State v. Bradley

• Decision Date: 12 June 2009
• Docket Number: No. 100,990.,100,990.
• Citation: 208 P.3d 788
• Parties: STATE of Kansas, Appellant, v. Chella Lynn BRADLEY, Appellee.
• Court: Kansas Court of Appeals

208 P.3d 788

STATE of Kansas, Appellant, v. Chella Lynn BRADLEY, Appellee.

No. 100,990.

Court of Appeals of Kansas.

June 12, 2009.

Joe Shepack, county attorney, and Steve Six, Attorney General, for the appellant.

Michael S. Holland, II, of Holland and Holland, of Russell, for the appellee.

Before MALONE, P.J., PIERRON and GREENE, JJ.

PIERRON, J.

This is an interlocutory appeal taken by the State pursuant to K.S.A. 22-3603 from an order granting Chella Lynn Bradley's motion to suppress her refusal to submit to a breath alcohol test in its prosecution against Bradley for driving under the influence (DUI). We affirm in part, reverse in part, and remand with directions.

In the early morning hours of December 28, 2007, Bradley's SUV collided with a semitrailer truck on I-70 during a snow storm. Ellsworth County Sheriff's Deputy Bill Chansler responded to investigate the accident. Upon contacting Bradley, who remained seated in her SUV, Chansler noted she smelled of alcohol and had bloodshot eyes. Bradley also fell out of her SUV when she opened the door, and she required Chansler's assistance in getting to the patrol car. As a result, Chansler placed Bradley under arrest and put her in his patrol car. At that point, Chansler, without giving Bradley the implied consent advisory notices required by K.S.A.2007 Supp. 8-1001, asked her if she would submit to a breath test. Bradley refused.

After Chansler completed his investigation of the accident, he transported Bradley to the law enforcement center. Once there, Chansler read Bradley the required implied consent advisory notices and again requested that she take a breath test. Bradley still refused.

The State charged Bradley with DUI. Bradley filed a motion to suppress, arguing (in pertinent part) that because Chansler requested she submit to a breath test at the scene without first advising her of her rights under the Kansas Implied Consent Law, anything that occurred thereafter, including her subsequent refusal to take the test at the police station with the proper advisement of her rights, had to be suppressed.

The trial court conducted a hearing on Bradley's motion. Chansler testified about the circumstances surrounding his first request that Bradley submit to a breath test and the second request at the police station. The court subsequently entered a journal entry granting Bradley's motion to suppress because Chansler had failed to give the required implied consent advisories before his first request that Bradley submit to a breath test. The State timely filed this interlocutory appeal challenging that suppression ruling.

K.S.A. 22-3603 allows the prosecution to appeal from a pretrial order suppressing evidence. A threshold requirement for such an interlocutory appeal is that the suppression order appealed from must substantially impair the State's ability to prosecute the case. See State v. Griffin, 246 Kan. 320, 324, 787 P.2d 701 (1990); State v. Newman, 235 Kan. 29, 34, 680 P.2d 257 (1984).

Generally, this issue arises when appellate jurisdiction is challenged by the defendant-appellee or this court orders the State to make this necessary showing. Neither situation occurred in this case. Nevertheless, the State summarily notes in its brief that our appellate courts have held that suppression of breath or blood test results justifies an interlocutory appeal by the State. See, e.g., State v. Huninghake, 238 Kan. 155, 156-57, 708 P.2d 529 (1985) (suppression of blood alcohol test, given the statutory presumption of intoxication based on the test, substantially impaired State's ability to prosecute DUI case); State v. Wanttaja, 236 Kan. 323, 325, 691 P.2d 8 (1984) (suppression of blood alcohol test substantially impaired State's ability to prosecute DUI case). Compare State v. Jones, 236 Kan. 427, 428, 691 P.2d 35 (1984) (suppression of testimony by highway patrolman regarding defendant's refusal to complete one phase of field sobriety test did not substantially impair State's ability to prosecute DUI case).

The only issue before us is the propriety of the trial court's suppression of Bradley's second refusal to take the test at the police station after she had been read the proper implied consent advisories. The State advances no argument regarding how its case is substantially impaired by this suppression order.

Bradley claims the suppression of her refusal to take the test differs from those cases where alcohol test results were suppressed. She contends in her case that "there was essentially no evidence suppressed." Bradley then suggests this court should refuse to exercise jurisdiction and remand the matter for trial "based upon the evidence which the State already possesses which will essentially be unchanged by this Court's decision as to whether [Bradley's] refusal to submit to testing under the Kansas Implied Consent Law was properly obtained by the law enforcement officer."

The State did not file a reply brief. Its failure to adequately brief the issue of substantial impairment of its prosecution could be deemed waiver or abandonment of the necessary jurisdictional showing. Accordingly, this court could refuse to exercise jurisdiction over the State's interlocutory appeal. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (An issue not briefed by the appellant is deemed waived or abandoned.).

However, a refusal to perform a breath test is evidence that would be admissible at trial should the State proceed with its prosecution. K.S.A.2007 Supp. 8-1001(i); see State v. Baker, 269 Kan. 383, 388, 2 P.3d 786 (2000) (alcohol testing refusal clearly admissible).

Although not an issue in this appeal, at the suppression hearing, Bradley challenged Chansler's probable cause to arrest her for DUI. The trial court found that based on the surrounding circumstances (the accident and Chansler's observations that Bradley had bloodshot eyes, smelled like alcohol, and was very unstable), Chansler had probable cause to arrest her for DUI. Bradley does not challenge this probable cause finding. Granted, at this point in the proceedings, we cannot fully assess the strength of the State's evidence against Bradley. Nonetheless, it could be observed that without any field sobriety testing or other objective indicators of intoxication, and in light of the mitigating circumstances of the snowstorm, this limited evidence supporting a probable cause determination could arguably be insufficient to support a more stringent finding beyond a reasonable doubt that Bradley was driving while intoxicated in violation of K.S.A.2007 Supp. 8-1567(a)(3). Thus, it seems reasonable to conclude that the State's ability to prosecute its case against Bradley is substantially impaired by the suppression of Bradley's second refusal to take a breath test.

There is no dispute that the proper implied consent advisory notices were not given before Chansler requested Bradley give a breath test the first time, while she was sitting in the patrol car after having been arrested for DUI. In fact, the State seems to concede the initial inquiry and Bradley's first refusal should be suppressed. Nor is there any dispute that Chansler gave the proper implied consent advisory notices at the police station before requesting Bradley submit to a breath test the second time. Thus, the sole issue before this court appears to be what effect, if any, Chansler's initial request without the required notices had on his second request after giving the required notices. Or, as framed by the trial court: "The issue is whether when the officer first asked [Bradley] to take the test and did not give those implied consents does that taint the second request to such an extent that it should be suppressed?" The trial court answered this issue in the affirmative.

Where the material facts underlying a suppression decision are undisputed, this court has unlimited review over the legal question of whether suppression was warranted. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Moreover, the trial court and the parties approach this issue as one of statutory interpretation. Likewise, this court has unlimited review over questions of statutory interpretation. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).

K.S.A.2007 Supp. 8-1001(f) provides that before a test is "administered," the person shall be given specific notices regarding aspects of the Kansas Implied Consent Law and the consequences of refusing to take the test when requested. Our Supreme Court has recognized that the notice provisions of 8-1001(f) are mandatory. State v. Luft, 248 Kan. 911, Syl. ¶ 1, 811 P.2d 873 (1991). However, substantial compliance with the notice provisions of the statute is sufficient. Barnhart v. Kansas Dept. of Revenue, 243 Kan 209, 213, 755 P.2d 1337 (1988); State v. Branscum, 19 Kan.App.2d 836, Syl. ¶ 3, 877 P.2d 458, rev. denied 255 Kan. 1004 (1994).

The trial court acknowledged that K.S.A. 2007 Supp. 8-1001(f) requires the notices before a test is administered. However, it then looked at both K.S.A.2007 Supp. 8-1001(h) and K.S.A. 8-2,145(c), the language of which suggests the required notices have to be given before the tests are requested, as opposed to administered. The court noted those sections deal with the implied consent of a person who is either under the age of 21 and/or a person who has commercial motor vehicle driver's license—neither of which appears to apply this case. Nevertheless, the court reasoned:

"It has been the position of the courts of Kansas that the DUI laws and the implied consent laws must be strictly construed and strictly followed.

"This court finds it interesting to note there seems to be under K.S.A. 8-1001(h) and 8-2,145(c), a requirement that before you can even request the test the notices, orally and in writing, must be provided to the defendant. Under K.S.A. 8-1001(f), it states that before the tests are administered and not before they are...