App. 2d at 187.

Here, the trial court very clearly found that McClellan's BAC, based on the KBI's
test result, was 0.08, in violation of K.S.A. 2015 Supp. 8-1567(a)(2). Thus, unlike the
trial court in Pendleton, the trial court here did not make an approximate finding. Despite
the existence of an "uncertainty of measurement," the trial court made a clear finding that
McClellan's BAC was above the legal limit. This point distinguishes our appeal from
Pendleton. In Pendleton, the sticking point was the trial court's finding that the blood
draw had occurred "approximately" 2 hours after the defendant's accident. The Pendleton
court may very well have reached a different result had the trial court there made a
positive finding that the blood draw had occurred within 2 hours of the defendant's
accident. Furthermore, a common-sense examination of time and scientific measurements
shows us that the two are not easily compared. Time contains no uncertainty of
measurement—it is completely objective—a second is a second as a minute is a minute.
But the presence of uncertainty in scientific measurement is simply a scientific reality.
30

This uncertainty has been acknowledged and addressed by Kansas courts in
similar situations. Neither McClellan nor the State addresses Minor, a case which offers
us relevant guidance in light of the facts of McClellan's appeal. In Minor, the court dealt
with a similar argument relating to the margin of error present in the defendant's breath
test results. There, the defendant's breath test produced a result of 0.084 blood alcohol
concentration (BAC). The breathalyzer machine in Minor had an alleged margin of error
of plus or minus 0.010. The defendant argued that the result of the breath test, in light of
the margin of error, was insufficient to convict him of DUI. The defendant claimed "that
it was impossible for a rational jury to find him guilty beyond a reasonable doubt because
his actual breath test result could have been as low as 0.074." 2003 WL 22831740, at *2.
The court found that the alleged margin of error was a fact proper for the factfinder, in
that case a jury, to consider. 2003 WL 22831740, at *3. The Minor court held that
"[o]nce the City established the foundation for admissibility of the breath test result, it
was up to [the defendant] to attack the accuracy of the test result by cross-examining the
evidence and by presenting expert testimony." 2003 WL 22831740, at *3. Moreover,
when the defendant failed to attack the result, the court refused to adjust the result
downward by the margin of error. 2003 WL 22831740, at *3-4.

Here, McClellan clearly had the opportunity to attack the result of the blood test at
trial, but he failed to do so. In fact, McClellan failed to object to the admissibility or
foundation of the test results at trial. Instead, McClellan relied on his argument raised in
his motion to suppress the evidence.

McClellan argues, that "[l]ike Pendleton, this is a case where something that is
often a jury question, usually a battle of experts over the existence of a margin of error, is
purely an issue of legal sufficiency because the evidence is uncontroverted." He asserts
that "[e]vidence of a range both above and below .08 does not by definition present
sufficient evidence to allow a reasonable factfinder to conclude beyond a reasonable
doubt that [his] [BAC] was .08 or more." McClellan argues that his case is different
31

because the KBI report contains the Uncertainty of Measurement, which means its
existence is not in dispute. Thus, McClellan argues that this court should make a
distinction between disputed and undisputed margins of error.

McClellan asks us to consider State v. Baue, 258 Neb. 968, 607 N.W.2d 191
(2000), an opinion from the Supreme Court of Nebraska, in making a distinction between
disputed and undisputed margins of error. The Nebraska court held

"that where the State is able to prove alcohol content only within a specified range, the
lower point of which falls below the statutory value which affords a basis for a DUI
conviction, it has failed to meet its burden of proof of guilt beyond a reasonable doubt.
The same rationale would not apply where the State makes a prima facie showing with
chemical test results of blood or breath alcohol levels which meet or exceed the statutory
threshold for a DUI conviction and the defendant counters with evidence that the tests
utilized carry a margin of error which, when applied to the test result, could produce a
value which is less than the statutory limit." 258 Neb. at 978.

The fact remains, though, that Kansas law does not require consideration of a
chemical test's margin of error or uncertainty measurement in determining whether an
individual's BAC is equal to or greater than .08. See Minor, 2003 WL 22831740, at *3
(citing Ruble, 26 Kan. App. 2d at 6). Moreover, Kansas appellate courts will not read
something into a statute that is not readily found in its plain language. Ullery v. Othick,
304 Kan. 405, 409, 372 P.3d 1135 (2016). Regardless of what Nebraska courts have to
say on the issue, this is a hurdle that McClellan's argument cannot clear. As a result, we
will not adjust the result of the KBI's blood test downward by the uncertainty of
measurement. Instead, we determine that the uncertainty of measurement in McClellan's
blood test was a fact to be considered by the trial judge in making his finding that
McClellan violated K.S.A. 2015 Supp. 8-1567(a)(2). Thus, we determine that sufficient
evidence existed to support McClellan's conviction for driving under the influence under
K.S.A. 2015 Supp. 8-1567(a)(2).
32

Did the Trial Court Err in Considering McClellan's Prior Nebraska Conviction For
Driving Under the Influence?

McClellan argues that the trial court erred in using his prior Nebraska conviction
for DUI to enhance his sentence because the Nebraska DUI statute criminalizes a broader
range of actions than the Kansas DUI law. Thus, McClellan asserts that his sentence was
illegal.

Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over
which this court has unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415
(2016). This means that an illegal sentence issue may be raised for the first time on
appeal. State v. Dickey, 301 Kan. 1018, 1027, 350 P.3d 1054 (2015).

In determining whether a prior conviction may be used to enhance a defendant's
sentence, the trial court is constitutionally prohibited under Descamps v. United States,
570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2005), from making additional
findings of fact beyond identifying statutory elements of the prior adjudication. Dickey,
301 Kan. at 1039.

Here, the trial court did not make any additional factual findings. Instead, the trial
court relied on McClellan's driving record from the Nebraska Department of Motor
Vehicles that was part of the State's evidence. Thus, the trial court did not run afoul of
Apprendi or Descamps.

McClellan's driving record indicated that in 2009 he was convicted of driving
under the influence under Neb. Rev. Stat. § 60-6,196 (2004). K.S.A. 2015 Supp. 8-
1567(i)(3)(B) states that

33

"[f]or the purpose of determining whether a convictions is a first, second, third, fourth or
subsequent conviction in sentencing under this section . . . (3) 'conviction' includes: . . .
(B) conviction of a violation of . . . any law of another state which would constitute a
crime described in subsection (i)(1) . . . ."

Subsection (i)(1) includes "[c]onvictions for a violation of this section . . . ."

Thus, we must compare the Kansas and Nebraska DUI statutes to determine
whether McClellan's prior conviction for DUI in Nebraska was properly considered under
K.S.A. 2015 Supp. 8-1567(i). Specifically, we must determine whether the Nebraska DUI
statute is broader than the Kansas DUI statute. If the answer to that question is yes, then
McClellan's prior conviction cannot be used for sentencing purposes. See State v. Stanley,
No. 112,828, 2016 WL 1274465, at *2 (Kan. App. 2016) (unpublished opinion), rev.
denied 304 Kan. 1022 (2016); State v. Butler, No. 107,767, 2013 WL 1457958, at *1
(Kan. App. 2013) (unpublished opinion).

Our question, then, is one of statutory interpretation. Statutory interpretation
involves questions of law over which appellate courts have unlimited review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of
statutory interpretation is that the intent of the legislature governs if that intent can be
ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016).

McClellan was arrested and charged with DUI under K.S.A. 2015 Supp. 8-
1567(a)(2) or, in the alternative, K.S.A. 2015 Supp. 8-1567(a)(3). But our inquiry is not
confined to the exact provision under which he was charged. Instead, we must consider,
as a whole, whether the same acts that are prohibited by the Nebraska DUI law are
prohibited by the Kansas DUI law.

McClellan's driving record indicates that he was convicted of DUI in Nebraska in
2009 under Neb. Rev. Stat. § 60-6,196 (2004). The Nebraska statute provided:
34

"(1) It shall be unlawful for any person to operate or be in the actual physical control of
any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of eight-hundredths of one gram or
more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of eight-hundredths of one gram or
more by weight of alcohol per two hundred ten liters of his or her breath." Neb. Rev. Stat.
§ 60-6,196 (2009).

The Kansas statute provides:

"(a) Driving under the influence is operating or attempting to operate any vehicle
within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any
competent evidence, including other competent evidence, as defined in paragraph (1) of
subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within
three hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of
safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that
renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a
degree that renders the person incapable of safely driving a vehicle." K.S.A. 2015 Supp.
8-1567(a).

First, McClellan argues "that the Nebraska law criminalizes driving while 'under
the influence of alcoholic liquor' whereas the Kansas law prohibits driving while 'under
the influence of alcohol to a degree that renders the person incapable of safely driving a
vehicle.' [Citations omitted.]" McClellan urges this court to look to our recent decision in
Stanley to find that the Nebraska statute criminalizes broader conduct than the Kansas
statute.
35

In Stanley, the court held that Kansas DUI law prohibits two acts: "(1) operating or
attempting to operate a vehicle with a blood- or breath-alcohol concentration in excess of
.08; and (2) operating or attempting to operate a vehicle while under the influence of
alcohol and/or drugs to a degree that renders the person incapable of safely driving the
vehicle." 2016 WL 1274465, at *2. The court then considered the Missouri statute that
provided: "'A person commits the crime of 'driving while intoxicated' if he operates a
motor vehicle while in an intoxicated or drugged condition.' [Citation omitted.] [A]
person is in an "intoxicated condition" when he is under the influence of alcohol, a
controlled substance, or drug, or any combination thereof.' [Citation omitted.]" 2016 WL
1274465, at *2. The Stanley court found that

"[t]he Missouri statute on its face is too broad to count as a prior conviction under K.S.A.
2012 Supp. 8-1567(i). Clearly, driving 'under the influence' of alcohol covers a wider
range of activity than driving under the influence of alcohol 'to a degree that renders the
person incapable of safely driving a vehicle' or 'driving with an alcohol concentration of
.08 or more.'" 2016 WL 1274465, at *2.

The court further found that "[a] driving impairment may not necessarily render a
person incapable of safely driving a vehicle." 2016 WL 1274465, at *3. Thus, the court
held that

"[w]hile the State is correct that the Missouri statute criminalizes some of the same
conduct that the Kansas statute criminalizes, it is clearly conceivable that an act that
would be considered DWI in Missouri would not be DUI in Kansas. Therefore, [the
defendant's] Missouri DWI conviction should not have been considered as part of his
criminal history under K.S.A. 2012 Supp. 8-1567(i)." 2016 WL 1274465, at *4.

McClellan argues that the Nebraska DUI statute is broader because it does not
contain "a limited window for testing . . . ." McClellan is of course referring to the fact
that the Kansas DUI statute requires that "the alcohol concentration in the person's blood
36

or breath . . . [be] measured within three hours of the time of operating or attempting to
operate a vehicle." K.S.A. 2015 Supp. 8-1567(a)(2). Nebraska's DUI statute does not
contain any temporal element or restriction.

During oral argument, the State conceded that the Nebraska DUI statute
criminalized a broader range of action than the Kansas DUI statute. To illustrate, the Neb.
Rev. Stat. § 60-6,196(b) and (c) (2004), like Kansas prohibits the driving with an alcohol
concentration of .08. Unlike the Kansas DUI statute, K.S.A. 2015 Supp. 8-1567(a)(2), the
Nebraska statute has been interpreted to provide a reasonable time for conducting the
testing. Nevertheless, in Kansas, the DUI testing must be conducted within 3 hours of
operating the vehicle. Without a similar time period, the Nebraska statute criminalizes a
broader range of action than the Kansas DUI statute. As a result, the prior Nebraska
conviction cannot be used for sentencing purposes in McClellan's case.

Affirmed in part, vacated in part, and remanded for resentencing consistent with
this opinion.