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City of Kingman v. Lubbers4/4/2003
traffic violation. On appeal, Lubbers argues the consent, if given, was not voluntary because the threat of a traffic violation constituted coercion. In this regard, Lubbers' reliance on State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973), is misplaced. There, the defendant was threatened with suspension of his driver's license when, under the law, suspension never could have been imposed. 211 Kan. at 603.
Where, as here, consent is obtained after informing a driver of actual legal consequences, the consent, if freely given, is valid. The accurate statement would not involve deceit. Police cannot use deceit, but they are entitled to make truthful, accurate statements. See Village of Little Chute v. Walitalo, 256 Wis. 2d 1032, 1038, 650 N.W.2d 891, 894 (Wis. App. 2002).
We hold the purpose of K.S.A. 8-1012 is not to punish past behavior; rather, it attaches a negative consequence to a present choice. See State v. Spilde, 536 N.W.2d 639, 641 (Minn. App. 1995). Our Supreme Court has ruled our implied consent law is remedial in nature. See State v. Mertz, 258 Kan. 745, 760, 907 P.2d 847 (1995).
In the present case, Woodson correctly advised Lubbers of the consequence of refusing the request to take a preliminary breath test. And the record contains ample evidence that Lubbers freely consented to the procedure. The "threat" of a traffic citation did not render the consent invalid.
For the purpose of this appeal, we may assume, without deciding, the preliminary breath test constitutes a search of a person's deep lung air. But even given that assumption, here Lubbers knowingly and voluntarily consented to the procedure. No Fourth Amendment violation occurred. The trial court did not err in denying Lubbers' motion to suppress.
Affirmed.
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