State v. Kerrigan

NOT DESIGNATED FOR PUBLICATION
No. 123,862
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THOMAS KERRIGAN,
Appellant.
MEMORANDUM OPINION
Appeal from Riley District Court; KENDRA LEWISON, judge. Opinion filed October 28, 2022.
Reversed and remanded.
Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellant.
John A. Griffin, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: Thomas J. Kerrigan was convicted of driving under the influence
(DUI). Kerrigan requested an attorney at least twice before completing an evidentiary
breath test, but the arresting trooper never honored the requests. Kerrigan moved to
suppress the breath test result and claimed the trooper violated his statutory right to
counsel under K.S.A. 2019 Supp. 8-1001(c)(1). The district court initially granted his
motion, relying on Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519(2015). The State filed a motion for reconsideration and argued the district court
erroneously relied on Dumler because the Kansas Legislature amended K.S.A. 8-1001 in
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2018, thereby abrogating Dumler's interpretation of the statutory right to counsel. The
district court agreed that the Dumler analysis no longer applied under the new language
in K.S.A. 2019 Supp. 8-1001(c)(1), determining it only created a statutory right to request
counsel following a completion of a breath test. The district court reconsidered Kerrigan's
motion to suppress in light of the State's argument and ultimately reversed course and
declined to suppress the evidence. The district court went on to find Kerrigan guilty of
DUI at a bench trial on stipulated facts.
Kerrigan now brings the matter before this court to analyze and determine whether
the district court erred in denying his motion to suppress. According to Kerrigan, the
amendments to K.S.A. 2019 Supp. 8-1001(c)(1) did not alter the Dumler analysis or
require that he request counsel after the breath test's administration to have a right to
speak to counsel. Following a thorough review of the issue, we find the district court
reached its conclusion in error because the plain language of the statute does not require
the State to honor a request for counsel only when it is uttered after a person submits to a
breath test. The 2018 amendments to (c)(1) were not disturbed by the statute's 2019
amendment, and the 2019 iteration applies to Kerrigan's traffic stop in March 2020. To
the extent that the statute is unclear regarding the timing requirement, then the rule of
lenity demands that we construe the statute in Kerrigan's favor. Thus, the decision of the
district court is reversed, and Kerrigan's case is remanded for a rehearing where the
district court can apply the proper standard.
FACTUAL AND PROCEDURAL BACKGROUND
Kansas Highway Patrol Captain Scott Walker was patrolling for drunk or
aggressive drivers shortly after midnight when he observed the operator of a silver Honda
Pilot commit a traffic violation by turning into the outside lane on US-24 Highway.
Walker followed the vehicle, ran its registration, and learned that the Honda's tag actually
belonged on a Mercury, which signaled a possible registration violation. So Walker
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initiated a traffic stop. The in-car audio and video system in the patrol vehicle he was
using was non-operational and officers with the Kansas Highway Patrol did not use body
cameras.
Walker approached the SUV on foot and noticed a driver, later identified as
Thomas Kerrigan, and one female passenger. In speaking with Kerrigan, Walker
observed that his eyes were watery, and his speech was soft, mumbled, and slurred.
Walker also detected the odor of alcohol, so he requested to see Kerrigan's driver's
license. Kerrigan, who suffered from arthritis, experienced dexterity issues while trying
to remove his license from his wallet, a fact that did not go unnoticed by Walker. Walker
inquired whether Kerrigan consumed any alcohol earlier that evening, and Kerrigan
provided an affirmative response but declined to discuss the matter any further.
After reviewing Kerrigan's license, Walker asked him to exit the SUV and bring
his license and registration documents to Walker's vehicle. Kerrigan complied and
Walker noticed that his movements en route to the vehicle were very deliberate and
focused. Once seated in Walker's car, Kerrigan shared that he suffered from physical
disabilities that would prevent him from successfully completing any field sobriety tests
that required physical movement. As a result, Walker requested Kerrigan complete two
cognitive tests instead.
First, Walker directed Kerrigan to recite the alphabet beginning at the letter "D"
and stopping at the letter "U." Kerrigan performed the task through mumbled and slurred
speech but stopped at the letter "T" rather than proceeding on to "U" as directed. Next,
Walker directed Kerrigan to count backwards from 67 to 43, which Kerrigan successfully
completed. At that point, Kerrigan agreed to submit to a preliminary breath test (PBT)
and produced a result of .117.
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Based on the PBT result, Walker placed Kerrigan under arrest, advised him of his
Miranda rights, and read the implied consent advisories required under Kansas law.
Following the arrest, Kerrigan refused to answer any questions but agreed to provide
another breath test using an Intoxilyzer 9000. That test yielded a result of .100. Kerrigan
was then transported to the Riley County Jail.
The State charged Kerrigan with one count of driving under the influence. Prior to
trial, Kerrigan filed a motion to suppress the Intoxilyzer evidence and argued he was
entitled to such relief because Walker (1) did not have probable cause to arrest him, and
(2) did not honor his request to speak with an attorney. On the same day, the State filed a
Jackson v. Denno motion requesting that the district court find Kerrigan's admission that
he consumed alcohol before driving was a knowing and voluntary statement.
The district court held a hearing on the motions during which Kerrigan and
Walker had the opportunity to testify. The men provided varying accounts of the traffic
stop. Kerrigan testified that, while still seated in his SUV, he told Walker, "I think I
would like to call my attorney," and that Walker responded by saying Kerrigan was not
entitled to an attorney. Walker, on the other hand, testified that Kerrigan simply made
comments about an attorney, but never specifically requested to contact one.
Kerrigan further testified about the cognitive field sobriety tests and asserted that
he understood Walker's instructions for the alphabet test to mean Kerrigan needed to stop
before he reached the letter "U." On cross-examination, Walker stated he had no
recollection of the precise language he used to explain that task. Because the patrol car
did not have a functional audio or video recording system, there was no way to analyze
the specific directions Kerrigan received.
Kerrigan also stated that he requested an attorney, for the second time, following
the PBT but Walker simply responded that he could have an attorney when he had his
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day in court. Kerrigan added that Walker took his cell phone and did not provide any
alternative way for Kerrigan to call an attorney. Finally, Kerrigan believed that he asked
to speak with an attorney at least one other time beyond the request in his car and the
request following the PBT. In contrast, Walker testified that he had no specific
recollection of Kerrigan asking for an attorney following the PBT, but that had he done
so Walker would have allowed Kerrigan to use Walker's phone to make the necessary
calls.
After hearing from both witnesses, the district court requested arguments from the
parties. As for the first issue, the State asserted that Walker had probable cause to arrest
Kerrigan because he observed his commission of a traffic violation and smelled the odor
of alcohol emanating from the vehicle. Kerrigan also experienced difficulty when
removing his driver's license from his wallet, had bloodshot and watery eyes, as well as
slurred speech, and admitted to consuming alcohol. The State contended that those facts,
coupled with Kerrigan's poor performance on the cognitive tests, provided Walker with
reasonable suspicion to request a PBT and probable cause to arrest Kerrigan.
In addressing the matter of Kerrigan's request for an attorney, the State highlighted
Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015), and argued that
the case held there is no bright-line rule requiring a defendant to request an attorney after
the testing. The State further asserted that while the possibility exists for such a request to
be made before testing, that does not translate to mean the individual possesses the right
to consult with an attorney prior to submitting to the breathalyzer test. Thus, Kerrigan's
breath test results should not be suppressed.
Kerrigan argued that the State's reading of Dumler was flawed and therefore its
reliance on it misplaced. He suggested the more accurate interpretation of Dumler was:
(1) if the request made for an attorney during a breath test is denied, the appropriate
remedy is suppression of the test results, and (2) an individual may request an attorney
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prior to completing the breath test. Then applying Dumler to his own case, Kerrigan
argued the evidence that he requested an attorney was uncontroverted because Walker
failed to recall any specifics that suggested otherwise. Thus, because Walker never
honored Kerrigan's requests to speak with an attorney, Dumler demanded suppression of
his breath test results.
Turning to the probable cause determination, Kerrigan argued that Walker did not
have reasonable suspicion to request a PBT because his observations of Kerrigan's red
eyes, dexterity, and speech were subjective, and Kerrigan passed the two cognitive tests.
According to Kerrigan, once that PBT was removed from the calculus, probable cause for
the arrest did not exist. Kerrigan did not address the State's Jackson v. Denno motion.
The district court concluded that Walker possessed the requisite reasonable
suspicion to request a PBT from Kerrigan, that the facts in their entirety provided
probable cause for an arrest, and that Kerrigan's acknowledgment of alcohol consumption
was knowing and voluntary and therefore admissible. Finally, after reviewing Dumler,
the district court ordered Kerrigan's breathalyzer results suppressed. It explained that the
evidence of Kerrigan's request for an attorney was uncontroverted and there was no
corresponding evidence that Walker took any steps to honor that request.
The State filed a motion seeking reconsideration of the court's decision. At the
hearing on that motion, it argued that the district court erred because Dumler interpreted a
currently outdated section of the Kansas implied consent statute. Specifically, Dumler
interpreted K.S.A. 2009 Supp. 8-1001(k)(10), which a 2018 amendment removed and
replaced with different language in K.S.A. 2018 Supp. 8-1001(c)(1). It also asserted that
the new amendment reflected "the Dumler decision on this type of statutory right to
counsel no longer applies." Rather, the new statutory language only permitted an
individual to ask for counsel once the breath test was already administered. According to
the State, no statutory violation occurred under the amended statute because Kerrigan
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testified that he requested counsel while sitting in his car and between the PBT and the
breath test.
In response, Kerrigan argued that the 2018 amendment did not abrogate Dumler.
To the contrary, both versions of the statute contain "an absolute right to counsel"
following a breath test. He also asserted that the language of K.S.A. 2019 Supp. 8-
1001(c)(1) does not allow law enforcement officers to ignore requests for counsel that are
made before the test occurs. Put differently, the new language did not mark a proscription
against requesting counsel before submitting to testing. Thus, the amendment did not
have "any germane influence or impact on the Dumler findings."
The district court found the State's argument persuasive and deviated from its
earlier ruling in order to deny Kerrigan's motion to suppress. It explained that Kerrigan's
testimony evinced that he requested counsel before the officer administered the breath
test and Walker provided similar testimony. The court did find it troubling that no such
requests were memorialized in the officer's notes, particularly when the patrol car's audio
and video equipment did not work. According to the court, there was no evidence that a
request for counsel occurred after the breath test and that reality, coupled with the
language change in the 2018 amendment, meant Kerrigan's statutory right to counsel was
not violated.
Kerrigan's case proceeded to a bench trial on stipulated facts and the district court
found Kerrigan guilty of driving under the influence because his breath test showed that
his blood alcohol content exceeded .08.
Kerrigan timely appeals.
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ANALYSIS
The District Court properly denied Kerrigan's motion to suppress because the arresting
officer did not violate Kerrigan's statutory right to counsel.
Kerrigan contends the district court erred because any request for counsel must be
honored no matter when it is uttered in relation to the breath test.
Preservation
After the district court denied his motion to suppress, Kerrigan waived his right to
a jury trial and proceeded to a bench trial on stipulated facts. The stipulation included an
objection to the admission of the breath test and, by doing so, preserved the issue for
appeal. See State v. Bogguess, 293 Kan. 743, 747, 268 P.3d 481 (2012) (finding
suppression issue preserved when appellant objected to admission of evidence in motion
to suppress and then appellant agreed to a bench trial on stipulated facts).
Standard of Review
"The standard of review for a district court's decision on a motion to suppress has
two parts. The appellate court reviews the district court's factual findings to determine
whether they are supported by substantial competent evidence. But the court's ultimate
legal conclusion is reviewed using a de novo standard. State v. Neighbors, 299 Kan. 234,
240, 328 P.3d 1081 (2014). The appellate court does not reweigh the evidence or assess
the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).
When the facts supporting the district court's decision on a motion to suppress are not
disputed, the ultimate question of whether to suppress is a question of law over which the
appellate court exercises unlimited review." State v. Hanke, 307 Kan. 823, 827, 415 P.3d
966 (2018).
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The parties agree the issue is whether K.S.A. 2019 Supp. 8-1001(c)(1) required
Kerrigan to request counsel after the breath test was administered, and then have that
request disregarded, in order to be entitled to suppression of his breath test results at trial.
Resolving this issue also involves statutory interpretation which raises a question
of law over which we exercise unlimited review. Jarvis v. Kansas Dept. of Revenue, 312
Kan. 156, 159, 473 P.3d 869 (2020). "All Kansas courts use the same starting point when
interpreting statutes: The Kansas Legislature's intent controls. To divine that intent,
courts examine the language of the provision and apply plain and unambiguous language
as written." 312 Kan. at 159. In doing so, courts must give "common words their ordinary
meaning." State v. Ryce, 303 Kan. 899, 906, 368 P.3d 342 (2016). "If the Legislature's
intent is not clear from the language, a court may look to legislative history, background
considerations, and canons of construction to help determine legislative intent." Jarvis,
312 Kan. at 159.
Analysis
K.S.A. 2019 Supp. 8-1001(c)(1) states:
"(c) When requesting a test or tests of breath or other bodily substance other than
blood or urine, under this section, the person shall be given oral and written notice that:
(1) There is no right to consult with an attorney regarding whether to submit to
testing, but, after the completion of the testing, the person may request and has the right
to consult with an attorney and may secure additional testing."
The State argues Kerrigan's desire to tether his claim to Dumler is erroneous
because Dumler no longer controls in the wake of the 2018 amendment. Specifically, the
State focuses on the changes between K.S.A. 2009 Supp. 8-1001(k)(10) and K.S.A. 2019
Supp. 8-1001(c). It asserts that the 2018 amendment "inserted a new advisory that
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imposes a timing element for a defendant's request for counsel and removes the urgency
element of when the additional testing needed to be performed."
In Dumler, Robert Dumler was stopped for committing a traffic violation and the
officer ultimately arrested him for DUI. Dumler asked to speak with an attorney before
completing a breath test, and the arresting officer conceded that he never honored
Dumler's request. Dumler requested an administrative hearing with the Kansas
Department of Revenue, where he argued that his statutory right to counsel was violated.
The hearing officer affirmed his suspension, so Dumler petitioned to the district court.
The district court also affirmed the suspension. Working his way up the chain, Dumler
then appealed to this court, which similarly affirmed. Dumler petitioned our Supreme
Court for review and his request was granted. 302 Kan. at 421-23.
The Kansas Supreme Court began with an overview of K.S.A. 2009 Supp. 8-1001.
Though the statute revealed that an individual may not consult an attorney about the
decision whether to submit to a breath test, K.S.A. 2009 Supp. 8-1001(k)(10) provided
that a person had the right to consult with an attorney after the test was completed. The
court then turned to the question surrounding the timing of the request and concluded that
"[t]he advisory required under K.S.A. 2009 Supp. 8-1001(k)(10) states that the
consultation right accrues 'after the completion of the testing.' But it does not say that a
request to invoke that right of consultation must await the completion of testing."
Dumler, 302 Kan. at 426. Furthermore, the court explained that K.S.A. 2009 Supp. 8-
1001(k)(10) affirmatively stated that an individual had the right to consult with an
attorney after testing and that this right was "not conditioned upon the person making a
post-testing request." 302 Kan. at 426. The court concluded its statutory analysis by
noting: "The State would apparently expect a layperson to intuit that the advisory
actually means that, after the testing, the person has the right to request that he or she be
allowed to consult with an attorney. We decline to contort the statutory language in that
manner." 302 Kan. at 426. Because Dumler had requested an attorney before his
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preliminary breath test and the State did not honor that request, the court held the
Intoxilyzer results must be suppressed. 302 Kan. 430.
The State cites Jarvis v. Kansas Dept. of Revenue, 56 Kan. App. 2d 1081, 1093,
442 P.3d 1054 (2019), aff'd 312 Kan. 156, 473 P.3d 869 (2020), to support its position. In
Jarvis, this court considered the effect of a statutory amendment on a prior Kansas
Supreme Court decision. That prior decision, Martin v. Kansas Dept. of Revenue, 285
Kan. 625, 176 P.3d 938 (2008), explained that the exclusionary rule did not apply in a
driver's license suspension proceeding. In 2016, the Kansas Legislature amended K.S.A.
8-1020(p), which clarified that a district court could consider constitutional issues when
reviewing a driver's license suspension, even if the constitutional issue was not raised in
front of the agency or included in the petition for review. This court determined that the
amendment abrogated Martin because, under Martin and prior to the amendment, "[t]he
statute did not provide for the district court to consider and decide the 'lawfulness of the
law enforcement encounter.'" Jarvis, 56 Kan. App. 2d at 1096.
Specifically, the State directs this court to the following language from Jarvis:
"When the Legislature revises an existing law, the court presumes the Legislature
intended to change the law as it existed before the amendment. Courts generally presume
that the Legislature acts with full knowledge about the statutory subject matter, including
prior and existing law and judicial decisions interpreting the same. [Citation omitted.]" 56
Kan. App. 2d at 1093.
Other Kansas courts have affirmed this principle. In Stueckemann v. City of
Basehor, 301 Kan. 718, 745, 348 P.3d 526 (2015) (citing Graham v. Herring, 297 Kan.
847, 860, 305 P.3d 585 [2013]), the Kansas Supreme Court reiterated "that the
'legislature's revision of existing law creates [a] presumption that [the] legislature
intended to change preamendment law.'" The presumption is more persuasive "where the
amendment contains a radical change to a statute's phraseology." Stueckemann, 301 Kan.
11at 745. See also University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't,
301 Kan. 993, 1000, 348 P.3d 602 (2015) (explaining that amendments may abrogate
existing law even when the Legislature does not invoke specific, "talismanic words"). But
the presumption may be rebutted and "is not to be rigidly applied." Confinement
Specialists, Inc. v. Schlatter, 6 Kan. App. 2d 1, 5, 626 P.2d 223 (1981); see also 6 Kan.
App. 2d 1, Syl. ¶ 1 ("Generally, there is a presumption that a change in the language of a
statute results from a legislative purpose to change its effect, but this presumption may be
strong or weak, according to circumstances, and maybe wanting altogether in a particular
case.").
The Stueckemann court found that the statutory amendment was a radical change
in phraseology because the statute (1) "now expressly speaks when annexation statutes
always had been silent on reasonableness as a basis for challenge and scope of judicial
review," and (2) the amendment mandated that courts use a specific factor when
determining reasonableness. 301 Kan. at 745. As in Stueckemann, the 2018 amendment
to K.S.A. 8-1001 now expressly speaks to requests, whereas the word "request" was
absent from the prior language. As the State argues, "[t]he advisory now clarifies that a
person's request for an attorney is authorized after the completion of testing, essentially
addressing the requirement that the Dumler court found was missing." The State appears
to suggest the Kansas Legislature expressed its intent to limit requests for counsel to post-
test requests by adding the words "may request" following the clause "after the
completion of the testing." According to this argument, the Kansas Legislature did this
with full knowledge of the statute's predecessor and the Dumler decision.
However, in an early case related to this principle, the Kansas Supreme Court
explained:
"'This presumption is fairly strong in the case of an isolated, independent amendment, but
is of little force in the case of amendments adopted in a general revision or codification of
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the laws, as in such case the change of phraseology may be due to a rearrangement of the
statutes or to a desire to improve the style.' [Citation omitted.]" Hauserman v. Clay
County, 89 Kan. 555, 558, 132 P. 212 (1913).
The 2018 amendment was not isolated or independent. Rather, the entirety of
K.S.A. 2018 Supp. 8-1001(c) was added, and the subsection imported similar provisions
from K.S.A. 2017 Supp. 8-1001(k). Portions of the statute were rearranged and rewritten.
Accordingly, even if the inclusion of "may request" is a radical departure of phraseology,
the presumption that the amendment overturns Dumler loses force because the
amendment was not isolated or independent. See Confinement Specialists, Inc. v.
Schlatter, 6 Kan. App. 2d 1, 5-7, 626 P.2d 223 (1981) (rejecting the presumption when
the amendment occurred as part of the Kansas Legislature's "massive revision of the
Kansas Code of Civil Procedure in 1963").
Moreover, the amendments changed the notice language and did not undermine
the statutory right to counsel discussed in Dumler. Both K.S.A. 2019 Supp. 8-1001(c)(1)
and K.S.A. 2009 Supp. 8-1001(k)(10) indicate that an individual has the right to counsel
following a breath test. See K.S.A. 2019 Supp. 8-1001(c)(1) (noting "has the right to
consult with an attorney"); K.S.A. 2009 Supp. 8-1001(k)(10) (noting "the person has the
right to consult with an attorney"). The Dumler court found that the right was mandatory
and that it was "not conditioned upon the person making a post-testing request." 302 Kan.
at 426. The amended language may be read to be conditioned upon a person making a
post-testing request because the language explaining the right is preceded by "but, after
the completion of the testing." K.S.A. 2019 Supp. 8-1001(c)(1). Yet Kerrigan argues for
an alternative reading of the new language.
Kerrigan argues the Kansas Legislature could have easily written K.S.A. 2019
Supp. 8-1001(c)(1) to be clear that the statutory right to an attorney is available only if
the request follows a breath test. For example, he says, the statute could have been
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phrased in two ways: (1) "Only after the completion of testing shall a person have the
right to request and have the right to consult with an attorney," or (2) "after the
completion of the testing, the person has the right to consult with an attorney which must
be requested after completion of the testing." Put differently, the new language does not
show that an individual cannot ask for counsel prior to testing. Nor does it read that if
they ask for counsel before testing, then they are not entitled to it.
Kansas courts have found similar arguments persuasive. For example, in Stanley v.
Sullivan, 300 Kan. 1015, 1020-22, 336 P.3d 870 (2014), the Kansas Supreme Court
reversed this court's decision that the phrase "this section" in K.S.A. 2013 Supp. 59-
29a24(d) was ambiguous. This court had found that it was unclear whether the phrase
applied to the entirety of K.S.A. 2013 Supp. 59-29a24 or only K.S.A. 2013 Supp. 59-
29a24(c), and, based on the ambiguity, had turned to legislative history to determine
subsection (d)'s meaning. The Kansas Supreme Court disagreed, explaining:
"Clearly, if the legislature had intended that subsection (d) refer only to
subsection (c), the legislature could have and probably would have drafted the exception
to read 'The provisions of the preceding subsection shall not apply to a writ of habeas
corpus' or 'The provisions of subsection (c) shall not apply to a writ of habeas corpus.'"
Stanley, 300 Kan. at 1020.
See also State v. Trautloff, 289 Kan. 793, 798, 217 P.3d 15 (2009) ("The legislature could
have written the statute to define an aggravated habitual sex offender as an offender
convicted of two prior crimes. The legislature instead chose to define the aggravated
habitual sex offender as one who is convicted on at least two prior conviction events.");
The Salina Journal v. Brownback, 54 Kan. App. 2d 1, 19, 394 P.3d 134 (2017) ("Had the
legislature intended to treat record requests differently depending on the application
process used by public agencies, the legislature could have easily included such language
in the personnel records exception. But, it did not."); In re J.L.B., 44 Kan. App. 2d 755,
760, 241 P.3d 114 (2010) ("If the legislature wished to include a definition for 'prior
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adjudication' similar to that set forth for 'prior conviction' under K.S.A. 21-4710, it could
have easily done so under the Juvenile Code."); State v. Chavez, No. 115,602, 2017 WL
3321375, at *6 (Kan. App. 2017) (unpublished opinion) (explaining two drafting
adjustments that the Kansas Legislature could have made in order for the State's
argument to be supported, but rejecting the State's argument because it was "contrary to
the most fundamental rule in statutory interpretation—that the intent of the legislature, as
shown through the plain language of the statutes, governs"); contra In re W.H., 274 Kan.
813, 822, 57 P.3d 1 (2002) ("Our legislature has established in painstaking detail, a
comprehensive sentencing scheme, essentially complete as written. In the face of such
detail, silence fails to imply the existence of an alternative not expressed.").
The plain language of K.S.A. 2019 Supp. 8-1001(c)(1) reflects that a person has
the right to be told that they may request an attorney after a breath test has been
administered, but the language does not convey that an earlier request should not be
honored. As Kerrigan notes, the statute "does not limit the person's ability to request
counsel until after testing; instead, it gives discretion to the person to request an attorney
after testing and remains silent as to whether the request can be made before the
completion of testing." This court may not interpret a statute to include language that is
absent. See State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008) (quoting
Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 [2007]) ("When
language is plain and unambiguous, there is no need to resort to statutory construction.
An appellate court merely interprets the language as it appears; it is not free to speculate
and cannot read into the statute language not readily found there."); In re Tax Protest of
United Ag Services, 37 Kan. App. 2d 902, 913, 159 P.3d 1050 (2007) ("A statute should
not be read to add language that is not found in it.").
The State's interpretation of K.S.A. 2019 Supp. 8-1001(c)(1) is internally
inconsistent: the right to consult an attorney is not conditional upon the timing of the
request—the statutory right is always present. Under the provision, it is only relevant that
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a request was made, the rest of the advisory already informs that one cannot implement
the attorney consultation until after testing. A plausible explanation for the provision's
use of "after" is to drive home this fact, but not to suggest a pre-testing request to consult
an attorney would somehow be rendered void or would not be enough to trigger that
right.
In addition, in considering both arguments presented, it becomes clear that, as
drafted, K.S.A. 2019 Supp. 8-1001(c)(1) is perhaps ambiguous because the new language
is uncertain about whether a pre-breath test request must be honored. Put differently, the
plain language does not state that a pre-breath test invocation must be honored, but it
certainly does not state that honoring it is prohibited. See Black's Law Dictionary 100
(11th ed. 2019) (defining "ambiguity" as "[d]oubtfulness or uncertainty of meaning or
intention, as in a contractual term or statutory provision . . . "). Accordingly, we must
apply the rule of lenity. See State v. Braun, 47 Kan. App. 2d 216, 217, 273 P.3d 801(2012) ("A special rule, the rule of lenity, guides us when determining the meaning of an
ambiguous criminal statute."); State v. Trevitt, No. 122,168, 2020 WL 6811983, at *4
(Kan. App. 2020) (unpublished opinion) (adopting appellant's reading of the statute even
though it was "not the most natural reading" because "it [was] at least a plausible one
given the statutory context . . . and would not 'contravene the statute's plain meaning'");
State v. Kelly, 14 Kan. App. 2d 182, 186, 786 P.2d 623 (1990) (noting the rule of lenity
applies to K.S.A. 8-1001 because of its punitive nature). The rule of lenity requires that a
statute be construed in favor of the accused. State v. Terrell, 315 Kan. 68, 72-73, 504
P.3d 405 (2022). Moreover, the rule of lenity applies when a statute is silent on a matter;
here, the statute is silent on pre-breath-test requests. See 315 Kan. at 72-73.
Construing K.S.A. 2019 Supp. 8-1001(c)(1) in favor of Kerrigan means that the
statute requires pre-breath-test requests for counsel to be honored. Because the request
was not honored here the appropriate remedy is a suppression of the breath test. See
Kelly, 14 Kan. App. 2d at 191-92. Accordingly, the district court erred when, upon the
16
motion to reconsider, it denied Kerrigan's motion to suppress the Intoxilyzer results.
Kerrigan's case is reversed and remanded for the district court to analyze the parties'
arguments through the lens of the appropriate standard.
Reversed and remanded.
***
GARDNER, J., dissenting: I respectfully dissent, disagreeing with my colleagues
about the plain meaning of K.S.A. 2019 Supp. 8-1001(c)(1). The court found that
Thomas Kerrigan requested counsel before the officer administered the Intoxilyzer breath
test and that no evidence showed he requested counsel after that breath test. This fact is
supported by substantial evidence and is not challenged on appeal. So the only question
presented is a question of law—does the statute require the officer to honor a request for
counsel made before the breath test is completed?
Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015),
examined a 2009 statute that provided that before a breath test is administered,
"the person shall be given oral and written notice that . . . after the completion of the
testing, the person has the right to consult with an attorney and may secure additional
testing, which, if desired, should be done as soon as possible and is customarily available
from medical care facilities willing to conduct such testing." K.S.A. 2009 Supp. 8-
1001(k)(10).
Based on that language, Dumler found that "[t]he advisory required under K.S.A.
2009 Supp. 8-1001(k)(10) states that the consultation right accrues 'after the completion
of the testing.' But it does not say that a request to invoke that right of consultation must
await the completion of testing." 302 Kan. at 426. Thus, it held that
17
"the statute limits when a person may actually communicate with a lawyer. 2012 WL
4679128, at *3. For instance, a person has no right to consult with counsel before
deciding whether to take the requested alcohol testing. But after the test, a person has the
unrestricted right to consult with an attorney, period. Given that the district court
apparently applied an incorrect legal standard on the question of whether Dumler's post-
testing right to counsel was violated, a remand would be in order." 302 Kan. at 427.
Nothing in K.S.A. 2009 Supp. 8-1001 stated when the request for counsel had to
be made—only when it had to be honored. So the court found that Dumler's pre-test
request for counsel had to be honored after the test.
Apparently in response to the 2015 Dumler decision, the Legislature in 2018
changed the statute. It revoked K.S.A. 2009 Supp. 8-1001(k)(10) and replaced it with
different language in K.S.A. 2019 Supp. 8-1001(c)(1) that applies here. This statute
requires an officer requesting a breath test to notify the person that: "There is no right to
consult with an attorney regarding whether to submit to testing, but, after the completion
of the testing, the person may request and has the right to consult with an attorney and
may secure additional testing." K.S.A. 2019 Supp. 8-1001(c)(1). Unlike the previous
statute, this statute speaks both to when the person may request counsel and to when the
officer must honor that request—"after the completion of the testing." That is what the
plain language of the statute says. A request to invoke the right of consultation must
await the completion of testing.
The 2019 statute is not ambiguous. The rule of lenity has no application here. That
a statute could be drafted differently or even more clearly does not mean its language is
ambiguous, although every ambiguous statute could necessarily be worded more clearly.
Nor does the fact that persons disagree as to the meaning of a statute, as here, make it
ambiguous. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120(2003) (A term or phrase in a statute, contract, or other writing is not automatically
ambiguous simply because some disagree about its interpretation). See, e.g., Leaf
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Funding, Inc. v. Simmons Medical Clinic, 54 Kan. App. 2d 387, 392, 398 P.3d 866(2017) (noting that parties argued for different interpretations of a statute but neither
claimed that statute was ambiguous).
Ambiguity arises only if "the face of the instrument leaves it genuinely uncertain
which one of two or more meanings is the proper meaning." Catholic Diocese of Dodge
City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992); Kincaid v. Dess, 48 Kan. App.
2d 640, 647, 298 P.3d 358 (2013) ("A contract is ambiguous when the words . . . may be
understood in two or more ways."). A court will not strain to find an ambiguity where, in
common sense, there is none. See Iron Mound v. Nueterra Healthcare Management, 298
Kan. 412, 418, 420, 313 P.3d 808 (2013).
Our primary aim when interpreting statutes is to give effect to the Legislature's
intent, expressed through the statutory language it adopted. State v. Spencer Gifts, 304
Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). We thus follow the statute's plain language—we
cannot ignore statutory requirements and we give ordinary words their ordinary
meanings. 304 Kan. 755, Syl. ¶ 3. It is not the courts' function to add to or take away
from the language of a statute. "A statute should not be read to add that which is not
contained in the language of the statute or to read out what, as a matter of ordinary
language, is included in the statute." Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶
6, 154 P.3d 494 (2007). So we are not at liberty to decide that it would be better for the
statutory advisory to require an officer to honor a person's request for counsel made
before, during, or after the completion of a breath test.
The plain language of the statute says that after the completion of the testing the
person may request to consult with an attorney. It includes no similar language as to any
earlier request. Thus, although an officer may choose to honor a request made before or
during the breath test to consult with an attorney, an officer has no statutory duty to do
so. Because K.S.A. 2019 Supp. 8-1001(c)(1) is unambiguous, our inquiry should begin
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and end with its text. See National Assn. of Mfrs. v. Department of Defense, 583 U.S. __,
138 S. Ct. 617, 631, 199 L. Ed. 2d 501 (2018).
But even if the statute is ambiguous, the presumption applies that when the
Legislature changes the law, it intends to change not only the prior law but also court
decisions interpreting it:
"When the Legislature revises an existing law, the court presumes the Legislature
intended to change the law as it existed before the amendment. Courts generally presume
that the Legislature acts with full knowledge about the statutory subject matter, including
prior and existing law and judicial decisions interpreting the same. [Citations omitted.]"
Jarvis v. Kansas Dept. of Revenue, 56 Kan. App. 2d 1081, 1093, 442 P.3d 1054 (2019),
aff'd 312 Kan. 156, 473 P.3d 869 (2020).
As the majority notes, the Kansas Supreme Court has fully affirmed this principle.
See e.g., University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan.
993, 1000, 348 P.3d 602 (2015); Stueckemann v. City of Basehor, 301 Kan. 718, 745, 348
P.3d 526 (2015) (citing Graham v. Herring, 297 Kan. 847, 860, 305 P.3d 585 [2013]).
This presumption, as applied here, means that when the Legislature revoked
K.S.A. 2009 Supp. 8-1001(k)(10) and replaced it with K.S.A. 2019 Supp. 8-1001(c)(1), it
intended to work some change in the effect of the statute. Yet the majority finds the
presumption inapplicable because the 2019 amendment was not isolated or independent,
relying on the early precedent of Hauserman:
"'This presumption is fairly strong in the case of an isolated, independent amendment, but
is of little force in the case of amendments adopted in a general revision or codification of
the laws, as in such case the change of phraseology may be due to a rearrangement of the
statutes or to a desire to improve the style.' [Citation omitted.]" Hauserman v. Clay
County, 89 Kan. 555, 558, 132 P. 212 (1913).
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To the contrary, the statutory change here was independent, not part of a larger
general revision, an overall change in phraseology, or stylistic rearrangement. Compare
Confinement Specialists, Inc. v. Schlatter, 6 Kan. App. 2d 1, 5-7, 626 P.2d 223 (1981)
(rejecting the presumption when the amendment was part of Legislature's "massive
revision of the Kansas Code of Civil Procedure in 1963"). This change was isolated and
content based. Thus, we should find that the Legislature, with full knowledge of the
statute's predecessor and the Dumler decision, by adding the words "may request"
following the clause "after the completion of the testing," expressed its intent to limit
requests for counsel to post-test requests.
Nothing in that conclusion undermines a person's statutory right to counsel after
completion of a breath test. See K.S.A. 2019 Supp. 8-1001(c)(1) (noting "has the right to
consult with an attorney"); K.S.A. 2009 Supp. 8-1001(k)(10) (noting "the person has the
right to consult with an attorney").
For those reasons I respectfully dissent.
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