State v. Ryce, 111,698.

CourtUnited States State Supreme Court of Kansas
Citation368 P.3d 342
Docket NumberNo. 111,698.,111,698.
Parties STATE of Kansas, Appellant, v. David Lee RYCE, Appellee.
Decision Date26 February 2016

368 P.3d 342

STATE of Kansas, Appellant,
David Lee RYCE, Appellee.

No. 111,698.

Supreme Court of Kansas.

Feb. 26, 2016.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect against unreasonable searches, which in the criminal context means a search must be conducted pursuant to a warrant or a well-recognized exception to the warrant requirement. One of these well-recognized exceptions—the consent exception—arises when an individual voluntarily agrees to allow a search. Courts have generally recognized a search based on consent cannot proceed once a suspect's consent is withdrawn because, at that point, the

368 P.3d 347

search would no longer be voluntary. See State v. Johnson, 297 Kan. 210, Syl. ¶ 8, 301 P.3d 287 (2013) ; State v. Edgar, 296 Kan. 513, 527, 294 P.3d 251 (2013).

Premised on this consent exception, Kansas has established a mechanism for the warrantless search of a driving under the influence (DUI) suspect's blood, breath, urine, or other bodily substances to determine the alcohol content. Specifically, under K.S.A. 2014 Supp. 8–1001, an individual has, by operating or attempting to operate a vehicle in Kansas, provided implied consent to alcohol or drug testing. This appeal raises a threshold question of whether the general rule regarding the withdrawal of consent applies when a driver impliedly consents to testing under 8–1001(a) in exchange for driving privileges but then refuses to expressly consent to testing when requested by a law enforcement officer. In other words, is implied consent irrevocable?

We hold the general rule allowing an express withdrawal of consent applies to DUI testing under 8–1001: Once a suspect withdraws consent, whether it be express consent or implied under 8–1001(a), a search based on that consent cannot proceed. But this is only a preliminary question in this appeal. The ultimate question is whether, when a driver exercises the constitutional right to withdraw consent, Kansas may criminally punish the individual for this choice under the criminal refusal statute, K.S.A. 2014 Supp. 8–1025. We conclude it cannot. Applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution, we recognize Kansas has compelling interests in combating drunk driving and prosecuting DUI offenders. Nevertheless, by criminally punishing a driver's withdrawal of consent, 8–1025 infringes on fundamental rights arising under the Fourth Amendment. K.S.A. 2014 Supp. 8–1025, therefore, must withstand strict scrutiny by being narrowly tailored to serve the State's interests. We hold that K.S.A. 2014 Supp. 8–1025 does not meet this test and is facially unconstitutional.


On December 9, 2012, a Sedgwick County sheriff's deputy observed a man, later identified as David Lee Ryce, driving a car down a street in reverse. The deputy momentarily lost sight of Ryce but then saw Ryce pull out of a nearby parking lot and drive on the left side of the street. The deputy executed a traffic stop and, upon making contact with Ryce, noticed a strong odor of alcohol and Ryce's bloodshot and watery eyes. Ryce admitted to the deputy he had enjoyed "a few drinks," and the deputy noted Ryce's slow, lethargic, and slurred speech. Ryce told the deputy he did not have his driver's license.

The deputy administered field sobriety tests. Ryce complied but demonstrated impairment throughout the tests. The deputy also learned Ryce's car registration did not match its tag and that Ryce's driver's license was suspended. The deputy arrested Ryce and transported him to the county jail.

At the jail, the deputy gave Ryce the written and oral notice required under Kansas' implied consent law, specifically the notice defined in K.S.A. 2014 Supp. 8–1001(k), and asked Ryce to submit to a breath test to determine the presence of alcohol. The notice informed Ryce, among other things, that a refusal to submit to testing could result in administrative proceedings to suspend Ryce's driver's license and could also result in criminal charges. Despite these warnings, Ryce refused to submit to a breath test, and no testing occurred.

The State charged Ryce, who had four prior DUI convictions, with the nonperson felony of refusing to submit to testing for the presence of alcohol or drugs, in violation of 8–1025(a). In addition, the State charged Ryce with three misdemeanors: driving while suspended, driving without a tag, and improper backing.

Ryce moved to dismiss the test refusal charge on the grounds that 8–1025 unconstitutionally punished the exercise of his right to withdraw consent to a warrantless search—a right he argues arises under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights. He also cited the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

368 P.3d 348

The district court ruled, after a hearing, that while a defendant had no right to refuse to submit to a chemical test for alcohol, it was nonetheless unconstitutional to criminalize this refusal. The district court accordingly dismissed the 8–1025 charge and granted the State's motion to dismiss the remaining counts without prejudice.

The State appealed the district court's ruling, filing its appeal with this court under K.S.A. 2014 Supp. 22–3601(b)(1) and K.S.A. 2014 Supp. 22–3602(b)(1) (permitting an appeal directly to this court from the district court for cases in which a Kansas statute has been held unconstitutional). We conducted oral argument in Ryce's appeal on the same day we heard three other appeals relating to the constitutionality of 8–1025: State v. Wilson, No. 112,009, ––– Kan. ––––, ––– P.3d ––––, 2016 WL 757547 (2016), State v. Nece, 111,401, ––– Kan. ––––, 367 P.3d 1260, 2016 WL 756690 (2016), and State v. Wycoff, No. 110,393, ––– Kan. ––––, 367 P.3d 1258, 2016 WL 756685 (2016), all of which are being decided this day.


On appeal, the State argues it did not violate Ryce's Fourth Amendment rights because the implied consent procedures set out in chapter 8, article 10 of the Kansas Statutes Annotated—primarily those in K.S.A. 2014 Supp. 8–1001 —remove, or at least reduce, any privacy expectation in one's blood, breath, urine, or other bodily substances when circumstances exist that permit testing under the statute. The State also argues this court has repeatedly determined that the implied consent procedure creates a constitutionally valid alternative to a search warrant under either the Fourth Amendment or § 15 of the Kansas Constitution Bill of Rights. Because 8–1001 provides that every driver has given implied consent, and because consent constitutes a valid warrant exception, the State reasons that 8–1025 merely punishes a driver for not cooperating with a test the driver already consented to by driving on Kansas roads in a way that established probable cause to suspect the driver of a DUI offense. In essence, according to the State, 8–1025 merely punishes a driver for obstructing a law enforcement officer in the exercise of official duty. The State argues it may also constitutionally punish a DUI suspect who does not submit to testing because, in addition to the consent exception, the search could be justified under several other well-delineated exceptions to the Fourth Amendment's warrant requirement. Succinctly put, the State argues Ryce had no constitutional right to refuse to submit to the test.

In reply, Ryce asserts 8–1025 is facially unconstitutional, meaning unconstitutional in all circumstances and not just in how it was applied to him. He reasserts the Fourth and Fourteenth Amendment arguments he made before the district court. In addition, for the first time on appeal, he argues that 8–1025: (1) violates his right to be protected from self-incrimination under the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights and (2) implicates the doctrine of unconstitutional conditions.

We focus our analysis on the original argument Ryce made in the district court—specifically, whether 8–1025 facially violates the Fourth and Fourteenth Amendments. In addressing this argument, we structure our analysis with the following elemental questions: (1) What does the language of 8–1025 and the statute it incorporates, 8–1001, provide? (2) Does the Fourth Amendment apply to the tests contemplated by 8–1025 and 8–1001 and, if so, what are the overarching Fourth Amendment principles that guide our analysis? (3) What is the test to be applied to Ryce's facial challenge of 8–1025? (4) How do past cases upholding nonconsensual searches impact our analysis? (5) Does statutory consent in Kansas provide irrevocable consent? and (6) If a person has the right to withdraw consent, do the United States and Kansas Constitutions prevent the State from criminally punishing a person for doing so?

By answering these elemental questions, we can resolve the ultimate issue Ryce presented to the district court...

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    ...v. Taxation With Representation of Washington , 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) ; cf. State v. Ryce , 303 Kan. 899, 957, 368 P.3d 342 (2016) (criminal penalty for refusing blood-alcohol test infringes on substantive Fourth Amendment right triggering strict scruti......
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