Timing is Everything: When is it Proper to Invoke the Right to Post-Evidentiary Breath Test Counsel?

State v. Kerrigan, No. 123,862 WL 7931255 (Kan. Nov. 17, 2023).

Claire Burns, Staff Editor

Issue: Can a person properly invoke the statutory right to post-evidentiary breath-test counsel before the administration of the test under Kan. Stat. Ann. § 8-1001(c)(1) (2019)?

Answer: No, the plain language of Kan. Stat. Ann. § 8-1001(c)(1) requires the request for counsel only after administration of the evidentiary breath test (EBT).

Facts: A Kansas Highway Patrol Captain arrested Kerrigan for failing a preliminary breath test.  Before administering the EBT, the Patrol Captain provided Kerrigan notice of his rights, including that he has “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.”[1]  Kerrigan requested his attorney before the EBT.  The Patrol Captain denied his request, and Kerrigan submitted to the EBT.  After taking the EBT, Kerrigan did not renew his request for an attorney.  Kerrigan was charged with operating a motor vehicle while driving under the influence of alcohol with a BAC greater than .08.  During trial, Kerrigan moved to suppress the EBT results because he was denied a right to counsel after he requested one.  The trial court ruled that Kerrigan must make the request after the EBT, not before, and found him guilty by a bench trial.  The Court of Appeals reversed.

Discussion: The Kansas Supreme Court ruled that the new statutory language requires a request for counsel to be made only after administration of the EBT because the substance and placement of the added words impose a timing restriction.  The Legislature amended and modified Kan. Stat. Ann. § 8-1001(c)(1) in 2018 to include that after completion of the EBT, a person “may request and” has the right to consult with an attorney.[2]  Specifically, the introduction of the phrase, “after the completion of the testing,” modifies the new clause of when “the person may request and has the right to consult with an attorney.”[3]  Therefore, request for counsel must be made after administration of the EBT under Kan. Stat. Ann. § 8-1001(c)(1).

Key Authorities: Dumler v. Kan. Dep’t of Revenue, 302 Kan. 420 (2015) (held that nothing in Kan. Stat. Ann. § 8-1001 restricted when a person must request counsel); Kan. Stat. Ann. § 8-1001(c)(1) (2019) (request for counsel must come after the administration of the EBT).

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[1]  Kan. Stat. Ann. § 8-1001(c)(1).

[2]  State v. Kerrigan, No. 123,862, WL 7931255, at *3 (Kan. Nov. 17, 2023).

[3]  Kan. Stat. Ann. § 8-1001(c)(1).