State v. Johnson

1

State of Kansas, Appellee, v. Shane Eugene Johnson, Appellant.

No. 125,332

Court of Appeals of Kansas

June 2, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Graham District Court; PRESTON PRATT, judge.

Michael S. Holland II, of Holland and Holland, of Russell for appellant.

Jill A. Elliott, county attorney, and Kris W. Kobach, attorney general, for appellee.

Before WARNER, P.J., COBLE and PICKERING, JJ.

MEMORANDUM OPINION

PER CURIAM

A late-night, one-car accident led to Shane Eugene Johnson being charged with driving under the influence (DUI). Following a bench trial on stipulated facts, the district court convicted Johnson of DUI. Johnson appeals and argues that the district court erred in denying his motion to suppress the results of the blood test that showed his blood alcohol level over the legal limit. But on our review of the record, we conclude that Johnson unequivocally consented to the blood draw and his consent was gained without duress or coercion, so we affirm the district court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Following a January 2021 one-vehicle accident in which he was the driver, the State charged Johnson with driving under the influence of alcohol (second offense). As part of the proceedings, Johnson moved to suppress the results of a blood test obtained by the State, which showed his blood alcohol level at almost three times the legal limit. Johnson acknowledged that he was provided with the implied consent advisory, commonly referred to as the DC-70 Implied Consent Advisory, see K.S.A. 8-1001(d), both orally and in writing. But he argued that the advisory was unconstitutionally coercive because it "contain[ed] false and misleading statements regarding a defendant's statutory and constitutional rights." He maintained that, as a result any consent he provided for the blood draw was involuntary and resulted from coercion, so the test results must be suppressed.

The district court conducted an evidentiary hearing on Johnson's motion to suppress. Although both the motion and defense counsel's opening statement at that hearing focused on the constitutionality of the advisory, the parties' closing arguments were not so limited. Instead both parties focused on the totality of the circumstances surrounding the consent. During that hearing, both Cole Presley, sheriff of Graham County, and Alexander Riggins, an officer with the Hill City Police Department, testified.

Sheriff Presley testified that he responded to the report of an accident on the night of January 23, 2021. Sheriff Presley observed that Johnson's pickup truck had gone off the road and crashed into a tree, totaling the truck. Johnson was sitting in the driver's seat and talking on the phone. Presley testified that Johnson looked "[l]ike he'd been in a wreck and was drunk" and was bleeding from an abrasion on his face.

Sheriff Presley asked Johnson some questions to evaluate whether he was injured, to which Johnson provided only short, terse answers. At one point, Johnson looked at Sheriff Presley and said, "'I'm drunk.'" Sheriff Presley found it difficult to converse with Johnson due to how much Johnson had been drinking and because Johnson was obviously in a lot of pain. In addition to the difficulties communicating, Johnson's eyes were glassy and bloodshot, and he smelled like alcohol.

Based on Johnson's injuries, Sheriff Presley believed Johnson needed to go to the emergency room for treatment. Johnson initially did not want to go to the hospital. However, after Sheriff Presley told Johnson that he would go to jail for DUI if he did not go to the hospital, Johnson agreed to go to the hospital. Sheriff Presley contacted Officer Riggins and asked him to seek consent from Johnson for a blood draw at the hospital.

Officer Riggins arrived at the hospital a few minutes after Johnson. He observed that Johnson had lacerations on his lip, slightly slurred speech, and delayed response time to questions. After nurses conducted their initial observations, Officer Riggins asked Johnson for his state-issued identification card. Johnson had some difficulty retrieving it, fumbling as he tried to pull the identification card out, but he eventually provided it to Officer Riggins.

Officer Riggins then presented two copies of a DC-70 implied consent advisory form. He offered one to Johnson, but Johnson did not reach out to take it, so Officer Riggins placed the form on Johnson's chest. This form stated that refusal to submit to a blood alcohol test would result in suspension of driving privileges for one year. It also stated that test failure would result in suspension of driving privileges for 30 days to one year and that the results of testing may be used in a criminal action. Officer Riggins read the blood test portion of the form to Johnson and asked him for a yes or no answer as to whether he consented to a blood draw. Johnson replied, "Maybe." Officer Riggins again asked for a yes or no response, and Johnson's wife also told him that he needed to answer yes or no. Johnson then said, "Yes." Officer Riggins then reread the blood test section of the DC-70 form to Johnson and asked Johnson again for a yes or no answer. Johnson said, "Yes," again. Officer Riggins testified that Johnson never made any statements to the officer directly saying he did not want the blood draw.

Before the blood draw was conducted, Johnson asked his wife if he had to do a blood draw. His wife responded that he had already said yes. Officer Riggins also heard Johnson ask the nurse whether he had to do a blood draw. Although this indicated to Officer Riggins that Johnson was hesitant to have his blood drawn, Johnson did not ask Officer Riggins any direct questions or make any other indication that he did not consent to the blood draw. Officer Riggins did not ask Johnson if he had any questions, but he believed that Johnson had an adequate opportunity to ask questions as he was in the room with Johnson for 20 minutes.

At the conclusion of the evidentiary hearing, the district court denied Johnson's motion to suppress. The court noted that warrantless searches are per se unreasonable unless they fall under an exception and the exception at issue was Johnson's consent. To find consent, the State had to prove that the consent was unequivocal, specific, freely given, and obtained without duress or coercion. In determining whether Johnson voluntarily consented to the blood draw, the district court focused solely on the constitutionality of the implied consent advisory. The district court recognized that a person might feel coerced into agreeing to a blood draw because the person does not want the civil penalty that accompanies refusal. This type of coercion, however, was not unconstitutional because Johnson was accurately informed of the consequences his choices would have. Johnson had the opportunity to refuse consent and he voluntarily gave his consent for the blood draw. After he did so, he never specifically withdrew that consent, and he allowed his blood to be drawn.

The case later proceeded to a bench trial on stipulated facts. The district court found Johnson guilty of driving under the influence of alcohol.

Johnson appeals.

DID THE DISTRICT COURT ERR IN DENYING THE MOTION TO SUPPRESS?

Johnson argues on appeal that the State failed to prove that his consent to the blood draw was unequivocal and free from coercion.

"On a motion to suppress, an appellate court generally reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and reviews the ultimate legal conclusion de novo." State v. Cash, 313 Kan. 121, 125-26, 483 P.3d 1047 (2021). This case has no disputed facts, given the nature of the parties' stipulations. The parties focus instead on the legal question of whether the facts established that Johnson consented to the blood draw.

The Fourth Amendment to the Constitution of the United States prohibits unreasonable searches. Testing for blood alcohol content constitutes a search. Thus, a warrantless blood draw "is per se unreasonable unless a valid exception to the Fourth Amendment applies." City of Kingman v. Ary, 312 Kan. 408, 410, 475 P.3d 1240 (2020). Consent is an exception to the warrant requirement, and the issue here is whether the State proved that Johnson consented to the blood draw. See 312 Kan. at 410-11.

As articulated by the Kansas Supreme Court, the "existence, voluntariness, and scope of a consent to search is a question of fact to be determined from the totality of the circumstances." State v. Daino, 312 Kan. 390, 397, 475 P.3d 354 (2020). The State bears the burden to demonstrate the validity of a defendant's consent by a preponderance of the evidence. 312 Kan. at 397. To meet this burden, a showing of "mere acquiescence" is not enough. "Instead, to demonstrate valid consent, the State must (1) provide clear and positive testimony that consent was unequivocal, specific, and freely and intelligently given; and (2) demonstrate the absence of duress or coercion, express or implied." 312 Kan. at 397.

Johnson claims that the district court erred by failing to focus on his "clear equivocation about taking the blood test, nor the duress he was obviously under," but instead focusing on whether telling Johnson if ...