State v. Jeardoe

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NOT DESIGNATED FOR PUBLICATION

No. 115,937

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASON L. JEARDOE,
Appellant.


MEMORANDUM OPINION

Appeal from Ottawa District Court; RENE S. YOUNG, judge. Opinion filed October 20, 2017.
Affirmed.

Nels P. Noel, of Concordia, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before STANDRIDGE, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: Jason L. Jeardoe appeals following convictions of two counts of
involuntary manslaughter while driving under the influence of alcohol and one count of
driving left of center. Specifically, Jeardoe claims (1) the district court erred in failing to
suppress the results of blood-alcohol testing administered to him at the hospital after the
accident and (2) the evidence presented at trial was insufficient to support his two
convictions for involuntary manslaughter. But the district court properly held the good-
faith exception to the exclusionary rule applies in this case, which ultimately rendered
admissible the results of his blood-alcohol testing. With regard to the convictions for
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involuntary manslaughter, we have reviewed the record and find sufficient evidence to
support the jury's findings. Accordingly, we affirm.

FACTS

On April 11, 2014, Jeardoe was driving a 2014 Chevrolet truck westbound on K-
18, a two-lane highway. At some point, Jeardoe moved into the eastbound lane, where he
had a head-on collision with a 1998 Plymouth Neon driven by Emma Pisocki. Emma's
father, Jason Pisocki, was in the passenger seat. Both Emma and Jason were killed in the
accident. Following the accident, law enforcement observed that Jeardoe exhibited signs
of impairment, including a strong odor of alcohol on his person, bloodshot and watery
eyes, and mumbled and slurred speech. In addition, law enforcement noticed beer cans at
the scene that appeared to have come from Jeardoe's truck.

Jeardoe was transported to the hospital, where Kansas Highway Patrol Trooper
Greg Arnold gave Jeardoe both oral and written implied consent advisories listed in the
DC-70 form. Jeardoe consented to a blood test, which revealed that his blood-alcohol
level was .109 grams ethyl alcohol per 100 milliliters of blood. The State charged Jeardoe
with two counts of involuntary manslaughter while driving under the influence of alcohol
and one count of driving left of center.

Jeardoe filed a motion to suppress the blood test results, arguing that his consent to
the blood draw was coerced in light of the Kansas Supreme Court's decisions in State v.
Ryce, 303 Kan. 899, 368 P.3d 342 (2016), aff'd on rehearing 306 Kan. 682, 396 P.3d 711
(2017), and State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016), aff'd on rehearing 306
Kan. 679, 396 P.3d 709 (2017). In Ryce, the Supreme Court held that K.S.A. 2014 Supp.
8-1025, which imposes criminal penalties upon a motorist for refusing to submit to any
method of blood-alcohol testing, is facially unconstitutional because the statute is not
narrowly tailored to serve a compelling state interest. 303 Kan. at 963. In Nece, the court
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held that a driver's consent to a breath test premised on the threat of criminal prosecution
for test refusal "was unduly coerced because, contrary to the informed consent advisory,
the State could not have constitutionally imposed criminal penalties if [the driver] had
refused to submit to breath-alcohol testing." 303 Kan. at 889.

In response to Jeardoe's argument at the suppression hearing, the State did not
dispute that the implied consent advisory given to Jeardoe was inherently coercive under
Ryce and Nece, rendering Jeardoe's consent to the blood draw involuntary. The State
asserted the results of Jeardoe's blood test should still be admissible, however, under the
good-faith exception to the exclusionary rule. The district court ultimately was persuaded
by the State's argument, ruling that the implied consent advisory's coercive nature
rendered Jeardoe's consent to the blood draw involuntary but that the good-faith
exception to the exclusionary rule applied. Accordingly, the district court denied
Jeardoe's motion to suppress.

The jury subsequently found Jeardoe guilty as charged. The district court
sentenced him to a controlling term of 195 months in prison with a postrelease
supervision term of 36 months.

ANALYSIS

Jeardoe raises two issues on appeal. First, he argues the district court erred in
applying the good-faith exception to the exclusionary rule. Second, Jeardoe contends the
evidence was insufficient to support his involuntary manslaughter convictions. We
address each of these issues in turn.




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Motion to suppress

Jeardoe argues the district court erred in denying his motion to suppress. Jeardoe
claims, as he did below, that his consent to the blood draw was involuntary due to the
coercive nature of the implied consent advisory and that the district court erred in
allowing the blood test results to be admitted under the good-faith exception to the
exclusionary rule. In addition to filing a motion to suppress, Jeardoe contemporaneously
objected to the admission of the results of the blood test at trial, thereby preserving this
issue for appeal. See State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014) (when
district court denies motion to suppress, moving party must object to introduction of that
evidence at time it was offered at trial to preserve issue for appeal). Where, as here, the
material facts to a district court's decision on a motion to suppress evidence are not in
dispute, the question of whether to suppress is a question of law over which an appellate
court has unlimited review. State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512 (2016).

K.S.A. 2016 Supp. 8-1025, which became effective on July 1, 2012, criminalizes
the refusal to submit to a test to determine the presence of alcohol or drugs under certain
circumstances, including when the driver has a prior conviction of DUI or a prior test
refusal. K.S.A. 2016 Supp. 8-1001, known as the Kansas Implied Consent Law, states
that before a breath, blood, or urine test can be administered to a driver, a law
enforcement officer is required to give oral and written notice that refusing to submit to
the test is a crime if the driver has a prior conviction of DUI or a prior test refusal. K.S.A.
2016 Supp. 8-1001(k)(4). Here, Jeardoe had prior DUI convictions, so the threat of
criminal sanctions for refusing to submit to a test applied to him.

Based on our Supreme Court's holdings in Ryce and Nece, the district court ruled
that the implied consent advisory's coercive nature rendered Jeardoe's consent to the
blood draw involuntary. The parties do not challenge the district court's ruling on this
point. Notably, the district court's ruling was later reinforced by the United States
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Supreme Court's holding that motorists may not be criminally punished for refusing to
submit to a warrantless blood draw and that consent to a warrantless blood test cannot be
premised on a threat of criminal penalties for refusal to submit to the test. See Birchfield
v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2185-86, 195 L. Ed. 2d 560 (2016). In
light of Birchfield, the Kansas Supreme Court recently affirmed on rehearing its holdings
in Ryce and Nece. See State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017); State v. Nece,
306 Kan. 679, 396 P.3d 709 (2017).

Because there is no dispute that Jeardoe's consent to the blood draw was coercive,
and thus involuntary, the issue before us is whether the district court erred in allowing the
evidence of Jeardoe's blood test to be admitted under the good-faith exception to the
exclusionary rule. The application of this exception is a question of law subject to
unlimited review. See State v. Carlton, 297 Kan. 642, 645-46, 304 P.3d 323 (2013).

The exclusionary rule is a judicially fashioned remedy which prevents the State
from using evidence obtained in violation of the Fourth Amendment to the United States
Constitution against the subject of the illegal search in a criminal proceeding. State v.
Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014). The rule aims to protect Fourth
Amendment rights through deterrence. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186
(2010). There is a good-faith exception to the exclusionary rule when law enforcement
reasonably relies, in objective good faith, on a statute later declared unconstitutional:

"The application of the exclusionary rule to suppress evidence obtained by an officer
acting in objectively reasonably reliance on a statute would have as little deterrent effect
on the officer's actions as would the exclusion of evidence when an officer acts in
objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional,
an officer cannot be expected to question the judgment of the legislature that passed the
law. If the statute is subsequently declared unconstitutional, excluding evidence obtained
pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment
violations by an officer who has simply fulfilled his responsibility to enforce the statute
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as written." Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364
(1987).

In Daniel, our Supreme Court expressly adopted the exception to the exclusionary
rule set out in Krull. See Daniel, 291 Kan. at 500. The court noted that the exception is
not unlimited but rather is constrained by the requirement that the officer's reliance on the
statute be objectively reasonable. 291 Kan. at 500 (citing Krull, 480 U.S. at 355). The
court noted that whether an officer's reliance on a statute was objectively reasonable
depends on whether the officer should have known that the statute was unconstitutional
and whether the Legislature "'wholly abandoned its responsibility to enact constitutional
laws'" when it passed the statute in question. 291 Kan. at 500 (quoting Krull, 480 U.S. at
355).

In applying the good-faith exception to the blood evidence in this case, the district
court determined that Trooper Arnold's reliance on K.S.A. 2013 Supp. 8-1025 was
objectively reasonable. The court found that when Arnold provided the implied consent
advisories to Jeardoe, Arnold was following the law as it existed at that time and could
not reasonably be expected to know that the statute later would be found unconstitutional.
The court further found that the Legislature did not wholly abandon its responsibility to
pass constitutional laws, noting that other states had enacted similar laws imposing
criminal penalties for refusing to submit to blood-alcohol testing.

As noted by the State, another panel of this court addressed the very issue
presented here in a published decision, holding that where a law enforcement officer
requested a motorist to submit to a warrantless blood test in reliance on the Kansas
Implied Consent Law prior to the United States Supreme Court's decision in Birchfield,
the results of the blood test were admissible under the good-faith exception to the
exclusionary rule. See State v. Schmidt, 53 Kan. App. 2d 225, 385 P.3d 936 (2016),
petition for rev. filed January 13, 2017. Other panels of this court have relied on Schmidt
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to reach the same result. See State v. Soukup, No. 116,913, 2017 WL 2403310, at *3
(Kan. App. 2017) (unpublished opinion), petition for rev. filed June 26, 2017; State v.
McClellan, No. 115,164, 2017 WL 839720, at *14 (Kan. App. 2017) (unpublished
opinion), petition for rev. filed March 31, 2017; see also State v. Kraemer, 52 Kan. App.
2d 686, 697-99, 371 P.3d 954 (2016), petition for rev. filed May 31, 2016 (applying
good-faith exception in circumstance where law enforcement officer obtained consent to
breath testing after reading implied consent advisory).

In order to determine whether the district court properly applied the good-faith
exception in this case, we must first assess whether Trooper Arnold should have
reasonably known that the implied consent advisories were unconstitutional. Then, we
must determine whether the Legislature wholly abandoned its responsibility to pass
constitutional legislation relating to the implied consent advisories. See State v. Meitler,
51 Kan. App. 2d 308, 314, 347 P.3d 670, rev. denied 302 Kan. 1017 (2015).

Citing Trooper Arnold's testimony at the suppression hearing, Jeardoe claims
Arnold reasonably should have known the implied consent advisories were
unconstitutionally coercive. Based on this claim, Jeardoe contends that Trooper Arnold
cannot be said to have acted in good faith in relying on the statute. But Jeardoe's
argument mischaracterizes the nature of Arnold's testimony. During cross-examination,
defense counsel elicited testimony from Arnold that he believed, based on his law
enforcement training, it was inappropriate to threaten someone with additional penalties
for refusing to comply with requests from law enforcement. Arnold further agreed that he
had informed Jeardoe, in the form of the implied consent advisories, that additional
penalties could be imposed for refusing to consent to a blood draw. Arnold did not testify
that at the time of Jeardoe's accident, he knew or believed that K.S.A. 2013 Supp. 8-1025
was unconstitutional or that the implied consent advisories were unconstitutionally
coercive. Rather, Arnold merely agreed, in the abstract, that threatening an individual
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with additional penalties for refusing to respond to law enforcement questioning or
refusing to consent to a search of his or her home or person could be viewed as coercive.

At the time of Jeardoe's accident in April 2014, Trooper Arnold was required by
K.S.A. 2013 Supp. 8-1001(k)(4) to inform Jeardoe that he could face criminal penalties if
he refused to submit to any method of blood-alcohol testing. Also at that time, Kansas
courts had "often note[d] that the 'coercive' effect of informing a suspect of the negative
legal consequences of refusing to consent to blood-alcohol testing . . . [did] not render
consent involuntary as long as the information about the negative consequences was
accurate." Nece, 303 Kan. at 890. There is no evidence in the record to establish Arnold
had reason to know that the implied consent advisories later would be found
impermissibly coercive. And K.S.A. 2013 Supp. 8-1025 was not so clearly
unconstitutional at the time of Jeardoe's accident that a reasonably well-trained officer
would have known that it was unconstitutional. By providing the advisories and
informing Jeardoe that he could be charged with a separate crime for refusing to submit
to the blood test, Arnold was "simply fulfill[ing] his responsibility to enforce the statute
as written." See Krull, 480 U.S. at 350.

Next, we must consider whether the Legislature wholly abandoned its
responsibility to pass constitutional legislation relating to the implied consent advisories.
Jeardoe advances no real argument on this issue. A point raised incidentally in a brief and
not argued therein is deemed abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d
828 (2015).

But even if Jeardoe had presented an argument on this issue, there is no indication
that in enacting either K.S.A. 2016 Supp. 8-1025 or K.S.A. 2016 Supp. 8-1001(k)(4) the
Kansas Legislature wholly abandoned its responsibility to pass constitutional laws. We
will generally presume that the Legislature acts with adequate knowledge of its statutory
subject matter, including prior and existing law, and judicial decisions interpreting the
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same. State v. Kershaw, 302 Kan. 772, 782, 359 P.3d 52 (2015). We will further presume
that statutes passed are constitutional. State v. Petersen-Beard, 304 Kan. 192, 194, 377
P.3d 1127, cert. denied 137 S. Ct. 226 (2016).

In Meitler, this court noted that "the Kansas implied consent law was originally
passed by the legislature in 1955[,] . . . [and] [s]ince that time, although it has undergone
numerous amendments, officers have become accustomed to the statutory scheme which
has essentially remained the same over the years." 51 Kan. App. 2d at 316. The Meitler
court further acknowledged that "in the 28 years since Krull was issued, there does not
appear to be any reported cases wherein a federal or state appellate court declined to
apply the good-faith exception because a legislative body wholly abandoned its
responsibility to enact constitutional laws." 51 Kan. App. 2d at 317. As the United States
Supreme Court stated in Krull, "the exclusionary rule [is] aimed at deterring police
misconduct. . . . [L]egislators, like judicial officers, are not the focus of the rule." 480
U.S. at 350. Other states also had statutes similar to K.S.A. 2016 Supp. 8-1025 and
continued to uphold them until the United States Supreme Court ruled in Birchfield that
these types of criminal penalty laws are unenforceable as to blood tests. See, e.g., Wing v.
State, 268 P.3d 1105, 1109-10 (Alaska App. 2012) (upholding constitutionality of Alaska
statute criminalizing refusal to submit to blood-alcohol test); State v. Bernard, 859
N.W.2d 762, 774 (Minn. 2015) (Minnesota statute criminalizing refusal to submit to
blood-alcohol test passes rational basis review). For all these reasons, it cannot be said
that the Kansas Legislature wholly abandoned its responsibility to pass constitutional
legislation relating to the implied consent law.

Under the circumstances present here, Arnold's reliance on K.S.A. 2013 Supp. 8-
1025 was objectively reasonable. There is no indication he should have known that the
implied consent advisories were unconstitutional. Nor is there any indication that the
Kansas Legislature wholly abandoned its responsibility to pass constitutional legislation.
Suppression of the evidence in this case would not serve the deterrent aim of the
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exclusionary rule. As a result, the district court did not err in applying the good-faith
exception and denying Jeardoe's motion to suppress.

Sufficiency of the evidence

Jeardoe contends the evidence was insufficient to support his convictions for
involuntary manslaughter because the blood test results were not reliable. Jeardoe
suggests that other than the blood test results, there was very little evidence of his
intoxication.

When the sufficiency of the evidence is challenged in a criminal case, an appellate
court will review all evidence in the light most favorable to the State. An appellate court
will uphold the conviction if it is convinced that a rational fact-finder could have found
the defendant guilty beyond a reasonable doubt based on the evidence presented at trial.
State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). It is generally not within the
authority of an appellate court to reweigh the evidence or assess the credibility of
witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

K.S.A. 2013 Supp. 21-5405(a)(3), the statute under which Jeardoe was charged,
states that "[i]nvoluntary manslaughter is the killing of a human being committed: . . . in
the commission of . . . an act described in K.S.A. 8-1567." The State charged Jeardoe
under two alternative theories: (1) that the killing was done while Jeardoe was operating
a vehicle in this state while having an alcohol concentration in his blood of .08 or more as
measured within three hours of the time of operating the vehicle, contrary to K.S.A. 2013
Supp. 8-1567(a)(2) or (2) that the killing was done while operating a vehicle under the
influence of alcohol to a degree that rendered Jeardoe incapable of safely driving a
vehicle, contrary to K.S.A. 2013 Supp. 8-1567(a)(3). The jury found Jeardoe guilty under
both theories.

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Jeardoe's sufficiency argument challenges the jury's finding of guilt under K.S.A.
2013 Supp. 8-1567(a)(2) by claiming that the blood test results were not reliable.
Specifically, Jeardoe alleges that because his blood sample was left in Trooper Arnold's
police car for 41 days before it was sent to the Kansas Bureau of Investigation (KBI) for
testing, the sample could have fermented, possibly causing a false positive test. Jeardoe
also claims that the headspace gas chromatograph used by the KBI to analyze his blood
sample was not working properly. This claim is based on the testimony of his expert
witness, Dr. Jimmie Valentine, who testified that the blood test results demonstrated
"tailing," which is an indicator of co-elution, meaning that a substance other than ethanol
was being tested.

But Jeardoe's arguments are no more than an invitation to reweigh the evidence,
which we cannot do. See Daws, 303 Kan. at 789. Whether the blood test results were
reliable was a question for the jury to resolve. In addition to Valentine's testimony
regarding the possibility of fermentation in the blood sample and a malfunctioning
headspace gas chromatograph, the jury also heard testimony from JaQueya Ogilvie, the
KBI forensic scientist who analyzed Jeardoe's blood sample. Ogilvie testified that she had
no unusual concern with the length of time it took Jeardoe's sample to reach the lab and
that she did not notice anything abnormal about the sample. Ogilvie stated that while
refrigeration of a sample prior to its arrival at the lab was helpful, it was not required.
Ogilvie agreed that storing a sample in a car for a long period of time could possibly
result in fermentation or bacterial growth but explained that preservatives in the blood
sample tubes help to minimize these possibilities. The fact that the sample was in Trooper
Arnold's car for an extended period of time did not cause Ogilvie to believe that the test
results were flawed. Ogilvie also testified about the headspace gas chromatograph used to
test Jeardoe's sample and the various methods she used to validate the instrument to
ensure it was working properly prior to testing the sample. Ogilvie stated that the
minimal "tailing" observed by Valentine did not indicate any co-elution in Jeardoe's
blood test.
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The jury clearly resolved the conflicting evidence relating to the blood test results
in favor of the State. The evidence was sufficient to support Jeardoe's convictions for
involuntary manslaughter committed while violating K.S.A. 2013 Supp. 8-1567(a)(2).

Affirmed.