Russell v. Kansas Dept. of Revenue ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,380
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DARRELL E. RUSSELL,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed February 11,
2022. Affirmed.
Bruce D. Mayfield, of Bruce D. Mayfield, Chartered, of Overland Park, for appellant.
Donald J. Cooper, of Kansas Department of Revenue, for appellee.
Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.
BUSER, J.: This is an appeal from the district court's order affirming the Kansas
Department of Revenue's (KDOR) suspension of Darrell E. Russell's driving privileges.
On appeal, Russell contends the district court erred in suspending his driving privileges
because his refusal to submit to an evidentiary breath test was reasonable under the
circumstances. Upon our review we hold the district court did not err in finding that
Russell refused the breath test, and the refusal was not reasonable. Accordingly, we
affirm the KDOR's suspension of Russell's driving privileges.
1
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of November 28, 2018, Sergeant Thomas Keary, a 21-
year veteran of the Overland Park Police Department was on routine patrol when he
noticed a vehicle ahead of him traveling in the same direction. Sergeant Keary observed
that while his police vehicle was traveling at 50 miles per hour in a 45 mile per hour
zone, the other vehicle was pulling away from him and was traveling "significantly
quicker than me." The Sergeant activated his vehicle's emergency equipment to make a
traffic stop. He had to exceed 75 miles per hour to catch up to the vehicle. The vehicle
was slow to respond but finally stopped about two and a half minutes later.
Sergeant Keary identified the driver as Russell. Russell had bloodshot, glassy eyes
with an odor of alcohol coming from his vehicle. He was also slow to answer the
Sergeant's questions. In response to Sergeant Keary's question if Russell had anything to
drink, he replied, "'Probably more than I should.'"
Officer Lucas Neff, a four-year veteran of the Overland Park Police Department,
arrived at the scene and took over the investigation. Regarding the standardized field
sobriety tests, Russell performed the walk-and-turn test with four indicators of possible
alcohol impairment. The one-leg stand test resulted in another four clues of possible
impairment. Officer Neff asked Russell to take a preliminary breath test. Russell refused
the breath test. Russell did admit to having consumed alcohol that evening. All things
considered, Officer Neff arrested Russell for driving under the influence of alcohol (DUI)
and transported him to the police station.
At the police station, Officer Neff advised Russell of his Miranda rights, including
his right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966). After reading these rights aloud, Officer Neff asked Russell if he
understood those rights and Russell indicated that he did. Officer Neff then stated that he
2
was going to read aloud the implied consent advisories, which are listed on the DC-70
form, to Russell. When Russell replied that he did not want to, the officer laid the
document on Russell's lap. Officer Neff then read aloud the DC-70 form.
Next, Officer Neff asked Russell if he would take an evidentiary breath test.
Russell did not respond but maintained eye contact with the officer. Officer Neff then
"prompted him to respond" but Russell remained silent. Officer Neff told Russell he was
going to let him think about it and come back later. As part of the evidentiary breath test
observation period, Officer Neff asked Russell some other questions which included
asking him to open his mouth and stick out his tongue to make sure there were no foreign
substances in his mouth. Russell complied with the request. Russell never consented to
take the evidentiary breath test, and he never verbally declined it. He simply did not
respond to the officer's request. On the DC-27 and DC-70 forms Officer Neff recorded
that Russell refused the breath test.
Later, Officer Neff asked Russell if he remembered his Miranda warnings and
Russell nodded in the affirmative. Officer Neff told Russell he needed "'a verbal yes'" and
Russell orally responded with, "'Yes.'" The officer then asked Russell if he wanted to talk
with him or answer any questions and Russell "nodded" negatively. Officer Neff
informed him that he needed a verbal yes or no and Russell replied, "'No.'"
Based on his refusal to take the evidentiary breath test, Russell's driving privileges
were ordered suspended. Russell made a timely request for a hearing before a KDOR
administrative hearing officer. Following an evidentiary hearing, the hearing officer
affirmed the administrative action to suspend and restrict Russell's driving privileges. The
hearing officer found that Russell "refused to submit to and complete a test as requested
by a law enforcement officer." After exhausting his administrative remedies, Russell
petitioned the district court for judicial review of his driver's license suspension.
3
The district court held an evidentiary hearing and Sergeant Keary and Officer Neff
testified as summarized earlier. Additionally, Russell testified on his own behalf. Russell
stated that on the morning of the traffic stop he was not speeding. He also delayed
stopping upon seeing the police officer's emergency lights because "I didn't think I was
speeding or doing anything so I shouldn't be stopped." Additionally, Russell testified to
icy street conditions, so he attempted to find a safe area to stop. Russell admitted that he
told the officers that he had "'less than five more than three'" drinks before the traffic
stop.
Russell testified that he had reviewed a video of his interaction at the station with
Officer Neff and that it "captures the whole thing." Russell's attorney showed him a
transcript of the video recording taken at the police station. Russell testified that he had
compared the transcript with the video recording, and they matched. The transcript was
admitted in evidence. The video recording was not offered in evidence.
Regarding the implied consent advisories, Russell testified that the second
advisory, which stated that there were administrative penalties for refusing a breath test
or failing a breath test confused him. He testified,
"It says, 'If you refuse to submit to and complete the test or tests or if you . . . fail,
your driving privileges will be suspended for a period of at least 30 days and up to 1
year.' So it says if you do or you don't, it's the same penalty."
Russell explained, "It's somewhat common knowledge that, if you refuse, you've
got more problems than if you don't. So to hear this saying if you do or you don't, it's the
same penalty, it's like, 'Okay. He's an officer of the court. I'll take this . . .—as guidance.'"
According to Russell, when Officer Neff asked him if he was willing to take a
breath test, Russell was "looking him dead in the eye." Then the officer said he needed a
4
yes or no answer; Russell testified he did not answer because he "was trying to exercise
my right to be silent." Russell never told Officer Neff that he would or would not take the
breath test. He also never informed the officer that he was invoking his right to remain
silent. Russell never took the evidentiary breath test.
Numerous exhibits were admitted at the hearing, including the transcript of the
videotape recording memorializing the interactions and conversations between Officer
Neff and Russell at the police station. None of these exhibits are contained in the record
on appeal.
The district court ruled from the bench and affirmed the KDOR's suspension of
Russell's driving privileges. Relevant to this appeal, the district court addressed two
issues. First, the district court stated,
"In reviewing the DC-70, the Court must make a determination as to whether or not the
DC-70 is in substantial compliance with the statute. Our Court has told us that substantial
compliance doesn't mean exact, for word for word, but rather the necessary elements of
the statutory framework are consistent within the notice. The Court finds that the DC-70,
in this particular case, revised version of July 2018 is in substantial compliance with the
statute. The plaintiff was advised that the refusal or failure could result in a range of
penalties. The statutory framework is present in . . . this version of the DC-70. The Court
finds that it is in substantial compliance with the statute."
Regarding the second issue relevant to this appeal, the district court stated,
"[T]he Court will also comment on the right to remain silent. Again, Miranda is an issue
of Fifth Amendment. The Fifth Amendment issues are not applicable when it comes to
the testing; therefore, the plaintiff, Mr. Russell, could have submitted to the testing and
remained silent. Could have nodded his head. Could've extended his arm for whatever
equipment was necessary. He could have exercised both—could've remained silent and
submitted to the test."
5
As a result, the district court found that any claim of confusion was not justified,
and Russell's refusal was not reasonable.
In conclusion, the district judge stated,
"For the purposes of the journal entry and so that there wouldn't be any confusion
in the event that either of you appeal this to the Kansas Court of Appeals, my finding of
fact is that the plaintiff refused to take the test and that my [conclusion] of law, based on
the finding of fact, is that that was not a reasonable refusal."
Russell appeals.
DID THE DISTRICT COURT ERR IN FINDING THAT RUSSELL REFUSED TO SUBMIT TO AN
EVIDENTIARY BREATH TEST AND THE REFUSAL WAS NOT REASONABLE?
On appeal, Russell contends that his refusal to submit to the evidentiary breath test
was reasonable because, under the circumstances, he was confused by Officer Neff's
reading of Miranda rights and the implied consent advisories. On the one hand, Russell
argues his refusal was reasonable because after he was advised of his right to remain
silent, he was not informed of "any post-Miranda precautionary advice as required."
Second, Russell asserts that Officer Neff failed to substantially comply with
providing the implied consent advisories because by also reading Russell his Miranda
rights, the officer provided "misleading, contradictory, and confusing information."
Finally, Russell asserts that the officer's request for consent to the test was
"seeking . . . a verbal response" that is "[c]ommunicative" because the driver's response
"provides evidence of the very crime being investigated." Since communicative
testimony is protected by the Fifth Amendment to the United States Constitution, Russell
6
argues his refusal by silence was reasonable. Russell bears the burden to show that his
suspension should be set aside. See K.S.A. 2020 Supp. 8-1020(q).
In response, the KDOR contends Officer Neff "appropriately advised [Russell] of
his rights and the consequences of failing to provide a breath test" and, therefore, Russell
did not have reasonable grounds to refuse the breath test. The KDOR also argues Kansas
courts should not "judicially amend the legislature's specific language and intent of the
implied consent advisories" by imposing additional requirements on officers investigating
DUIs.
We begin the analysis with our standard of review. Generally, our court will
review a district court's decision in an administrative driver's license suspension by
"ascertaining whether substantial competent evidence in the record supported the district
court's factual findings and whether the conclusion derived from those findings is legally
correct." Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 1213, 442 P.3d 1038(2019). Issues which involve statutory and constitutional interpretation present a question
of law subject to unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan. 625,
629, 176 P.3d 938 (2008), overruled on other grounds by City of Atwood v. Pianalto, 301
Kan. 1008, 350 P.3d 1048 (2015).
Substantial competent evidence refers to legal and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. Geer v. Eby,
309 Kan. 182, 190, 432 P.3d 1001 (2019). Appellate courts do "not weigh conflicting
evidence, pass on the credibility of witnesses, or redetermine questions of fact." Creecy v.
Kansas Dept. of Revenue, 310 Kan. 454, 469, 447 P.3d 959 (2019).
Under K.S.A. 2020 Supp. 8-1002(a)(1), the KDOR is directed to suspend a
person's driving privileges when the following four conditions are met:
7
"(A) There existed reasonable grounds to believe the person was operating or attempting
to operate a vehicle while under the influence of alcohol . . . ; (B) the person had been
placed under arrest, was in custody or had been involved in a vehicle accident or
collision; (C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the person
refused to submit to and complete a test as requested by a law enforcement officer."
The district court found that Officer Neff met all four conditions for the
suspension of Russell's driver's license. Of note, Russell does not challenge the district
court's determination as to the first two conditions—that there existed reasonable grounds
to believe that he was operating a vehicle while under the influence of alcohol and that he
had been placed under arrest. As a result, Russell has abandoned any claims that his
suspension was improper under these two conditions. See State v. Arnett, 307 Kan. 648,
650, 413 P.3d 787 (2018) (issues not briefed are deemed waived or abandoned).
Russell's appeal focuses on subsections (C) and (D) of K.S.A. 2020 Supp. 8-
1002(a)(1) because the gravamen of his complaint appears to be that he reasonably
refused to take the breath test because he was confused by receiving his Miranda rights
and implied consent rights in the way Officer Neff presented them.
At the outset, Russell's argument is not a model of clarity. In his appellant's brief
Russell repeatedly asserts that under the circumstances presented, "a driver's refusal by
silence is reasonable." (Emphasis added.) Yet, at oral argument, when Russell's counsel
was asked if his client refused to take the breath test, counsel replied, "No, Your Honor.
My client chose to remain silent and provided no verbal or visual response to the
question." We are left to speculate about whether Russell's argument is that his silence
was, in fact, a refusal that was reasonable given his confusion, or that it was not a refusal
to take the test but simply an invocation of his right to remain silent. For purposes of our
analysis, we will consider Russell's argument as presented in his brief that his refusal by
silence was reasonable under the circumstances.
8
There is another, more fundamental, problem with Russell's appeal. In ruling that
Russell refused the breath test and that his refusal was not reasonable, the district court
considered several exhibits submitted by Russell in support of his legal position. None of
these exhibits were included in the record on appeal. Two of the exhibits, the DC-27 and
DC-70 forms were attached to Russell's petition and are available to us for appellate
review. However, plaintiff's exhibit No. 7, a transcript of the video recording which
memorialized the actual conversations between Officer Neff and Russell at the police
station, was not included in the record on appeal. Consequently, although considered by
the district court in making its ruling, this transcript was not provided to us for our review
of the district court's decision. In our evaluation of whether there was substantial
competent evidence to support the district court's finding of fact and conclusion of law
that Russell's refusal to take the breath test was unreasonable, we do not have access to
that critical documentary evidence that was considered by the district court.
This omission by Russell is consequential. First, as mentioned earlier, Russell
bears the burden to show his suspension should be set aside. See K.S.A. 2020 Supp. 8-
1020(q). Second: "'It is well-settled that the burden is on a party to designate a record
sufficient to present its points to the appellate court and to establish its claims.' [Citation
omitted.]" Southwestern Bell Telephone Co. v. Beachner Constr. Co., Inc., 289 Kan.
1262, 1275, 221 P.3d 588 (2009). "When facts are necessary to an argument, the record
must supply those facts and a party relying on those facts must provide an appellate court
with a specific citation to the point in the record where the fact can be verified. See
Supreme Court Rule 6.02(a)(4)." Friedman v. Kansas State Bd. of Healing Arts, 296 Kan.
636, 644, 294 P.3d 287 (2013).
The verbatim conversations between Officer Neff and Russell are important to
resolving the issue that Russell presents on appeal. As discussed later, although Russell
did not respond when Officer Neff asked him if he would take the breath test, there was
evidence that after being given the Miranda warnings and the implied consent advisories,
9
Russell responded to some of Officer Neff's requests and questions. This suggests that
rather than simply invoking his right to silence when asked if he would consent to the
breath test, Russell was, in fact, refusing the test.
Without a designated record that shows prejudicial error, an appellate court
presumes the action of the district court was proper. State v. Simmons, 307 Kan. 38, 43,
405 P.3d 1190 (2017); see also State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018)
("The burden is on the party making a claim of error to designate facts in the record to
support that claim; without such a record, the claim of error fails."). The omission of the
transcript, plaintiff's exhibit no. 7, in the record on appeal is fatal to Russell's appeal.
Accordingly, we presume the district court's ruling was proper and Russell's claim of
error fails.
Despite the ambiguity in Russell's argument and his submission of an incomplete
record on appeal, we will address Russell's argument within the limitations just
discussed.
Generally, an arresting officer is required to substantially comply with the
statutory notice provisions in K.S.A. 2018 Supp. 8-1001. "To substantially comply with
the requirements of the statute, a notice must be sufficient to advise the party to whom it
is directed of the essentials of the statute." Barnhart v. Kansas Dept. of Revenue, 243
Kan. 209, 213, 755 P.2d 1337 (1988).
"The essentials, i.e., the purpose, of the implied consent advisories are to inform a driver
of the law before his or her submission to a requested test and any potential consequences
that may result. Similarly, K.S.A. 2016 Supp. 8-1001(v) explicitly provides that '[t]his act
is remedial law and shall be liberally construed to promote public health, safety and
welfare.'" Sandate v. Kansas Dept. of Revenue, 58 Kan. App. 2d 450, 457-58, 471 P.3d
700 (2020).
10
Although Russell expressed some objection to Officer Neff informing him of the
implied consent advisories, the officer placed the amended DC-70 form in Russell's lap
and then read aloud the statutorily required notices under K.S.A. 2018 Supp. 8-
1001(c)(1)-(4). Russell does not contest this undisputed fact and the district court
properly found that Officer Neff provided Russell with both written and oral advisories as
statutorily required. Our court has found an officer's notice to be in substantial
compliance with the implied consent statute in a similar situation. See Fisher v. Kansas
Dept. of Revenue, 58 Kan. App. 2d 421, 430, 471 P.3d 710 (2020) ("[The officer] read
the language to Fisher as it appears in the statute. . . . There was not only substantial
compliance, there was strict compliance with the statute."), rev. denied 313 Kan. 1040(2021). We find that Officer Neff complied with K.S.A. 2018 Supp. 8-1001(c)(1)-(4) in
providing Russell with oral and written statutory advisories, as required.
Russell argues that the advisories were confusing, however, because they were
given after he was informed of his Miranda rights. Russell asserts the Miranda warning
informing him that he had the right to remain silent, followed by the recitation of the
advisories which informed him of the administrative consequences of refusing or failing
the breath test, left him confused about whether he could remain silent in response to
Officer Neff's request for consent to a breathalyzer test. As a result, Russell asserts it was
reasonable for him to remain silent and refuse to consent to the breath test.
Substantial competent evidence suggests otherwise. First, it is undisputed that
when Officer Neff asked Russell to take the evidentiary breath test, Russell never stated
that he was invoking his right to remain silent.
Second, the record is conflicting regarding whether Russell was confused and, if
so, the reason for his confusion. Russell testified that he was confused because Officer
Neff was "telling me I have the right to remain silent, and then he's telling me I have to
give him a verbal answer at different times. And I was like, 'What is it?'" On the other
11
hand, Russell testified that his confusion originated from the second advisory which
described the administrative penalties for failing to take the test or taking the test and
failing it. Russell thought, "So it says if you do or you don't, it's the same penalty." He
explained, "It's somewhat common knowledge that, if you refuse, you've got more
problems than if you don't. So to hear this saying if you do or you don't, it's the same
penalty, it's like, 'Okay. He's an officer of the court. I'll take this . . .—as guidance.'" We
pause to note in this regard that K.S.A. 2018 Supp. 8-1001(q) provides: "It shall not be a
defense that the person did not understand the written or oral notice authorized by this
section."
A reasonable inference from this testimony is that by remaining silent and not
consenting to the test, Russell was not invoking his Miranda right to remain silent but
purposely refusing to consent to taking the evidentiary breath test because he considered
the penalties were similar if he refused the test or took it and failed the test. Given this
evidentiary basis, Russell was not confused because his Miranda rights were provided to
him in conjunction with the implied consent advisories. He understood his rights and
advisories, and made a purposeful, informed decision to refuse the breathalyzer test.
Third, there was other evidence to suggest that Russell was not confused but
purposely refused to take the evidentiary breath test by remaining silent. After being
advised of his Miranda right to remain silent, Russell made statements to Officer Neff.
For example, when Officer Neff informed Russell that he was going to read the
advisories and placed the DC-70 form on Russell's lap, Russell said something to the
effect that he did not want to. Additionally, Officer Neff testified that after the
observation period ended, he asked Russell if he remembered his Miranda warnings and
Russell nodded affirmatively. Officer Neff told Russell he needed "'a verbal yes'" and
Russell responded, "'Yes.'" Although not in the record, during oral argument, defense
counsel referenced a conversation between Russell and the officer regarding a drink of
water. In summary, it is apparent that—other than when asked to take the evidentiary
12
breath test—Russell did not remain silent but was responsive to Officer Neff on several
occasions after being advised of his Miranda rights.
Fourth, Russell complied with other requests made by Officer Neff except the
officer's request to take the evidentiary breath test. As recounted by defense counsel at
the hearing while questioning Officer Neff, "[Y]ou asked him some other questions like
'Hey, would you do me a favor? Would you open your mouth and stick out your
tongue?'" Russell complied with this request. This evidence indicates that Russell was
compliant regarding other requests, but he was intentionally not compliant when he did
not respond to the officer's request for a breath test.
In summary, we find substantial competent evidence in our limited record on
appeal to support the district court's findings of fact and law that Russell's silence in
response to Officer Neff's request for him to take the breathalyzer test was a refusal to
take the test. Moreover, this refusal was not reasonable because Russell was not confused
by being informed of his Miranda rights prior to receiving the implied consent advisories.
We also find Russell's statutory and caselaw support for his argument lacking.
Russell has provided no on-point caselaw in support of the notion that being advised of
the Miranda right to remain silent prior to being advised of the implied consent
advisories is confusing to a driver or requires additional information by the arresting
officer at the time a request for an evidentiary breath test is made.
Russell relies primarily on Standish v. Department of Revenue, 235 Kan. 900, 683
P.2d 1276 (1984), to argue that it was reasonable for him to refuse the breath test because
he was confused about the inapplicability of his right to remain silent when a breath test
is requested by a police officer. Russell asserts that Officer Neff should have provided
him with "post-Miranda precautionary advice."
13
In Standish, the Kansas Supreme Court considered whether a driver's initial test
refusal could be rescinded by a subsequent consent. Russell asserts the factual
circumstances in Standish "were almost exactly the same factual circumstances as those
confronting [him] and which also serve as the basis for the instant appeal before this
Court." We disagree.
In Standish, the officer arrested Standish for DUI after he failed a field sobriety
test. The officer read Standish the Miranda warnings and asked him to take an
evidentiary breath test. Standish asked to speak with his attorney first. Standish attempted
to telephone his attorney without success. Subsequently, Standish declined the test
because he was unable to speak to his attorney. Standish was taken to the county jail and
the officer returned to duty. About 15 to 30 minutes later, Standish asked about taking the
test but the jailer informed him it was too late. The arresting officer testified that if
Standish had changed his mind while he was still in the officer's custody, the officer
would have administered the test and would not have sent in a refusal report.
Having determined that Standish refused the test, the KDOR suspended his driving
privileges. The district court reversed the suspension, however, finding that Standish's
initial refusal was rescinded within a reasonable time. The KDOR appealed, and our
Supreme Court held a driver's initial refusal can be rescinded if the subsequent consent
meets five factors. 235 Kan. at 902-03. The Standish court found Standish "clearly
refused to take the test" but the court recognized the officer gave Standish the Miranda
warnings, then requested a breath test, and "Standish responded by asking to first exercise
his just-stated right to counsel." 235 Kan. at 903. The Standish court concluded: "This
sequence, without any further explanation, was obviously confusing to the accused." 235
Kan. at 903.
In its holding, the Standish court held there was "no constitutional right to consult
counsel in order to determine whether to submit to the test . . . ." 235 Kan. at 904. Still,
14
our Supreme Court held police officers should give precautionary advice to arrestees
regarding their right to counsel and other advisories. Despite finding that Standish
refused the breath test and that the right to counsel was not applicable, the Standish court
held his refusal was reasonable. 235 Kan. at 905.
Standish is readily distinguishable from the case on appeal. First, Standish related
to a driver rescinding his refusal to take an evidentiary breath test. In the case on appeal,
Russell never rescinded his refusal.
Second, Standish dealt with the Sixth Amendment right to counsel not the Fifth
Amendment right to remain silent. Nothing in the Standish opinion suggests the court
intended for its holding to be expanded by requiring officers investigating DUIs to
provide precautionary advice regarding the Fifth Amendment right to remain silent. To
the contrary, the Standish court noted that "[w]hen a blood test is required under state
law, the accused is not entitled to assert the Fifth Amendment privilege against self-
incrimination." 235 Kan. at 904. Subsequently, our court has held that a DUI arrestee's
silence in response to an officer's testing request constitutes a refusal. See McRoberts v.
Kansas Dept. of Revenue, 17 Kan. App. 2d 680, Syl. ¶ 2, 843 P.2d 280 (1992); In re
Hamstead, 11 Kan. App. 2d 527, 529, 729 P.2d 461 (1986).
Third, since Standish was decided in 1984, our Supreme Court has not extended
its precedent to a driver's right to remain silent upon being asked to consent to an
evidentiary breath test. Fourth, in Standish, after the driver was advised of the Miranda
rights—unlike Russell—he was not read any implied consent advisories before the
officer asked him to consent to a breathalyzer test.
In summary, Russell has failed to show any legal precedent that required Officer
Neff to provide him with "post-Miranda precautionary advice" regarding the right to
remain silent. As the district court found:
15
"Miranda is an issue of Fifth Amendment. The Fifth Amendment issues are not
applicable when it comes to the testing; therefore, the plaintiff, Mr. Russell, could have
submitted to the testing and remained silent. Could have nodded his head. Could've
extended his arm for whatever equipment was necessary. He could have exercised both—
could've remained silent and submitted to the test."
The district court did not err in its legal conclusion.
Alternatively, Russell claims his test refusal was reasonable because Officer Neff
failed to substantially comply with the implied consent advisories when, by advising
Russell of his Miranda rights, he "supplement[ed] that notice with misleading,
contradictory and confusing information." In response, the KDOR contends Miranda
warnings "were neither gratuitous nor incorrect" because the warnings "are necessary
information that must be given to arrestees."
This argument may be dealt with summarily. We have held that "if the officer
provides gratuitous information concerning the non-mandated notice, the officer must
provide a correct statement of the law. If any gratuitously provided information is
incorrect, the driver must still demonstrate prejudice to prove reversible error."
Cuthbertson v. Kansas Dept. of Revenue, 42 Kan. App. 2d 1049, Syl. ¶ 4, 220 P.3d 379(2009).
Of course, the giving of Miranda rights to a driver arrested for DUI is not
gratuitous. See Standish, 235 Kan. at 904 ("But as soon as the suspect is arrested . . . the
Miranda safeguards become applicable and the warnings must be given. [The officer]
followed the proper procedure in giving . . . the Miranda warnings as soon as Standish
was substantially detained, arrested, or in custody."). It is undisputed that Officer Neff
correctly informed Russell of the standard Miranda rights. There is no allegation the
officer omitted, misstated, or added any language to those well-known rights. Even
assuming that Russell's characterization of the Miranda rights as "gratuitous" is accurate,
16
the undisputed evidence is that Officer Neff provided Russell with a correct statement of
the law. This argument lacks merit.
Finally, Russell argues that an officer requesting a test is "seeking . . . a verbal
response" that is "[c]ommunicative" if the driver's response "provides evidence of the
very crime being investigated." Because communicative testimony is protected by the
Fifth Amendment right to remain silent, Russell argues his refusal by silence was
reasonable.
Preliminarily, this issue is not appropriate for appellate review. Our appellate rules
require that every issue in an appellant's brief must begin with "a pinpoint reference to the
location in the record on appeal where the issue was raised and ruled on. If the issue was
not raised below, there must be an explanation why the issue is properly before the
court." Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 36). Russell has not
favored us with a pinpoint reference to the record or explained why we should consider
the issue for the first time on appeal. Moreover, we are unable to find where this specific
issue was argued and ruled upon in our review of Russell's petition, the transcripts of the
two hearings held in this case, and the district court's rulings.
Generally, issues not raised before the district court may not be raised on appeal.
See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). There are three exceptions to
this rule but Russell has not claimed any exception. See State v. Johnson, 309 Kan. 992,
995, 441 P.3d 1036 (2019). Our Supreme Court has warned that Supreme Court Rule
6.02(a)(5) will be strictly enforced, and litigants who fail to comply with this rule risk a
ruling that the issue is improperly briefed, and the issue will be deemed waived or
abandoned. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). We conclude
this issue is waived or abandoned.
17
For the sake of completeness, however, we will consider Russell's argument. In
Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the
United States Supreme Court found that communicative testimony—not real or physical
evidence—is protected by the Fifth Amendment. The Court held that the taking of blood
samples to determine intoxication was real evidence and not communicative testimony.
384 U.S. at 764-65. In State v. Leroy, 15 Kan. App. 2d 68, 71, 803 P.2d 577 (1990), our
court relied on Schmerber in concluding that a refusal to submit to a breath test was not a
communicative statement and, thus, was not protected by the Fifth Amendment.
Nevertheless, Russell argues his refusal to take the breath test was reasonable
because his verbal response, itself, would be communicative testimony protected by the
Fifth Amendment. The United States Supreme Court considered the issue in
Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990). In a
pertinent footnote the Supreme Court observed:
"Muniz does not and cannot challenge the introduction into evidence of his refusal to
submit to the breathalyzer test. In South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916,
74 L. Ed. 2d 748 (1983), we held that since submission to a blood test could itself be
compelled, see Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908(1966), a State's decision to permit a suspect to refuse to take the test but then to
comment upon that refusal at trial did not 'compel' the suspect to incriminate himself and
hence did not violate the privilege. Neville, 459 U.S. 562-64. We see no reason to
distinguish between chemical blood tests and breathalyzer tests for these purposes.
[Citation omitted.]" Muniz, 496 U.S. at 604 n.19.
Relying on Muniz, our court also rejected this argument in State v. Wahweotten, 36
Kan. App. 2d 568, 581, 143 P.3d 58 (2006):
"The United States Supreme Court has made clear, however, that not every
spoken statement or communication is protected by the Fifth Amendment privilege
against self-incrimination. For example, in Schmerber, the Court indicated that the Fifth
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Amendment privilege is a bar against 'compelling "communications" or testimony.'
(Emphasis added.) 384 U.S. at 764. In South Dakota v. Neville, 459 U.S. 553, 564, 74 L.
Ed. 2d 748, 103 S. Ct. 916 (1983), the United States Supreme Court held that 'a refusal to
take a blood-alcohol test, after a police officer has lawfully requested it, is not an act
coerced by the officer, and thus is not protected by the privilege against self-
incrimination.' The Court recognized that a refusal to take the test can take various forms,
including spoken words from the suspect. Nevertheless, the Court indicated that because
there is no impermissible form of coercion involved when a suspect refuses to take a test,
no Fifth Amendment privilege is implicated."
See also State v. Bishop, 264 Kan. 717, 723-24, 957 P.2d 369 (1998) ("'Based on
Miranda and its progeny, it is clear that [the officer's] request that defendant submit to a
breath test did not qualify as custodial interrogation. Because the taking of physical
evidence to determine intoxication does not classify as custodial interrogation,
defendant's Fifth Amendment privileges were not invoked' . . . . [Citation omitted.]").
United States Supreme Court and Kansas appellate court precedent is dispositive
of this issue. Officer Neff was not seeking communicative testimony protected by the
Fifth Amendment right to remain silent when he asked Russell to submit to an
evidentiary breath test. Accordingly, Russell's refusal on this basis was not reasonable.
Affirmed.
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