State v. Rickerson

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No. 105,863

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RUSSEL RICKERSON,
Appellant.


SYLLABUS BY THE COURT

1.
Section 9 of the Kansas Constitution Bill of Rights guarantees the right of drivers
charged with driving under the influence (DUI) to post bail.

2.
Mandatory-minimum detention policies for drivers charged with DUI that fail to
require an individualized determination that the driver is intoxicated and would be a
danger to self or others if released on bond violate § 9 of the Kansas Constitution Bill of
Rights.

3.
The extreme remedy of dismissal based solely on an unlawful detention under a
mandatory-minimum detention policy for persons charged with DUI is justified in two
situations: (1) where the defendant who posed no safety threat can show actual prejudice,
i.e., that the detention substantially impeded his or her ability or opportunity to prepare a
defense; or (2) where, despite a lack of actual prejudice to the defendant, the sanction of
dismissal is justified because of institutional noncompliance with and systematic
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disregard for the law, i.e., where the unlawful policy is followed in contravention of a
prior court decision disapproving such automatic detentions.

Appeal from Johnson District Court; PETER V. RUDDICK, judge. Opinion filed May 18, 2012.
Reversed and remanded with directions.

Douglas E. Wells, of Topeka, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREENE, C.J., GREEN and ARNOLD-BURGER, JJ.

ARNOLD-BURGER, J.: This case involves an administrative policy adopted by the
Johnson County District Court in 1990 and readopted in 2006 that required a mandatory
6-hour detention of all persons arrested for driving under the influence (DUI) before they
were allowed to post a scheduled bond. Under our Supreme Court's holding in State v.
Cuchy, 270 Kan. 763, 19 P.3d 152 (2001), there is no dispute that this policy was
unlawful because it did not require an individualized determination as to whether the
driver is intoxicated and a danger to himself or herself or others. Russel Rickerson was
arrested for DUI and, pursuant to the policy, was unlawfully denied the opportunity to
post bond for 6 hours. We are asked to determine the appropriate remedy for Rickerson's
unlawful detention. Because we find, as did the Cuchy court, that dismissal is the
appropriate sanction for institutional noncompliance and systematic disregard of the law,
we reverse the district court and remand the case with instructions to vacate Rickerson's
conviction and dismiss the DUI charge.




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FACTUAL AND PROCEDURAL HISTORY

The facts are not in dispute. On December 2, 2009, at 8:02 p.m., Johnson County
Sheriff's Deputy Jonathan Koch pulled over Rickerson because of an inoperative tag light
on his truck. After further investigation, Rickerson was arrested for DUI and transporting
an open container. Approximately 1 hour later, Rickerson submitted to a breath test that
showed his breath alcohol content (BAC) was .158—almost twice the legal limit. See
K.S.A. 2009 Supp. 8-1567(a)(2). At 10:34 p.m.—more than 2 hours after his arrest—
Rickerson was booked into jail, where he was held under a policy promulgated by the
district court that required a mandatory 6-hour hold on all defendants arrested for DUI
before they could post the scheduled bond. Although Rickerson's son and wife, who were
both sober licensed drivers over the age of 18, arrived at the police station to bond him
out, they were told they could not post Rickerson's bond until the mandatory 6 hours had
passed. He was finally allowed to post bond and released to his wife at 2:32 a.m.

The State charged Rickerson with DUI and two other traffic offenses.

Pertinent to this appeal, Rickerson moved to dismiss the case because he was not
timely released from jail as a result of the mandatory 6-hour detention policy. He argued
dismissal was justified under the holding in Cuchy, 270 Kan. 763, which we will discuss
later in this opinion. In support, Rickerson attached to his motion four decisions by other
district court judges and a magistrate in Jewell, Saline, Labette, and Johnson County
District Courts that dismissed DUI charges based on the defendants' detentions under
unlawful policies of mandatory-minimum detentions of DUI arrestees. Included was a
2002 judgment by Johnson County District Judge John P. Bennett, State v. Vaters,
Johnson County District Court case No. 02-CR-1530, that dismissed a DUI charge under
the reasoning in Cuchy.


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A magistrate judge granted Rickerson's motion to dismiss, and the State appealed

After conducting a hearing on Rickerson's motion to dismiss, a district magistrate
judge granted the motion "[b]ased on the arguments of the parties, case law, local law and
[the Vaters decision]." As a result, the magistrate dismissed all of the charges and
released Rickerson from his bond requirement. The State timely appealed to the district
court.

The district court conducted an evidentiary hearing on Rickerson's motion to dismiss

The district court thereafter conducted a hearing on Rickerson's motion to dismiss,
which, the court clarified at the outset, was limited to the issue of the court's policy
requiring the 6-hour mandatory detention of DUI arrestees. Importantly, the State did not
dispute that the policy did not require an individualized determination of whether the
DUI arrestee was a danger to himself or herself or others. The evidence also showed that
Johnson County eliminated the policy 5 months after Rickerson's arrest.

Deputy Koch first testified concerning the circumstances surrounding Rickerson's
arrest and detention. Koch testified that Rickerson never asked Koch for additional
testing and when asked if he would take the breath test, Rickerson responded, "'Sure, I
am guilty.'" Rickerson asked Koch if he could use the phone, but Koch could not recall if
Rickerson told him why he wanted to use the phone. Koch responded that Rickerson
would have access to a phone once he was processed and placed in the jail.

Koch confirmed that he made no individualized determination that Rickerson was
a risk to anyone—other than to note that he arrested him because he could not drive
safely—because Koch felt he had no discretion to release him under the mandatory 6-
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hour hold policy. He, likewise, had no reason to assess whether Rickerson could
appropriately be released to his wife or son.

Captain Doug Baker, who supervises the patrol unit responsible for Rickerson's
detention, also testified. Baker explained that the Johnson County Sheriff's Department
mandatory policy of detaining DUI arrestees for 6 hours after their arrest is part of the
department's bond schedule for certain traffic offenses issued in November 2005. That
policy was put into place as the result of the district court's promulgation of the same
mandatory 6-hour hold policy in 1990. According to Baker, the district court's
repromulgation of that policy in 2006 resulted from modifications that Baker had
suggested to the chief judge of the district court that had nothing to do with the 6-hour
hold policy. When he made those suggestions to the court, Baker was unaware of the
2002 Vaters decision, which dismissed a DUI case based on Cuchy and the district court's
unlawful mandatory detention policy.

Rickerson also testified at the hearing on his motion to dismiss. Pertinent to this
appeal, he testified that despite his request to use the phone when he got into Koch's car
following his arrest, Rickerson was not allowed to use a phone until more than 3 hours
after his arrest. He wanted to use the phone to call an attorney because he "knew [he] was
in a lot of trouble," and he "[w]anted to know what [his] options were, what [he] needed
to do to prove [his] innocence" because "[he] didn't feel like [he] was that intoxicated"
based on the number of beers he drank that night. He wanted to be released earlier "[s]o
[he] could get ahold of an attorney at a reasonable time so [he] could find out where [he]
need[ed] [to] go to get a blood test or—and what [his] rights were," which he would not
be able to do through the jail phone because he was sure it would not be a private
conversation.

He further testified that by the time he was allowed to use a phone in the jail, he
did not call an attorney because he "knew that [he] couldn't do anything about—[his]
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blood alcohol had changed by that time three and a half hours later. [He] didn't figure
that—that [he] had any chance of . . . proving anything" with a blood test. In other words,
by that time, he knew that another blood test "wasn't going to do [him] any good
anyway."

At the close of the hearing, Rickerson's counsel informed the district court that he
was seeking dismissal of the case against Rickerson based on the unlawful detention; he
did not want the alternative remedy of suppression of the breath test results. After hearing
the parties' arguments, the district court took the matter under advisement.

The district court held dismissal was not warranted as a result of Rickerson's unlawful
detention

Subsequently, the district court orally pronounced its judgment denying dismissal
and later entered its written judgment. In short, the court denied dismissal upon finding
the detaining officers were not at fault for following the district court's administrative
detention order and because Rickerson "did not [lose an] opportunity to prepare a
defense." The district judge noted at the hearing that "it is kind of embarrassing because
clearly our policy was inconsistent not only with Judge Bennett's decision but more
importantly perhaps with the Supreme Court decision in Cuchy." He then asserted that "if
Mr. Wells practiced law over here a little bit more often, we might have cleaned this up a
little earlier in the program." The judge went on to conclude that "the reasoning of Cuchy
would dictate dismissal . . . only . . . if there was a lost opportunity to prepare a defense."
Consequently, the court ordered the case set for trial.

Rickerson was convicted of DUI after a bench trial on stipulated facts

The parties subsequently submitted the case to the district court for bench trial on
stipulated facts. Based on the stipulated facts, the district court found Rickerson guilty of
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DUI in violation of K.S.A. 2009 Supp. 8-1567(a)(2) (BAC of .08 or more as measured
within 2 hours of operating a vehicle). The court's docket indicates that the State had
dismissed the remaining two charges on the same date the stipulation of facts was filed.
Following his sentencing—the execution of which was stayed pending appeal—
Rickerson filed this timely appeal.

ANALYSIS

The decision in Cuchy is key

Because Cuchy is key to Rickerson's arguments in this appeal, it helps to pause
here to discuss the two key holdings in that case.

First, Cuchy held that the Pottawatomie County jail's policy that required all DUI
arrestees to be held for 12 hours before they were allowed to post bail was unlawful
because it did not require any individualized, reasonable determination based on an
officer's personal observations that the arrestee is intoxicated and would pose a danger to
himself or herself or others if released. Such an individualized determination would
clearly justify a detention without bail. 270 Kan. at 764, 772. Finding persuasive the
reasoning of the Supreme Court of North Dakota in City of Jamestown v. Erdelt, 513
N.W.2d 82 (N.D. 1994)—which found such blanket detention policies unlawful under
that jurisdiction's public-intoxication statute and the state constitutional provision
governing the right to bail—Cuchy held that such an individualized determination of the
risks of danger posed by the detained defendants was required in order to harmonize
K.S.A. 2000 Supp. 22-2901(1)'s requirements for first appearances with the right to make
bail which is guaranteed by § 9 of the Kansas Constitution Bill of Rights. 270 Kan. at
768-69, 772.

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Second, Cuchy considered the appropriate remedy for the defendants' unlawful
detentions. Ultimately, our Supreme Court observed that the extreme remedy of dismissal
based solely on an unlawful detention under such an automatic or mandatory-minimum
detention policy is justified:

(1) where the defendant who posed no safety threat can show actual
prejudice, i.e., that the detention substantially impeded his or her ability or
opportunity to prepare a defense, see 270 Kan. at 773-74; or,

(2) where, despite a lack of actual prejudice to the defendant, the sanction
of dismissal is justified because of institutional noncompliance with and
systematic disregard for the law, i.e., where the unlawful policy is followed
in contravention of a prior court decision disapproving such automatic
detentions, see 270 Kan. at 774-75.

The unlawfulness of the Johnson County mandatory 6-hour detention policy is not
challenged on appeal

Applying the reasoning of Cuchy to the stipulated facts, it is clear that Johnson
County's mandatory 6-hour hold policy for DUI arrestees was unlawful, and the parties
do not challenge that conclusion on appeal. The parties stipulated below that Koch did
not make any individualized determination that Rickerson was intoxicated and a danger
to himself or others. The only question is what the remedy should be, if any.

Our standard of review

Appellate review of a district court's denial of a motion to dismiss on a strictly
legal ground, as here, is unlimited. State v. Garcia, 282 Kan. 252, 260, 144 P.3d 684
(2006).
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Under the facts of this case, dismissal was the appropriate remedy for Rickerson's
unlawful detention

Rickerson argues the district court erred in not dismissing the charges because the
mandatory-detention policy was the result of institutional noncompliance with, and
systematic disregard for the law in light of the prior court decisions in Cuchy and Vaters.
He contends that contrary to the district court's interpretation of Cuchy, a showing of
prejudice is unnecessary where dismissal is sought as a sanction. In the alternative, he
asserts that he did present sufficient evidence of actual prejudice. The State responds that
there was an insufficient showing of actual prejudice, the Vaters decision was not binding
on other judges in the district court, and there was no showing that the jail was aware of
the Vaters decision.

We do not find it necessary to review the factual findings and conclusion by the
district court that Rickerson "did not [lose an] opportunity to prepare a defense," because
we find that under the unique circumstances in this case of institutional noncompliance
with and systematic disregard for the prior decision of our Supreme Court in Cuchy,
dismissal was the appropriate remedy and the issue of prejudice was irrelevant. The
district court's oral pronouncement of its judgment indicates its decision was based on the
erroneous legal conclusion that, under the reasoning in Cuchy, dismissal would only be
appropriate if there was a lost opportunity to prepare a defense, i.e., if there was actual
prejudice. As summarized above, that was not the holding in Cuchy.

Moreover, the district court's separation of the sheriff's department from the
district court is an artificial distinction in light of the Supreme Court's holding in Cuchy.
It is based on an erroneous legal conclusion that the officers' detention of arrestees is
excusable as long as they are relying on a departmental or court-ordered policy. As
Rickerson properly notes, Cuchy's point regarding the appropriateness of dismissal as a
sanction—and the Supreme Court of North Dakota's point in the City of Jamestown,
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which Cuchy found persuasive on this issue—was not focused upon whether a court
versus a law enforcement agency enacted the policy or whether there was some sort of
good-faith reliance by law enforcement on an unlawful detention policy ordered by the
court. Rather, Cuchy's focus was whether there was "'institutional non-compliance and
systematic disregard of the law.'" (Emphasis added.) Cuchy, 270 Kan. at 774 (quoting
City of Jamestown, 513 N.W.2d at 86). As summarized in Cuchy, the North Dakota
Supreme Court affirmed the district court's sanction of dismissal in City of Jamestown
upon finding that the city had wholly disregarded that court's prior decision holding the
city's practice of detaining DUI arrestees for 8 hours despite the availability of immediate
bond was unlawful. 270 Kan. at 768, 774-75 (citing City of Jamestown, 513 N.W.2d at
85-86). Applying that same reasoning to the facts before it, Cuchy reversed the district
court's dismissal as a sanction because the officers had not disregarded a ruling or
decision by the district court that preceded the defendants' arrests in the consolidated
cases before it. 270 Kan. at 775.

The only authority cited by the State on this issue is City of Fargo v. Stutlien, 505
N.W.2d 738 (N.D. 1993). In that case, the North Dakota Supreme Court found that
imposition of a court-ordered mandatory-minimum detention policy for DUI arrestees
was unlawful, but it declined to dismiss a DUI charge because there was not a showing of
"'institutional noncompliance.'" 505 N.W.2d at 745. In support, Stutlien reasoned that the
sanction of dismissal was not warranted because of the close chronological relationship
between the defendants' detentions on review and habeas decisions that various district
court judges had entered in other cases upon finding such detentions unlawful. 505
N.W.2d at 739, 745. But the State fails to recognize that the holding in City of Jamestown
was based upon the fact that the city had disregarded the North Dakota Supreme Court's
decision in Stutlien. See City of Jamestown, 513 N.W.2d at 84-86. This actually weighs
in favor of Rickerson's argument that dismissal is an appropriate sanction.

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The facts of this case are more like those in City of Jamestown than the facts in
Cuchy or Stutlien. Here, despite decisions by both the Kansas Supreme Court in 2001
(Cuchy) and the Johnson County District Court in 2002 (Vaters), the mandatory 6-hour
detention policy was enacted by the district court in 1990 and apparently remained
consistently in effect and enforced until May 2010. It is difficult to find that this situation
does not demonstrate an institutional noncompliance with and systematic disregard for
prior court decisions in the same way as in City of Jamestown.

Rickerson argues that dismissal of his case "will send a message that illegal bond
detentions are illegal thereby deterring these policies." We agree. Although there is
nothing in the record to demonstrate that other jurisdictions continue to enforce unlawful
mandatory-detention policies like that at issue here, Johnson County did so for 8 years
after Cuchy and even repromulgated the unlawful policy during that time, so we are not
convinced that all Kansas courts have abandoned such practices. In fact, we know from
the opinions provided below by Rickerson that at a minimum Jewell County had such a
policy at least until 2004, Saline County until 2008, and Labette County until 2008,
despite the fact that Cuchy was decided in early 2001. We hope dismissal of the case
against Rickerson as a sanction will have a deterrent effect on any jurisdictions that have
chosen either knowingly or negligently to disregard Supreme Court jurisprudence.

Although we have reviewed the remainder of Rickerson's arguments on appeal and
find them to lack merit, based on our ultimate ruling we need not address them here.

Reversed and remanded with directions to vacate Rickerson's conviction and
sentence and to dismiss the DUI charge.