                                     OPINION ON REHEARING


                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                                No. 111,401

                                            STATE OF KANSAS,
                                               Appellant,

                                                      v.

                                       GREGORY MICHAEL NECE,
                                             Appellee.


                                    SYLLABUS BY THE COURT



        In light of State v. Ryce¸ 306 Kan. ___, ___ P.3d ___ (No. 111,698, this day
decided) (Ryce II), which holds that K.S.A. 2016 Supp. 8-1025 is unconstitutional, the
informed consent advisory in K.S.A. 2016 Supp. 8-1001(k) inaccurately advises a driving
under the influence suspect that he or she might "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." Given that inaccuracy, a district court could appropriately hold the suspect's
consent to breath-alcohol testing was not freely and voluntarily given under the totality of
the circumstances of a given case.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed October 10,
2014. Appeal from Saline District Court; RENE S. YOUNG, judge. Original opinion filed 303 Kan. 888,
367 P.3d 1260 (2016). Opinion on rehearing filed June 30, 2017. Judgment of the Court of Appeals
reversing the district court is reversed. Judgment of the district court is affirmed.



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        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.


The opinion of the court was delivered by


        LUCKERT, J.: 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


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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.


       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, 306 Kan. ___, ___ P.3d ___ (No. 111,698,
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, 36 L. Ed. 2d 854 [1973]).




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       We, once again, affirm the district court's assessment that Nece's consent was
involuntary, under the totality of the circumstances of his case, because it was obtained
by means of an inaccurate and coercive advisement. And, once again, because we reach
this holding and for the reasons set out in Nece I, we need not address the other
arguments raised by Nece or the application of the good-faith exception.


       We reverse the Court of Appeals and affirm the district court's decision to
suppress Nece's breath-alcohol test results, as the testing resulted from an involuntary
consent.


       Judgment of the Court of Appeals reversing the district court is reversed.
Judgment of the district court is affirmed.


       ROSEN, J., not participating.
       MICHAEL J. MALONE, Senior Judge, assigned.1


                                              ***


       STEGALL, J., concurring: For the reasons set forth in my earlier concurrence in
State v. Nece, 303 Kan. 888, 898, 367 P.3d 1260 (2016), I concur in the result only.




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 111,401
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.


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