SUPREME COURT OF THE STATE OF KANSAS

According to the stipulated facts, a Kansas Highway Patrol Trooper had stopped

another driver when Braun pulled up behind the parked patrol car. The trooper tried to

wave Braun around, but Braun did not move.

The trooper approached and asked Braun to lower his window. Braun had trouble

with the window controls and lowered the rear windows. He opened the driver's door and

the trooper immediately smelled a strong odor of alcohol. When the trooper asked Braun

if he had been drinking, Braun replied that he had been drinking water. The trooper told

Braun he planned to conduct sobriety tests, and he asked Braun to exit the vehicle. As

Braun got out of the vehicle, he was swaying, hanging onto the door, and stumbling.

Braun repeatedly asked why the trooper pulled him over. When the trooper

explained he had not stopped Braun, Braun said, "If you didn't pull me over, then who

did?" Braun then said, "I should not be driving, officer, I'm sorry." Braun admitted he had

been drinking.

Braun could not perform the sobriety tests and claimed he had a bad hip. The

trooper gave Braun the written and oral implied consent advisories statutorily required by

K.S.A. 2012 Supp. 8-1001(k), which at the time warned of criminal consequences for

refusing a blood alcohol test. The trooper asked Braun to submit to a blood test. Braun

replied, "[Y]ea, sure, whatever." Without obtaining a search warrant, the trooper arranged

and observed a blood draw that occurred 80 minutes after Braun last drove. The Kansas

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Bureau of Investigation analyzed the blood and determined Braun had an alcohol level of

0.24 grams per 100 milliliters of blood.

The State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for

having a blood alcohol content of more than 0.08 as measured within three hours of

driving. It also charged him in the alternative with driving while under the influence to a

degree rendering him incapable of safely operating a vehicle under K.S.A. 2012 Supp.

8-1567(a)(3).

Braun moved to suppress the results of the blood test based on the

unconstitutionality of the search, arguing the Kansas implied consent law was

unconstitutionally coercive because of the threat of criminal sanctions for refusal to

submit to testing. The district court denied the motion, Braun waived his right to a jury

trial, and the case proceeded to a bench trial on stipulated facts. The parties conditioned

the stipulation of facts so that it could be used for consideration of the motion to suppress

or as necessary to preserve Braun's arguments about the motion:

"THE STATE and the defendant further stipulate and agree that the following Stipulation

of Fact will only be binding upon the defendant, or the Court, for purposes of the Court's

determination of the defendant's Motion to Suppress and if the Motion to Suppress is

denied for the Court to determine the defendant's guilt or innocence at a bench trial in

order for the defendant to preserve his right to appeal before the Kansas Appellate

Courts. The parties stipulate and agree that should the Kansas Appellate Courts

ultimately grant the defendant's Motion to Suppress and vacate his conviction based upon

the following Stipulation of Fact that the Stipulation of Fact would no longer be binding

upon the parties and that the defendant would not be bound by the Stipulation of Fact for

any further proceedings upon remand by the Kansas Court of Appeals."

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The district court found Braun guilty of DUI under K.S.A. 2012 Supp.

8-1567(a)(2) (having a blood alcohol content of more than 0.08 as measured within three

hours of driving). The journal entry does not mention the alternative charge, K.S.A. 2012

Supp. 8-1567(a)(3) (driving while under the influence to a degree rendering him

incapable of safely operating a vehicle).

Braun appealed, arguing that the district court erred in denying his motion to

suppress the results of his blood test, which he contended resulted from a coerced

consent. The Court of Appeals panel agreed, citing State v. Ryce, 303 Kan. 899, 903, 368

P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (holding statute that

made it a crime to refuse to submit to a blood alcohol test was facially unconstitutional),

and State v. Nece, 303 Kan. 888, 889, 367 P.3d 1260 (2016), aff'd on reh'g 306 Kan. 679,

396 P.3d 709 (2017) (holding informed consent based on unconstitutional threat of

criminal charges if refused was unduly coercive). Braun, 2017 WL 6396668, at *3-4.

The panel then turned to consideration of whether the district court's error was

harmless. Reviewing the facts in the stipulation, the panel determined sufficient evidence

in the stipulated facts established Braun committed the alternative charge of driving

under the influence of alcohol to a degree that rendered him incapable of safely operating

a vehicle under K.S.A. 2012 Supp. 8-1567(a)(3). It thus concluded the failure to suppress

the evidence was harmless, and it affirmed Braun's conviction. 2017 WL 6396668, at

*3-4.

Braun timely petitioned for review of the Court of Appeals determination the

failure to suppress was harmless. We granted his petition and have jurisdiction under

K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

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The State did not cross-petition or file a supplemental brief challenging the Court

of Appeals' finding that the district court should have suppressed the blood test based on

controlling authority from this court. The question of error, therefore, is not now at issue.

The test results of Braun's blood alcohol content are suppressed and his conviction under

K.S.A. 2012 Supp. 8-1567(a)(2) is invalid.

The sole question before us is whether the Court of Appeals erred in finding that

error harmless. See Supreme Court Rule 8.03 (2017 Kan. S. Ct. R. 53) (subsection [b]

permits a cross-petition; subsection [c][3] allows a response to include alternative

grounds for affirming the Court of Appeals; subsection [h][1] provides that issues subject

to review include "all issues properly before the Court of Appeals which the petition for

review or cross-petition allege were decided erroneously by the Court of Appeals"); State

v. Davey, 306 Kan. 814, 819, 397 P.3d 1190 (2017) ("[T]he State has not challenged—

either through a cross-petition for review or in its supplemental brief to this court—the

Court of Appeals' implied ruling in favor of [the defendant] on the State's

nonpreservation claim."); State v. Ortega, 300 Kan. 761, 777-78, 335 P.3d 93 (2014)

("The State did not file a cross-petition . . . . Hence, the question of error as to any of

these issues is not before us; we only review the Court of Appeals' conclusion that the

errors were harmless.").

ANALYSIS

Braun mainly argues the Court of Appeals violated his due process rights as

guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution. Citing State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Braun contends

due process requires that the finder of fact—either a jury or a district court judge—

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determine guilt. He notes the district court made no findings under K.S.A. 2012 Supp.

8-1567(a)(3) about whether he drove while under the influence to a degree rendering him

incapable of safely operating a vehicle. He thus argues the Court of Appeals violated his

due process rights.

But Braun also raises a threshold question: Was the stipulation conditioned or

limited so that a court could not use it to adjudge Braun's guilt on the alternative count?

He argues the parties made clear that the stipulated facts served as a procedural

mechanism for resolving the legal issues surrounding his motion to suppress and that they

intended to have the opportunity to litigate the alternative charge.

We agree with Braun that the language of the stipulation makes clear he was using

the trial by stipulation to preserve and resolve the legal questions about his motion to

suppress. Using a stipulation in such a fashion is a fairly common practice. This court has

acknowledged the strategic realities of proceeding on stipulated facts: When a conviction

is likely certain, stipulating and proceeding to a bench trial preserves a party's rights to

appeal—a right they would forfeit by pleading guilty or no contest. State v. Kelly, 295

Kan. 587, 592-93, 285 P.3d 1026 (2012).

That said, parties are ordinarily bound by their stipulation of facts and cannot

challenge those facts on appeal. State v. Bogguess, 293 Kan. 743, 745, 268 P.3d 481

(2012); see Kelly, 295 Kan. at 590-91; Double M Constr. v. Kansas Corporation

Comm'n, 288 Kan. 268, Syl. ¶ 1, 202 P.3d 7 (2009); see also Wentz Equip. Co. v.

Missouri Pac. R. Co., 9 Kan. App. 2d 141, 142, 673 P.2d 1193 (1983) (recognizing

general rule but noting courts are not bound by stipulations as to controlling law or

jurisdiction).

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But parties can agree to conditions that limit the circumstances where stipulated

facts can be used. And a court is bound by any such conditions or limitations. See Wentz

Equip. Co., 9 Kan. App. 2d at 142 ("'Valid stipulations as to evidence are binding on the

court, which is bound to enforce them; and the court cannot go beyond the terms of the

stipulation.'"); see also Griffin Contracting Co. v. Hawkeye-Sec. Ins. Co., 867 S.W.2d

602, 605 (Mo. Ct. App. 1993) (stipulations do not bind courts if terms prevent or prohibit

use in a particular proceeding).

Griffin Contracting presents an analogous situation. There, the parties

"'stipulate[d] and agree[d] that this case may be submitted . . . on the following

uncontroverted facts.'" One of the facts stated: "'Griffin Contracting filed the instant

action seeking a declaration by this Court that, . . . Hawkeye is obligated to defend and

indemnify Griffin Contracting.'" 867 S.W.2d at 605. After the stipulation, Griffin

Contracting amended its petition to allege a different theory—breach of contract. The

defendant Hawkeye sought to use the stipulated facts to resolve the breach of contract

claim, but plaintiff Griffin Contracting argued the intent of the parties was to limit the

stipulation to the declaratory judgment theory.

On appeal, the Court noted that "it is clear that the rules of contracts apply to

stipulations, and as in the construction of contracts, . . . stipulations are construed in terms

of the surrounding circumstances and the intent of the parties." 867 S.W.2d at 604.

Pointing to the language about "'this case'" and "'filed [in] the instant action'" and noting

the timing of the stipulation and the amendment to the petition, both the trial court and

the appellate court agreed that "the parties did not intend that the stipulation would apply

to any controversy except the declaratory judgment action." 867 S.W.2d at 605.

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In Braun's case, the stipulation was likewise conditional—the parties agreed that

the stipulation applied to consideration of the motion to suppress and the bench trial

determination of guilt, but that if:

"the Kansas Appellate Courts ultimately grant the defendant's Motion to Suppress and

vacate his conviction based upon the following Stipulation of Fact that the Stipulation of

Fact would no longer be binding upon the parties and that the defendant would not be

bound by the Stipulation of Fact for any further proceedings upon remand by the Kansas

Court of Appeals."

Through these conditions, the parties expressed an intent to preserve Braun's rights

to litigate if he prevailed on the merits of his motion to suppress. The Court of Appeals

did not use the word "vacate" nor did it remand his case, raising some question about

whether the parties intended the stipulation to apply here. But, just as the stipulation in

Griffin Contracting unambiguously conveyed the parties' intent despite not explicitly or

precisely stating the condition, Braun's imprecise stipulation unambiguously limited the

use of the stipulation to the charge that depended on proof of his blood alcohol level.

Lack of precision in language or the failure to list all circumstances of a similar

nature does not necessarily make a party's intent ambiguous. "'The language in a contract

is ambiguous when the words used to express the meaning and intention of the parties are

insufficient in a sense the contract may be understood to reach two or more possible

meanings.' [Citation omitted.]" Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 838, 508

P.2d 889 (1973). Here, there is one possible meaning conveyed: The purpose of the

stipulation was solely to determine the issue of law arising from Braun's motion to

suppress.

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The parties agreed to language that first explained the stipulation was for the

purpose of the district court's consideration of Braun's motion to suppress and, if the

motion was denied, for a trial intended "to preserve his right to appeal before the Kansas

Appellate Courts." A trial on the alternative charge would not have preserved the issue.

Instead, it would have made it moot. And the fact the district court did not make the

findings that would have brought finality to the case conveys that everyone in the district

court courtroom understood the intent that the stipulation extended only to the blood

alcohol charge, not the alternative charge.

The stipulation also conveys that the facts would not be binding if an appellate

court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not

valid. Although the parties used the word "vacate" and the Court of Appeals did not, it set

aside the conviction based on blood alcohol content. And K.S.A. 2019 Supp. 60-261,

which states Kansas' statutory harmless error rule, provides that a harmless error will not

be grounds "for setting aside a verdict or for vacating, modifying or otherwise disturbing

a judgment or order." In this sense, even though the Court of Appeals did not use the

word vacate, that is what it did. And once the conviction was vacated, "the Stipulation of

Fact would no longer be binding upon the parties." The remaining language, although

couched in terms of what would happen on remand, reveals that the parties intended to

have the opportunity to litigate the alternative count.

We thus hold the Court of Appeals panel erred by not considering and applying

the conditions that limited the binding nature of the parties' stipulation. Because we reach

that holding, we need not address whether the panel violated Braun's due process rights

by convicting him on an alternative count not addressed by the district court. As

anticipated in the parties' stipulation and based on the panel's holding the district court

erred in denying Braun's motion to suppress—a holding not before us—we reverse his

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conviction and remand for further proceedings related only to the alternative count of

driving while under the influence to a degree rendering him incapable of safely operating

a vehicle under K.S.A. 2012 Supp. 8-1567(a)(3).

Judgment of the Court of Appeals affirming the district court is reversed.

Judgment of the district court is reversed, and the case is remanded with directions.