State v. Nece
| Decision Date | 30 June 2017 |
| Docket Number | No. 111,401,111,401 |
| Citation | 396 P.3d 709 |
| Parties | STATE of Kansas, Appellant, v. Gregory Michael NECE, Appellee. |
| Court | Kansas Supreme Court |
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the supplemental brief for appellant. Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were on the original brief for appellant.
Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the briefs for appellee.
Ultimately, this appeal raises the question of whether the State violated the Fourth Amendment to the United States Constitution when it tested a driving under the influence (DUI) suspect's blood alcohol content after the suspect consented to such a search. The suspect, Gregory Michael Nece, contends the evidence found through the breath-alcohol testing must be suppressed because his consent did not meet the Fourth Amendment standard of being freely and voluntarily given. More specifically, he argues the law enforcement officer coerced his consent by advising him, as the law required at that time, that if he refused consent "you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties equal to or greater than those for the crime of driving under the influence."
In State v. Ryce , 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I ), we discussed K.S.A. 2016 Supp. 8-1025, which provides for the separate crime of refusal to submit that was referenced by law enforcement's advisory warning, and we held that 8-1025 is facially unconstitutional. We then applied Ryce I in State v. Nece , 303 Kan. 888, 367 P.3d 1260 (2016) (Nece I ), and concluded the law supported the district court's conclusion, based on the totality of the circumstances in that case, 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. 303 Kan. at 896–97, 367 P.3d 1260.
After we issued our decisions in Ryce I and Nece I , the State timely filed a motion seeking to stay the mandate until the United States Supreme Court issued a decision in three consolidated cases addressing a similar issue regarding Minnesota and North Dakota statutes that made it a crime to refuse blood alcohol content testing. We granted that motion and, once the United States Supreme Court issued its decision in Birchfield v. North Dakota , 579 U.S. ––––, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016), allowed the parties to submit additional briefs and oral arguments.
After considering those additional arguments and the effect of Birchfield on Ryce I and Nece I , we once again in State v. Ryce , 303 Kan. 899, 368 P.3d 342 (2016), this day decided) (Ryce II ), determine that K.S.A. 2016 Supp. 8-1025 is facially unconstitutional. While Birchfield requires some modification of our analysis, nothing in the United States Supreme Court's decision alters the ultimate basis for Ryce I : the state law grounds of statutory interpretation of 8-1025 and the statute on which it depends, K.S.A. 2016 Supp. 8-1001. Furthermore, nothing in the Ryce II modification of Ryce I requires us to modify our decision in Nece I , except to update it by referring to Ryce II . Finally, nothing in the Birchfield decision alters our analysis in Nece I . The Birchfield Court, noting that "voluntariness of consent to a search must be 'determined from the totality of all the circumstances,"' left it to the North Dakota state court to determine whether a driver's consent to a blood test had been voluntary "given the partial inaccuracy of the officer's advisory." 136 S.Ct. at 2186 (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 227, 93 S.Ct. 2041, ...
To continue reading
Request your trial
-
State v. Heim
...2160, 195 L. Ed. 2d 560 (2016) ; State v. Ryce , 306 Kan. 682, 699-700, 396 P.3d 711 (2017) ( Ryce II ); and State v. Nece , 306 Kan. 679, 681, 396 P.3d 709 (2017) ( Nece II ). But the State argues the district court could consider the blood test results because the good-faith exception to ......
-
Johnson v. Kan. Dep't of Revenue
...Syl. ¶ 12, 368 P.3d 342. Similarly, in State v. Nece , 303 Kan. 888, 897, 367 P.3d 1260 (2016) ( Nece I ), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) ( Nece II ), our Supreme Court held that giving unconstitutional implied consent advisories before a defendant's consent leads to coerc......
-
City of Kingman v. Ary
...2160, 195 L. Ed. 2d 560 (2016) ; State v. Ryce , 306 Kan. 682, 699-700, 396 P.3d 711 (2017) ( Ryce II ); and State v. Nece , 306 Kan. 679, 681, 396 P.3d 709 (2017) ( Nece II ). The panel still affirmed Ary's driving under the influence (DUI) conviction, holding that the good-faith exception......
-
State v. Boggess
...U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973) ; State v. Nece , 303 Kan. 888, 892, 367 P.3d 1260 (2016), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017). "Consent may be obtained from the individual whose property is searched, or in certain instances, from a third party who possesse......
-
Special needs' and other fourth amendment searches
...422 (Wisc.2022). Kansas held that consent under these circumstances is coerced, and the resulting test must be suppressed. State v. Nece , 396 P.3d 709 (Kan 2017). However, that state’s intermediary court of appeals recently permitted the admission of a non-consensual breath test, holding t......
-
Special needs' and other fourth amendment searches
...offense. Kansas held that consent under these circumstances is coerced, and the resulting test must be suppressed. State v. Nece , 396 P.3d 709 (Kan 2017). However, that state’s intermediary court of appeals recently permitted the admission of a non-consensual breath test, holding that cons......