Kansas Supreme Court clarifies timing of valid request for an attorney amid DUI testing

Dissent by two justices argues court’s majority misreading state statute

By: - November 17, 2023 3:28 pm

Kansas Supreme Court Justice Melissa Standridge wrote a majority opinion that reversed the Kansas Court of Appeals by determining state law considered requests to consult an attorney in DUI cases was valid only after completing evidentiary tests for law enforcement officers. (Pool photo by Evert Nelson/Topeka Capital-Journal)

TOPEKA — Kansas Highway Patrol Capt. Scott Walker was cruising in search of drunk or aggressive drivers in March 2020 along U.S. 24 in Riley County when a quick license tag check determined the silver Honda Pilot driven by Thomas Kerrigan had the wrong plate.

Walker, who wasn’t wearing a body camera and didn’t have a functioning camera in the KHP vehicle, had probable cause to pull over Kerrigan. Kerrigan, who allegedly had slurred speech and smelled of alcohol, admitted he had been drinking. He also expressed interest in calling an attorney.

The KHP officer denied Kerrigan’s request for counsel and administered two cognitive sobriety tests. Kerrigan failed to correctly recite the alphabet, but ably counted numbers backward. Kerrigan then failed a preliminary breath test, registering 0.11. Walker read Kerrigan his Miranda right to remain silent and arrested him for driving under the influence. The subsequent evidentiary breath test showed Kerrigan was at 0.10, also above the state standard of 0.08.

In Riley County District Court, Kerrigan petitioned to suppress the evidentiary test because the KHP denied two pleas for counsel made prior to that final exam. District Judge Kendra Lewison agreed with Kerrigan — initially — but later changed her mind. The judge settled on the view Kansas law adopted in 2018 limited the statutory right to request counsel to the posttest period. Kerrigan’s test result was relied upon to convict him of DUI.

In 2022, a divided panel of the Kansas Court of Appeals reversed the district court. The appeals court held state law was ambiguous, but could be interpretated to mean law enforcement had to honor requests for a lawyer made before and after the pivotal DUI test.

Court of Appeals Judge Kathryn Gardner disagreed with the decision of her peers to suppress Kerrigan’s test. She agreed with prosecutors that valid requests for counsel had to follow the evidentiary breath test.

And, in an opinion handed down Friday, the Kansas Supreme Court agreed with Gardner and the district court. The DUI conviction would stand.

Justice Melissa Standridge, appointed by Democratic Gov. Laura Kelly, wrote in the opinion Kansas required law enforcement officers to provide oral and written notice the driver had “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.”

Once the evidentiary breath test, or EBT, revealed Kerrigan’s blood alcohol concentration was above the legal driving limit, he didn’t renew his request to consult an attorney. On appeal, however, Kerrigan claimed his pretest solicitations of an attorney should have carried over posttest.

“Our interpretation of the plain language of the amended statute aligns with Judge Gardner’s,” Standridge’s opinion said. “For a person to properly invoke the statutory right to post-EBT counsel, the plain language of the amended statute requires the person to make a request for counsel after administration of the EBT.”

Supreme Court Justice Eric Rosen, appointed by Democratic Gov. Kathleen Sebelius, and Supreme Court Chief Justice Marla Luckert, placed on the court by Republican Gov. Bill Graves, said in a dissent Kansas courts should recognize pretest invocations of the right to counsel.

Their dissent said state law mandated Kansas officers, prior to administering a breath test, to tell a person he or she couldn’t consult with an attorney about whether to submit to testing. In addition, they said, the officer had to allow the same person to right to request an attorney after testing, had the right to consult with that attorney after testing and had the right to secure supplemental testing.

“The majority reads the statute differently,” Rosen wrote. “It concludes that in requiring an officer to tell a person they may, after testing, request an attorney, the statute also says that any pretest request to invoke the posttest right to an attorney is ineffective and may be ignored. I don’t buy it.”

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.