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February 26, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

Consent – Criminal Procedure – Due Process – Statutes
State v. Nece
Saline District Court – Affirmed; Court of Appeals – Reversed
No. 111401 - February 26, 2016

FACTS: Nece charged with driving under the influence after consenting to breath-alcohol testing. He filed motion to suppress, arguing his consent was coerced by notice advising that he could be charged with separate criminal offense under K.S.A. 2014 Supp. 8-1025 if he refused to consent to testing. District court granted the motion. State filed interlocutory appeal. Court of Appeals, in unpublished opinion, reversed and remanded. Nece’s petition for review granted.

ISSUE: Constitutionality of K.S.A. 2014 Supp. 8-1025 - Implied Consent Advisory Notice

HELD: Nece’s consent was unduly coerced and involuntary because it was obtained by means of an inaccurate advisement. Under Ryce decided this date, which holds that K.S.A. 2014 Supp. 8-1025 is unconstitutional, State could not have constitutionally imposed criminal penalties if Nece refused testing. Court of Appeals is reversed. District court’s suppression of Nece’s breath test results is affirmed.

CONCURRENCE (Stegall, J.): For reasons stated in his dissent in Ryce, cannot join majority’s holding that implied consent advisory is inaccurate and cannot serve as basis for a voluntary consent in light of Ryce. Compelled to concur in the result only because Nece’s motion to suppress was presented to the court on stipulated facts, and parties did not stipulate to any fact that could lead a reasonable judge to conclude the State could have lawfully charged Nece with crime for failing to submit to the test.

STATUTES: K.S.A. 2014 Supp. 8-1001, -1001(a), -1001(b), -1001(k), -1025, 21-5904(a)(3); K.S.A. 2012 Supp. 8-1567; K.S.A. 8-1705

Kansas Supreme Court – Criminal

Consent – Criminal Procedure – Due Process – Statutes
State v. Ryce
Sedgwick District Court - Affirmed
No. 111,698 - February 26, 2016

FACTS: Ryce arrested for impaired driving, driving on a suspended license, and registration not matching car tag. After notice defined in K.S.A. 2014 Supp. 8-1001(k) was given at jail, Ryce refused to submit to breath test and no testing occurred. Charges filed against him included nonperson felony of refusing to submit to testing for presence of alcohol or drugs, in violation of K.S.A. 2014 Supp. 8-1025(a). Ryce challenged the facial constitutionality of that statute, arguing it unconstitutionally punished the exercise of his right to withdraw consent to a warrantless search. District court found statute was facially unconstitutional and dismissed the 8-1025 charge. State appealed.

ISSUE: Facial Constitutionality of K.S.A. 2014 Supp. 8-1025(a)

HELD: Once a suspect withdraws either express consent or implied consent under K.S.A. 8-1001(a), a search based on that consent cannot proceed. Due Process Clause of Fourteenth Amendment applies, and facial constitutionality of statute is analyzed. Implied consent through 8-1001 is not irrevocable, and can be withdrawn. K.S.A. 2014 Supp. 8-1025, by criminally punishing a driver’s withdrawal of consent, violates the fundamental right to be free from an unreasonable search. Strict scrutiny standard applies to due process analysis. The statute is not narrowly tailored to serve State’s compelling interests, and is facially unconstitutional. District court’s dismissal of 8-1025 charge is affirmed. Court does not reach whether 8-1025 violates Fifth Amendment prohibition against compelled self-incrimination, whether Miranda warnings must be given with officer’s request for chemical test, or whether 8-1025 is constitutional under doctrine of unconstitutional conditions.

DISSENT (Stegall, J.): Faults majority’s interpretation of 8-1025, its analytical focus on consent, and its undermining of duty to avoid a finding of unconstitutionality. Analysis should have focused on Fourth Amendment right to be free from unreasonable searches and seizures. Argues 8-1025 does not always result in an interference with this right, thus statute should not have been declared facially unconstitutional, and should have been examined on a case-by-case, as applied, analysis.

STATUTES: K.S.A. 2014 Supp. 8-1001, -1001(a), -1001(k), -1001(k)(4), -1001(k)(5), -1001(k)(7), -1001(p), -1002(c), -1012, -1012(a), -1025(b), -1025(b)(1)(A), -1025(b)(1)(D), -1025(b)(2), -1025(d), -1025(h), 21-5904(a)(3), 22-2502(a), -3601(b)(1), -3602(b)(1)

Kansas Supreme Court – Criminal

CONSENT – CRIMINAL PROCEDURE – DUE PROCESS – STATUTES
State v. Wilson
Shawnee District Court – Affirmed
No. 112,009 – February 26, 2016

FACTS: Wilson arrested on traffic offenses, and refused to perform preliminary breath test at the scene. At jail he refused to provide breath for testing. Deputy got warrant to search Wilson’s blood which then tested over the legal limit. Charges filed against him included refusing to submit to testing under K.S.A. 2014 Supp. 8-1025. Wilson filed motion to dismiss that charge, arguing it unconstitutionally criminalized his refusal to submit to a test that was unreasonable under Fourth Amendment. Fifth and Sixth Amendment arguments also raised. District court found due process violation, and dismissed the alleged violation of 8-1025.

ISSUE: Constitutionality of K.S.A. 2014 Supp. 8-1025

HELD: Based on Ryce decided this date, district court is affirmed. An individual has a constitutional right to withdraw consent to a search, including consent implied by operation of K.S.A. 2014 Supp. 8-1001. K.S.A. 2014 Supp. 8-1025, by punishing an individual for exercising that right with criminal penalties, violates Due Process Clause of Fourteenth Amendment, and statute is facially unconstitutional.

DISSENT (Stegall, J.): Dissents for reasons stated in his dissent in Ryce.

STATUTES: K.S.A. 2014 Supp. 8-1001, -1025, 21-5904(a)(3)

Kansas Supreme Court – Criminal

CRIMINAL: CONSENT – CRIMINAL PROCEDURE – DUE PROCESS – STATUTES
State v. Wycoff
Saline District Court – Affirmed
No. 110,393 – February 26, 2016

FACTS: After being stopped for traffic offenses, Wycoff refused to perform sobriety tests in the field and at the jail. Charges filed against him included refusing to submit to an evidentiary test under K.S.A. 2014 Supp. 8-1025. Wycoff filed motion to dismiss or suppress evidence, arguing 8-1025 was unconstitutional. District court concluded the statute violated Fourth Amendment and imposed an unconstitutional condition on privilege to drive. State dismissed remaining charges and appealed.

ISSUE: Constitutionality of K.S.A. 2014 Supp. 8-1025

HELD: Based on Ryce decided this date, district court is affirmed. An individual has a constitutional right to withdraw consent to a search, including consent implied by operation of K.S.A. 2014 Supp. 8-1001. K.S.A. 2014 Supp. 8-1025, by punishing an individual for exercising that right with criminal penalties, violates Due Process Clause of Fourteenth Amendment, and statute is facially unconstitutional.

DISSENT (Stegall, J.): Dissents for reasons stated in his dissent in Ryce.

STATUTES: K.S.A. 2014 Supp. 8-1001, -1025

Kansas Court of Appeals – Criminal

BURDEN OF PROOF – CRIMES AND PUNISHMENT – JURY INSTRUCTIONS
STATE V. AGUILAR
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 112,560 – FEBRUARY 16, 2016

FACTS: Jury convicted Aguilar in part of three counts of aggravated indecent liberties with a child. On appeal Aguilar argues for first time that wording of the multiple act jury instruction PIK Crim. 4th 68.100 - which tells jury that State alleged several acts, any one of which could constitute the crime charged - informed jury that evidence of the acts already satisfied the elements of the crimes charged, and jury needed only to agree on one particular act to convict the defendant.

ISSUE: Multiple Acts Jury Instruction

HELD: Several unpublished Court of Appeals’ decisions have rejected the very same claim. Pattern jury instruction on multiple acts is a correct statement of law on multiple acts. The use of the word “could” in the instruction is not misleading to jurors as to the required burden of proof. The instruction in this case was also factually appropriate. District court is affirmed.

STATUTES: K.S.A. 2015 Supp. 22-3414(3); K.S.A. 22-3421, -3423(1)(d)

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