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State v. Jones2/18/2005
The district court of Ellis County found Jarad A. Jones guilty of driving or attempting to drive a vehicle while having a blood alcohol level greater than .08 in violation of K.S.A. 8-1567(a)(2). Jones appealed, claiming that the district court erred by denying his motion to suppress an alleged involuntary preliminary breath test (PBT) and the resultant blood test. The Court of Appeals held that Jones consented to the PBT and affirmed the district court in State v. Jones, No. 89,658, unpublished opinion filed October. 31, 2003. This court granted Jones' petition for review under K.S.A. 20-3018(b).
According to the petition for review, the sole issue on appeal is whether Jones gave voluntary, knowing, and intelligent consent to the search of his deep lung air through the use of a PBT. Under these facts presented, we hold that the State failed to prove that he did. Accordingly, we reverse the Court of Appealsand the district court.
FACTS
Jones and the State submitted the case to the district court on stipulated facts. The following are relevant to the issue on appeal:
"5. That on August 16, 2001, at approximately 11:23 p.m., Officer Mark Windholz of the Hays Police Department responded to work a vehicle accident in the 1400 Block of Ellis Avenue.
"6. Officer Windholz made contact with the driver, Jarad Jones, and observed that the driver had a cut on the side of his head was bleeding, however, Jones refused treatment from the EMS personnel and was released.
"7. Jones confirmed that he was the driver of the vehicle and that nobody else was with him when the accident occurred.
"8. Jones stated that he did not remember exactly what happened to cause him to have the accident, however, Jones did state he felt very tired before the accident.
"9. Officer Windholz conducted no field sobriety testing other than a preliminary breath test .
"10. Officer Windholz properly conducted his 15 minute deprivation period and properly conducted the on defendant.
"11. The parties stipulate [Jones] was not free to leave at this time, that Officer Windholz was detaining him as part of his investigation, that Officer Windholz read [Jones] the statutory warnings under K.S.A. 8-1012, and it was not until after reading [Jones] the statutory warnings that [Jones] did submit to the preliminary breath test.
"12. That a preliminary breath test requires a sample of deep lung air which can only be extracted from defendant after defendant forcibly blows air into the PBT device for a period of three to five seconds.
"13. The parties stipulate that deep lung air is not normally held out to the public and must be extracted by forcing the individual to blow into the PBT device for between three to five seconds.
"14. The PBT test result indicated a breath alcohol greater than 0.08 and Officer Windholz then placed [Jones] under arrest for driving under the influence .
"15. The parties stipulate and agree that absent the preliminary breath test results, the Officer did not have probable cause to believe that [Jones] was driving under the influence , a violation of K.S.A. 8-1567, further, the parties [stipulate] that if the preliminary breath test search did not violate [Jones'] Fourth Amendment rights, that the Officer did possess probable cause to place [Jones] under arrest for driving under the influence.
"16. After being arrested, [Jones] was transported by Officer Windholz to Hays Medical Center where he submitted to a blood test.
"17. The parties stipulate that Officer Windholz complied with Kansas Department of Health and En
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