1 No

. 112,209

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.
M ICHAEL A. S CHMIDT , Appellant

.

SYLLABUS BY THE COUR T

1. The Fourth Amendment to the United States Constitution permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. M oreover, 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 fo r 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; G LENN R. B RAUN , judge. Opinion filed December 16 , 201 6

. Affirmed

.

Michael S. Holland II , of Holland and Holland , of Russell , for appell ant.2

Christopher W.D. Lyon , assistant county attorney, Kristafer R. Ailslieger , deputy solicitor general , and Derek Schmidt , attorney general, for appellee.

Before M ALONE , C.J., G REEN and L EBEN , J J.

M ALONE , 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 w ith the Kansas Implied Consent L aw, K. S.A. 2012 Supp. 8

- 1001, the arresting officer requested that S chmidt 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 , an d th e results showed that his blood

alcohol 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 L aw 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 r esults of the blood test in this case be admitted under the good

- faith exception to the exclusionary rule? We hold the w arrantless blood draw cannot be upheld based on Schmidt's consent, but the blood test results a re still admissible under the good

- faith exception to the exclusionary rule.

F ACTUAL AND P ROCEDURAL B ACKGROUND
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 orde r 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 coming3

from Schmidt. After Schmidt was placed in the ambulance for transport to the m edical

c en ter, 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 t reated 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. 20 12 Supp. 8

- 1001(k) (4) , Garner informed Schmidt that fa ilure 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 samp le from Schm idt at 11:23 p.m., within 3 hours of the accident . Garner sent Schmidt's blood to the Kansas Bur eau 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 a lcohol 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 i n 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 groun ds to request testing and that Schmidt's consent to the blood draw was not voluntary because of the coercive nature of the implied

c onsent advisories. Schmidt asked the district court to suppress the results of the blood test because the y were obtained in violation of his rights under the Fourth Amendment to the United States Constitution.4

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 voluntar ily given. He claimed that the coercive nature of the Kansas im

plied consent advisories rendered any consent ob tain ed thereunder in voluntary. 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 supp ress 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, t he district court issued a memorandum d ecision 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 benc h 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 El lis County Jail but granted him 12 months' probation after he served 5 days in jail . Schmidt timely appealed his conviction.

D OES A W ARRANTLESS B LOOD D RAW A UTHORIZED BY THE K ANSAS I MPLIED C ONSENT L AW F ALL U NDER THE C ONSENT E XCEPTION TO THE W ARRANT R EQUIREMENT ?
Schmidt initially filed a brief with this court and claimed that subjecting him to a blood test pursuant to the Kansas Implied Consent L aw constituted an u nreasonable warrantless search in violation of the Fourth Amendment. Specifically, Schm idt claimed that any consent given und er the Kansas Implied Consent L aw is not a " knowing, intelligent, and voluntary consent free of dures s or coercion." Schmidt argued that because the United States Supreme Court held in Missouri v. McNeely , 569 U.S. __, 1335

S. Ct. 1552, 185 L. Ed. 2d 696 (201 3 ), that the Fourth Amendment requires some exception to the warrant requirement prior to conducting a warrantless blood test, and because there wa s no valid consent here, his blood test results were illegally obtain ed.

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 co ntended that

c oerced, 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 Sc hmidt's blood draw wa s a reasonable search under the consent exception to the warrant
requ irement and did not violate Schmidt's Fourth Amendment rights.

In reviewing a district court's decision on a motion to suppress, th e 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, 37 1 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:6

"Our prior opinions have referred approvingly to the general co ncept 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 penal ties 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 consen ted 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 Su preme 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 t esting, is facially unconstitutional b ecause the statute is not narrowly tailored to serve a compelling s tate interest . 303 Kan. at 9 63

. In Nece , the court held that a driver's consent to a breath test premised on th e threat of criminal prosecution for t est 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 . Howev er, the rulings in Ryce and Nece , at least as they

a pply 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

.7

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 rej ect 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 tha t failure to submit to the test constituted a separate crim e

. 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 sub mit to the test constituted a separate crime.

C AN S CHMIDT ' S B LOOD T EST R ESULTS BE A DMITTED U NDER THE G OOD

- F AITH

E XCEPTION TO THE E XCLUSIONARY R ULE ?
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) S hould 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?8

Ca n 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 L aw. The State argues that it was not until "new case law . . . fundamentally altered the legal landscape regarding warrantless blood draws" tha t 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 n ewly 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 hi s 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 N ece , 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. Unde r these circ umstances, 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 go od

- 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 ) T he newly asserted theory involves only questions of law based on proved or admitted facts and is determinative of9

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) requir es 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 w as othe rwise involuntary

. In ordering the parties to file supplemental briefs on whether the good

- faith exce ption applied in this case, we directed the parties to address whether this court can make that determination without remanding the case to the dist rict court to hear addi tional 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 (20 10 ) , 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 inci d ent 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

- 4 9, 209 P.3d 71110

(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 Supre me 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 Imp lied Consent L aw 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 st ipulated by the parties in district court , and Schmidt has offered no reason why this court cannot address the good

faith exception without remanding the case to the district court to hear additional evidence. Thus, we conclude that the State can invoke th e 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 d ecisions casting doubt on the constitutionality of warrantless blood draws did not begin to come out until nearly 4 years a fter Schmid t'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 the11

deterrence of Fourth Amendment violations

. '" ( Q uoting 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 constitution al rights. Spe cifically, 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 thos e 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 unlaw ful, 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 judicia lly 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 Ame ndment 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).12

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 unconstitution al, 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 futu re Fourth Amendment violations by an officer who has simply fulfilled his responsibility to e nforce 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 Danie l. Noting that the good

- faith except ion 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 relia nce on a statute must be objectively rea sonable. 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 Birchfiel d , the United S tates 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 218 5

- 8 6. 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 a dvisories in K.S.A. 2014 Supp. 8

- 1001 were impermissibly coercive. Although the decisions in Ryce and Nece are not final, the13

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

o bjectivel y 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 Schm idt 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 up held 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).

Gar ner 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 wel l

- trained officer would have known that it was unconstitutional. B y giving the advisories and informing Schmidt t hat he could be charged with a separate crime for refus ing to submit to a blood test, Garner was merely fulfilling his responsibility to enforc e the statute as written, and suppression would not serve the deterrent aim of the exclusionary rule.

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

- 1025 or K.S.A. 2012 Supp. 8

- 1001(k)(4) , the Kansas Legislature wholly ab andoned its responsibility t o pass constitutional laws. O ther 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

.14

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
t est); State v. B ernard , 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that criminaliz es refusal to submit to blood

- alcohol tes t passes rational basis review)

.
Schmidt argues that applying the good

- faith exception here would have a chilling effect b ecause it will encourage the legislature to pass unc onstitutional 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 who lly abandoned its duty t o enact constitutional laws. Krull , 4 8 0 U.S. at 355. As the court concluded in Daniel , the possibility of the legislature hiding behind t he 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 excepti on." 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 s earch 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 be en handcuffed and placed in the backseat of a patrol car. The court pointed out t hat 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 arreste e'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 exce ption to the exclusionary rule should not be applied to uphold the search. 299 Kan. at 77 1

- 7 2.15

In sum, the good

- faith exception is applicable here. There is nothing to suggest that at the time o f 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 statu te. 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 , w hich 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.