IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,862
STATE OF KANSAS,
Appellee,
v.
THOMAS JAMES KERRIGAN,
Appellant.
SYLLABUS BY THE COURT
1.
We review issues of statutory interpretation de novo, meaning we give no
deference to the conclusions reached by the district court or the Court of Appeals
resulting from their interpretation of the statute.
2.
When interpreting statutes, our purpose is to discern legislative intent and, to do
so, we begin by looking to the plain language of the statute. If the language of the statute
is plain and unambiguous, an appellate court will not speculate about the legislative intent
behind that clear language and will not read something into the statute that is not readily
found in its words. Only if the language of the statute is unclear or ambiguous do we turn
to canons of statutory construction, consult legislative history, or consider other
background information to ascertain legislative intent.
3.
K.S.A. 8-1001(c)(1) is not ambiguous. Under it, persons have a statutory right to
consult an attorney after administration of an evidentiary breath test. In order to properly
invoke the right to post-evidentiary breath test counsel, the plain language of the statute
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requires the person to make that request after administration of the evidentiary breath test,
distinguishing Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015).
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 28,
2022. Appeal from Riley District Court; KENDRA S. LEWISON, judge. Oral argument held May 17, 2023.
Opinion filed November 17, 2023. Judgment of the Court of Appeals reversing the district court is
reversed. Judgment of the district court is affirmed.
John A. Griffin, assistant county attorney, argued the cause, and David Lowden, deputy county
attorney, Barry Wilkerson, county attorney, and Derek Schmidt, Kansas attorney general, were with him
on the briefs for the appellee.
Jeremiah L. Platt, of Clark & Platt, Chtd., of Manhattan, argued the cause, and Barry A. Clark, of
the same firm, was on the brief for appellant.
The opinion of the court was delivered by
STANDRIDGE, J.: After a bench trial on stipulated facts, a district court convicted
Thomas Kerrigan of driving under the influence. Before trial, Kerrigan moved to
suppress the results of an evidentiary breath test (EBT) based on a violation of his
statutory right to counsel under K.S.A. 2019 Supp. 8-1001(c)(1). In support, Kerrigan
claimed he invoked his right to counsel at least two times before the EBT, which law
enforcement failed to honor after the EBT. The district court denied the motion, finding
the statute required Kerrigan to invoke the right to counsel after the EBT. A divided
Court of Appeals panel reversed, holding that a pre-EBT assertion of the post-EBT
statutory right to counsel is a valid invocation of the post-EBT right under K.S.A. 2019
Supp. 8-1001(c)(1). State v. Kerrigan, No. 123,862, 2022 WL 15528601 (Kan. App.
2022) (unpublished opinion). The State petitioned for review. We reverse the panel
majority and affirm the district court.
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FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are undisputed. Kansas Highway Patrol Captain Scott Walker
stopped Thomas Kerrigan for a traffic infraction. Kerrigan admitted he had been drinking
but did not say how much. After admitting he had been drinking, Kerrigan said—in
substance—that he did not want to talk anymore and wanted to call his attorney. Captain
Walker denied Kerrigan's request to call his attorney and afterwards administered two
cognitive sobriety tests and a preliminary breath test (PBT).
Kerrigan failed the PBT, so Captain Walker arrested him for driving under the
influence and advised him of his constitutional rights to remain silent and to speak to an
attorney. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). Captain Walker confiscated Kerrigan's cell phone.
Before asking Kerrigan to submit to an EBT, Captain Walker provided Kerrigan
with the statutorily mandated implied consent advisory, which is required before law
enforcement can administer the EBT. It requires law enforcement to provide oral and
written notice that the driver 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 and may secure additional testing." K.S.A. 8-
1001(c)(1). At this point, Kerrigan says he repeated his request to call an attorney, which
Captain Walker again denied. Kerrigan submitted to the EBT, which measured his blood
alcohol concentration above the legal driving limit. Kerrigan did not renew his request to
call an attorney after the EBT and Captain Walker did not offer him an opportunity to
make the call.
The State charged Kerrigan with operating a motor vehicle with a blood alcohol
concentration (BAC) of .08 or higher within three hours of driving, or in the alternative,
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driving while under the influence of alcohol to a degree that rendered him incapable of
safely driving in violation of K.S.A. 2019 Supp. 8-1567(a). Relying on our decision in
Dumler v. Kansas Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015), Kerrigan moved
to suppress the EBT results because he was deprived of his statutory right to counsel after
he submitted to the EBT—a right he says he validly invoked before the test. The district
court granted his motion, in part.
The State moved to reconsider, arguing the 2018 amendments to K.S.A. 8-1001
legislatively superseded Dumler. The State noted that both the original and amended
versions of the statute confer a post-EBT right to counsel. But under the new language in
the amended statute, the State claims the post-EBT right to counsel can be invoked only
after the test has been administered. In other words, a pre-EBT request for counsel is not
enough to invoke the post-EBT right. Kerrigan opposed reconsideration, arguing
amendments to the statute did not alter Dumler's analysis. The district court agreed with
the State and reversed its suppression ruling.
Kerrigan waived his right to a jury trial and agreed to a bench trial on stipulated
facts. The district court found Kerrigan (1) guilty of driving under the influence of
alcohol with a BAC greater than .08 and (2) not guilty of driving under the influence to a
degree rendering him incapable of safely driving.
A Court of Appeals panel majority reversed the district court, finding the amended
statutory language was ambiguous as to the timing of a post-EBT request for counsel.
Applying the rule of lenity, the majority held the amended statute permits the post-EBT
right to counsel to be invoked either before or after the EBT. The majority remanded the
case, finding suppression appropriate. Kerrigan, 2022 WL 15528601, at *8-9. Judge
Kathryn Gardner dissented, arguing the Legislature amended the statute as a response to
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Dumler, the amended statute was not ambiguous, and the plain language favored the
State's interpretation. 2022 WL 15528601, at *9-11.
We granted the State's petition for review. Jurisdiction is proper. See K.S.A. 20-
3018(b) (providing for petition for review of Court of Appeals decision); K.S.A. 60-
2101(b) (Supreme Court has jurisdiction to review Court of Appeals decision upon
petition for review).
STANDARD OF REVIEW
The narrow issue before us is whether the 2018 amendment to K.S.A. 8-1001
limits a person's right to post-EBT counsel to only those requests made by the person
after the EBT. This issue requires us to interpret K.S.A. 8-1001. We review issues of
statutory interpretation de novo, meaning we give no deference to the conclusions
reached by the district court or the Court of Appeals resulting from their interpretation of
the statute. Jarvis v. Kansas Dept. of Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020).
When interpreting statutes, our purpose is to discern legislative intent. To do so, we begin
by looking to the plain language of the statute. Jarvis, 312 Kan. at 159. If the language of
the statute is plain and unambiguous, an appellate court will not speculate about
legislative intent and will not read something into the statute not readily found in its
words. State v. Moler, 316 Kan. 565, 571, 519 P.3d 794 (2022) (quoting State v. Betts,
316 Kan. 191, 514 P.3d 341 [2022]). We use the canons of statutory construction, consult
legislative history, or consider other background information to ascertain legislative
intent only if the language of the statute is unclear or ambiguous. Jarvis, 312 Kan. at 159.
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ANALYSIS
Under Kansas law, drivers have a statutory right to consult an attorney after
administration of an EBT. Dumler, 302 Kan. at 424. When we decided Dumler, the
relevant part of the mandatory notice provision to Kansas' implied consent law stated that
before a test is administered:
"[T]he person shall be given oral and written notice that . . . there is no constitutional
right to consult with an attorney regarding whether to submit to testing" and . . . "after the
completion of the testing, the person has the right to consult with an attorney and may
secure additional testing." K.S.A. 2009 Supp. 8-1001(k)(3), (k)(10).
On review, we found that nothing in the statute restricted when a person must request
counsel; instead, the statute restricted only when the person may consult an attorney.
Dumler, 302 Kan. at 426. Thus, we held a person may invoke the post-EBT right to
consult an attorney before administration of the EBT. 302 Kan. at 426.
The Legislature amended and modified the statute in 2018. The relevant
language—now in subsection (c)(1)—states that when requesting a test:
"[T]he person shall be given oral and written notice that . . . [t]here 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." (Emphasis added.) K.S.A. 8-1001(c)(1).
The difference in the relevant language between the prior version and the amended
version of the statute is three added words, italicized in the excerpt above. Distinguishing
the holding in Dumler because it was based on the prior version of the statute, the district
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court held the new statutory language requires a request for counsel be made after the
EBT in order to properly invoke the post-EBT right to counsel. Kerrigan appealed.
The panel majority framed the issue as whether the amended statute "required
Kerrigan to request counsel after the [EBT] was administered, and then have that request
disregarded, in order to be entitled to suppression of his [EBT] results at trial." Kerrigan,
2022 WL 15528601, at *4. The majority's analysis touched on various arguments before
concluding that the amended statute requires pre-EBT requests for post-EBT counsel to
be honored. 2022 WL 15528601, at *9. But the analytical path relied on by the majority
to reach this conclusion is unclear.
The panel stated the "plain language" of the amended statute "reflects that a person
has the right to be told that they may request an attorney after [an EBT] has been
administered, but the language does not convey that an earlier request should not be
honored." 2022 WL 15528601, at *8. This statement shows the panel's analysis is not
based on the statute's plain language, but on speculative and unspecified exceptions to the
restrictions expressed in the plain language of the statute. Under the panel majority's
analysis, a statute cannot confer a specified right without affirmatively eliminating all
unspecified rights. Perhaps realizing this flaw in its analysis, the majority later
acknowledged the amended language "is perhaps ambiguous," in which case the rule of
lenity required the court to interpret the statute in favor of the defendant. 2022 WL
15528601, at *9.
In dissent, Judge Gardner concluded the amended statute is not ambiguous, and
the rule of lenity is inapplicable. 2022 WL 15528601, at *11 (Gardner, J., dissenting).
She would hold the "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.'" 2022 WL
15528601, at *10.
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Our interpretation of the plain language of the amended statute aligns with Judge
Gardner's. To that end, we hold the amended statute requires a person to make a request
for counsel after administration of the EBT to properly invoke the post-EBT right to
counsel. Although the only relevant difference between the prior version and the
amended version of the statute is adding three words, the substance and placement of
these three words expressly impose a new timing restriction on a request for post-EBT
counsel. Applying basic rules of grammar, the plain language of the amended statute
clearly and unambiguously expresses this restriction: the introductory clause "after the
completion of the testing" refers to and modifies the main clause following the
introduction, that is, when "the person may request and has the right to consult with an
attorney." K.S.A. 8-1001(c)(1).
Before concluding, we distinguish our holding today from Dumler. The legal issue
presented in both cases is the same: whether K.S.A. 8-1001 limits a person's right to
post-EBT counsel to only those requests made by the person after completion of the EBT.
In Dumler, we applied the 2009 version of the statute and found nothing in it to suggest
the Legislature intended to restrict the timing of when a person could request post-EBT
counsel. Thus, we held the 2009 version of the statute permitted a person to invoke the
right to post-EBT counsel either before or after the EBT. 302 Kan. at 426. Although we
analyze the same legal issue here, the amended version of the statute applies.
Unlike its predecessor, the amended statute expressly includes language reflecting
the Legislature's intent to honor only those requests for counsel made after administration
of the EBT. K.S.A. 8-1001(c)(1). Although the facts and legal issue presented are the
same in both cases, the holdings are different because the statutes differ. So we do not
overrule Dumler, but recognize its holding is limited to cases when the issue was
presented under the prior version of the statute.
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Finally, we note several questions were asked at the suppression hearing about
potential confusion between (1) the statutory right to speak to an attorney upon request
after the administration of the EBT and (2) the constitutional right to speak to an attorney
upon request after law enforcement provides the Miranda advisory. Although the parties
appear to agree that Captain Walker first provided Kerrigan with a Miranda advisory
informing him of his constitutional right to counsel and then provided him with the
informed consent advisory informing him of his statutory right to post-EBT counsel,
Kerrigan relied solely on the statutory right to post-EBT counsel under K.S.A. 8-
1001(c)(1) to support his motion to suppress. Both the district court and the Court of
Appeals made their decisions based on interpretation of the statutory right to post-EBT
counsel. And the State's petition for review challenges the panel's statutory interpretation.
Thus, the constitutional right to speak to an attorney upon request after a Miranda
advisory is not at issue here and we express no opinion on the merits of such an
argument.
CONCLUSION
K.S.A. 8-1001(c)(1) is not ambiguous. 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.
Judgment of the Court of Appeals reversing the district court is reversed.
Judgment of the district court is affirmed.
***
ROSEN, J., dissenting: I dissent from the majority's opinion. I agree K.S.A. 8-
1001(c)(1) is not ambiguous. It tells us that an officer, when requesting a breath test, must
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give oral and written notice that "[t]here 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." I
read this to require that an officer, before administering a breath test, tell a person (1)
they cannot consult with an attorney about whether to submit to testing; (2) they can
request an attorney after testing; (3) they have a right to consult with an attorney after
testing; and (4) they can secure additional testing. I do not see anything else in this
language.
The majority reads the statute differently. 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. If the Legislature wanted to convey that a person has no right to,
pretest, request an attorney, it could have said so, as it did regarding a pretest right to an
attorney. The statute directs an officer to tell a person they have a posttest right to an
attorney, but not pretest right to an attorney. In contrast, it directs an officer to inform a
person they may, posttesting, request an attorney, but it does not direct an officer to
inform a person they may not, pretesting, request an attorney.
Because I would take the statute as it is instead of reading into it permission for
officers to ignore requests for counsel, I dissent.
LUCKERT, C.J., joins the foregoing dissenting opinion.
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