State v. Jones

• Decision Date: 18 February 2005
• Docket Number: No. 89,658.,89
• Citation: 279 Kan. 71,106 P.3d 1
• Parties: STATE OF KANSAS, Appellee, v. JARAD A. JONES, Appellant.
• Court: Kansas Supreme Court

279 Kan. 71

106 P.3d 1

STATE OF KANSAS, Appellee, v. JARAD A. JONES, Appellant.

No. 89,658.

Supreme Court of Kansas.

Opinion filed February 18, 2005.

Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellant.

Brenda L. Basgall, assistant county attorney, argued the cause, and Tom Scott, assistant county attorney, and Phill Kline, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

The district court of Ellis County found Jarad A. Jones guilty of driving or attempting to drive a vehicle while having a blood alcohol level greater than .08 in violation of K.S.A. 8-1567(a)(2). Jones appealed, claiming that the district court erred by denying his motion to suppress an alleged involuntary preliminary breath test (PBT) and the resultant blood test. The Court of Appeals held that Jones consented to the PBT and affirmed the district court in State v. Jones, No. 89,658, unpublished opinion filed October. 31, 2003. This court granted Jones' petition for review under K.S.A. 20-3018(b).

According to the petition for review, the sole issue on appeal is whether Jones gave voluntary, knowing, and intelligent consent to the search of his deep lung air through the use of a PBT. Under these facts presented, we hold that the State failed to prove that he did. Accordingly, we reverse the Court of Appeals and the district court.

FACTS

Jones and the State submitted the case to the district court on stipulated facts. The following are relevant to the issue on appeal:

"5. That on August 16, 2001, at approximately 11:23 p.m., Officer Mark Windholz of the Hays Police Department responded to work a vehicle accident in the 1400 Block of Ellis Avenue.

"6. Officer Windholz made contact with the driver, Jarad Jones, and observed that the driver had a cut on the side of his head and was bleeding, however, Jones refused treatment from the EMS personnel and was released.

"7. Jones confirmed that he was the driver of the vehicle and that nobody else was with him when the accident occurred.

"8. Jones stated that he did not remember exactly what happened to cause him to have the accident, however, Jones did state he felt very tired before the accident.

"9. Officer Windholz conducted no field sobriety testing other than a preliminary breath test PBT.

"10. Officer Windholz properly conducted his 15 minute deprivation period and properly conducted the PBT on defendant.

"11. The parties stipulate Jones was not free to leave at this time, that Officer Windholz was detaining him as part of his investigation, that Officer Windholz read Jones the statutory warnings under K.S.A. 8-1012, and it was not until after reading Jones the statutory warnings that Jones did submit to the preliminary breath test.

"12. That a preliminary breath test requires a sample of deep lung air which can only be extracted from defendant after defendant forcibly blows air into the PBT device for a period of three to five seconds.

"13. The parties stipulate that deep lung air is not normally held out to the public and must be extracted by forcing the individual to blow into the PBT device for between three to five seconds.

"14. The PBT test result indicated a breath alcohol greater than 0.08 and Officer Windholz then placed Jones under arrest for driving under the influence.

"15. The parties stipulate and agree that absent the preliminary breath test results, the Officer did not have probable cause to believe that Jones was driving under the influence, a violation of K.S.A. 8-1567, further, the parties stipulate that if the preliminary breath test search did not violate Jones' Fourth Amendment rights, that the Officer did possess probable cause to place Jones under arrest for driving under the influence.

"16. After being arrested, Jones was transported by Officer Windholz to Hays Medical Center where he submitted to a blood test.

"17. The parties stipulate that Officer Windholz complied with Kansas Department of Health and Environment protocol, the Implied Consent Law as prescribed in K.S.A. 8-1001 et seq., and that the blood sample was properly drawn and submitted to the KBI Lab for testing.

"18. The parties further stipulate that the blood test sample was taken within two hours of the last time Jones drove or attempted to drive a vehicle and revealed a blood alcohol content of 0.14 grams for 100 milliliters of blood."

On July 1, 2002, Jones filed a motion to suppress the results of the PBT and the subsequent blood test. He asserted that he did not voluntarily, knowingly, or intelligently give consent for the PBT and that his Fourth Amendment rights were violated. On July 16, 2002, the district court concluded that, based upon the stipulated facts and the law, the PBT results were admissible and the arrest was lawful, which led to a finding that Jones was guilty of driving under the influence in violation of K.S.A. 8-1567(a)(2).

Jones appealed to the Court of Appeals, which held Jones had given consent when he stipulated that Officer Windholz had complied with the statutory procedure set forth in K.S.A. 8-1012. It upheld the district court.

ANALYSIS

Issue: Did Jones give voluntary, knowing, and intelligent consent to the search of his deep lung air through the use of a PBT?

Generally, when reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court's decision "`by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate review.'" State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004) (quoting State v. Mendez, 275 Kan. 412, 416, 66 P.3d 811 2003). In this case, however, where submitted on stipulated facts, we only examine the question of whether to suppress, a question of law over which this court has unlimited review. Moreover, the issue on appeal raises questions of statutory interpretation upon which our review also is unlimited. State v. Gray, 270 Kan. 793, 796, 18 P.3d 962 (2001).

We begin our review of the propriety of the denial of the motion to suppress by examining K.S.A. 8-1012, the statutory basis for administering the PBT. It provides:

"A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath to determine the alcohol concentration of the person's breath if the officer has reasonable grounds to believe that the person: (a) Has alcohol in the person's body; (b) has committed a traffic infraction; or (c) has been involved in a vehicle accident or collision. At the time the test is requested, the person shall be given oral notice that: (1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test. Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test. Refusal to take and complete the test as requested is a traffic infraction. If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments there. Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8-1001 and amendments thereto."

Jones concedes that the language of the statute expressly authorized Officer Windholz to request him to perform a PBT because he had been involved in a vehicle accident. He disputed the admissibility of the PBT results, however, for the reasons set forth in his brief to the Court of Appeals. First, he asserted that the PBT requires him to provide deep lung air which, because it infringes upon his privacy, constitutes a search that is subject to the protections of the Fourth Amendment to the United States Constitution. Second, since the PBT is a search, it cannot be administered absent probable cause or his consent. Third, his mere involvement in a vehicle accident does not, without more, constitute probable cause to believe he was operating the vehicle under the influence of alcohol; thus, this provision in K.S.A. 8-1012 justifying the search is unconstitutional. See Gross v. Kansas Dept. of Revenue, 26 Kan. App. 2d 847, 849, 994 P.2d 666, rev. denied 269 Kan. 932 (2000) (Probable cause is synonymous with the statutory term "reasonable grounds."). Fourth, his "consent," if any, was involuntary. If he refused, he would have been issued a traffic citation per the statute. Moreover, the State failed to demonstrate he did more than merely acquiesce to authority.

We hold that (1) taking Jones' deep lung air is a search requiring, under these circumstances, Jones' consent; (2) the State did not meet its burden of establishing that Jones' consent to this search was voluntarily, knowingly, and intelligently given; and (3) the State did not meet its burden of establishing that Jones' consent was impliedly given. Since the parties stipulate that absent the PBT results Officer Windholz did not have probable cause to believe Jones was driving under the influence, and since addressing that factual stipulation is unnecessary to...