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No. 112,209

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MICHAEL A. SCHMIDT,

Appellant.

SYLLABUS BY THE COURT

1.

The Fourth Amendment to the United States Constitution permits warrantless 

breath tests incident to arrests for drunk driving but not warrantless blood tests. 

Moreover, motorists may not be criminally punished for refusing to submit to a 

warrantless blood draw and consent to a warrantless blood test cannot be premised on a 

threat of criminal penalties for refusal to submit to the test.

2.

In this case 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 v. North Dakota, 579 U.S. __, 136 S. Ct. 

2160, 195 L. Ed. 2d 560 (2016), the results of the blood test are admissible under the 

good-faith exception to the exclusionary rule.

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 16, 2016. 

Affirmed. 

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
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Christopher W.D. Lyon, assistant county attorney, Kristafer R. Ailslieger, deputy solicitor 

general, and Derek Schmidt, attorney general, for appellee. 

Before MALONE, C.J., GREEN and LEBEN,JJ.

MALONE, C.J.: Following an injury accident in September 2012, Michael Schmidt 

was arrested on suspicion of driving while under the influence of alcohol (DUI). In 

accordance with the Kansas Implied Consent Law, K.S.A. 2012 Supp. 8-1001, the 

arresting officer requested that Schmidt submit to a blood test and informed him, as 

required by the implied consent advisories, that failure to submit to the test constituted a 

separate crime. Schmidt acquiesced to the test, and the results showed that his bloodalcohol content was above the legal limit. Following the denial of Schmidt's motion to 

suppress the results of the warrantless blood test, the district court found Schmidt guilty 

of DUI. 

This appeal raises two issues: (1) Does a warrantless blood draw authorized by 

the Kansas Implied Consent Law fall under the consent exception to the warrant 

requirement when the officer advised the motorist that failure to submit to the test 

constituted a separate crime? (2) Can the results of the blood test in this case be admitted 

under the good-faith exception to the exclusionary rule? We hold the warrantless blood 

draw cannot be upheld based on Schmidt's consent, but the blood test results are still 

admissible under the good-faith exception to the exclusionary rule.

FACTUAL AND PROCEDURAL BACKGROUND

On September 22, 2012, at approximately 8:31 p.m., Schmidt was involved in an 

injury accident on Emmeran Road in Ellis County, Kansas. At 8:46 p.m., Deputy Thomas 

Garner arrived on the scene and assisted EMS, who had placed Schmidt on the backboard 

in order to transport him to the Hays Medical Center Hospital. As Garner was holding a 

flashlight over Schmidt to assist the EMS workers, he noticed an odor of alcohol coming 
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from Schmidt. After Schmidt was placed in the ambulance for transport to the medical 

center, Garner followed the ambulance in order to obtain a blood sample as he suspected 

Schmidt had been driving while intoxicated. 

Schmidt and Garner arrived at the hospital at approximately 9:11 p.m. Garner 

waited in the emergency room while Schmidt was treated for his injuries. After Schmidt 

was treated, Garner requested a blood sample. Prior to requesting the blood sample, 

Garner provided Schmidt with the implied consent advisories, both orally and in writing 

through the DC-70 form. Pursuant to K.S.A. 2012 Supp. 8-1001(k)(4), Garner informed 

Schmidt that failure to submit to blood-alcohol testing constituted a separate crime that 

carried criminal penalties. Schmidt acquiesced to the blood test. 

A phlebotomist from Quest Diagnostics obtained a blood sample from Schmidt at 

11:23 p.m., within 3 hours of the accident. Garner sent Schmidt's blood to the Kansas 

Bureau of Investigation where it was tested. The results of the blood test revealed that 

Schmidt's blood had an alcohol concentration of .20 grams of alcohol per 100 milliliters 

of blood, two and a half times the legal limit. 

On July 2, 2013, the State charged Schmidt with alternative counts of DUI in 

violation of K.S.A. 2012 Supp. 8-1567(a)(2) and (a)(3). Because Schmidt had a previous 

DUI diversion in Ellis County from August 2009 in case number 09TR2510, the charge 

was a class A nonperson misdemeanor pursuant to K.S.A. 2012 Supp. 8-1567(b)(1)(B). 

On September 24, 2013, Schmidt filed a motion to suppress contending that 

Garner lacked probable cause or reasonable grounds to request testing and that Schmidt's 

consent to the blood draw was not voluntary because of the coercive nature of the implied 

consent advisories. Schmidt asked the district court to suppress the results of the blood 

test because they were obtained in violation of his rights under the Fourth Amendment to 

the United States Constitution. 
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On November 5, 2013, Schmidt filed a memorandum in support of his motion to 

suppress the blood test results. In his memorandum, Schmidt abandoned his claim that 

Garner lacked probable cause to request a blood test and instead focused on his argument 

that his consent to the test was not voluntarily given. He claimed that the coercive nature 

of the Kansas implied consent advisories rendered any consent obtained thereunder 

involuntary. Schmidt claimed that because he did not consent to the test, it did not fall 

under any exception to the warrant requirement, so his Fourth Amendment rights were 

violated. The State filed a response to Schmidt's motion to suppress and pointed to 

various Kansas Supreme Court decisions holding that even coerced consent does not 

violate the constitution given the State's compelling interest in safety on public roads. 

On February 10, 2014, the district court issued a memorandum decision denying 

Schmidt's motion to suppress. The district court ruled that Schmidt's consent to the blood 

draw was valid and his Fourth Amendment rights were not violated. Following the denial

of Schmidt's motion, the parties agreed to proceed with a bench trial on stipulated facts. 

Based on stipulated facts consistent with the facts set forth herein, the district court found 

Schmidt guilty of DUI in violation of K.S.A. 2012 Supp. 8-1567(a)(2). The district court 

sentenced Schmidt to serve 1 year in the Ellis County Jail but granted him 12 months' 

probation after he served 5 days in jail. Schmidt timely appealed his conviction. 

DOES A WARRANTLESS BLOOD DRAW AUTHORIZED BY THE KANSAS IMPLIED CONSENT 

LAW FALL UNDER THE CONSENT EXCEPTION TO THE WARRANT REQUIREMENT?

Schmidt initially filed a brief with this court and claimed that subjecting him to a 

blood test pursuant to the Kansas Implied Consent Law constituted an unreasonable 

warrantless search in violation of the Fourth Amendment. Specifically, Schmidt claimed 

that any consent given under the Kansas Implied Consent Law is not a "knowing, 

intelligent, and voluntary consent free of duress or coercion." Schmidt argued that

because the United States Supreme Court held in Missouri v. McNeely, 569 U.S. __, 133 
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S. Ct. 1552, 185 L. Ed. 2d 696 (2013), that the Fourth Amendment requires some 

exception to the warrant requirement prior to conducting a warrantless blood test, and 

because there was no valid consent here, his blood test results were illegally obtained. 

The State initially filed a brief with this court and argued that a driver's consent to 

a blood test after being warned of the adverse legal consequences following a refusal 

does not mean the consent was not freely and voluntarily given. The State contended that 

coerced, or even forced consent, does not render consent involuntary, especially in light 

of the State's compelling interest in maintaining safety on public roads. The State pointed 

out that under Kansas law there is no right to refuse a blood test. The State submitted that 

Schmidt's blood draw was a reasonable search under the consent exception to the warrant 

requirement and did not violate Schmidt's Fourth Amendment rights.

In reviewing a district court's decision on a motion to suppress, the appellate court 

reviews the district court's factual findings to determine whether they are supported by 

substantial competent evidence. We have unlimited review of the district court's ultimate 

legal conclusion. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). When the 

material facts to the 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. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014).

After the parties submitted their initial briefs, the United States Supreme Court 

issued its decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 195 L. 

Ed. 2d 560 (2016). In Birchfield, the United States Supreme Court held that the Fourth 

Amendment permits warrantless breath tests incident to arrests for drunk driving but not 

warrantless blood tests. 136 S. Ct. at 2184-85. The Court also determined that motorists 

may not be criminally punished for refusing to submit to a warrantless blood draw. 136 S. 

Ct. at 2185-86. Noting that it was not addressing the constitutionality of various state 

implied consent laws, the Court ultimately held:
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"Our prior opinions have referred approvingly to the general concept of implied-consent 

laws that impose civil penalties and evidentiary consequences on motorists who refuse to 

comply. . . . 

"It is another matter, however, for a State not only to insist upon an intrusive 

blood test, but also to impose criminal penalties on the refusal to submit to such a test. 

There must be a limit to the consequences to which motorists may be deemed to have 

consented by virtue of a decision to drive on public roads.

". . . [W]e conclude that motorists cannot be deemed to have consented to submit 

to a blood test on pain of committing a criminal offense." 136 S. Ct. at 2185-86.

Also, after the parties submitted their initial briefs in this case but before the 

United States Supreme Court filed its decision in Birchfield, the Kansas Supreme Court 

issued decisions in State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016), and State v. Ryce, 

303 Kan. 899, 368 P.3d 342 (2016). In Ryce, the 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

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. Thus, because [the] consent was premised on 

the inaccurate information in the advisory, [the] consent was involuntary." 303 Kan. at 

889.

Our Supreme Court has granted the State's motion for rehearing in both Ryce and 

Nece; neither decision is final. However, the rulings in Ryce and Nece, at least as they 

apply to warrantless blood tests in contrast to warrantless breath tests, are reinforced by

the holding in Birchfield 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. 
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Here, Schmidt submitted to a warrantless blood test and his case is controlled by 

Birchfield. The Fourth Amendment permits warrantless breath tests incident to arrests for 

drunk driving but not warrantless blood tests. Birchfield, 136 S. Ct. at 2184-85. 

Moreover, "motorists cannot be deemed to have consented to submit to a blood test on 

pain of committing a criminal offense." 136 S. Ct. at 2186. Based on Birchfield, the 

warrantless blood draw of Schmidt cannot be upheld based on either search incident to 

arrest or consent. Thus, we reject the State's claim that Schmidt's warrantless blood test 

authorized by the Kansas Implied Consent Law falls under the consent exception to the 

warrant requirement when Garner advised Schmidt that failure to submit to the test 

constituted a separate crime. Although Garner may have inadvertently done so, he 

violated Schmidt's constitutional rights by asking Schmidt to submit to a blood test and 

advising him that refusal to submit to the test constituted a separate crime. 

CAN SCHMIDT'S BLOOD TEST RESULTS BE ADMITTED UNDER THE GOOD-FAITH 

EXCEPTION TO THE EXCLUSIONARY RULE?

After the United States Supreme Court decided Birchfield, this court issued a show 

cause order as to why Schmidt's case should not be summarily reversed and remanded for 

a new trial in light of the Court's holding about warrantless blood tests. In response, the 

State asserted that the results of Schmidt's blood test should be admissible under the 

good-faith exception to the exclusionary rule. After receiving the State's response to the 

show cause order, this court ordered the parties to file supplemental briefs on two issues: 

(1) Should the State be allowed to assert a good-faith exception to the exclusionary rule 

for the first time on appeal? (2) Does the good-faith exception to the exclusionary rule 

apply under the facts of this case, and, if so, can this court make that determination 

without remanding the case to the district court to hear additional evidence? 
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Can a claim invoking the good-faith exception to the exclusionary rule be raised for the 

first time on appeal?

The State explains that it did not raise the good-faith exception in the district court 

for the obvious reason that when the case was before the district court, Kansas caselaw 

clearly permitted warrantless blood draws pursuant to the Kansas Implied Consent Law.

The State argues that it was not until "new case law . . . fundamentally altered the legal 

landscape regarding warrantless blood draws" that the State even needed to consider the 

applicability of the good-faith exception to the exclusionary rule. The State asserts that it 

should be permitted to invoke the good-faith exception to the exclusionary rule for the 

first time on appeal because the newly asserted theory involves only a question of law 

based on proved or admitted facts and is determinative of the case.

Schmidt urges this court not to consider the applicability of the good-faith 

exception for the first time on appeal. In support of his argument, he notes that our 

Supreme Court in Nece declined to consider the issue of the good-faith exception for the 

first time on appeal. See 303 Kan. at 897. However, the procedural facts in Nece were

significantly different from the facts herein. In Nece, the State not only failed to file a 

supplemental brief presenting the good-faith argument to the Supreme Court, but at oral 

argument the attorney for the State conceded that the State was not seeking application of 

the exception. 303 Kan. at 897. Under these circumstances, our Supreme Court declined 

to consider the potential application of the good-faith exception, noting that an argument 

not briefed is deemed waived and abandoned. 303 Kan. at 897. Here, the State has 

asserted the application of the good-faith exception to the exclusionary rule and the 

parties have filed supplemental briefs addressing this issue. 

Although generally a new legal theory cannot be raised for the first time on 

appeal, there are three recognized exceptions to this rule: (1) The newly asserted theory 

involves only questions of law based on proved or admitted facts and is determinative of 
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the case; (2) consideration of the theory is necessary to serve the ends of justice or 

prevent a denial of fundamental rights; and (3) the judgment of the trial court was correct 

but based on the wrong grounds or reasoning. State v. Jones, 302 Kan. 111, 117, 351 P.3d 

1228 (2015). If a party seeks to raise a new issue on appeal, Supreme Court Rule 

6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an explanation of why an issue not 

raised below should be considered for the first time on appeal. 

There is no factual dispute here as the relevant facts were stipulated in district 

court. Based on the stipulated facts, Schmidt's consent to the blood test is deemed

involuntary only because it was obtained as a result of the incorrect and coercive implied 

consent advisories that threatened criminal prosecution as a consequence of refusing to 

submit to the test. Schmidt is not claiming that his consent was otherwise involuntary. In 

ordering the parties to file supplemental briefs on whether the good-faith exception 

applied in this case, we directed the parties to address whether this court can make that 

determination without remanding the case to the district court to hear additional evidence. 

In his response, Schmidt has pointed to no disputed facts and he has made no argument as 

to why the case must be remanded to the district court to hear additional evidence.

We note that our Supreme Court considered the applicability of the good-faith 

exception to the exclusionary rule for the first time on appeal in State v. Daniel, 291 Kan. 

490, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011). In that case the defendant 

was convicted of possession of methadone, which was found during a warrantless search 

of her vehicle following her arrest for driving with a suspended license. The district court 

determined the search was lawful under K.S.A. 22-2501(c), which at the time authorized 

a vehicle search incident to an arrest for the purpose of discovering the fruits, 

instrumentalities, or evidence of any crime. 

While the defendant in Daniel was appealing her conviction, K.S.A. 22-2501(c) 

was declared unconstitutional in State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711 
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(2009), which applied Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 

(2009). Daniel, 291 Kan. at 491-92. Our Supreme Court in Daniel allowed the State to 

argue for the first time on appeal that the exclusionary rule does not apply to evidence 

obtained by police who acted in objectively reasonable reliance upon a statute that was 

subsequently declared unconstitutional. 291 Kan. at 492-93. The court ultimately held 

that the good-faith exception applied and upheld the vehicle search. 291 Kan. at 505.

Schmidt's case is procedurally similar to the situation presented in Daniel. Here, 

the State's good-faith argument involves only a question of law: namely, whether the 

good-faith exception to the exclusionary rule should apply to warrantless blood tests as 

authorized by the Kansas Implied Consent Law prior to the holding in Birchfield that 

motorists cannot be deemed to have consented to submit to a blood test on pain of 

committing a criminal offense. The underlying facts were stipulated by the parties in 

district court, and Schmidt has offered no reason why this court cannot address the goodfaith exception without remanding the case to the district court to hear additional 

evidence. Thus, we conclude that the State can invoke the good-faith exception to the 

exclusionary rule for the first time on appeal because the newly asserted theory involves 

only a question of law based on proved or admitted facts and is determinative of the case. 

Does the good-faith exception apply here?

The State urges this court to apply the good-faith exception to the exclusionary 

rule here because at the time of the warrantless blood draw, Garner's actions were legal. 

Therefore, the State asserts that suppressing the results of Schmidt's blood-alcohol test 

would not serve the purpose of the exclusionary rule which is to deter police misconduct. 

The State points out that decisions casting doubt on the constitutionality of warrantless 

blood draws did not begin to come out until nearly 4 years after Schmidt's arrest. Thus,

the State argues that "[e]xcluding the evidence obtained by [the officer] based on changes 

in the law that occurred nearly four years later 'cannot logically contribute to the 
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deterrence of Fourth Amendment violations.'" (Quoting Illinois v. Krull, 480 U.S. 340, 

350, 107 S. Ct. 1160, 94 L. Ed. 3d 364 [1987].)

In response, Schmidt claims that applying the good-faith exception to the 

exclusionary rule here would have a "chilling effect" on an individual's constitutional

rights. Specifically, he points to Justice Sandra Day O'Connor's admonitions in Krull, 480 

U.S. at 366 (O'Connor, J., dissenting), that "'[p]roviding legislatures a grace period during 

which the police may freely perform unreasonable searches in order to convict those who 

might have otherwise escaped creates a positive incentive to promulgate unconstitutional 

laws.'" Schmidt argues that the exclusionary rule must be applied here in order to prevent 

the legislature from "curtail[ing], limit[ing], or even violat[ing] an individual's 

constitutional rights through the passage of some new, experimental legislation." 

Whether the good-faith exception applies is a question of law over which an 

appellate court has unlimited review. See State v. Carlton, 297 Kan. 642, 645, 304 P.3d 

323 (2013) ("The only remaining inquiry is whether the appropriate remedy is to suppress 

the evidence seized. This is a question of law."); Daniel, 291 Kan. at 496.

Warrantless searches are per se unreasonable, and thus unlawful, unless they fall 

within one of the established exceptions to the warrant requirement. Daniel, 291 Kan. at 

496. There is no express constitutional prohibition against using illegally obtained 

evidence; however, the exclusionary rule, which is a judicially created remedy, prohibits 

"the use of unconstitutionally obtained evidence in a criminal proceeding against the 

victim of an illegal search." 291 Kan. at 496 (citing Krull, 480 U.S. at 347). The purpose 

of the exclusionary rule is to protect Fourth Amendment rights through deterrence, but it 

is not a personal constitutional right of a defendant. United States v. Leon, 468 U.S. 897, 

906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). 
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The United States Supreme Court in Krull carved out an exception to the 

exclusionary rule when a law enforcement officer, in good faith, reasonably relies on an 

unconstitutional statute because suppression does not further the rule's deterrent intent:

"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 as written." 480 U.S. at 349-50. 

Our Supreme Court recognized and applied the good-faith exception as articulated 

in Krull for the first time in Daniel. Noting that the good-faith exception is not unlimited, 

our Supreme Court echoed the United States Supreme Court's admonition in Krull that in 

order for the good-faith exception to apply, an officer's reliance on a statute must be 

objectively reasonable. Daniel, 291 Kan. at 500 (citing Krull, 480 U.S. at 355). A law 

enforcement officer cannot claim good-faith reliance on a statute if a reasonable officer 

should have known that the statute was unconstitutional. 291 Kan. at 500 (citing Krull, 

480 U.S. at 355). Additionally, reliance on a statute is not objectively reasonable if the 

legislature "'wholly abandoned its responsibility to enact constitutional laws'" when 

passing the statute. 291 Kan. at 500 (quoting Krull, 480 U.S. at 355). 

In Birchfield, the United States Supreme Court noted that it was not addressing the 

constitutionality of various state implied consent laws. 136 S. Ct. at 2185. Nevertheless, 

the Birchfield Court held that motorists cannot be criminally punished for refusing to 

submit to a warrantless blood draw and that motorists cannot be deemed to have 

consented to submit to a blood test on the pain of committing a criminal offense. 136 S. 

Ct. at 2185-86. In Ryce, 303 Kan. at 963, our Supreme Court held that K.S.A. 2014 Supp. 

8-1025 was facially unconstitutional, and in Nece, 303 Kan. at 896-97, our Supreme 

Court ruled that the implied consent advisories in K.S.A. 2014 Supp. 8-1001 were 

impermissibly coercive. Although the decisions in Ryce and Nece are not final, the 
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United States Supreme Court's decision in Birchfield makes it clear that K.S.A. 2012 

Supp. 8-1025 and the implied consent advisories in K.S.A. 2012 Supp. 8-1001(k)(4) are 

no longer enforceable at least as to blood tests. The issue here is whether Garner 

objectively and reasonably relied on these statutes when he provided Schmidt with the 

implied consent advisories and asked him to consent to a blood test.

At the time of Schmidt's arrest, Garner was required by K.S.A. 2012 Supp. 8-

1001(k)(4) to inform Schmidt that he could face criminal penalties if he refused to submit 

to any method of blood-alcohol testing. Also, at the time of Schmidt's arrest, Kansas 

courts had consistently upheld the constitutionality of warrantless blood draws 

undertaken pursuant to K.S.A. 8-1001. See, e.g., Martin v. Kansas Dept. of Revenue, 285 

Kan. 625, 635, 176 P.3d 938 (2008); Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 

825, 835, 888 P.2d 832 (1995); Popp v. Motor Vehicle Department, 211 Kan. 763, 767, 

508 P.2d 991 (1973).

Garner had no reason to know that the implied consent advisories would be found 

impermissibly coercive 4 years after Schmidt's arrest, and K.S.A. 2012 Supp. 8-

1001(k)(4) was not so clearly unconstitutional at the time of Schmidt's arrest that a 

reasonably well-trained officer would have known that it was unconstitutional. By giving 

the advisories and informing Schmidt that he could be charged with a separate crime for

refusing to submit to a blood test, Garner was merely fulfilling his responsibility to 

enforce the statute as written, and suppression would not serve the deterrent aim of the 

exclusionary rule. 

Furthermore, there is no indication that in enacting either K.S.A. 2012 Supp. 8-

1025 or K.S.A. 2012 Supp. 8-1001(k)(4), the Kansas Legislature wholly abandoned its 

responsibility to pass constitutional laws. Other states had statutes similar to K.S.A. 2012 

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. 
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See, e.g., Wing v. State, 268 P.3d 1105, 1109-10 (Alaska App. 2012) (upholding the 

constitutionality of an Alaska statute criminalizing the refusal to submit to blood-alcohol 

test); State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that 

criminalizes refusal to submit to blood-alcohol test passes rational basis review). 

Schmidt argues that applying the good-faith exception here would have a chilling 

effect because it will encourage the legislature to pass unconstitutional laws. But as 

discussed above, the good-faith exception is not absolute and reliance on a statute must 

be reasonable; reliance is not reasonable if the legislature wholly abandoned its duty to 

enact constitutional laws. Krull, 480 U.S. at 355. As the court concluded in Daniel, the 

possibility of the legislature hiding behind the good-faith exception to enact blatantly 

unconstitutional laws is unlikely to occur because "the safeguards required by Krull for a 

court to examine whether law enforcement reliance on a particular statute was objective 

and reasonable under the circumstances militate against the possibility for legislative 

mischief that might seek to take unfair advantage of this exception." 291 Kan. at 500.

Finally, Schmidt points to State v. Pettay, 299 Kan. 763, 326 P.3d 1039 (2014), as 

an example of a case where the Kansas Supreme Court declined to apply the good-faith 

exception to the exclusionary rule in order to uphold a vehicle search incident to the 

defendant's arrest pursuant to K.S.A. 22-2501, after the statute was subsequently held to 

be unconstitutional. But Pettay is distinguishable because the law enforcement officer in 

that case searched the vehicle after the driver had been handcuffed and placed in the 

backseat of a patrol car. The court pointed out that K.S.A. 22-2501, upon which the 

officer relied to conduct the search, had always required that a search incident to an arrest 

must be limited to the area within the arrestee's immediate presence. 299 Kan. at 770.

Because the law enforcement officer failed to comply with the plain language of the 

statute and exceeded the permissible scope of the search set forth in K.S.A. 22-2501, the 

court determined that the good-faith exception to the exclusionary rule should not be 

applied to uphold the search. 299 Kan. at 771-72. 
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In sum, the good-faith exception is applicable here. There is nothing to suggest 

that at the time of Schmidt's arrest, Garner should have known that the criminal penalty 

statute was unconstitutional and that the Kansas implied consent advisories were 

coercive, nor is there any indication that the legislature wholly abandoned its duty to 

enact constitutional laws in passing either statute. When Garner advised Schmidt that 

failure to submit to the blood test constituted a separate crime, Garner was only doing 

what he was required by law to do. Suppressing Schmidt's blood test results would not 

serve the purpose of the exclusionary rule, which is to deter police misconduct. Thus, 

while the district court based its decision to deny Schmidt's motion to suppress his blood 

test results on the wrong ground, we uphold the district court's decision as being correct 

for the wrong reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) 

(district court's decision will be upheld even though it relied upon the wrong ground). 

Affirmed.