                                        No. 110,323

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  WILLIAM HOEFFNER, JR.
                                        Appellant,

                                              v.

                            KANSAS DEPARTMENT OF REVENUE,
                                      Appellee.


                              SYLLABUS BY THE COURT

1.
       When reviewing the district court's ruling in a driver's license suspension case, an
appellate court generally employs a substantial competent evidence standard of review. If
the issues raise only questions of law, such as the interpretation of a statute, an appellate
court exercises unlimited review.


2.
       Substantial compliance with statutory notice provisions will usually be sufficient
when advising a driver of his or her rights under the Kansas implied consent law,
provided that the notice in question conveyed the essentials of the statute and did not
mislead the driver.


3.
       The extraction of a blood sample implicates constitutional guarantees against
unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the
United States Constitution.




                                              1
4.
       A search without a warrant is unreasonable unless it falls within one of several
limited, well-defined exceptions to the warrant requirement, one of those exceptions
being consent. For consent to be valid, there must be clear and positive testimony that
consent was unequivocal, specific, and freely given and the consent must have been
given without duress or coercion, express or implied.


5.
       When consent to testing occurs in the wake of a threat to obtain a search warrant
for such testing, the court will construe the threat as unlawful coercion that invalidates
consent when there are not then grounds upon which a warrant could issue. Conversely,
when an officer says that a warrant can be obtained and, in fact, there are grounds for the
warrant to issue, the statement is correct and does not constitute coercion.


6.
       When a statute is plain and unambiguous, courts must give effect to its express
language rather than determine what the law should or should not be. Courts may not
speculate on legislative intent and may not read the statute to add something not readily
found in it. If the statute's language is clear, there is no need to resort to statutory
construction. But even if the language of a statute is plain and unambiguous, courts still
must harmonize or reconcile various provisions of an act together to avoid statutory
interpretations that would be unreasonable or render legislation meaningless.


7.
       A law enforcement officer may direct a medical professional to draw a sample of
blood from a person when a person refuses to submit to and complete a test if (1) the
person was operating or attempting to operate a vehicle, (2) the vehicle has been involved
in an accident or collision resulting in serious injury or death of any person, and (3) the
operator could be cited for any traffic offense.

                                                2
8.
       An officer is prohibited from obtaining a search warrant to extract blood after a
person has refused to consent to a request to submit to blood-alcohol testing.


9.
       The exclusionary rule does not apply in administrative driver's license suspension
proceedings.


       Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed September 12, 2014.
Affirmed.


       John M. Linder, of Linder, Marquez & Koksal, of Garden City, for appellant.


       John D. Schultz, of Legal Services, Kansas Department of Revenue, for appellee.


Before BRUNS, P.J., PIERRON and STANDRIDGE, JJ.


       STANDRIDGE, J.: After leaving an incident at a casino, William Hoeffner, Jr., was
arrested for driving under the influence. The arresting officers read him the required
implied consent advisory before requesting he submit to a breath test. He refused to do so
until the officers repeatedly indicated that they would obtain a search warrant for a blood
test; then, he agreed to the breath test, which he failed. Although Hoeffner argued the
officers unlawfully coerced him into submitting to a breath test by threatening to obtain a
search warrant, his driving privileges were suspended. His suspension was affirmed after
an administrative hearing. Hoeffner appealed the suspension to the district court, again
claiming unlawful coercion and also that the hearing officer used an improper form,
which rendered his suspension a nullity. The district court upheld the suspension.


       Hoeffner appeals to us raising the same issues. We find no merit to Hoeffner's
claim that the proceedings before the hearing officer were rendered a nullity based on

                                                  3
language in the form. But we agree with Hoeffner that the officers did not have legal
grounds upon which to obtain a search warrant to draw Hoeffner's blood at the time the
officers repeatedly advised Hoeffner that they intended to do so. The officers'
misinformation transformed the breath test Hoeffner previously had refused to take into
an involuntary search because it necessarily deprived Hoeffner of the opportunity to
revoke his statutorily implied consent. Although the results of Hoeffner's failed breath
test are the fruits of an unlawful seizure, our Supreme Court has long held that the
exclusionary rule does not apply to suppress incriminating evidence in administrative
driver's license suspension cases. Accordingly, we find substantial competent evidence to
support the district court's finding that Hoeffner had an alcohol concentration of .08 or
greater in his blood and, in turn, affirm the court's decision to uphold the agency's
suspension of Hoeffner's license.


                                            FACTS

       In late June 2011, Officer Daniel Hadovanic of the Dodge City Police Department
responded to a call regarding a disorderly man at a casino. Dispatch stated that the man
and a younger companion left the casino in a convertible. Officer Joan Addison offered to
serve as Hadovanic's backup for the call and encountered the car first. After the car sat at
a green light without immediately going forward, Addison initiated a traffic stop.
Hoeffner was the driver.


       Despite the fact that the car was a convertible, Addison noticed the odor of alcohol
when she approached the car. Addison also noticed Hoeffner was very talkative, "hyped
up," and that his eyes were watering—the "perfect demonstration of something you
would teach a beginner . . . to look for in an impaired driver." When Hadovanic arrived
on the scene, he also noticed the odor of alcohol and Hoeffner's bloodshot eyes. Hoeffner
struggled to get out of the car when requested, and he admitted to Hadovanic that he had
been drinking beer prior to the traffic stop.

                                                4
       Hadovanic administered field sobriety tests to Hoeffner, which he failed. Hoeffner
refused a preliminary breath test, after which officers arrested him and transported him to
the county jail. There, they read Hoeffner the applicable implied consent advisory and
provided him a written copy, but when they requested Hoeffner to submit to a breath test,
he refused. Hoeffner asked Hadovanic whether he should submit to the test, but
Hadovanic replied that he could not give Hoeffner advice about whether to take it.
During this time, one or both of the officers informed Hoeffner that if he did not submit
to the breath test, they would obtain a search warrant for a blood test. In fact, at the time
of Hoeffner's arrest, Dodge City police officers routinely attempted to obtain search
warrants for blood tests after drivers refused to consent to a request for breath test. After
a while, Hoeffner announced that if the officers were going to get a sample one way or
another, he might as well submit to the breath test. When he again showed hesitation, the
officers repeated that they intended to obtain a search warrant if Hoeffner failed to submit
to and complete the test. Hoeffner ultimately acquiesced to the breath test, the results of
which showed a blood-alcohol content of .215, nearly three times the legal limit.


       Because he failed the test, Hoeffner's driving privileges were suspended. Hoeffner
subsequently requested a hearing with the Kansas Department of Revenue (KDOR).
Although originally scheduled for December 2011, the hearing was delayed until June
2012, over a year after Hoeffner failed the test. By this time, certain provisions of the
Kansas implied consent law had changed, and the KDOR had revised its hearing form to
conform to those changes.


       Hoeffner claimed at the administrative hearing that the officers' statements about
obtaining a search warrant if he continued to refuse testing was coercion that rendered his
consent involuntary. The hearing officer apparently took the matter under advisement
because Hoeffner later submitted a brief in support of his position. In the end, however,
the hearing officer determined that Hadovanic "was merely stating protocol when he told


                                              5
[Hoeffner] blood would be drawn upon refusal." The hearing officer affirmed Hoeffner's
suspension.


       Hoeffner then appealed the KDOR's decision to the Ford County District Court.
Although Hoeffner raised approximately six issues before the district court, only two are
relevant to this appeal: whether the KDOR erred by using the revised hearing form and
whether the officers' statements regarding the potential search warrant constituted
coercion. After hearing testimony and argument, the district court determined that the
revised form did not change the penalty that applied to Hoeffner and that the officers
provided Hoeffner with the correct implied consent notices at the time of his arrest. As
such, any error by the KDOR in using the wrong form was harmless. With regard to the
coercion issue, the district court determined that because the statements made by the
officers regarding their ability to obtain a search warrant were true, the statements did not
constitute coercion. The district court affirmed the suspension.


                                         ANALYSIS

The revised hearing form

       Hoeffner's first argument involves the hearing order form, which reflected changes
in the law effective after his breath test. Hoeffner contends that using this form is such an
egregious error that it renders the hearing's outcome a nullity. We disagree.


       When reviewing the district court's ruling in a driver's license suspension case, this
court generally employs a substantial competent evidence standard of review. Schoen v.
Kansas Dept. of Revenue, 31 Kan. App. 2d 820, 822, 74 P.3d 588 (2003). However, when
the issues raise only questions of law—such as the interpretation of a statute—this court
exercises unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176
P.3d 938 (2008).


                                              6
       Hoeffner concedes that the implied consent notices provided to him on the night of
his breath test complied with the law at the time. Hoeffner also concedes that he suffered
no prejudice, as he received the penalty in effect in June 2010. The crux of Hoeffner's
contention, then, is that the KDOR is required to strictly comply with the law such that
any irregularity in its own internal processes, such as using the wrong form, irreparably
taints the proceedings.


       However, this assertion is unsupported by Kansas law. "[I]t is generally
recognized that substantial compliance with statutory notice provisions will usually be
sufficient" when advising a driver of his or her rights under the Kansas implied consent
law, provided that the notice in question "conveyed the essentials of the statute and did
not mislead the appellant." Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755
P.2d 1337 (1988). This rule stems from the fact that the implied consent statute is a
remedial statute, and such statutes are "to be liberally construed to effectuate the purpose
for which [they were] enacted." Smith v. Marshall, 225 Kan. 70, Syl. ¶ 1, 587 P.2d 320
(1978); see also K.S.A. 2010 Supp. 8-1001(v) (establishing that implied consent statute is
a remedial law). When, for example, an arresting officer read a driver an out-of-date
implied consent advisory that warned her of significantly different penalties than those in
effect at the time, our Supreme Court held the officer failed to substantially comply with
the implied consent law. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 681, 840 P.2d
448 (1992).


       Obviously, these cases are factually distinguishable from the instant case as they
discuss only the initial implied consent notices required by statute, not the hearing form
used by the KDOR. However, the situations are analogous. Hoeffner was read the notices
in effect at the time of his arrest and received the penalty applicable in June 2011.
Hoeffner never even saw the form memorializing these facts until after the hearing.
Nothing in the record suggests that the outcome of the hearing changed due to this
technical irregularity, and, as previously stated, Hoeffner admits he suffered no prejudice.

                                              7
        To further analogize from other areas of the law, our Kansas Code of Criminal
Procedure states that "[c]lerical mistakes in judgments, orders or other parts of the record
. . . arising from oversight or omission may be corrected by the court at any time." K.S.A.
22-3504(2). The Kansas Rules of Civil Procedure allow a court to "correct a clerical
mistake or a mistake arising from oversight or omission whenever one is found in a
judgment." K.S.A. 2013 Supp. 60-260(a). It is clear that these statutes allow our Kansas
courts to correct minor mistakes and oversights without the need for further proceedings.
As it appears that the use of the wrong form was likely nothing more than oversight by
the hearing officer, Hoeffner's argument that it renders the hearing officer's judgment a
nullity is disingenuous in light of these other statutes. Hoeffner is, at most, entitled to a
corrected or amended hearing order form, not a complete reversal of his suspension.


        The KDOR substantially complied with the law in effect at the time of Hoeffner's
breath test, and Hoeffner suffered no prejudice due to this technical irregularity. As such,
we decline to vacate his suspension for this reason.


Coercion

        The extraction of a blood sample implicates constitutional guarantees against
unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the
United State Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16
L. Ed. 2d 908 (1966); State v. Murry, 271 Kan. 223, 226, 21 P.3d 528 (2001). A search
without a warrant is unreasonable unless it falls within one of several limited, well-
defined exceptions to the warrant requirement, one of those exceptions being consent.
State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015 (2007). In Thompson, our
Supreme Court stated that for consent to be valid "(1) there must be clear and positive
testimony that consent was unequivocal, specific, and freely given and (2) the consent
must have been given without duress or coercion, express or implied." 284 Kan. 763, Syl.
¶ 12.

                                               8
       Hoeffner claims his consent was not freely given but instead was coerced as a
direct result of the officers' repeated words of warning that if Hoeffner would not submit
to a breath test, the officers would apply for and obtain a search warrant to obtain a blood
test. When consent to testing occurs in the wake of a threat to obtain a search warrant for
such testing, like here, we will construe the threat as unlawful coercion that invalidates
consent when "there were not then grounds upon which a warrant could issue." State v.
Brown, 245 Kan. 604, 612, 783 P.2d 1278 (1989). Conversely, when an officer says that
a warrant can be obtained and "in fact, there are grounds for the issuance of a warrant, the
statement is correct and does not constitute coercion." 245 Kan. at 612-13. The threat is
acceptable under these circumstances because it "'does not involve any deceit or trickery,
but instead accurately informs the individual of his precise legal situation.'" 245 Kan. at
608 (quoting 2 La Fave, Search and Seizure § 8.2, pp. 648-49 [1978]).


       Thus, in order to resolve Hoeffner's claim that his consent was unlawfully coerced,
we necessarily must decide whether the officers lawfully could have obtained a search
warrant to involuntarily extract blood from Hoeffner for purposes of alcohol testing. And
because drawing a sample of blood from a person suspected of driving under the
influence is governed by statute in Kansas, our decision is necessarily a matter of
statutory interpretation, which is a legal issue appellate courts determine independently
without any required deference to the district court. See State v. Mason, 294 Kan. 675,
676, 279 P.3d 707 (2012). When a statute is plain and unambiguous, courts must give
effect to its express language rather than determine what the law should or should not be.
Courts may not speculate as to legislative intent and may not read the statute to add
something not readily found in it. If the statute's language is clear, there is no need to
resort to statutory construction. But even if the language of a statute is plain and
unambiguous, courts still must harmonize or reconcile various provisions of an act
together to avoid statutory interpretations that would be unreasonable or render
legislation meaningless. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010); Redd v.
Kansas Truck Center, 291 Kan. 176, 201, 239 P.3d 66 (2010).

                                              9
      A compelled blood draw after a refusal to consent to such testing is governed by
the provisions of K.S.A. 2010 Supp. 8-1001, which provided in relevant part:


              "(d) A law enforcement officer may direct a medical professional described in
      this section to draw a sample of blood from a person:
              (1) If the person has given consent and meets the requirements of subsection (b);
              (2) if medically unable to consent, if the person meets the requirements of
      paragraph (2) of subsection (b); or
              (3) if the person refuses to submit to and complete a test, if the person meets the
      requirements of paragraph (2) of subsection (b)."


Because this provision summarily cross-references subsection (b) of the statute, we have
inserted the cross-referenced language where appropriate and have designated the cross-
referenced language by placing it in brackets:


      "(d) A law enforcement officer may direct a medical professional described in this
      section to draw a sample of blood from a person:
              (1) If the person has given consent and
                      [(1) If the officer has reasonable grounds to believe the person was
                      operating or attempting to operate a vehicle while under the influence . . .
                      and one of the following conditions exists:
                               (A) The person has been arrested or otherwise taken into custody
                               for any offense involving operation or attempted operation of a
                               vehicle while under the influence . . .; or
                               (B) the person has been involved in a vehicle accident or
                               collision resulting in property damage or personal injury other
                               than serious injury; or
                      (2) if the person was operating or attempting to operate a vehicle and
                      such vehicle has been involved in an accident or collision resulting in
                      serious injury or death of any person and the operator could be cited for
                      any traffic offense . . . .]; or
                      (3) if the person refuses to submit to and complete a test, [the person was
                      operating or attempting to operate a vehicle and such vehicle has been
                                                     10
                      involved in an accident or collision resulting in serious injury or death of
                      any person and the operator could be cited for any traffic offense . . . .]
              (2) if medically unable to consent,
                      [(2) if the person was operating or attempting to operate a vehicle and
                      such vehicle has been involved in an accident or collision resulting in
                      serious injury or death of any person and the operator could be cited for
                      any traffic offense . . . .]; or
              (3) if the person refuses to submit to and complete a test
                      [(2) if the person was operating or attempting to operate a vehicle and
                      such vehicle has been involved in an accident or collision resulting in
                      serious injury or death of any person and the operator could be cited for
                      any traffic offense . . . .].


       Looking at the facts as they existed at the time the threat to obtain a search warrant
was made, the officer's ability to draw blood was governed by K.S.A. 2010 Supp. 8-
1001(d)(3) because Hoeffner already had refused to submit to and complete a test. Under
the governing statute, then, the officer was permitted to direct a medical professional to
draw a sample of blood from Hoeffner only if he (1) was operating or attempting to
operate a vehicle, (2) the vehicle had been involved in an accident or collision resulting in
serious injury or death of any person, and (3) he could be cited for any traffic offense.
But Hoeffner's vehicle had not been involved in an accident, let alone an accident
resulting in serious injury or death of a person. Thus, in the wake of Hoeffner's refusal to
consent to the request for testing, the officer was not permitted to direct a medical
professional to draw a sample of blood from Hoeffner. See State v. Weilert, 43 Kan. App.
2d 403, 410, 225 P.3d 767 (2010) (applying K.S.A. 8-1001[d][3], court held that in the
absence of evidence driver of vehicle was in an accident involving serious injury or
death, officers may not facilitate the forced withdrawal of a sample of blood from the
driver for purposes of a criminal proceeding); Cook v. Olathe Medical Center, Inc., 773
F. Supp. 2d 990, 1002 (D. Kan. 2011) (same).




                                                      11
       Although our conclusion today is supported by the plain and unambiguous
language of K.S.A. 2010 Supp. 8-1001(d)(3), another panel of our court recently held the
statute does not apply in those instances when the officer has probable cause to obtain a
search warrant after a refusal. City of Dodge City v. Webb, 50 Kan. App. 2d __, 329 P.3d
515, 522 (2014), petition for rev. filed July 9, 2014. The panel acknowledged that the
statute expressly prohibits the officer from directing a medical professional to draw
blood, yet went on to conclude that the statute was inapplicable as a matter of law when
the officer obtains a search warrant supported by probable cause. In support of this legal
conclusion, the panel found that when an officer is executing a search warrant it is the
judge directing the medical professional to draw blood and not the officer. See 329 P.3d
at 522. But the panel's conclusion is not supported by the plain language of the statute.
Whether accomplished in the course of executing a warrant signed by a magistrate upon
probable cause or without a warrant at all, at the end of the day it is still a law
enforcement officer on the scene who directs the medical professional to draw the blood,
an act expressly prohibited by the language of K.S.A. 2010 Supp. 8-1001(d)(3).


       By construing the statutory language to create a search warrant exception to the
ban on nonconsensual blood-alcohol testing after a refusal, the Webb panel not only
moved beyond the plain and unambiguous language of the statute in a manner contrary to
clear legislative intent, but it also rejected well-settled Kansas law on the issue. In State v.
Adee, 241 Kan. 825, 829-30, 740 P.2d 611 (1987), the Kansas Supreme Court was called
on to decide whether a new provision within the implied consent statute created an
exception to the long-standing ban against seeking a search warrant for blood samples
from persons refusing to consent to testing. Added as subsection (g) of the statute, this
new provision stated: "Nothing in this section shall be construed to limit the
admissibility at any trial of alcohol or drug concentration testing results obtained pursuant
to a search warrant." K.S.A. 1986 Supp. 8-1001(g). Relying on legislative history, the
Adee court determined that subsection (g) was not intended to create a search warrant


                                              12
exception to the existing statutory provision that prohibited blood-alcohol testing after a
refusal:


       "We believe that the intention of subsection (g) as enacted was not to change existing law
       as to the prohibition against the issuance of search warrants for DUI suspects refusing
       alcohol concentration testing, but rather to clarify that nothing in the implied consent
       statute (K.S.A. 1986 Supp. 8-1001) rendered alcohol concentration test results from
       search warrants issued under some other authority inadmissible in DUI trials.
       Conceivably, a search warrant for a blood sample could be issued for a suspect of some
       crime other than DUI. If so, and the results were relevant to a DUI charge against the
       same individual, then (g) states that nothing in the implied consent statute (K.S.A. 1986
       Supp. 8-1001) renders such results inadmissible in the DUI trial." Adee, 241 Kan. at 832.


       Citing Adee as controlling precedent, the panel in Webb agreed that the pre-2008
version of the implied consent statute prohibited an officer from obtaining a search
warrant to compel a blood sample after a defendant refused testing. Nevertheless, the
panel ultimately concluded that both the legal analysis and the holding in Adee were no
longer controlling because the Kansas Legislature eliminated subsection (h) of the
implied consent statute—the language prohibiting additional testing after a refusal—in its
2008 revisions:


       "[I]n 2008, the Kansas Legislature revised the implied consent statute further and
       eliminated subsection (h) entirely, changing the calculus in our view. . . . Because the
       Kansas Legislature took out the language prohibiting additional testing after a refusal, . . .
       the statute now allows for additional testing after a refusal." Webb, 329 P.3d at 522.


The panel claimed that its conclusion in this regard was "bolstered by the language in
K.S.A. 2011 Supp. 8-1001(t), which states: 'Nothing in this section shall be construed to
limit the admissibility at any trial of alcohol or drug concentration testing results obtained
pursuant to a search warrant.'" 329 P.3d at 522.


                                                    13
       We disagree with the conclusion reached by the panel in Webb. First, the Kansas
Legislature did not eliminate—but merely repositioned—the language prohibiting
additional testing after a refusal in its 2008 revisions. Second, the search warrant
language in subsection (t) of the statute, which was quoted by the panel to bolster its
conclusion, is the precise language considered by the Supreme Court in Adee in
determining that the legislature did not intend to create a search warrant exception to the
existing statutory provision that prohibited blood-alcohol testing after a refusal.


       Prior to revisions in 1986, the following provision in the implied consent statute
had always been construed to prohibit an officer from obtaining a search warrant from a
neutral magistrate for nonconsensual blood-alcohol testing after a request for consent to
testing had been refused:


       "After giving [the required oral and written notices], a law enforcement officer shall
       request the person to submit to testing. The selection of the test or tests shall be made by
       the officer. If the person refuses to submit to and complete a test as requested pursuant to
       this section, additional testing shall not be given . . . ." (Emphasis added.) K.S.A. 1986
       Supp. 8-1001(f)(1).


       When revising the statute in 1986, the legislature added subsection (g), which
stated: "Nothing in this section shall be construed to limit the admissibility at any trial of
alcohol or drug concentration testing results obtained pursuant to a search warrant."
K.S.A. 1986 Supp. 8-1001(g).


       As noted above, the issue presented to the court for determination in Adee was
whether the legislature intended subsection (g) to create a search warrant exception to the
statutory ban on nonconsensual blood-alcohol testing after refusal. Noting that new
subsection (g) spoke only to admissibility at trial of test results obtained by a search
warrant, the court began its analysis by reviewing the legislative history relevant to
subsection (g) as originally introduced, which provided:
                                                    14
                "'(g) Nothing in this section shall be construed to limit the admissibility at any
       trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.
       A search warrant permitting alcohol or drug concentration testing may be issued only
       upon a showing that a law enforcement officer has probable cause to believe the person
       was operating a motor vehicle while under the influence of alcohol or drugs and the
       motor vehicle was involved in an accident resulting in death or serious personal injury
       likely to result in death.' See SB 127 [1985], as Amended by Senate Committee of The
       Whole, and House Federal and State Affairs Committee, at 7." Adee, 241 Kan. at 832.


       The Adee court determined from its review of the original bill that the legislature
did not intend to create a search warrant exception to the existing statutory provision that
prohibited blood alcohol testing after a refusal but instead intended to clarify that nothing
in the implied consent statute rendered alcohol concentration test results arising out of
search warrants issued under some other authority inadmissible in DUI trials. 241 Kan. at
832.


       In an apparent reaction to the holding in Adee, the Kansas Legislature amended
K.S.A. 8-1001 in the next legislative session. Among other additions, the amended
version of the statute contained a new qualification concerning what occurs following a
test refusal:


       "If the person refuses to submit to and complete a test as requested pursuant to the
       section, additional testing shall not be given unless the certifying officer has probable
       cause to believe that the person, while under the influence of alcohol or drugs, or both,
       has operated a motor vehicle in such a manner as to have caused the death of or serious
       injury to another person. In such event, such test or tests may be made pursuant to a
       search warrant issued under the authority of K.S.A. 22-2502 and amendments thereto or
       without a search warrant under the authority of K.S.A. 22-2501 and amendments
       thereto." K.S.A. 1988 Supp. 8-1001(f)(1).




                                                     15
       In 2001, the legislature reorganized this version of the provision and separated it
into two subsections:


                 "(h) After giving the foregoing information, a law enforcement officer shall
       request the person to submit to testing. The selection of the test or tests shall be made by
       the officer. If the person refuses to submit to and complete a test as requested pursuant to
       this section, additional testing shall not be given unless the certifying officer has probable
       cause to believe that the person, while under the influence of alcohol or drugs, or both,
       has operated a vehicle in such a manner as to have caused the death of or serious injury to
       another person. . . .
                 ....
                 "(k) An officer shall have probable cause to believe that the person operated a
       vehicle while under the influence of alcohol or drugs, or both, if the vehicle was operated
       by such person in such a manner as to have caused the death of or serious injury to
       another person. In such event, such test or tests may be made pursuant to a search warrant
       issued under the authority of K.S.A. 22-2502, and amendments thereto, or without a
       search warrant under the authority of K.S.A. 22-2501, and amendments thereto." K.S.A.
       8-1001.


       In 2008, the legislature made major revisions to the implied consent statute. See L.
2008, ch. 170, sec. 1 The most significant revision was an amendment made to subsection
(b) of the statute. Before 2008, an officer was required to ask a person to submit to blood-
alcohol testing when the officer had reasonable grounds to believe a person was operating
or attempting to operate a vehicle while under the influence of alcohol or drugs and either
(a) the person was in custody or had been arrested for a DUI offense or (b) the person had
been involved in a car accident resulting in property damage, personal injury, or death.
After 2008, however, the statute required an officer to ask a person to submit to blood-
alcohol testing when (1) the officer had reasonable grounds to believe a person was
operating or attempting to operate a vehicle while driving under the influence and either
(a) the person was in custody or had been arrested for a DUI offense or (b) the person had
been involved in a car accident resulting in property damage or a personal injury other

                                                    16
than serious injury; or (2) the person was operating or attempting to operate a vehicle and
the vehicle was involved in an accident resulting in serious injury or death and the
operator could be cited for any traffic offense. K.S.A. 2008 Supp. 8-1001(b). The statute
provides that the traffic offense violation shall constitute probable cause for purposes of
paragraph (2).


       The significance of the 2008 amendment is that under subsection (b)(2), an officer
is not only authorized, but required, to ask a person to consent to a blood draw for
purposes of alcohol testing without the officer having any suspicion, let alone reasonable
grounds or probable cause, to believe that the driver was under the influence of drugs or
alcohol. Eliminating the requirement that an officer have reasonable grounds to believe a
person is driving under the influence before making a request to submit to blood-alcohol
testing represents a significant shift in the law, as this requirement was a constitutional
safeguard included in the statute when it was originally enacted in 1955 and remained
firmly entrenched for over 50 years until the amendment in 2008. To that end, a panel of
this court recently held that this particular portion of the statute—see K.S.A. 2011 Supp.
8-1001(b)(2) requiring a search and seizure absent probable cause to believe the person
was operating or attempting to operate a vehicle under the influence of drugs or
alcohol—was unconstitutional "to the extent it requires a search and seizure absent
probable cause." State v. Declerck, 49 Kan. App. 2d 908, 919, 317 P.3d 794 (2014)
(finding traffic infraction plus an injury or fatality, without more, did not constitute
probable cause that drugs or alcohol were involved in the accident).


       In addition to the significant changes it made to subsection (b), the legislature also
modified existing language, added additional provisions, and then reorganized the
subsections within the entire statute by subject matter. We have summarized this
reorganization in the following table, which compares the subject matter for each of the
alphabetically designated subsections of the 2007 version of the statute to the subject
matter for that subsection of the 2008 version:

                                              17
                 K.S.A. 2007 Supp. 8-1001                           K.S.A. 2008 Supp. 8-1001
(a)   Implied consent.                                   Implied consent.
(b)   Request for testing; grounds.                      Request for testing; grounds.
(c)   Blood test at the direction of an officer.         Blood test at the direction of an officer.
      who authorized to extract                         who authorized to extract
      reliance on written statement from officer
      when medical personnel immune from liability
(d)   Requesting urine test; when.                       Blood test at the direction of an officer.
                                                         when driver voluntarily consents
                                                         when driver medically unable to consent
                                                         when driver refuses to consent
                                                              No testing after refusal: Officer may direct
                                                              a blood draw after a refusal only if (1)
                                                              person was operating or attempting to
                                                              operate a vehicle, (2) that was involved in
                                                              an accident resulting in serious injury or
                                                              death, and (3) operator could be cited for
                                                              traffic offense.
(e)   Officer immune from liability, when.               Blood test at the direction of an officer.
                                                         reliance on written statement from officer
                                                         when medical personnel immune from liability
(f)   Duty to provide driver notice.                     Blood test at the direction of officer.
      noncommercial drivers                             sample must be independent of medical
      drivers over 21                                   sample.
(g)   Duty to provide driver notice.                     Restraint of person to collect sample.
      drivers of commercial vehicle                     acceptable practices
      drivers under 21.
(h)   License suspension for test refusal or failure.    Requesting urine sample; when.
         No testing after refusal: No additional
         testing after refusal unless (1) officer has
         probable cause to believe that the person
         was operating a vehicle (2) while under the
         influence of alcohol or drugs, or both (3) in
         such a manner as to have caused the death
         of or serious injury to another person.
(i)   Refusal shall be admissible in evidence.           Collecting urine sample.




                                                    18
(j)   Disqualification/license suspension.                 Officer immune from liability, when.
      driver of commercial vehicle.
(k)   Probable cause to believe person DUI if vehicle      Duty to provide driver notice.
      operated in a manner to have caused the death        noncommercial drivers
      or serious injury to a person. In such event, test   drivers over 21
      may be made pursuant to a search warrant under
      K.S.A. 22-2502 or without a search warrant
      under K.S.A. 22-2501.
(l)   Failure to provide adequate sample  refusal.        Duty to provide driver notice.
                                                           drivers of commercial vehicle
                                                           drivers under 21
(m)   Failure to understand notice is not a defense.       License suspension for test failure (BAC ≥ .08).
(n)   Test results will not be suppressed due to           Refusal shall be admissible in evidence.
      technical irregularities in consent or notice
      provided.
(o)   Nothing in this section should be construed to       Disqualification/license suspension
      limit admissibility of any testing results           driver of commercial vehicle
      obtained pursuant to a search warrant.
(p)   Upon request, test results shall be made             Probable cause to believe person DUI if vehicle
      available to any person who submitted to             operated in a manner to have caused the death or
      testing.                                             serious injury to a person. In such event, test
                                                           may be made pursuant to a search warrant under
                                                           K.S.A. 22-2502 or without a search warrant
                                                           under K.S.A. 22-2501.
(q)   Remedial law to be construed liberally.              Failure to provide adequate sample  refusal.
(r)                                                        Failure to understand notice is not a defense.
(s)                                                        Test results will not be suppressed due to
                                                           technical irregularities in consent or notice
                                                           provided.
(t)                                                        Nothing in this section should be construed to
                                                           limit admissibility of any testing results obtained
                                                           pursuant to a search warrant.
(u)                                                        Upon request, test results shall be made
                                                           available to any person who submitted to
                                                           testing.
(v)                                                        Remedial law to be construed liberally.
(w)                                                        Serious injury defined.


       Critical to the issue presented here, and as the italicized language in the table
reflects, the legislature repositioned the provision relating to when additional testing can

                                                      19
be given after a person already has refused to submit to a test. In previous versions of the
statute, the provision prohibiting additional testing after a refusal was positioned in the
same subsection (subsection [h]) that required officers to request testing after providing
the required notice and to suspend a license for a refusal to submit to testing. In the 2008
revision, however, the legislature opted to reposition the "no testing after refusal"
component of subsection (h), which was the provision dedicated to license suspension for
test refusal or failure, moving it to subsection (d), which is the provision that is
specifically dedicated to the authority of law enforcement to direct a medical professional
to draw a sample of blood. See K.S.A. 2008 Supp. 8-1001(d)(3). As the table also
reflects, the provision regarding testing with or without a search warrant based on
probable cause to believe the driver is driving under the influence when there was an
accident causing death or serious injury was moved from subsection (k) to subsection (p)
and the "[n]othing in this section shall be construed to limit admissibility at any trial of
alcohol or drug concentration testing results obtained pursuant to a search warrant"
language was moved from subsection (o) to subsection (t). See K.S.A. 2008 Supp. 8-
1001(p), (t).


       Based on the discussion above, and completely contrary to the conclusion reached
by the panel in Webb, the 2008 revisions to the implied consent statute did not
eliminate—but merely repositioned—the language prohibiting additional testing after a
refusal. And contrary to the Webb panel's conclusion that new subsection (t) bolsters its
conclusion, our discussion makes clear that the search warrant language in that
subsection was merely repositioned by the legislature from subsection (o) and is the exact
same provision at issue when our Supreme Court held in Adee that the legislature did not
intend to create a search warrant exception to the existing statutory provision that
prohibited blood-alcohol testing after a refusal.


       The language set forth in implied consent statute as revised in 2008 is plain and
unambiguous; thus, there is no need to resort to statutory construction. Giving effect to

                                              20
the express language used by the legislature when it revised the statute in 2008, as well as
the firmly entrenched Supreme Court precedent that remains unaffected by these
statutory revisions, we conclude that the implied consent statute continues to prohibit an
officer from obtaining a search warrant after a test refusal. Notably, our conclusion in this
regard is entirely consistent with the public policy underlying the statute. Critical to the
fundamental principles upon which the concept of implied consent is based, a refusal to
consent occurs only after an officer makes a request for consent to submit to testing. And
if the driver consents, the subsequent testing falls within the consent exception to the
warrant requirement. See State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015
(2007). The consent to testing is implied, not actual, and if submission is not
forthcoming, then the legislature has implemented various provisions by which to coerce
the consent through knowledge and fear of adverse consequences. State v. Bristor, 236
Kan. 313, 319, 691 P.2d 1 (1984). But as set forth below, the adverse consequences
utilized by our legislature to coerce this consent do not include physically forcing consent
to testing against the driver's will, absent exigent circumstances.


       If a driver refuses to consent to testing, an officer may direct medical personnel to
draw blood from the driver without a warrant under K.S.A. 2010 Supp. 8-1001(d) only if
the driver was operating or attempting to operate a vehicle that was involved in an
accident resulting in serious injury or death and the driver could be cited for any traffic
offense. If the criteria for drawing blood is not met, the test refusal stands and, under
K.S.A. 2010 Supp. 8-1002(a), the law enforcement officer must certify that (1) there were
reasonable grounds to believe the person was operating or attempting to operate a vehicle
while under the influence of alcohol or drugs, or both, (2) the person had been placed
under arrest, was in custody, or had been involved in a vehicle accident or collision, (3) a
law enforcement officer had presented the person with the oral and written notice
required by K.S.A. 2010 Supp. 8-1001, and (4) the person refused to submit to and
complete a test as requested by a law enforcement officer. If the Division of Vehicles
within the KDOR finds that the officer's certification meets the statutory requirements,

                                              21
the Division is required to suspend the person's driving privileges. K.S.A. 2010 Supp. 8-
1002(f). The suspension imposed is governed by K.S.A. 2010 Supp. 8-1014(a):


               "(1) On the person's first occurrence, suspend the person's driving privileges for
       one year and at the end of the suspension, restrict the person's driving privileges for one
       year and at the end of the suspension restrict the person's driving privileges for one year
       to driving only a motor vehicle equipped with an ignition interlock device;
               "(2) on the person's second occurrence, suspend the person's driving privileges
       for two years;
               "(3) on the person's third occurrence, suspend the person's driving privileges for
       three years;
               "(4) on the person's fourth occurrence, suspend the person's driving privileges for
       10 years; and
               "(5) on the person's fifth or subsequent occurrence, revoke the person's driving
       privileges permanently."


       In addition to a loss of driving privileges, a refusal can be admitted as evidence at
a criminal DUI trial. Although not applicable to this case, as of July 1, 2012, it is also a
separate crime to refuse to consent to testing if, at any time on or after July 1, 2001, the
arrestee had previously refused a test or had been convicted of, or entered into a diversion
program for, a DUI. K.S.A. 2013 Supp. 8-1025. Under the new criminal refusal law, the
penalties for refusal are equal to or greater than the penalties for driving under the
influence.


       Given the well-established statutory framework that has long existed for those
drivers who refuse to consent to testing, as well as the nature of the penalties that have
been imposed by the legislature for years on those drivers, the implied consent law in
Kansas has always been construed as one that provides an effective means of overcoming
a driver's refusal to consent to testing without resorting to physical force, absent those
exceptional circumstances designated by statute. Furthmyer v. Kansas Dept. of Revenue,
256 Kan. 825, 835, 888 P.2d 832 (1995); Adee, 241 Kan. at 831; Bristor, 236 Kan. at
                                                    22
319; State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 (1980); State v. Weilert, 43
Kan. App. 2d 403, 410, 225 P.3d 767 (2010). Obtaining a search warrant for chemical
testing after a refusal to consent to testing presumably will involve varying degrees of
physical restraint in order to extract blood against a person's will, which directly
contradicts such a construction.


       Based on the implied consent statute itself, the well-established precedent from
our Supreme Court, and the public policy underlying implied consent principles, we
conclude an officer is prohibited from obtaining a search warrant to extract blood after a
person has refused to consent to a request to submit to blood-alcohol testing. Given this
conclusion, the officers in this case erroneously informed Hoeffner that they could obtain
a search warrant to involuntarily extract blood from him for purposes of alcohol testing if
he did not change his mind and voluntarily submit to testing. Because the officers did not
have legal grounds upon which to obtain a warrant, we necessarily construe the officers'
threat to obtain a warrant as unlawful coercion that invalidated Hoeffner's consent. See
State v. Brown, 245 Kan. 604, 612, 783 P.2d 1278 (1989). Because Hoeffner did not
voluntarily consent to the testing upon which the decision to suspend his driver's license
was based, we next turn to the issue of remedy.


Remedy

       A Fourth Amendment violation does not automatically trigger the exclusionary
rule; rather, the rule applies only where the benefit of deterrence outweighs the rule's
"'substantial social costs.'" Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2427,
180 L. Ed. 2d 285 (2011) (quoting United States v. Leon, 468 U.S. 897, 907, 104 S. Ct.
3405, 82 L. Ed. 2d 677 [1984]). Critical to the outcome of this case, our Supreme Court
has held that the exclusionary rule should not be applied in administrative driver's license
suspension proceedings arising out of an arrest for driving under the influence. Martin v.
Kansas Dept. of Revenue, 285 Kan. 625, 641, 646, 176 P.3d 938 (2008). This is because

                                             23
the deterrent purpose of the rule in fostering constitutionally correct conduct on the part
of government agents may be sufficiently assured by excluding evidence from any related
prosecution for the DUI offense itself. 285 Kan. 625, Syl. ¶ 8. Thus, even if the officer
violated Hoeffner's constitutional rights in obtaining the breath test after his refusal, the
test results reflecting that Hoeffner had an alcohol concentration of .08 or greater in his
blood were admissible in both administrative and court proceedings relating to the
suspension of his driver's license. As such, we find substantial competent evidence
supports the district court's decision to uphold the suspension of Hoeffner's license.


       Affirmed.


                                             ***


       BRUNS, J., concurring: I agree that there is no merit to Hoeffner's claim of error
arising out of the proceedings before the administrative hearing officer, and I agree that
there is substantial competent evidence to support the district court's decision to suspend
Hoeffner's driver's license. I write separately, however, because I believe it is
unnecessary for us to reach the issue of whether a law enforcement officer is prohibited
from seeking a search warrant from a judge to extract blood after a person has refused to
submit to blood-alcohol testing.


       As the majority recognizes, the exclusionary rule is not applicable under the
circumstances presented in this administrative action. See Martin v. Kansas Dept. of
Revenue, 285 Kan. 625, 641, 176 P.3d 938 (2008). As such, there is no reason to offer an
advisory opinion regarding the issue of whether a law enforcement officer can—upon the
showing of probable cause—obtain a search warrant from a neutral and detached
magistrate for blood testing after a driver's refusal to submit to a breath test. Rather, as
the Kansas Supreme Court suggested in Martin, I believe this issue should be resolved in


                                              24
any criminal prosecution that may arise out of the same incident—not in a driver's license
suspension action. See 285 Kan. 625, Syl. ¶ 8.




                                           25
