State v. Beims

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NOT DESIGNATED FOR PUBLICATION

No. 112,527


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MITCHELL SCOTT BEIMS,
Appellant.


MEMORANDUM OPINION

Appeal from Thomas District Court; EDWARD E. BOUKER, judge. Opinion filed March 2, 2018.
Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Kevin N. Berens, former county attorney, Rachel Lamm, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., MCANANY and ATCHESON, JJ.

PER CURIAM: Defendant Mitchell Scott Beims challenges the Thomas County
District Court's ruling denying his motion to suppress the results of a breathalyzer test
used to support his conviction for driving under the influence in violation of K.S.A. 2012
Supp. 8-1567. Beims contends his consent to the testing was impermissibly coerced
because of the criminal penalties imposed in K.S.A. 2012 Supp. 8-1025, a statute the
Kansas Supreme Court has since held to be unconstitutional. The State counters with dual
arguments: (1) The district court's ruling may be affirmed because the arresting officer
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acted in good-faith reliance on K.S.A. 2012 Supp. 8-1025, thereby overriding the
exclusionary rule applied to bar evidence government agents obtain in violation of the
Fourth Amendment to the United States Constitution; and (2) the ruling may be affirmed
because the breath test was administered as a search incident to Beims' arrest for driving
under the influence.

The district court heard the motion to suppress and the trial of the DUI charge
simultaneously based on stipulated facts. The stipulation established that a Kansas
Highway Patrol trooper stopped Beims in late December 2012 and had probable cause to
arrest him for driving under the influence. After his arrest, Beims took a breathalyzer test
that showed his blood-alcohol level to be over the legal limit set in K.S.A. 2012 Supp. 8-
1567. The district court denied the motion to suppress, found Beims guilty, and duly
sentenced him. Beims appealed. The appeal has been held awaiting rulings in Birchfield
v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185-86, 195 L. Ed. 2d 560 (2016); State
v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396
P.3d 711 (2017) (Ryce II); and State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece
I), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) (Nece II), and supplemental briefing
from the parties on those cases. The Kansas Supreme Court held K.S.A. 2016 Supp. 8-
1025 to be unconstitutional in Ryce II, 306 Kan. at 700, reaffirming its pre-Birchfield
determination—a conclusion rendering Beims' consent in this case legally tainted.

In its present factual and legal posture, this case presents precisely the same
controlling issues that this court recently addressed in State v. Perkins, 55 Kan. App. 2d
___, Syl. ¶¶ 5-6 (No. 112,449, this day decided). We find the reasoning and result in
Perkins persuasive. We, therefore, affirm the district court's denial of Beims' motion to
suppress because the breathalyzer test was a constitutionally proper warrantless search
incident to Beims' arrest and, alternatively, because the arresting officer relied in good
faith on K.S.A. 2012 Supp. 8-1025, before it was declared unconstitutional, to inform
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Beims about the legal consequences of declining to take the test. In turn, we affirm
Beims' conviction and sentence.

Affirmed.

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ATCHESON, J., concurring: For the reasons set out in my concurring opinion in
State v. Perkins, 55 Kan. App. 2d ___, slip op. at 14-19 (No. 112,449, this day decided)
(Atcheson, J., concurring), I would affirm the Thomas County District Court's ruling on
the motion to suppress based solely on the good-faith exception to the exclusionary rule
applicable to violations of the Fourth Amendment to the United States Constitution. That
alone is sufficient to uphold the district court in all respects.