                                    OPINION ON REHEARING


                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 111,698

                                          STATE OF KANSAS,
                                             Appellant,

                                                     v.

                                           DAVID LEE RYCE,
                                              Appellee.


                                   SYLLABUS BY THE COURT



        K.S.A. 2016 Supp. 8-1025 is facially unconstitutional.

        Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Original opinion filed 303
Kan. 899, 368 P.3d 342 (2016). Opinion on rehearing filed June 30, 2017. Affirmed.


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


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




                                                     1
The opinion of the court was delivered by


       LUCKERT, J.: A Sedgwick County sheriff's deputy arrested David Lee Ryce and
asked Ryce to submit to a breath test to determine his blood alcohol content. The deputy
gave Ryce the written and oral notice required under Kansas' implied consent law,
specifically K.S.A. 2016 Supp. 8-1001(k). Ryce refused testing, and the State charged
him with violating K.S.A. 2016 Supp. 8-1025(a), which makes it a crime under certain
circumstances to refuse "to submit to or complete a [blood alcohol content] test or tests
deemed consented to under K.S.A. 8-1001(a)." In the district court and on appeal, Ryce
challenged the constitutionality of 8-1025, leading to our decision in State v. Ryce, 303
Kan. 899, 368 P.3d 342 (2016) (Ryce I). We agreed with Ryce's arguments and held the
statute was facially unconstitutional because it punishes an individual for withdrawing his
or her consent to a search, even though the right to withdraw consent has been recognized
in cases applying the Fourth Amendment to the United States Constitution and § 15 of
the Kansas Constitution Bill of Rights. 303 Kan. at 902-03.


       After we issued our decision in Ryce 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, we now, once again, determine that K.S.A. 2016 Supp. 8-1025 is facially
unconstitutional. While Birchfield requires some modification of our analysis, nothing in


                                             2
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.


                             OUR PREVIOUS DECISION IN RYCE I


       We will not recount, here, the full factual and procedural history involved in
Ryce I. Suffice it to say, it presents a standard DUI fact pattern: erratic driving and traffic
infractions, failed field sobriety tests, arrest, the giving of the consent advisory required
by K.S.A. 2016 Supp. 8-1001(k), and a test refusal. Before Ryce's trial on charges of
various traffic violations and test refusal, he filed a motion to dismiss the test refusal
count on the grounds that 8-1025 unconstitutionally punished the exercise of his right to
withdraw consent to a warrantless search. The district court ruled the statute was
unconstitutional, and the State appealed. Before us, Ryce recognized that under Kansas
law he had provided consent to blood alcohol content testing by driving on Kansas
roadways. But he contended he had a right to withdraw that consent—a right he argued
arose under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights
and was further protected by due process.


       In affirming the district court, we began our analysis by examining the wording of
K.S.A. 2016 Supp. 8-1025, which we noted "essentially stands on the shoulders of the
implied consent provision," K.S.A. 2016 Supp. 8-1001. Ryce I, 303 Kan. at 906. The
interpretation of 8-1025 "seem[ed] straightforward enough—8-1025 penalizes drivers
who refuse to submit to a test that they have impliedly consented to under 8-1001."
303 Kan. at 907. But the reach of the statute depended on the provisions of 8-1001
because a driver is only "deemed to have given consent to submit to testing 'subject to the
provisions' of article 10 of chapter 8 of the Kansas statutes." 303 Kan. at 907 (quoting


                                               3
K.S.A. 2016 Supp. 8-1001[a]). Thus, 8-1025 applies in a very narrow set of
circumstances: It only criminalizes a DUI suspect's express withdrawal of consent to a
search. 303 Kan. at 909.


       We next examined the provisions of K.S.A. 2016 Supp. 8-1001 and this court's
interpretation and application of that statute. We will discuss the statutory provisions in
more detail, but at this point we simply summarize "[o]ur caselaw[, which] has explained
that a test taken after the driver receives the advisory required by 8-1001(k) 'is the
product of the consent exception to the warrant requirement.'" Ryce I, 303 Kan. at 907-08
(quoting State v. Johnson, 297 Kan. 210, Syl. ¶ 8, 301 P.3d 287 [2013]). And "[w]e have
equated an express refusal with a withdrawal of implied consent. E.g., State v. Garner,
227 Kan. 566, 572, 608 P.2d 1321 (1980)." Ryce I, 303 Kan. at 908.


       Turning to the Fourth Amendment and § 15 of the Kansas Constitution Bill of
Rights to discuss the consent exception to the warrant requirement, we concluded:
(1) Both a breath and blood test for blood alcohol content constitute a search; (2) both the
United States and Kansas Constitutions protect citizens from unreasonable searches;
(3) searches conducted without a warrant are per se unreasonable unless conducted
pursuant to a recognized warrant exception; and (4) recognized warrant exceptions that
might be implicated in a DUI case include consent, search incident to a lawful arrest, and
probable cause plus exigent circumstances based on the evanescent nature of blood
alcohol content evidence. Ryce I, 303 Kan. at 909-14, 919.


       We also considered the State's argument that K.S.A. 2016 Supp. 8-1025 was
constitutional because a driver could always be compelled to cooperate with a blood
alcohol content test. The State offered numerous theories supporting this assertion,
including the categorical application of the search-incident-to-lawful-arrest exception.


                                              4
Reviewing Kansas caselaw, we noted that after the adoption of 8-1001, this court had
upheld its constitutionality by concluding that a search conducted through a breath test
could occur without a warrant because the search was conducted incident to an arrest.
Subsequently, in State v. Murry, 271 Kan. 223, 225-26, 21 P.3d 528 (2001), this court
recognized that, as of 1985, various legislative amendments meant that "8-1001 no longer
requires an arrest." In light of these legislative changes, the Murry court recognized the
constitutionality of Kansas' implied consent law could no longer depend on the
categorical application of the search-incident-to-lawful-arrest exception. See K.S.A. 2016
Supp. 8-1001(b)(1)(B), (b)(2); 303 Kan. at 908, 920-23. As we will discuss in more detail
below, in our Ryce I analysis we also interpreted United States Supreme Court precedent
as indicating the search-incident-to-lawful-arrest exception would not categorically apply
to a search for evidence of blood alcohol content. See Ryce I, 303 Kan. at 922.


       Once this court moved away from the search-incident-to-lawful-arrest exception
as a categorical basis for all searches conducted under K.S.A. 2016 Supp. 8-1001, Kansas
courts instead relied on a categorical exception to the warrant requirement based on the
evanescent nature of blood alcohol content giving rise to an exigent circumstance. Murry,
271 Kan. at 223, Syl. ¶ 2. Police must have probable cause that a crime has been
committed in order to utilize this exception, but the Kansas Legislature amended 8-1001
so as to provide that probable cause of impaired driving is not required in all the
circumstances where the implied consent provisions apply. See K.S.A. 2016 Supp.
8-1001(b)(1)(B), (b)(2); State v. Declerck, 49 Kan. App. 2d 908, 919, 317 P.3d 794, rev.
denied 299 Kan. 1271 (2014) (holding 8-1001[b][2], [d] unconstitutional to the extent it
allows a search after a traffic infraction combined with an accident resulting in injury or
death, if there is no probable cause that drugs or alcohol were involved). As a result of
these changes and the factual nature of the exigent circumstances exception, this court
adopted consent as the constitutional basis for Kansas' implied consent statute. See


                                             5
Johnson, 297 Kan. 210, Syl. ¶ 8. But the United States Supreme Court held in Missouri v.
McNeely, 569 U.S. ____, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696 (2013), that the
natural dissipation of alcohol in the bloodstream does not establish a per se exigency that
suffices on its own to justify an exception to the warrant requirement for nonconsensual
blood testing in drunk driving situations.


       In Ryce I, this historical review of caselaw led us back to consent as the only
constitutional basis upholding all searches under K.S.A. 2016 Supp. 8-1001. We also
recognized that the presence of a warrant or the application of a warrant exception might,
if applied on a case-by-case basis, justify a warrantless search. Nevertheless, K.S.A. 2016
Supp. 8-1025 "narrowly and unambiguously penalizes a driver for refusing to submit to a
search 'deemed consented to.'" Ryce I, 303 Kan. at 918 (quoting K.S.A. 2016 Supp.
8-1025). We concluded that "given the wording of 8-1025 and our caselaw indicating that
refusal to submit to testing is really withdrawal of consent, our decision regarding
whether 8-1025 is constitutional under Fourth Amendment principles ultimately depends
on the application of the consent exception alone." 303 Kan. at 931.


       Referring to the "deemed consented to" wording of K.S.A. 2016 Supp. 8-1025, we
further explained that "if an officer requested to search a DUI suspect based on a warrant
or some . . . warrant exception, the officer would not be 'deeming' the person to have
consented. Consent would be irrelevant." Ryce I, 303 Kan. at 931; see also Garner,
227 Kan. at 572 (equating an express refusal to submit to a test with withdrawal of
implied consent). In such a case, we noted: "Kansas' general obstruction statute, K.S.A.
[2016] Supp. 21-5904(a)(3), might punish those situations as interfering with the
execution of a warrant or otherwise interfering in the 'discharge of official duty' without
need to resort to 8-1025." Ryce I, 303 Kan. at 918.




                                              6
       Nevertheless, we interpreted K.S.A. 2016 Supp. 8-1001 as going beyond those
circumstances so that its categorical application depended on consent. 303 Kan. at 915-18
(explaining that when considering the facial constitutionality of a statute a court must
"look to the circumstances actually affected by the challenged statute," not whether there
is any possible set of circumstances for which a statute might be constitutional). This
became important to our analysis because, as the United States Supreme Court had
discussed in Los Angeles v. Patel, 576 U.S. ___, 135 S. Ct. 2443, 2451, 192 L. Ed. 2d
435 (2015), "when assessing whether a statute meets [the facially unconstitutional
standard, where a law is unconstitutional in all its applications], the Court has considered
only applications of the statute in which it actually authorizes or prohibits conduct."
K.S.A. 2016 Supp. 8-1025 does not make it a crime to refuse a law enforcement officer's
lawful order to submit to a blood alcohol content test; it makes it a crime to refuse to
submit to a test deemed consented to—i.e., to withdraw consent.


       Applying the text of K.S.A. 2016 Supp. 8-1025 to the constitutional principles
regarding reasonable searches, we held the State could not criminally punish a defendant
for withdrawing his or her implied consent. Using due process analysis, we readily
agreed with the State that it has a compelling interest in combating drunk driving
problems. But K.S.A. 2016 Supp. 8-1025 was not narrowly tailored to serve those
compelling interests. 303 Kan. at 957-63. Accordingly, we held 8-1025 "violates a
suspect's Fourth and Fourteenth Amendment rights and . . . § 15 of the Kansas
Constitution Bill of Rights." 303 Kan. at 963. We specifically declined to address
whether the statute violated the Fifth Amendment prohibition against compelled self-
incrimination, whether Miranda warnings needed to be given along with an implied
consent advisory, or whether the statute violated the doctrine of unconstitutional
conditions. 303 Kan. at 963-64.




                                              7
       On the same day we filed our decision in Ryce I, we also filed decisions in State v.
Wilson, 303 Kan. 973, 368 P.3d 1086 (2016), and State v. Wycoff, 303 Kan. 885, 367
P.3d 1258 (2016). In both Wilson and Wycoff, we relied on our analysis in Ryce I and
concluded the defendants in those cases could not be prosecuted for violating K.S.A.
2016 Supp. 8-1025. Wilson, 303 Kan. at 975; Wycoff, 303 Kan. at 886. In a fourth
decision, State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016), we affirmed a district
court's decision to suppress blood alcohol content testing results because the driver's
consent, which was partially based on the statutorily required advisory that explained the
effect of 8-1025, was not voluntarily given. We explained that the "consent was
involuntary because it was obtained by means of an inaccurate, and therefore coercive,
advisement." 303 Kan. at 897. In each of those cases, we also granted motions for
rehearing in light of Birchfield, but, as we do in this case, today we reaffirm each of those
decisions.


                                        BIRCHFIELD


       As we mentioned, after our decision in Ryce I the United States Supreme Court
decided Birchfield, 136 S. Ct. 2160. In hearing Birchfield, the Supreme Court
consolidated two cases from North Dakota and one from Minnesota. A brief discussion of
the facts of those cases helps explain how they apply to our analysis.


       In one of the cases from North Dakota, a state trooper administered a roadside test
of blood alcohol content and arrested Danny Birchfield. The trooper informed Birchfield
that state law required him to undergo further testing and that a test refusal would expose
him to criminal penalties. Birchfield refused a blood test and was charged under a North
Dakota law that made it a crime to refuse to submit to a blood alcohol content test.




                                              8
       In the other North Dakota case, an officer arrested Steve Beylund for DUI and had
Beylund transported to a hospital. At the hospital, the officer read an implied consent
advisory and asked for a blood draw. Beylund agreed. Consequently, the State suspended
his license but did not charge him with refusing a test. Beylund defended and appealed
his license suspension on the grounds that his consent was coerced by the officer's
warning that a refusal to submit to the blood test would be a crime.


       Finally, in the case from Minnesota, officers arrested William Bernard, Jr., for
driving while impaired and, at a police station, provided him with Minnesota's implied
consent advisory. Minnesota's advisory, like North Dakota's, informed Bernard it was a
crime to refuse to submit to a legally required test of blood alcohol content. Bernard
refused officers' requests for a breath test.


       When these cases reached the United States Supreme Court, the Court framed the
issue as "whether the warrantless searches at issue here were reasonable." Birchfield, 136
S. Ct. at 2173. If such warrantless searches "comport[ed] with the Fourth Amendment,"
the Court stated, a state "may criminalize the refusal to comply with a demand to submit
to the required testing, just as a State may make it a crime for a person to obstruct the
execution of a valid search warrant." 136 S. Ct. at 2172.


       In analyzing the root issue of whether the tests were, or would have been,
reasonable, the Birchfield majority distinguished between breath and blood tests.
Regarding warrantless breath tests, the Court held such tests are reasonable under the
Fourth Amendment as searches incident to lawful arrest, an exception to the warrant
requirement that could be applied categorically to all cases where a DUI arrest occurred.
136 S. Ct. at 2185. The Court explained that breath tests qualify as a search incident to a
lawful arrest because the search would prevent the destruction of evidence, one of the


                                                9
twin purposes of the search-incident-to-lawful-arrest exception. 136 S. Ct. at 2175-76,
2184.


        The Birchfield Court reached a different holding with regard to blood tests, which
the Court determined were "significantly more intrusive, and their reasonableness must
be judged in light of the availability of the less intrusive alternative of a breath test." 136
S. Ct. at 2184. Ultimately, the Court held that "a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk driving." 136 S. Ct. at 2185.
See generally 136 S. Ct. at 2174-83 (discussing the history of the search-incident-to-
lawful-arrest exception and balancing privacy intrusions against governmental interests to
see if the search-incident-to-lawful-arrest exception would apply to modern blood alcohol
content searches).


        Apart from these holdings, the Supreme Court made several other rulings which
are of import to Ryce I and its companion cases. First, the Court firmly expressed its
understanding that breath tests, as well as blood tests, are indeed "searches." Birchfield,
136 S. Ct. at 2173; see Ryce I, 303 Kan. at 912 (reaching the same conclusion). Second,
the Court did not depart from its holding in McNeely, in which it refused to adopt an
across-the-board rule applying the probable-cause-plus-exigent-circumstances exception
to blood alcohol content tests. Birchfield, 136 S. Ct. at 2174 (asserting that this exception
still relies on a case-by-case analysis); see Ryce I, 303 Kan. at 924-25. Third, the
Supreme Court rejected the States' argument that warrantless blood tests were "justified
based on the driver's legally implied consent to submit to them." Birchfield, 136 S. Ct. at
2185-86. Finally, the Court held that "motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense." Birchfield, 136 S. Ct. at
2186; see Ryce I, 303 Kan. at 955-63.




                                               10
       As to this last point, in discussing whether the consent exception saved the legality
of the demand for blood testing in the North Dakota cases, the United States Supreme
Court recognized that a suspect's consent to a search generally renders that search
reasonable. 136 S. Ct. at 2185; see Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.
Ct. 2041, 36 L. Ed. 2d 854 (1973). The Supreme Court also acknowledged it had
previously approved of "the general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse to comply." Birchfield,
136 S. Ct. at 2185; see McNeely, 133 S. Ct. at 1565-66 (plurality opinion). Nevertheless,
"[i]t is another matter . . . for a State not only to insist upon an intrusive blood test, but
also to impose criminal penalties on the refusal to submit to such a test." Birchfield,
136 S. Ct. at 2185. The Birchfield Court concluded that "[t]here must be a limit to the
consequences to which motorists may be deemed to have consented by virtue of a
decision to drive on public roads" and drew the line at criminal penalties. 136 S. Ct. at
2185-86.


       Ultimately, the Supreme Court reversed Birchfield's conviction because he was
criminally prosecuted for refusing a warrantless blood test. Birchfield, 136 S. Ct. at 2186.
But Bernard, who had been prosecuted in Minnesota for refusing a warrantless breath
test, did not receive similar relief. Because the Fourth Amendment did not require a
warrant for a breath test given that the search-incident-to-lawful-arrest exception applied,
the Court held that Bernard could be prosecuted under the Minnesota test refusal statute.
136 S. Ct. at 2186. As for Beylund, who submitted to a blood test only after being told
the law required him to do so, the Supreme Court remanded his case to the North Dakota
Supreme Court to reevaluate whether his consent was voluntary in light of its holding that
a blood test could not be performed as a search incident to arrest. 136 S. Ct. at 2186.




                                               11
          Birchfield thus held that the search-incident-to-lawful-arrest exception is a
categorical exception to the warrant requirement permitting an officer to demand a breath
test from a person arrested for a DUI violation. See 136 S. Ct. at 2185. Birchfield does
not, however, answer the specific question of statutory interpretation upon which Ryce I
was decided. See Ryce I, 303 Kan. at 918 ("[K.S.A. 2016 Supp. 8-1025] narrowly and
unambiguously penalizes a driver for refusing to submit to a search 'deemed consented
to.'").


                 OUR INTERPRETATION OF THE TEST REFUSAL STATUTE STANDS


          We now consider how Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160,
195 L. Ed. 2d 560 (2016), affects our holding in State v. Ryce, 303 Kan. 899, 368 P.3d
342 (2016) (Ryce I). To assist us, we asked the parties to provide supplemental briefs
limited to the following issues:


          "Q1:   Whether K.S.A. [2016] Supp. 8-1025 limits the application of the criminal
                 refusal penalties so as to punish only individuals who withdraw implied consent
                 to a test contemplated by K.S.A. [2016] Supp. 8-1001[.]


          "Q2:   Whether . . . [Birchfield] requires a different outcome in [Ryce I] regarding
                 warrantless breath tests[.]"


We specifically instructed the parties to "support their arguments with standard principles
of statutory interpretation/construction, including the use of legislative history if
appropriate" and also permitted the parties to address how K.S.A. 2016 Supp. 8-1001 and
8-1025 should be read together.




                                                     12
       Our standard of review of these questions remains the same as in Ryce I, where we
explained that the constitutionality of a statute is a question of law subject to unlimited
review. Here, the question of law depends, at least in part, on the interpretation of K.S.A.
2016 Supp. 8-1025 and the statute it references, K.S.A. 2016 Supp. 8-1001. Ryce I, 303
Kan. at 905-06; see also, e.g., State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).
Under the rules of statutory interpretation, we must ascertain legislative intent by looking
to the plain language of a statute. Ryce I, 303 Kan. at 906. In addition, "we are precluded
from adding words to or striking words from 8-1025 to criminalize any action other than
refusing to submit to a test deemed consented to—that is, we cannot read 8-1025 to do
more than criminalize the withdrawal of implied consent." 303 Kan. at 918-19.


       The State contends the Birchfield decision "undermines both the rationale of the
majority opinion [in Ryce I] and this [c]ourt's conclusion that the search incident to arrest
exception would not apply to searches for blood alcohol content." The State advocates
that under Birchfield there is no right to refuse a breath test that is performed incident to a
lawful arrest, which means "the State can legally punish a breath test refusal." In response
to our questions, the State argued that K.S.A. 2016 Supp. 8-1025 evinces the legislature's
intent to criminalize the act of refusing to submit to a category of tests (blood, breath,
urine, or other bodily fluids)—not, as decided in Ryce I, the act of withdrawing consent.
It urges this court to construe 8-1025's reference to tests "deemed consented to under
K.S.A. 8-1001(a)" as simply a "listing [of] the subject matter of the tests" (a blood test,
e.g., or a breath test), not restricting the application of 8-1025 to consent searches alone.


       At the outset, we agree with one portion of the State's argument. As it correctly
observes, Birchfield requires us to modify a portion of our decision in which we applied
past United States Supreme Court decisions to hold that a blood alcohol content test—




                                              13
whether testing breath, blood, urine, or other bodily substance—could not be justified
under the search-incident-to-lawful-arrest warrant exception. We stated:


       "[N]either of the two purposes traditionally underlying the search incident to lawful arrest
       exception (officer safety and preservation of evidence) applies to the testing of blood
       alcohol content. See Riley v. California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2484, 189 L.
       Ed. 2d 430 (2014) (discussing cases beginning with Chimel v. California, 395 U.S. 752,
       89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969], establishing and applying two-part test for
       search incident to arrest: officer safety and destruction of evidence within the control of
       the arrestee). Alcohol in the bloodstream poses no threat to officer safety, and when
       discussing preservation of evidence with respect to the search incident to lawful arrest
       exception (as distinct from the evanescent evidence exception), the reasoning is to
       prevent destruction of evidence within a suspect's control. See, e.g., Arizona v. Gant, 556
       U.S. 332, 335, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Evidence of alcohol within the
       bloodstream is not in a suspect's control once he or she is monitored and will diminish at
       a predictable rate. See State v. Milligan, 304 Or. 659, 671, 748 P.2d 130 (1988)." Ryce I,
       303 Kan. at 922.


We also noted the United States Supreme Court had recently rejected the argument that
the evanescent nature of blood alcohol content meant evidence could be lost and,
therefore, DUI cases presented probable cause plus an exigent circumstance justifying
categorical application of the warrant exception to all DUI cases. 303 Kan. at 925 (citing
Missouri v. McNeely, 569 U.S. ___, ___, 133 S. Ct. 1552, 1561, 185 L. Ed. 2d 696
[2013]).


       Nevertheless, as the State notes, Birchfield held "a breath test, but not a blood test,
may be administered as a search incident to lawful arrest for drunk driving." Birchfield v.
North Dakota, 136 S. Ct. at 2185. We, therefore, modify our decision in Ryce I to the
extent our discussion of State v. Birchfield, 2015 ND 6, 858 N.W.2d 302 (2015), rev'd
and remanded 136 S. Ct. 2160, vacated 885 N.W.2d 62 (2016), and State v. Bernard, 859

                                                   14
N.W.2d 762 (Minn. 2015), aff'd 136 S. Ct. 2160 (2016), is inconsistent with the United
States Supreme Court's decision in Birchfield. See Ryce I, 303 Kan. at 950-55. We further
modify Ryce I to reflect the validity of conducting a breath test in a DUI case where an
arrest is made under the warrant exception of a search incident to lawful arrest. See Ryce
I, 303 Kan. at 922.


       The State's arguments do not persuade us that we must go further in modifying
Ryce I, however.


       First, regarding blood tests, Birchfield reinforces our conclusion that the search-
incident-to-lawful-arrest exception does not always apply when an officer demands
submission to a blood alcohol content test. This means, at a minimum, that K.S.A. 2016
Supp. 8-1025 unconstitutionally punishes a driver who refuses to submit to a warrantless
blood test. Birchfield's analysis also suggests a separate analysis must be conducted
regarding urine or other bodily substances, an analysis we leave for another day.


       Second, we disagree with the State's recasting of the issue in this case. Our
decision did not rest on whether a blood alcohol content test could be reasonable under
the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights. We
recognized it could be, although we viewed the class of such situations more narrowly
than we now must in light of the categorical application of the search-incident-to-lawful-
arrest exception to breath tests. Nor did the Ryce I outcome depend on whether the State
could punish a refusal to submit to a reasonable search. We concluded the State could
impose such a punishment. See 303 Kan. at 918-19. Rather, the resolution of Ryce's
arguments ultimately rested on interpretation of a statute—whether K.S.A. 2016 Supp. 8-
1025 imposed that punishment. In other words, does 8-1025 actually punish a refusal to
submit to a search that is reasonable under the federal and state constitutions, or does it


                                             15
punish something different, e.g., the withdrawal of consent. And the Kansas Supreme
Court is the ultimate arbiter of state statutory interpretation. See California v. Freeman,
488 U.S. 1311, 1313, 109 S. Ct. 854, 102 L. Ed. 2d 957 (1989) ("Interpretations of state
law by a State's highest court are, of course, binding upon this Court.").


       Third, the difficulty with the State's overarching argument—i.e., that K.S.A. 2016
Supp. 8-1025 criminalizes "not the withdrawal of consent, but rather the refusal to submit
to a category of tests"—is that it reads the phrase "deemed consented to" entirely out of
the statute and ignores this court's longstanding caselaw interpreting a test refusal as a
withdrawal of consent. See, e.g., State v. Garner, 227 Kan. 566, 572, 608 P.2d 1321
(1980). But rules of statutory interpretation, as we have explained, do not allow us to
ignore words in a statute, and 8-1025 limits its impact to test refusals based on consent.
Ryce I, 303 Kan. at 918-19. Furthermore, longstanding caselaw holds that the authority
for a blood alcohol content test taken pursuant to K.S.A. 2016 Supp. 8-1001 rests on
consent, not on the authority of a law enforcement officer to issue a lawful order to
submit to a search. See Johnson, 297 Kan. 210, Syl. ¶ 8. We cannot lightly ignore this
history because "[t]he doctrine of stare decisis 'instructs that points of law established by
a court are generally followed by the same court and courts of lower rank in later cases in
which the same legal issue is raised.'" State v. Spencer Gifts, 304 Kan. 755, 766, 374 P.3d
680 (2016).


       This caselaw rested, at least in part, on pre-Birchfield holdings of the United States
Supreme Court, holdings which led this court some 15 years ago to conclude that the
search-incident-to-lawful-arrest exception to the warrant requirement did not apply to all
the circumstances covered by K.S.A. 2016 Supp. 8-1025. We had rejected wholesale
application of this warrant exception because K.S.A. 2016 Supp. 8-1001 allows blood




                                              16
alcohol content testing without an arrest and even without probable cause. See State v.
Murry, 271 Kan. 223, 226-27, 21 P.3d 528 (2001); see also K.S.A. 2016 Supp.
8-1001(b)(1)(B), (b)(2); State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 794, rev.
denied 299 Kan. 1271 (2014). Certainly, Birchfield changes the discussion of whether the
search-incident-to-lawful-arrest exception applies in situations not covered by 8-1001 or
8-1025. But Birchfield does not rewrite the Kansas statutes.


       Certain provisions of K.S.A. 2016 Supp. 8-1001(b)-(d) become particularly
important post-Birchfield. Through these provisions, the Kansas Legislature has
narrowed the application of the search-incident-to-lawful-arrest exception to a limited set
of circumstances by restricting when a law enforcement officer can demand—i.e.,
order—a driver to submit to a blood alcohol content test. Significantly, while the
statutory implied consent advisory informs the driver he or she is required to take a blood
alcohol content test or face consequences, K.S.A. 2016 Supp. 8-1001(k), an officer can
only "request" that a driver submit to a test, K.S.A. 2016 Supp. 8-1001(b), (c). Indeed,
officers may only "direct" the administration of a blood test and only when either (1) the
driver consents or (2) the driver is unable to consent or refuses consent and (a) has been
involved in a serious injury accident and (b) could be cited for any traffic offense. K.S.A.
2016 Supp. 8-1001(d).


       Furthermore, contrary to the State's position, it is not at all apparent, from the plain
language of the statute, that the legislature meant to criminalize a general act of test
refusal as opposed to a specific refusal to undergo a blood alcohol content test previously
"consented to" under the implied consent statute. The State supports its argument with
K.S.A. 2016 Supp. 8-1013(i), a definitional statute, which defines test refusal as "failure
to submit to or complete any test of the person's blood, breath, urine, or other bodily
substance," and does not mention any limiting "consent" language. (Emphasis added.)


                                              17
The State's point would be more compelling if this were the sole statutory definition for
test refusal. But the legislature more particularly defined the specific crime of test refusal
in K.S.A. 2016 Supp. 8-1025, which refers to refusing to submit to tests "deemed
consented to" under K.S.A. 2016 Supp. 8-1001(a). Moreover, the opening provision of
K.S.A. 2016 Supp. 8-1013 lists the statutes to which it applies and 8-1025 is not listed.
Some other definition in 8-1013 refer to 8-1025, but the definition of "test refusal" or
"refuses a test" in 8-1013(i) does not. See K.S.A. 2016 Supp. 8-1013(b)(1), (j). Under the
plain language of 8-1013(i), it does not apply. Thus, the State's reliance on 8-1013(i)
fails.


         Nor are we persuaded by the State's legislative history argument, which cites to a
district attorney's testimony before a legislative committee. In that testimony, the attorney
referred to the importance of "criminalizing . . . the refusal" to submit to blood alcohol
content tests. The State's argument demands we ignore the plain language of the statute
and instead seek to divine legislative intent from one phrase in the testimony of one
witness at a legislative hearing. We have noted that we must proceed cautiously when
declarations of legislative purpose appear in testimony or other legislative history but are
not included in the text of legislation. See Merryfield v. Sullivan, 301 Kan. 397, 401, 343
P.3d 515 (2015); Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 459, 264
P.3d 102 (2011). In part, because of the difficulties of ascertaining legislative intent from
the testimony of those appearing before legislative committees, this court deems the
language of a statute to be the primary consideration in ascertaining the intent of the
legislature because the best and only safe rule for determining the intent of the creators of
a written law is to abide by the language they have chosen to use. See, e.g., Spencer Gifts,
304 Kan. at 761.




                                              18
       Finally, even looking to Birchfield as persuasive authority, it does not prompt us to
reconsider our previous interpretation of K.S.A. 2016 Supp. 8-1025 because the North
Dakota and Minnesota statutory schemes, although sharing some similarities to Kansas',
are meaningfully different.


       Regarding the shared characteristics of the North Dakota and Kansas penalty
statutes for test refusal, each penalty statute refers to tests requested pursuant to an
implied consent statute. As to differences, K.S.A. 2016 Supp. 8-1025(a) criminalizes
"refusing to submit to or complete a test or tests deemed consented to under K.S.A.
8-1001(a)," while N.D. Cent. Code § 39-08-01(1)(e)(2) (2016) criminalizes refusal to
submit to a chemical test "at the direction of a law enforcement officer under section
39-20-01." (Emphases added.)


       More differences emerge when comparing the implied consent statutes of the two
states: North Dakota requires a suspect be arrested and informed he or she is or will be
charged with DUI, for example, whereas Kansas does not. See N.D. Cent. Code
§ 39-20-01(2) (2016); K.S.A. 2016 Supp. 8-1001(b). Also of note, North Dakota statutes
make a separate provision, apart from the implied consent statute, pertaining to drivers
involved in serious injury crashes. See N.D. Cent. Code § 39-20-01.1 (2016). This statute
make no reference to implied consent or arrest and instead states that so long as there is
probable cause to believe the driver has been driving under the influence the police "shall
request" a chemical test—and if a person refuses, the police "shall request a search
warrant to compel the driver to submit to a chemical test or tests." N.D. Cent. Code
§ 39-20-01.1(2)-(3) (2016).


       These differences bolster our conclusion that K.S.A. 2016 Supp. 8-1025 is
premised on the consent exception alone, as opposed to the North Dakota approach of


                                              19
more broadly penalizing refusal to submit to a search directed or ordered by a law
enforcement officer or judicial officer. See Ryce I, 303 Kan. at 914 ("If an officer relied
on something else to search, i.e., a warrant or a warrant exception other than consent,
then the withdrawal of consent—or even the presence of express consent—would be
irrelevant to the authority to perform the test.").


       Minnesota also more directly makes it a crime "to refuse to submit to a chemical
test of the person's blood, breath, or urine under section 169A.51 (chemical tests for
intoxication), or 169A.52 (test refusal or failure; revocation of license)." Minn. Stat.
§ 169A.20, subd. 2 (2016). Minnesota's implied consent law further provides: "The test
may be required of a person when an officer has probable cause to believe the person"
has been driving while impaired and certain other conditions exist, including when the
person has been arrested for violating the DUI law. (Emphasis added.) Minn. Stat.
§ 169A.51, subd. 1(b) (2016). We further note that the Minnesota Supreme Court has not
construed its implied consent statute as this court, for a significant period of time, has
interpreted Kansas'. And more recently, the state court interpretations of the Minnesota
and Kansas test refusal statutes have likewise differed. See State v. Bernard, 859 N.W.2d
762 (Minn. 2015). As a result, the United States Supreme Court based its decision as to
Bernard on a state law interpretation by the Minnesota Supreme Court that recognized the
test refusal statute punished drivers who refused a test "required" by state law. See
Birchfield, 136 S. Ct. 2160.


       We do note that the Minnesota implied consent statute, like Kansas', allows
officers to search without an arrest. But, in Minnesota, there must be probable cause that
the driver had been operating the vehicle while impaired and the driver was either
involved in "a motor vehicle accident or collision resulting in property damage, personal
injury, or death"; the driver refused a preliminary screening test; or the driver took a


                                               20
preliminary screening test and the results show an alcohol concentration of .08 or more.
Minn. Stat. § 169A.51, subd. 1(b) (2016). Furthermore, in general, the Minnesota statutes
share some significant similarities to the Kansas statutes in terms of structure and some
other restrictions.


       Nevertheless, these similarities are offset by the notable differences between the
Kansas and Minnesota statutes. Specifically, as we have discussed, where the Minnesota
implied consent statute allows a law enforcement officer to "require[]" a breath test and
punishes a driver for refusing a required test (Minn. Stat. § 169A.20, subd. 2 (2016);
Minn. Stat. § 169A.51, subd. 1[b]) (2016), the Kansas implied consent law only allows
the officer to "request" a breath test and punishes the driver for not submitting to a test
"deemed consented to" under the implied consent statute (K.S.A. 2016 Supp. 8-1001[b],
[c]; K.S.A. 2016 Supp. 8-1025[a]).


       We thus are not persuaded to depart from the holding of State v. Ryce, 303 Kan.
899, 368 P.3d 342 (2016) (Ryce I); we continue our previous interpretation of K.S.A.
2016 Supp. 8-1025. "[A] warrant or some warrant exception . . . might sometimes justify
the State demanding a DUI suspect submit to testing, irrespective of any implied consent
provided by 8-1001." Ryce I, 303 Kan. at 918. But 8-1025 "does not contain broad
language penalizing failure to cooperate with a warrant search or a search conducted
pursuant to a warrant exception" and instead criminalizes refusal to submit to a test that
could proceed only with consent. 303 Kan. at 918. Birchfield established that the law may
be able to compel a DUI suspect to submit to a chemical test for alcohol through a search
incident to a lawful arrest or a warrant (or punish resistance through an obstruction of
justice charge), but the only conduct criminalized by 8-1025 is withdrawal of implied
consent to a search when the police were relying on that consent to justify the search in




                                              21
the first place. Birchfield does not require, or persuade us, to adopt a contrary
interpretation of Kansas' statutes.


               K.S.A. 2016 SUPP. 8-1025 IS FACIALLY UNCONSTITUTIONAL.

       The State next argues that regardless of how we resolved the statutory
interpretation issue, Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L.
Ed. 2d 560 (2016), still established our premise in Ryce I was incorrect, as some blood
alcohol content testing may be done pursuant to the search-incident-to-lawful-arrest
exception to the warrant requirement. "Hence," the State contends, "even if the majority
continues to construe the statute to criminalize the withdrawal of consent, that would not
make the statute unconstitutional."


       As we have discussed, the United States Supreme Court extended the search-
incident-to-lawful-arrest exception to "warrantless breath tests incident to arrest for drunk
driving." Birchfield, 136 S. Ct. at 2184. But this clarification of search-and-seizure law
does not change our decision about the constitutionality of K.S.A. 2016 Supp. 8-1025. As
we discussed at length in the preceding section, the key to Ryce I and its sister cases is an
issue of statutory interpretation: The Kansas implied consent and criminal refusal
statutes are "[p]remised on [the] consent exception" to the warrant requirement. Ryce I,
303 Kan. at 902 (discussing K.S.A. 2016 Supp. 8-1001 and 8-1025, which refer to tests
that are "deemed consented to"). The question in Ryce I was whether Kansas could
criminalize a suspect's withdrawal of implied consent—not, as in Birchfield, whether
warrantless blood and breath tests were reasonable under the Fourth Amendment.
Compare Ryce I, 303 Kan. at 902 ("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 . . . ."), and State v. Johnson,
297 Kan. 210, Syl. ¶ 8, 301 P.3d 287 (2013) (explaining that a test taken after receiving

                                              22
the 8-1001(k) notice "'is the product of the consent exception to the warrant
requirement'"); with Birchfield, 136 S. Ct. at 2172 ("[S]uccess for all three petitioners
depends on the proposition that the criminal law ordinarily may not compel a motorist to
submit to the taking of a blood sample or to a breath test unless a warrant [issues].").


       The State theoretically may enact a statute and, under Birchfield, require
submission to a breath test as a search incident to arrest—but that is true for statutes that
more broadly criminalize refusal to submit to any test that is constitutionally valid, not
for a statute like K.S.A. 2016 Supp. 8-1025 which only criminalizes withdrawal of
consent. We think it worthwhile, too, to note that even if we were to depart from this
interpretation, Birchfield would not serve to insulate K.S.A. 2016 Supp. 8-1025 from
constitutional challenges. For example, officers need not arrest a suspect before
requesting a breath test, and 8-1001 contemplates warrantless blood tests—all situations
where the search-incident-to-lawful-arrest exception would not apply.


       Thus, our previous reasoning in Ryce I as to how and why K.S.A. 2016 Supp.
8-1025 is facially unconstitutional stands. See 303 Kan. at 913-19, 945-63 (discussing the
connection between Ryce's Fourth Amendment claim and his due process arguments). As
we said before, "[i]n essence, the State's reasons are not good enough, and its law not
precise enough." Ryce I, 303 Kan. at 963.


       Given this holding, we need not decide Ryce's alternative arguments as to why
K.S.A. 2016 Supp. 8-1025 must be struck down. See Ryce I, 303 Kan. at 963-64. We
conform to our holding in Ryce I, which affirmed the district court's decision to dismiss
the criminal charge against Ryce that criminalized his refusal to submit to a chemical test
for alcohol. 303 Kan. at 964.




                                              23
      Affirmed.


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


                                          ***


      STEGALL, J., dissenting: For the reasons set forth in my earlier dissent in State v.
Ryce, 303 Kan. 899, 964-72, 368 P.3d 342 (2016), I dissent.




REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 111,698
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.
1


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