                                            No. 121,373

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          CITY OF COLBY,
                                             Appellee,

                                                   v.

                                           SCOT FOSTER,
                                             Appellant.


                                 SYLLABUS BY THE COURT

1.
       Typically, the law in effect at the time of the criminal act controls.


2.
       In order for breath tests obtained prior to July 1, 2018, to be admitted into
evidence in a criminal trial, the person arrested was required to be notified of their
statutory rights under K.S.A. 2017 Supp. 8-1001. Failure to do so requires the court to
suppress the breath test results.


3.
       Breath tests may be administered as a search incident to lawful arrest for drunk
driving. After July 1, 2018, breath tests administered incident to an arrest can be admitted
into evidence in a criminal trial regardless of whether the officer complied with the
implied consent law.


       Appeal from Thomas District Court; KEVEN BERENS, judge. Opinion filed July 17, 2020.
Reversed and remanded.


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

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       Heather F. Alwin, of Alwin Legal Services, of Colby, for appellee City of Colby.


Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.


       ARNOLD-BURGER, C.J.: Scot Foster was arrested on suspicion of driving under
the influence of alcohol. Law enforcement administered a breath-alcohol test on Foster
before providing him with the implied consent notices located in K.S.A. 2017 Supp. 8-
1001. At the district court, Foster moved to suppress the evidence of the breath test, in
part, because of the lack of notice. The district court denied Foster's motion and he was
found guilty of driving under the influence. Because we find that at the time of Foster's
arrest officers were statutorily required to give him the implied consent advisories prior
to requesting a breath test, regardless of whether a warrant is later obtained, the test
results should have been suppressed.


       Therefore, we reverse and remand to the district court for further proceedings.


                             FACTUAL AND PROCEDURAL HISTORY


       Foster pled guilty in the City of Colby (City) municipal court to driving under the
influence (DUI) and transporting an alcoholic beverage. After being sentenced by the
municipal court, Foster appealed to the district court for a trial de novo.


       Prior to trial at the district court, Foster moved to suppress the evidence, including
the breathalyzer results. At a hearing on the motion, Foster's attorney discovered that
Officer Steven Nelson administered a breath test on Foster before providing him with
implied consent advisories. Foster's attorney orally amended his motion and argued the
evidence should be suppressed because the implied consent advisories were administered
after the breath test was administered.



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       In a written order, the district court denied Foster's motion to suppress. Relevant to
this appeal, the district court held that the officer was not required to provide the implied
consent advisories. The court applied an amendment to K.S.A. 8-1001, effective July 1,
2018, to reach its conclusion. The amendment 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 or other judicially recognized exception to
the warrant requirement." K.S.A. 2018 Supp. 8-1001(s). The court reasoned that Foster's
breath sample was taken as a search incident to arrest—a judicially recognized exception
to the warrant requirement.


       After Foster's motion was denied, he stipulated to the facts and waived his right to
a jury trial, instead opting for a bench trial. Foster stipulated:


               "1. On May 6, 2018 at approximately 0154 hours Officer Steve Nelson of the
       Colby Police Department conducted a traffic stop in the 600 block of North Franklin,
       Colby, KS after the defendant ran a red light.


               "2. After stopping defendant's vehicle the officer noticed indications of alcohol
       consumption and possible impairment and began a DUI investigation.


               "3. At the conclusion of the DUI investigation the officer determined probable
       cause existed to arrest defendant for driving under the influence of alcohol and placed
       him under arrest.


               "4. At the Thomas County Jail defendant was provided with his Implied Consent
       Advisories both orally and in writing after obtaining an evidentiary breath test.


               "5. The Implied Consent Advisories used by the officer on this date were the
       most recent one available to the officer and were issued and noted as revision date
       February 26, 2016. The deputy properly followed the KDHE protocol for breath testing
       and administered the Intoxilyzer 9000 at 0251 hours on May 6, 2018, within three (3)
       hours of the last time defendant operated a motor vehicle in Thomas County, Kansas,

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       with the Intoxilyzer 9000 indicating a test result of 0.236 grams of alcohol per 210 liters
       of breath at 0316 hours.


               "6. The parties stipulate and agree that the court in making its determination of
       guilt or innocence may also review the testimony and exhibits presented during the
       motion to suppress hearing previously conducted before the court, subject to the
       defendant's contemporaneous objection to preserve his appeal of the issues raised in his
       motion to suppress."


       At the hearing on the motion to suppress, Officer Nelson testified that Foster told
the officers as he was undergoing the field sobriety testing that they should "just . . . take
him in for a test to see where it comes out." After he had been arrested, the officer offered
to perform the breath test. Regardless, the additional testimony presented during the
motion to suppress hearing showed Nelson did not provide Foster the implied consent
advisories until after administering a breath test using the Intoxilyzer 9000.


       At trial, the City dismissed the transportation of an alcoholic beverage charge. The
district court found Foster guilty of DUI. Foster timely appealed to this court.


                                               ANALYSIS


       On appeal, Foster's only argument is that the district court erred by denying his
motion to suppress because Officer Nelson administered the evidentiary breath test
before providing the implied consent advisories.


       When the material facts supporting a district court's decision on a motion to
suppress evidence are not in dispute, the ultimate question of whether to suppress is a
question of law over which an appellate court has unlimited review. State v. Hanke, 307
Kan. 823, 827, 415 P.3d 966 (2018).



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       Foster's argument centers on the version of K.S.A. 8-1001 in place at the time of
his arrest—May 6, 2018. Under K.S.A. 2017 Supp. 8-1001(a), "[a]ny person who
operates or attempts to operate a vehicle within [Kansas] is deemed to have given consent
. . . to submit to one or more tests of the person's blood [or] breath . . . to determine the
presence of alcohol and drugs." This implied consent allows law enforcement officers to
request that an individual suspected of driving under the influence of alcohol or drugs
submit to a test to determine whether the person is driving under the influence. See
K.S.A. 2017 Supp. 8-1001(b).


       When a law enforcement officer requests that an individual submit to testing under
this section, the officer is required to provide certain notices. Specifically the statute
requires that "[b]efore a test or tests are administered under this section, the person shall
be given oral and written notice that . . . ." K.S.A. 2017 Supp. 8-1001(k). The statute then
lists several provisions that the individual must be notified of, including notice that "the
opportunity to consent to or refuse a test is not a constitutional right" and "there is no
constitutional right to consult with an attorney regarding whether to submit to testing."
K.S.A. 2017 Supp. 8-1001(k)(2)-(3). The statute also provides that "[i]t shall not be a
defense that the person did not understand the written or oral notice required by this
section." (Emphasis added.) K.S.A. 2017 Supp. 8-1001(r).


       To bolster his argument, Foster relies on State v. Luft, 248 Kan. 911, Syl. ¶¶ 1-2,
811 P.2d 873 (1991), where the Kansas Supreme Court held that implied consent notice
provisions found in K.S.A. 1990 Supp. 8-1001 were "mandatory and not merely
directory" and that the "[f]ailure to inform the accused of the notice provisions of K.S.A.
1990 Supp. 8-1001(f) requires suppression of the results of the blood alcohol tests
administered by the State."


       In Luft, the defendant was arrested after a one-vehicle accident. A blood-alcohol
test was administered and later admitted into evidence. However, the State conceded that

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"Luft was not advised of his statutory rights pursuant to K.S.A. 1990 Supp. 8-1001(f)."
248 Kan. at 912. Luft was convicted and appealed, arguing that the result of his blood-
alcohol test should be suppressed because he was not advised of his statutory rights.
Under K.S.A. 1990 Supp. 8-1001(f)(1), Luft should have been notified that


               "(A) Kansas law requires the person to submit to and complete one or more tests
       of breath, blood or urine to determine if the person is under the influence of alcohol or
       drugs, or both;
               "(B) the opportunity to consent to or refuse a test is not a constitutional right;
               "(C) there is no constitutional right to consult with an attorney regarding whether
       to submit to testing"


and several other provisions.


       The Kansas Supreme Court reversed Luft's conviction, holding that the evidence
of his blood-alcohol test should have been suppressed. The court reasoned that "'[t]he
clear language of the statute indicates that the legislature intended to ensure that a person
arrested for driving under the influence was made aware, by the required notice
procedure, of his statutory rights.'" 248 Kan. at 912 (quoting Barnhart v. Kansas Dept. of
Revenue, 243 Kan. 209, 212, 755 P.2d 1337 [1988]). As further support of legislative
intent, the court pointed to the language stating: "'It shall not be a defense to any
prosecution [for driving under the influence] . . . that the person did not understand the
written or oral notice required by this section.'" 248 Kan. at 912 (quoting Barnhart, 243
Kan. at 212 [quoting K.S.A. 1985 Supp. 8-1001(f)(2)]). The court then went on to
emphasize that the proper remedy for a violation of 8-1001 is to suppress the result of
the administered test. 248 Kan. at 913.


       In this case, the district court noted that the statute in question was recently
amended and that the Kansas Supreme Court had recently issued opinions in DUI cases
causing the district court to "question[] the significance of the Luft case, because implied
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consent is not the issue." The City argues that the 2018 amendment to K.S.A. 8-1001
should control because it "was the version in effect at the time of the suppression
hearing." That statute provides that nothing in the implied consent law shall be construed
to limit the right of a law enforcement officer to conduct any search of a person's breath
incident to a lawful arrest under the United States Constitution "with or without
providing" the implied consent advisories. K.S.A. 2018 Supp. 8-1001(e). The City
provides no caselaw supporting its argument that the 2018 version of the statute applies
here.


        Contrary to the City's assertion, typically, the law in effect at the time of the
criminal act controls. See State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018);
Norris v. Kansas Employment Security Bd. of Review, 303 Kan. 834, 841, 367 P.3d 1252
(2016). Foster committed the crime in May 2018, before the 2018 amendment to K.S.A.
8-1001 went into effect on July 1, 2018. The law in effect at the time—requiring notice of
statutory rights—would have controlled throughout Foster's case. See K.S.A. 2017 Supp.
8-1001(k); Rice, 308 Kan. at 1512; Luft, 248 Kan. at 912-13.


        The City raises several additional arguments to support its contention that the
district court did not err. Specifically, the City argues: (1) Foster consented to the breath
test before he was even arrested, (2) the breath test was a valid search incident to arrest,
(3) implied consent advisories are not required for a prosecution for DUI, and (4) Foster
was not prejudiced and that the officer substantially complied with the law.


        Consent to search


        The City's argument that the result of the breath test should not be suppressed
because Foster consented to the search—or perhaps even initially requested the breath
test—is unpersuasive. Because the district court concluded the incorrect statute governed
this case, its decision did not turn on consent. Rather, the court found that although Foster

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might have consented to the test, that did not matter because the breath test was
permissible as a search incident to an arrest. But though an individual can consent to a
search, the consent must be made voluntarily, intelligently, and knowingly. State v.
Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005). In order for Foster to intelligently and
knowingly give his consent to the search, he would necessarily have to be informed of his
statutory rights under K.S.A. 2017 Supp. 8-1001(k). Because he was not informed of
those rights, his consent could not have been intelligently and knowingly given. See
Jones, 279 Kan. at 77. Therefore, Foster did not consent to the search.


       Search incident to arrest


       The district court also relied on the Kansas Supreme Court's decision in State v.
Ryce, 306 Kan. 682, 693, 396 P.3d 711 (2017) (quoting Birchfield v. North Dakota, 579
U.S. ___, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560 [2016]), where the Court recognized
that a "'breath test, but not a blood test, may be administered as a search incident to
lawful arrest for drunk driving.'" On appeal, the City argues the district court was correct
because the breath test was a valid search incident to arrest, separate and distinct from the
implied consent statutory scheme.


       The Fourth Amendment to the United States Constitution prohibits unreasonable
searches. Blood and breath tests conducted by police are searches. See Birchfield, 136 S.
Ct. at 2173; Ryce, 306 Kan. at 684. Section 15 of the Kansas Constitution Bill of Rights
provides the same protections against unreasonable searches as the United States
Constitution. State v. Henning, 289 Kan. 136, 145, 209 P.3d 711 (2009).


       Warrantless searches are per se unreasonable unless the search falls within one of
the exceptions to the search warrant requirement. State v. Neighbors, 299 Kan. 234, 239,
328 P.3d 1081 (2014). Relevant to this case is the search incident to lawful arrest
exception. The United States Supreme Court has held that warrantless breath tests are

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permissible after an individual is arrested for drunk driving. Birchfield, 136 S. Ct. at
2184-85.


       This court has addressed this issue in a case similar to the one here. In State v.
Perkins, 55 Kan. App. 2d 372, 379, 415 P.3d 460 (2018) (quoting Ryce, 306 Kan. at 690-
91), this court acknowledged that "the search-incident-to-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.'" In Perkins, the defendant was arrested for driving
under the influence before the officer administered an evidentiary breath test. Because an
exception to the search warrant requirement—search incident to arrest—was applicable,
the court held the results of the search did not need to be suppressed. 55 Kan. App. 2d. at
380. However, two things should be noted. First, the defendant in Perkins was provided
with the statutory notices set out in K.S.A. 2012 Supp. 8-1001. Second, the Kansas
Supreme Court affirmed the Court of Appeals in State v. Perkins, 310 Kan. 764, 771, 449
P.3d 756 (2019), but the court did so without addressing the search incident to arrest
argument and analysis.


       The question here is: Does the fact that Foster did not receive the statutory notices
before the breath test was administered change the outcome of his case? It does. The
Kansas Supreme Court made it clear in Luft that K.S.A. 1990 Supp. 8-1001(f)—which is
substantially similar to K.S.A. 2017 Supp. 8-1001(k)—requires that the statutory notices
be provided to an individual when a law enforcement officer seeks to test their breath
alcohol content. Luft, 248 Kan. at 913. Perhaps Foster's breath test would pass muster
under the search incident to arrest standard, but Kansas law required more. Kansas may
impose more stringent requirements than the United States Constitution. When the state
chooses to do so, the statute controls. State v. James, 301 Kan. 898, 908, 349 P.3d 457
(2015). We are bound to follow the Luft and James decisions. This court is duty-bound to
follow Kansas Supreme Court precedent absent some indication that the court is


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departing from its earlier position. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014).
We have seen no indication of the Supreme Court departing from Luft.


       Because Nelson was required—by statute—to provide Foster the implied consent
notices and did not do so, the search incident to arrest exception to the warrant
requirement does not mean the breath test submitted by Foster was admissible.


       Prior to July 1, 2018, implied consent advisories are required before prosecution
for DUI.


       The City next argues that implied consent advisories were not required in this case
because this is a prosecution for DUI, not a driver's license hearing. This argument is also
unpersuasive. In Luft, a criminal case, the defendant was convicted of aggravated
vehicular homicide—something wholly unrelated to a driver's license hearing. The
Kansas Supreme Court still held that the implied consent advisories were required. 248
Kan. at 913; see also State v. Kogler, 38 Kan. App. 2d 159, 164. 163 P.3d 330 (2007)
(suppression required when outdated advisory given); State v. Kelly, 14 Kan. App. 2d
182, 191, 786 P.2d 623 (1990) (suppression required when defendant denied right to
consult with attorney as provided in K.S.A. 1987 Supp. 8-1001[f][1][E]).


       In this case, the City provides no support for its argument that the implied consent
advisories were not required because this is not a driver's license suspension. Here,
Nelson was required to provide the implied consent advisories, even though this case was
for the prosecution of DUI.


       Officer Nelson did not substantially comply with the statute.


       Finally, the City argues that Foster was not prejudiced by not receiving the implied
consent notices before taking the breath test and that, ultimately, Nelson substantially

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complied with the statute by providing Foster the implied consent advisories after the
breath test was administered.


       As to prejudice, the City argues that Foster consented to the test, and in fact
requested testing, before he was arrested. This is essentially the same argument discussed
above and it remains unconvincing. Foster was not given all the information required,
thus he could not intelligently and knowingly consent to the breath test.


       The City also argues that Nelson substantially complied with K.S.A. 2017 Supp.
8-1001 by providing the implied consent advisories after administering the breath test.
Kansas courts have recognized that substantial compliance to K.S.A. 8-1001 can allow
breath test results to be admitted as evidence, but only in certain circumstances. State v.
Shaw, 37 Kan. App. 2d 485, 492-93, 154 P.3d 524 (2007). In Shaw, the defendant took a
breath test without first being advised of the implied consent advisories. The officer who
administered the first test realized that he did not provide Shaw the notices and asked him
if he would submit to a second breath test. Shaw agreed and the officer provided the
implied consent notices. Shaw then took a second breath test and the results of that test
were then used against him at trial.


       This court held that the second test was admissible because the officer
substantially complied with K.S.A. 8-1001 by providing the implied consent advisories to
Shaw and then administering a second test. The court focused on the clear language of
K.S.A. 8-1001 which requires notice to be given "'[b]efore a test or tests are
administered.'" 37 Kan. App. 2d at 492 (quoting K.S.A. 8-1001[f]).


       The statute in effect at the time Foster was arrested required the same thing. See
K.S.A. 2017 Supp. 8-1001(k). Nelson did not provide the implied consent advisories
before administering the test, nor did he provide the advisories and then test Foster a
second time. Officer Nelson did not substantially comply with the requirements of K.S.A.

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2017 Supp. 8-1001(k). When there has not been substantial compliance, a driver does not
have to show prejudice. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, Syl. ¶ 4, 840
P.2d 448 (1992).


      Ultimately, the district court erred by denying Foster's motion to suppress. Officer
Nelson was required to provide Foster with the implied consent advisories before
administering the breath test and did not do so. See K.S.A. 2017 Supp. 8-1001(k). The
proper remedy for not doing so was to suppress the breath test evidence. See Luft, 248
Kan. at 913.


      Reversed and remanded for further proceedings.




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