State v. Cousins

473 P.3d 961 (Table)

STATE of Kansas, Appellee,

v.Wesley S. COUSINS, Appellant.

No. 121,676

Court of Appeals of Kansas.

Opinion filed October 23, 2020

Kevin J. Zolotor, of O'Hara & O'Hara, LLC, of Wichita, for appellant.

Mitch Spencer, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Buser and Powell, JJ.

MEMORANDUM OPINION

Per Curiam:

Wesley S. Cousins appeals his conviction of driving under the influence (DUI), claiming the district court erred by denying his motion to suppress the results of his evidentiary breath test. Cousins contends that his consent to be tested was involuntary and unduly coerced because the implied consent advisories stated that (1) Kansas law "requires" drivers to submit to testing and (2) refusal to submit to testing may be used as evidence at trial. Cousins also claims the statutory provision allowing test refusal evidence to be used against a driver at a DUI trial is unconstitutional.

We find that the implied consent advisory misstated the law by telling Cousins that Kansas law "requires" drivers to submit to testing, so Cousins' consent to the breath test was involuntary and the breath test violated his Fourth Amendment rights. We need not reach Cousins' additional claim that the advisory that refusal to submit to testing may be used as evidence at trial was inaccurate and coercive. But although the breath test did not fully comply with Cousins' constitutional rights, we find that the results are admissible under the good-faith exception to the exclusionary rule because the law enforcement officer reasonably relied on the current statutory advisories in use at the time of Cousins' arrest. Finally, we find that Cousins lacks standing to challenge the constitutionality of the statutory provision allowing test refusal evidence to be used against a driver at a DUI trial because Cousins did not refuse to submit to testing.

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2018, Kansas State Trooper Reed Sperry saw Cousins drive past him at the Kansas Star Casino toll booth in Sumner County and saw an open can of beer in Cousins' truck. Sperry stopped Cousins and noticed he had bloodshot and watery eyes, slurred speech, and an odor of alcoholic beverage. Cousins admitted to drinking "about 3 beers" earlier in the day. Sperry administered field sobriety tests and Cousins exhibited several clues on both the walk-and-turn test and the one-leg-stand test. Sperry concluded that Cousins could not safely operate a motor vehicle and arrested him for DUI. He transported Cousins to the Mulvane Police Department, where Sperry read Cousins the implied consent advisories as set out on the authorized DC-70 form (DC-70). The DC-70 advised Cousins as follows:

"1. Kansas law ( K.S.A. 8-1001 ) requires you to submit to and complete one or more tests of breath, blood or urine to determine if you are under the influence of alcohol or drugs or both .

"2. You have no constitutional right to consult with an attorney regarding whether to submit to testing.

"3. If you refuse to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, your driving privileges will be suspended for 1 year.

"4. If you submit to a breath or blood test requested by a law enforcement officer and produce a completed test result of .15 or greater, your driving privileges will be suspended for one year.

"5. If you submit to a breath or blood test requested by a law enforcement officer and produce a completed test result of .08 or greater, but less than .15, the length of suspension will depend upon whether you have a prior occurrence. A prior occurrence is a prior test refusal, test failure or any conviction or diversion for an alcohol or drug related conviction as defined in K.S.A. 8-1013, and amendments thereto, or any combination thereof, whether before, on or after July 1, 2001.

"6. If you fail a test with an alcohol content of .08 or greater, but less than .15, and do not have any prior occurrences, your driving privileges will be suspended for 30 days.

"7. If you have a prior occurrence and fail a test with an alcohol content of .08 or greater, but less than .15, your driving privileges will be suspended for one year.

"8. Refusal to submit to testing may be used against you at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both .

"9. The results of the testing may be used against you at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.

"10. After the completion of testing, you have the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing." (Emphases added.)

Cousins agreed to take a breath test on an Intoxilyzer 9000, and his breath sample showed an alcohol content of 0.112. On April 16, 2018, the State charged Cousins with one count of misdemeanor DUI; the State later amended the complaint to add a misdemeanor charge of transporting an open container of alcoholic beverage.

Cousins moved to suppress the breath test results. In the motion, he argued that Sperry's statement to him—per paragraph No. 1 of the DC-70—that Kansas law required him to submit to a breath test was inaccurate because Cousins had a constitutional right to withdraw his implied consent to such testing. He also argued that Sperry's statement—per paragraph No. 8 of the DC-70—that refusing the breath test could be used against him at a trial was both inaccurate and unduly coercive. Cousins argued that the district court should exclude his breath test results because his consent to the test was involuntary.

The State filed a legal memorandum opposing the motion to suppress. In its memorandum, the State contended that the DC-70 was not inaccurate or unduly coercive and that Cousins' consent to the breath test was voluntary. In the alternative, the State argued that the good-faith exception to the exclusionary rule prevented suppression of the evidence. More specifically, the State asserted that "Trooper Sperry gave the DC-70 notices as they are currently given and the purpose of the exclusionary rule would not be served to exclude the evidentiary breath test when the Trooper did not make a mistake."

The district court held a hearing on the motion to suppress on January 25, 2019. At the hearing, the parties stipulated "that the only issue is the voluntariness of the evidentiary breath test because of the DC-70 notices that were given," and the district court admitted the DC-70 into evidence. The State argued that the DC-70 notices were not unduly coercive and, in the alternative, that the exclusionary rule should not apply to exclude the test results.

In response, Cousins pointed out that in State v. Ryce , 303 Kan. 899, 944, 368 P.3d 342 (2016) (Ryce I ), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II ), our Supreme Court had recently held that individuals have a constitutional right to withdraw implied consent and refuse to submit to a breath test. Cousins argued that when Sperry told him that he was required to submit to the evidentiary breath test, Sperry misstated the law and unduly coerced him into taking the test. He also asserted that the DC-70 advisory that evidence of a breath test refusal could be used against him at trial rendered his consent to the test involuntary. Cousins also argued that the good-faith exception to the exclusionary rule did not apply in this case.

After hearing arguments, the district court found that the language in the DC-70 telling Cousins that he was required to submit to testing was not unduly coercive. The district court took under advisement Cousins' argument about the unduly coercive nature of being advised that a test refusal could be used against him at trial.

On February 7, 2019, the district court issued its final ruling from the bench. Noting that the DC-70 referred to the civil consequences of refusing to submit to testing, the district court again found that the language in the DC-70 that Cousins was required to submit to testing did not mislead him into believing that he could not refuse the test. Next, the district court found that State v. Bussart-Savaloja , 40 Kan. App. 2d 916, 198 P.3d 163 (2008), controlled the issue of whether using test refusal evidence at a later trial violates an individual's constitutional rights. Bussart-Savaloja held there was no constitutional right to refuse testing, so there was no constitutional right that would exclude evidence of a test refusal at trial. 40 Kan. App. 2d at 928. Thus, the district court rejected Cousins' argument that Sperry unduly coerced his consent to the breath test by stating that refusing to take the test could be used against him at a later trial. The district court issued a written journal entry denying the motion to suppress on April 17, 2019.

On June 13, 2019, the district court held a bench trial on stipulated facts. The district court found Cousins guilty of both charges. On July 25, 2019, the district court sentenced Cousins to 6 months in jail for the DUI and 30 days in jail for transporting an open container. The district court granted Cousins probation for 1 year after serving 48 hours in jail. Cousins timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR BY DENYING COUSINS' MOTION TO SUPPRESS ?

Cousins argues that Sperry unlawfully coerced him into consenting to and submitting to a breath test, so the district court erred by denying his motion to suppress the breath test results. More specifically, Cousins asserts that the following statements made by Sperry and reflected in the DC-70 unduly coerced his consent: (1) Kansas law "requires" drivers to submit to testing and (2) refusal to consent to testing may be...