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Updated: February 1, 2013

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 103,028 STATE OF KANSAS, Appellee, v. BRUNO EDGAR, Appellant.

SYLLABUS BY THE COURT

1. Under K.S.A. 2010 Supp. 8-1012(b), a law enforcement officer may request a preliminary breath test from a person who is operating or attempting to operate a vehicle if the officer has reasonable suspicion to believe that person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both.

2. Whether a law enforcement officer has the statutorily required reasonable suspicion to request a preliminary breath test is determined by examining the totality of the circumstances existing at the time of the request. A person's performance on field sobriety tests administered prior to a request for a preliminary breath test is part of the totality of the circumstances that must be examined.

3. Under K.S.A. 2010 Supp. 8-1012(c), at the time a preliminary breath test is requested, a law enforcement officer must provide oral notice that (a) there is no right to consult with an attorney regarding whether to submit to testing; (b) refusal to submit to
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testing is a traffic infraction; and (c) further testing may be required after the preliminary test. The statute further provides that the officer's failure to give this notice shall not be an issue or defense in any action.

4. When a law enforcement officer instructs a driver that he or she has no right to refuse a preliminary breath test, the officer has contradicted the statutory provisions that make a refusal to take the test a traffic infraction under K.S.A. 2010 Supp. 8-1012(d). This cannot be considered substantial compliance with the statute, nor does it equate to a failure to give the notice under K.S.A. 2010 Supp. 8-1012(c).

5. When a law enforcement officer instructs a driver that he or she has no right to refuse a preliminary breath test, it transforms the request for a preliminary breath test contemplated by K.S.A. 2010 Supp. 8-1012(b) into an involuntary search because the driver would understand there is no choice.

Review of the judgment of the Court of Appeals in 45 Kan. App. 2d 340, 246 P.3d 1013 (2011). Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed February 1, 2013. Judgment of the Court of Appeals affirming the district court on the issues subject to our review is affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded to the district court.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

James R. Spring, deputy county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

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The opinion of the court was delivered by

BILES, J.: On petition for review from the district court's denial of a suppression motion, this case presents two questions affecting investigations for driving under the influence of alcohol (DUI). The first is whether a driver's favorable results from field sobriety tests administered prior to a request for a preliminary breath test (PBT) dissipate the reasonable suspicion statutorily required to support a request for a PBT. The second is whether the investigating officer in this case substantially complied with K.S.A. 2010 Supp. 8-1012(c), which requires oral notice that refusal to take a PBT is a traffic infraction, when the officer incorrectly told the suspect he had no right to refuse.

We hold that field sobriety tests administered prior to a PBT request are part of the totality of circumstances examined by a court when determining whether there was reasonable suspicion to support the PBT request under K.S.A. 2010 Supp. 8-1012(b). We hold further that the officer in this case failed to comply with the notice requirements in K.S.A. 2010 Supp. 8-1012(c) by incorrectly informing the suspect he had no right to refuse the PBT. We reverse the Court of Appeals on the notice issue. We reverse and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Bruno Edgar was charged with DUI in violation of K.S.A. 8-1567 (fourth or subsequent violation) and driving while his license was suspended or revoked in violation of K.S.A. 8-262 (third or subsequent violation). The undisputed facts underlying these charges were presented at a preliminary hearing, in which the arresting officer testified as follows:

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On July 29, 2007, a police officer was working a driver's license check lane, where every car driving through was stopped. Around 12:45 a.m., the officer saw Edgar pull up to the check lane in a white Dodge pickup. The officer said Edgar acted confused when asked for his information and told the officer he did not have a driver's license. The officer waved Edgar onto the shoulder because there was traffic behind him.

When the officer again asked Edgar for his driver's license, Edgar presented an identification card. The officer asked again if Edgar had a regular driver's license, and Edgar replied yes. The officer said he took Edgar's identification card and ran it through dispatch, which advised that Edgar's driver's license was suspended.

The officer testified that during his conversation with Edgar, he could smell a "real light smell of alcoholic beverage" coming from Edgar's truck. The officer asked Edgar if he had consumed any alcohol, and Edgar said "just beer" but did not say how much. The officer decided Edgar needed to undergo sobriety testing and had Edgar initially perform the following tests:

1. Horizontal gaze nystagmus test. The officer said this test showed a 45-degree nystagmus with no maximum deviation present and no vertical deviation.

2. Nine-step walk and turn. The officer testified that Edgar said he understood the instructions, but that the officer did not believe Edgar actually understood them because he seemed "a little confused" and remained in the same position. The officer explained the test to Edgar again, after which Edgar correctly followed instructions. During the test, the officer said Edgar "did fine," except that during the second set of nine steps, Edgar was not walking heel to toe on the fourth and fifth steps.

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3. One-leg stand. Edgar said he understood the instructions, and the officer said Edgar passed the test.

The final test the officer administered was a PBT because, he said, it was part of his agency's standard procedures. The officer testified the PBT tells him whether he wants to continue investigating and that he would have asked for a PBT even if he did not believe Edgar was impaired after the field sobriety tests. The PBT administered in this case required a sample of deep lung air that may be extracted only after a person forcibly blows air into the PBT device for a period of 3 to 5 seconds. The breath sample is then chemically analyzed.

The officer said he advised Edgar that he did not have a right to refuse the PBT, did not have a right to consult an attorney about taking the test, and could be subject to further testing. After those instructions, Edgar agreed to take a PBT, which showed a .122 blood-alcohol content level. Edgar was arrested for DUI and driving on a suspended driver's license. Importantly, the officer said he would not have arrested Edgar if it were not for the PBT results. Edgar later submitted to a blood test, which showed a blood alcohol level of 1.1 grams per 100 milliliters of blood.

At the conclusion of evidence at the preliminary hearing, the district court found probable cause to believe Edgar committed felonious driving under the influence of alcohol and bound him over for trial.

Following the preliminary hearing, Edgar filed the motion to suppress at issue in this appeal. He argued the purpose of the initial stop--to check for a driver's license-- had been completed when dispatch advised Edgar's license was suspended and that further seizure of Edgar for DUI investigation required probable cause and consent. Edgar alternatively argued that he was not properly advised of his rights before the PBT
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was administered and that the officer did not have probable cause or consent to administer the test. The motion to suppress argued:

"7. The Defendant asserts that the purpose of the initial stop to check his driver's license had been completed when dispatch returned the license status as being suspended. The further seizure of Mr. Edgar lacked the requisite probable cause and consent. Alternatively, the Defendant contests that he not was properly advised of his rights before the [PBT] was administered, and that the officer did not have probable cause or consent to administer the [PBT] and that the officer's reliance on the [PBT] in seeking the subsequent blood test invalidates it."

The State did not file a response.

At the hearing on the motion to suppress, the district court heard no additional arguments from counsel. It revisited the facts presented at the preliminary hearing. It held that absent the PBT results there was no probable cause to place Edgar under arrest or ask him to take an alcohol test because there was no evidence of bad driving and because Edgar had passed three earlier sobriety tests. The only evidence of intoxication, the district court found, was an odor of alcohol.

The district court ultimately denied Edgar's motion. It found the officer was not required to revisit his reasonable suspicion after each sobriety test. The district court explained that it found no caselaw on point but believed if the officer had reasonable suspicion to begin field sobriety testing in the first place, he also had suspicion to run the gamut of testing, particularly because each person tolerates alcohol differently and might pass the one-leg-stand test, but not the PBT. It also noted PBT administration could occur either before or after other testing.

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The district court primarily relied on this court's decision in State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008), which held that an investigation for obstruction together with the smell and admission of alcohol consumption created reasonable articulable suspicion to pursue a DUI investigation. The district court found there was reasonable articulable suspicion to justify the officer's request for a PBT based on Edgar operating his car on a suspended license, his admission to drinking, and the odor of alcohol on his person.

As to the argument that Edgar did not properly consent to the PBT because the officer told him he had no right to refuse, the district court agreed that the officer did not provide the correct notice under the PBT statute, K.S.A. 2010 Supp. 8-1012. But it held there was no error justifying suppression because the statute provided implied consent in subsection (a) and stated in subsection (c) that failure to provide notice is not a defense.

The parties stipulated to the facts, and at a bench trial the district court convicted Edgar of DUI. The State and Edgar agreed to dismiss the driving while suspended charge. Edgar was sentenced to 8 months in jail, with 12 months' postrelease supervision. He filed a timely notice of appeal.

Court of Appeals Decision

The Court of Appeals upheld the district court's denial of the motion to suppress. State v. Edgar, 45 Kan. App. 2d 340, 246 P.3d 1013 (2011). It noted the State's arguments that there was nothing precluding the officer from beginning his investigation with the PBT before the sobriety tests and that the smell of alcohol by itself warranted reasonable suspicion for the officer to request a PBT. But it also noted the State ignored Edgar's underlying argument on appeal: that the officer's initial suspicion dissipated once

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Edgar passed his field sobriety tests--an issue of first impression in Kansas. 45 Kan. App. 2d at 345.

The panel relied on a Vermont decision, State v. Mara, 186 Vt. 389, 987 A.2d 939 (2009), because it found no Kansas caselaw applicable. In Mara, the Vermont Supreme Court held that a state trooper could order a PBT immediately after smelling an odor of alcohol on the driver, noticing the driver had bloodshot eyes, and the driver's admission to drinking. Most notably, the Vermont court said that even though the driver had passed two prior sobriety tests, the trooper could still consider the other circumstances itemized above. It held that passing the sobriety tests did not, as a matter of law, compel the trooper to stop the DUI investigation. 186 Vt. at 394-95.

Based on Mara, the Edgar panel held:

"In conducting a DUI investigation, a law enforcement officer is not required to reweigh reasonable suspicion after each field sobriety test. If reasonable suspicion exists at the outset of an investigation, an officer should be allowed to run the usual array of tests, within a reasonable number, to determine if the officer's reasonable suspicion leads to arrest or release of the person detained." 45 Kan. App. 2d at 346.

It further held that passing one or more field sobriety tests does not necessarily dispel reasonable suspicion if there is other evidence justifying the officer's PBT request. Here, the panel determined that other evidence included: an odor of alcohol, Edgar's admission to drinking, Edgar's initial confusion when asked for his driver's license, and his missing two steps on the walk-and-turn test. 45 Kan. App. 2d at 347.

As for Edgar's second argument--that his consent to the PBT was involuntary because the officer told him he did not have a right to refuse it--the Court of Appeals noted first that the PBT statute, K.S.A. 2010 Supp. 8-1012(a), states that anyone who
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drives consents to taking a PBT. And based on this, the panel held that Edgar's consent was not required to be knowing or voluntary because consent was statutorily implied. 45 Kan. App. 2d at 348. It also cited language from K.S.A. 2010 Supp. 8-1012(c) and interpreted it to mean that failure to provide the "proper" notice would not be an issue or defense in any action. 45 Kan. App. 2d at 349.

Edgar sought review from this court, raising two challenges to the panel's decision. He argued the panel erred because (1) the officer lacked a reasonable articulable suspicion to continue to detain Edgar and request the PBT after Edgar passed the three field sobriety tests; and (2) Edgar's consent to the PBT was not voluntary because the officer improperly informed Edgar he had no right to refuse the test. We granted review on both questions. This court's jurisdiction arises under K.S.A. 21-3018 (review of a Court of Appeals decision).

DISCUSSION

Edgar appeals from the denial of his motion to suppress because the investigating officer lacked a reasonable articulable suspicion to request a PBT and his consent to the PBT was involuntary.

Standard of Review

Appellate courts review a district court's decision on a motion to suppress evidence using a bifurcated standard. First, we review the factual findings underlying the trial court's suppression decision by a substantial competent evidence standard. We then review the legal conclusion drawn from those factual findings de novo. Appellate courts do not reweigh evidence. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). The facts in this case are undisputed, so we exercise unlimited de novo review of the
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district court's legal conclusions. 294 Kan. at 54. We apply this standard to both of Edgar's issues since they challenge the district court's denial of the motion to suppress.

Reasonable Suspicion Impacted by Successive Field Sobriety Tests

Edgar first argues that because he passed his initial field sobriety tests, the officer no longer had reasonable suspicion to request that Edgar take a PBT. The State responds that there is no requirement that an officer reweigh reasonable suspicion after each sobriety test or that the PBT must be administered only after field sobriety testing. The Court of Appeals panel agreed with the State. Edgar, 45 Kan. App. 2d at 346-47.

In Kansas, it is illegal for a person with a blood- or breath-alcohol concentration of .08 or higher to operate or attempt to operate a vehicle. K.S.A. 8-1567(a)(1). And while investigating whether someone is operating a vehicle over the legal limit, officers may engage drivers suspected of DUI in a series of field sobriety tests, including the walkand-turn, one-leg stand, and horizontal gaze nystagmus. These tests are designed to assess a variety of skills, including "'balance, large muscle coordination, cognitive skills, and oculomotor control'" in determining whether a driver is impaired. Rubenzer, The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues, 32 Law & Hum. Behav. 293, 295 (2008). The PBT may be part of this investigative process.

PBT administration is controlled by K.S.A. 2010 Supp. 8-1012, which provided at the time of Edgar's arrest:

"(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath subject to the provisions set out in subsection (b).

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"(b) A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath to determine the alcohol concentration of the person's breath if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs. "(c) At the time the test is requested, the person shall be given oral notice that: (1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test. Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test. "(d) Refusal to take and complete the test as requested is a traffic infraction. If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. . . . Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8-1001 and amendments thereto."

Section (b) is key. It requires an officer to have "reasonable suspicion" the person is operating or attempting to operate a vehicle under the influence before requesting a PBT. Reasonable suspicion is a less demanding standard than probable cause and requires considerably less than preponderance of the evidence. Pollman, 286 Kan. 881, Syl.

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