State v. Kerrigan
| Citation | 519 P.3d 460 (Table) |
| Decision Date | 28 October 2022 |
| Docket Number | 123,862 |
| Court | Court of Appeals of Kansas |
| Parties | State of Kansas, Appellee, v. Thomas Kerrigan, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Riley District Court; KENDRA LEWISON, judge.
Barry A. Clark, of Clark &Platt, Chtd., of Manhattan, for appellant.
John A. Griffin, assistant county attorney, Barry Wilkerson county attorney, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
Thomas J. Kerrigan was convicted of driving under the influence (DUI). Kerrigan requested an attorney at least twice before completing an evidentiary breath test, but the arresting trooper never honored the requests. Kerrigan moved to suppress the breath test result and claimed the trooper violated his statutory right to counsel under K.S.A. 2019 Supp. 8-1001(c)(1). The district court initially granted his motion, relying on Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015). The State filed a motion for reconsideration and argued the district court erroneously relied on Dumler because the Kansas Legislature amended K.S.A. 8-1001 in 2018 thereby abrogating Dumler's interpretation of the statutory right to counsel. The district court agreed that the Dumler analysis no longer applied under the new language in K.S.A. 2019 Supp. 8-1001(c)(1), determining it only created a statutory right to request counsel following a completion of a breath test. The district court reconsidered Kerrigan's motion to suppress in light of the State's argument and ultimately reversed course and declined to suppress the evidence. The district court went on to find Kerrigan guilty of DUI at a bench trial on stipulated facts.
Kerrigan now brings the matter before this court to analyze and determine whether the district court erred in denying his motion to suppress. According to Kerrigan, the amendments to K.S.A. 2019 Supp. 8-1001(c)(1) did not alter the Dumler analysis or require that he request counsel after the breath test's administration to have a right to speak to counsel. Following a thorough review of the issue we find the district court reached its conclusion in error because the plain language of the statute does not require the State to honor a request for counsel only when it is uttered after a person submits to a breath test. The 2018 amendments to (c)(1) were not disturbed by the statute's 2019 amendment, and the 2019 iteration applies to Kerrigan's traffic stop in March 2020. To the extent that the statute is unclear regarding the timing requirement, then the rule of lenity demands that we construe the statute in Kerrigan's favor. Thus, the decision of the district court is reversed, and Kerrigan's case is remanded for a rehearing where the district court can apply the proper standard.
Kansas Highway Patrol Captain Scott Walker was patrolling for drunk or aggressive drivers shortly after midnight when he observed the operator of a silver Honda Pilot commit a traffic violation by turning into the outside lane on US-24 Highway. Walker followed the vehicle, ran its registration, and learned that the Honda's tag actually belonged on a Mercury, which signaled a possible registration violation. So Walker initiated a traffic stop. The in-car audio and video system in the patrol vehicle he was using was non-operational and officers with the Kansas Highway Patrol did not use body cameras.
Walker approached the SUV on foot and noticed a driver, later identified as Thomas Kerrigan, and one female passenger. In speaking with Kerrigan, Walker observed that his eyes were watery, and his speech was soft, mumbled, and slurred. Walker also detected the odor of alcohol, so he requested to see Kerrigan's driver's license. Kerrigan, who suffered from arthritis, experienced dexterity issues while trying to remove his license from his wallet, a fact that did not go unnoticed by Walker. Walker inquired whether Kerrigan consumed any alcohol earlier that evening, and Kerrigan provided an affirmative response but declined to discuss the matter any further.
After reviewing Kerrigan's license, Walker asked him to exit the SUV and bring his license and registration documents to Walker's vehicle. Kerrigan complied and Walker noticed that his movements en route to the vehicle were very deliberate and focused. Once seated in Walker's car Kerrigan shared that he suffered from physical disabilities that would prevent him from successfully completing any field sobriety tests that required physical movement. As a result, Walker requested Kerrigan complete two cognitive tests instead.
First, Walker directed Kerrigan to recite the alphabet beginning at the letter "D" and stopping at the letter "U." Kerrigan performed the task through mumbled and slurred speech but stopped at the letter "T" rather than proceeding on to "U" as directed. Next, Walker directed Kerrigan to count backwards from 67 to 43, which Kerrigan successfully completed. At that point, Kerrigan agreed to submit to a preliminary breath test (PBT) and produced a result of .117. Based on the PBT result, Walker placed Kerrigan under arrest, advised him of his Miranda rights, and read the implied consent advisories required under Kansas law. Following the arrest, Kerrigan refused to answer any questions but agreed to provide another breath test using an Intoxilyzer 9000. That test yielded a result of .100. Kerrigan was then transported to the Riley County Jail.
The State charged Kerrigan with one count of driving under the influence. Prior to trial, Kerrigan filed a motion to suppress the Intoxilyzer evidence and argued he was entitled to such relief because Walker (1) did not have probable cause to arrest him, and (2) did not honor his request to speak with an attorney. On the same day, the State filed a Jackson v. Denno motion requesting that the district court find Kerrigan's admission that he consumed alcohol before driving was a knowing and voluntary statement.
The district court held a hearing on the motions during which Kerrigan and Walker had the opportunity to testify. The men provided varying accounts of the traffic stop. Kerrigan testified that, while still seated in his SUV, he told Walker, "I think I would like to call my attorney," and that Walker responded by saying Kerrigan was not entitled to an attorney. Walker, on the other hand, testified that Kerrigan simply made comments about an attorney, but never specifically requested to contact one.
Kerrigan further testified about the cognitive field sobriety tests and asserted that he understood Walker's instructions for the alphabet test to mean Kerrigan needed to stop before he reached the letter "U." On cross-examination, Walker stated he had no recollection of the precise language he used to explain that task. Because the patrol car did not have a functional audio or video recording system, there was no way to analyze the specific directions Kerrigan received.
Kerrigan also stated that he requested an attorney, for the second time, following the PBT but Walker simply responded that he could have an attorney when he had his day in court. Kerrigan added that Walker took his cell phone and did not provide any alternative way for Kerrigan to call an attorney. Finally, Kerrigan believed that he asked to speak with an attorney at least one other time beyond the request in his car and the request following the PBT. In contrast, Walker testified that he had no specific recollection of Kerrigan asking for an attorney following the PBT, but that had he done so Walker would have allowed Kerrigan to use Walker's phone to make the necessary calls.
After hearing from both witnesses, the district court requested arguments from the parties. As for the first issue, the State asserted that Walker had probable cause to arrest Kerrigan because he observed his commission of a traffic violation and smelled the odor of alcohol emanating from the vehicle. Kerrigan also experienced difficulty when removing his driver's license from his wallet, had bloodshot and watery eyes, as well as slurred speech, and admitted to consuming alcohol. The State contended that those facts, coupled with Kerrigan's poor performance on the cognitive tests, provided Walker with reasonable suspicion to request a PBT and probable cause to arrest Kerrigan.
In addressing the matter of Kerrigan's request for an attorney, the State highlighted Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015), and argued that the case held there is no bright-line rule requiring a defendant to request an attorney after the testing. The State further asserted that while the possibility exists for such a request to be made before testing, that does not translate to mean the individual possesses the right to consult with an attorney prior to submitting to the breathalyzer test. Thus, Kerrigan's breath test results should not be suppressed.
Kerrigan argued that the State's reading of Dumler was flawed and therefore its reliance on it misplaced. He suggested the more accurate interpretation of Dumler was: (1) if the request made for an attorney during a breath test is denied, the appropriate remedy is suppression of the test results, and (2) an individual may request an attorney prior to completing the breath test. Then applying Dumler to his own case, Kerrigan argued the evidence that he requested an attorney was uncontroverted because Walker failed to recall any specifics that suggested otherwise. Thus, because Walker never honored Kerrigan's requests to speak with an attorney, Dumler demanded suppression of his breath test results.
Turning to the probable cause determination, Kerrigan argued that Walker did not have reasonable...
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