The Kansas Supreme Court recently reversed an earlier Court of Appeals decision concerning when, during a DUI investigation, a suspect may request to speak to an attorney.  That earlier Court of Appeals opinion was the subject of a November 11, 2022 Point of Law case summary. 

Thomas Kerrigan had been stopped for a traffic violation, had admitted to drinking, and prior to law enforcement evidentiary testing (EBT), Kerrigan had allegedly requested multiple times to speak to an attorney but had been denied.  Kerrigan submitted to the EBT but then did not renew his request to speak to an attorney.  Kerrigan’s blood alcohol concentration was above the legal limit and he was charged with DUI.  Kerrigan moved to suppress the EBT evidence based upon the denial of the attorney request.  The trial court denied suppression, and following his conviction, Kerrigan appealed.

K.S.A. 8-1001(c)(1) states that “the 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.”

A divided Court of Appeals panel held that the statutory language on the timing of a request was ambiguous and therefore an officer should honor a suspect’s request to speak to an attorney made anytime during the DUI investigation.   The dissenting appeals judge, Judge Kathryn Gardner, always the voice of reason in Topeka, would have held that the statute is clear: “after the completion of testing” actually means after the completion of testing.  The State asked the Supreme Court to review the panel’s divided decision.

A few weeks ago, a divided Supreme Court (yes, even the justices could not agree what the statute meant), reversed the appeals panel decision.  So, officially, K.S.A. 8-1001(c)(1) is not ambiguous.  The majority opinion held that “[f]or a person to properly invoke the statutory right to post-EBT counsel, the plain language of the [2018] amended statute requires the person to make a request for counsel after administration of the EBT [law enforcement testing].”

However, and not wanting to leave good enough alone, the majority opinion went on to create the legal framework for the next line of DUI appeals: that K.S.A. 8-1001(c)(1) only creates a statutory right to speak to an attorney but the Miranda warning reflects a wholly separate constitutional right to speak to an attorney.  The Court then leaves us hanging.  “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.”  

One thing is for certain: the employment opportunities for attorneys appears safe for the foreseeable future.