Every Breath(alyzer) You Take…Ask for an Attorney

State v. Kerrigan, No. 123,862, (Kan. Ct. App. Oct. 28, 2022)

Drew Elizabeth Davis, Staff Editor

Issue: Whether Kan. Stat. Ann. § 8-1001(c)(1) (2019), which addresses breathalyzer tests for alcohol and drugs, requires an individual to request counsel after the administration of a breathalyzer test.

Answer: No. Section 8-1001(c)(1) does not require an individual to wait until after the administration of breathalyzer test to request counsel.  Instead, an individual may request counsel both before and after a breath test and may consult an attorney after completing the breath test.  

Facts: Thomas Kerrigan was arrested for driving under the influence.  Before the officer administered his breathalyzer test, Kerrigan made two requests for counsel.  Because the officer disregarded these requests, Kerrigan moved to suppress the breathalyzer results in accordance with Dumler v. Kan. Dep’t of Revenue.  Dumler interprets the law before the statute was amended in 2019.  In Dumler, theKansas Supreme Court ruled that Kan. Stat. Ann. § 8-1001(k)(10) (2009) required officers to honor all requests for counsel, regardless of whether they were made before or after a breathalyzer test.  The Court reached this conclusion because the text of § 8-1001(k)(10) only afforded a person the right to consult an attorney after a breath test and did not address when a person needed to request that consultation.  The district court held Dumler no longer controlled because Kan. Stat. Ann. § 8-1001(c)(1) amended § 8-1001(k)(10) in 2019, and abrogated Dumler’s interpretation.  The amendment specifies that “after the completion of testing, the person may request and has the right to consult with an attorney.”  The district court determined that the amendment only validated requests for counsel made after the breath test, so there was no duty to honor requests made before the test.

Discussion: The Kansas Court of Appeals reversed the District Court’s decision and held that§ 8-1001(c)(1) as amended does not abrogate Dumler’s interpretation.   Before the breath test, the statute clearly states an individual does not have the right to speak with an attorney “regarding whether to submit to testing.”  However, an individual guarantees himself the right to speak with an attorney after the test by making a valid request for counsel.  While § 8-1001(c)(1) explicitly affords a person the right to request counsel after a breathalyzer test, the statute is ambiguous regarding whether a person has that same right before the test.  The Kansas Court of Appeals reasoned that this ambiguity is best resolved by the rule of lenity.  The rule of lenity requires courts to construe statutory ambiguities in favor of the accused, especially when the statute is silent on a matter.  Because § 8-1001(c)(1) is silent on the validity of pre-breath-test requests for counsel, the Kansas Court of Appeals explained the statute should be construed in Kerrigan’s favor.  To construe § 8-1001(c)(1) in Kerrigan’s favor means the statute requires officers to honor pre-breath-test requests for counsel.  Honoring this request allows the individual to consult with an attorney after, but not before, the test.  Therefore, § 8-1001(c)(1) does not alter the Dumler analysis.  An individual may request counsel both before and after completing a breath test and the individual is guaranteed the right to consult an attorney after completing the test.  If the arresting officer disregards the request by denying the right of consultation after the test, the breathalyzer results must be suppressed.

Key Authorities: Dumler v. Kan. Dep’t of Revenue, 354 P.3d 519 (2015) (holding that all requests for counsel must be honored, regardless of whether they are made before or after a breathalyzer test); Kan. Stat. Ann. § 8-1001(k)(10) (2009) (providing that a person has the right to consult with an attorney after completing a breathalyzer test); Kan. Stat. Ann. § 8-1001(c)(1) (2021) (specifying that a person has the right to consult and request an attorney after completing  a breathalyzer test).