Opinion
111,814.
12-19-2014
Jose CANAS–CARRASCO, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
R. Bruce Kips, of Shawnee, for appellant. Donald J. Cooper, of Kansas Department of Revenue, for appellee.
R. Bruce Kips, of Shawnee, for appellant.
Donald J. Cooper, of Kansas Department of Revenue, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jose Canas–Carrasco appeals the district court's order denying him relief from the driver's license suspension order entered by the Kansas Department of Revenue (KDR). KDR entered that order because Canas–Carrasco failed an Intoxilyzer test following his arrest for driving under the influence (DUI) of alcohol. Canas–Carrasco contends that the police officer, who stopped him for a traffic infraction, lacked objective facts sufficient to establish reasonable grounds to request that he take the evidentiary breath test. Because the district court's decision is supported by substantial evidence, we uphold the driver's license suspension.
Factual and Procedural Background
Officer Kenneth F. Garrett of the Kansas City, Kansas, Police Department effected a traffic stop of Canas–Carrasco immediately after he saw Canas–Carrasco speed through a red light. Officer Garrett's dash cam recorded video of the traffic infraction. Upon interacting with Canas–Carrasco, Officer Garrett determined that he had reasonable grounds to require that Canas–Carrasco undergo a breath test for suspected DUI. Canas–Carrasco took the Intoxilyzer test, which indicated a breath alcohol concentration of .174. Because the test result was greater than .15, Officer Garrett provided Canas–Carrasco with a DC–27 form containing notice that Canas–Carrasco's license would be suspended for 1–year, then followed by 1–year of restrictions [ (see K.S.A.2013 Supp. 8–1013(b)(2)(A) ].
Canas–Carrasco sought and obtained an administrative hearing, but the KDR hearing officer upheld the suspension. Canas–Carrasco petitioned for judicial review, submitting that Officer Garrett “did not have reasonable grounds to believe that the Petitioner was operating a vehicle while under the influence of alcohol or drugs[ ] or both.” Canas–Carrasco's petition listed several alleged facts that he claimed were contrary to the validity of a finding of reasonable grounds: his reaction time was good, he stopped his vehicle properly, he properly retrieved his license for the officer, he was steady in exiting his vehicle, he had no communication difficulties, he had good balance and coordination, he had no alcohol containers in his car, and he was never given any field dexterity tests before his arrest. The petition did not include any challenge to the propriety of Officer Garrett's request that Canas–Carrasco submit to a preliminary breath test (PBT) or the admissibility of the PBT result.
The district court conducted a de novo hearing on the petition for review on April 7, 2014. The only witness Canas–Carrasco called was Officer Garrett. Canas–Carrasco did not testify, but he did introduce into evidence the dash cam video from the officer's vehicle.
Officer Garrett testified to several factors causing him to have reasonable grounds to believe Canas–Carrasco was DUI. He saw the driver run a red light, right in front of his police car. When he interacted with Canas–Carrasco, he noticed a distinct odor of an alcoholic beverage coming from his person. Canas–Carrasco's speech was thick and slurred; he had difficulty finding and then “obtaining” his driver's license and insurance from his wallet; his movements were slow; he had bloodshot, glazed, and watery eyes; he admitted that he had consumed alcohol earlier; and he failed the PBT.
Canas–Carrasco's counsel challenged Officer Garrett on his protocol for administering the PBT. Officer Garrett acknowledged that he may not have observed any prescribed 15–minute deprivation period, but he stated that he never does time himself before giving a PBT. Officer Garrett also acknowledged that he did not administer any field sobriety tests to Canas–Carrasco. The officer explained that the location of the traffic stop was on a grade so steep that he did not know if even he could perform a one-legged stand there, so he did not ask Canas–Carrasco to do it. He confirmed that he did not give a counting-backwards test because that depended on Canas–Carrasco's command of English and was not a “real fair test to do in the community.” Nevertheless, he said he was confident that Canas–Carrasco understood him, that they had “pretty good communication going on,” and that Canas–Carrasco was cooperative. He confirmed that he did not find any open containers in the pickup.
The video graphically depicts the potential danger in this red-light infraction, which occurred at 1:35 a.m. Officer Garrett clearly had a green light to enter the intersection when Canas–Carrasco's pickup sped through it from the right. The video shows, however, that when the officer activated his emergency equipment, Canas–Carrasco brought the pickup to a controlled, properly signaled stop. The exchanges between the officer and Canas–Carrasco are inaudible throughout the roughly 6 minute duration of the video. Eventually the video shows that the officer administered the PBT, then took Canas–Carrasco into custody.
Although Canas–Carrasco did not object to the limited evidence regarding the PBT that was adduced, his counsel attacked its admissibility in his closing. He argued that, because the officer did not observe a 15–minute deprivation period, the court should find that the PBT was improperly given and relied on by Officer Garrett and was inadmissible. He then argued that the video evidence, lacking audio, contradicted the officer's testimony about observable DUI-related behavior. He contended that, when that lack of corroboration was combined with the lack of any field sobriety testing, the evidence was insufficient to support a conclusion that Officer Garrett had reasonable grounds to believe Canas–Carrasco was DUI.
The trial court upheld the suspension of Canas–Carrasco's driver's license, implicitly rejecting the objection to the PBT's admissibility and finding that the DUI arrest was proper. Canas–Carrasco timely filed his appeal.
Analysis
An appellate court generally reviews a district court's decision to suspend a driver's license under the substantial evidence standard. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Whether substantial evidence exists is a question of law. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). In determining whether there is sufficient substantial evidence to support the district court's factual findings, we generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Canas–Carrasco, the licensee in the administrative action and subsequent appeal of that action, had the burden of proving the invalidity of the agency action resulting in the suspension of his driver's license. See Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 462–63, 980 P.2d 1022 (1999).
When the issue raised on appeal involves statutory interpretation, that issue is a question of law and our review is unlimited. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 1, 176 P.3d 938 (2008).
Should We Permit Canas–Carrasco to Challenge the Admissibility of the PBT?
Canas–Carrasco argues on appeal that Officer Garrett could not properly administer a PBT test because he did not observe a 15–minute deprivation period before the testing. We earlier noted that Canas–Carrasco did not challenge the PBT's admissibility in his petition for review. In Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 785–87, 148 P.3d 538 (2006), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20–21, 290 P.3d 555 (2012), our Supreme Court dealt with a similar circumstance. Bruch's petition for review in the district court did not raise with any specificity his argument that the PBT was invalid, contrary to the pleading requirements in K.S.A. 77–614(b). The Bruch court noted that Bruch had failed to include in his petition for review any indication that he intended to raise the PBT issues that he raised at the hearing before the trial court. The court determined that the generic challenge to “ ‘[p]robable cause to arrest’ “ that he did include in his petition was too broad to give the trial court and KDR notice of the agency error to be reviewed. Our Supreme Court stated:
“Bruch's argument that these issues fell under the broad umbrella of the ‘probable cause’ to arrest issue is without merit. ‘Probable cause to arrest,’ even if taken as the reviewable issue of whether there were ‘reasonable grounds' to believe the licensee was DUI, is far too expansive of an issue, as it could include any number of arguments. [Citation omitted.] Bruch's broad statement concerning probable cause does not provide the department or the district court with any focus on the agency error to be addressed at trial.” 282 Kan. at 786, 148 P.3d 538.
Our Supreme Court affirmed the district court's dismissal of Bruch's petition for lack of subject matter jurisdiction. 282 Kan. at 787.
Since Bruch, our Supreme Court has relaxed somewhat its specificity requirements regarding the pleading compliance standards of K.S.A.2013 Supp. 77–614(b). Yet, still, a petition must contain “sufficiently specific reasons for relief so that the court and agency can ascertain the issues that will be raised before the district court.” Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 406, 204 P.3d 562 (2009). Here, Canas–Carrasco made the argument that the PBT was improperly conducted during counsel's closing argument to the district court. Although his petition alleged several facts which were arguably inconsistent with reasonable grounds for the officer to believe he had committed DUI, that petition does not speak to the inadmissibility of the PBT as a reason why the officer lacked those reasonable grounds. We, therefore, do not have subject matter jurisdiction to address this argument.
We also note that Canas–Carrasco cites us to no authority, statutory, regulatory, caselaw or scientific, to support his proposition that the officer's failure to observe a 15–minute deprivation period makes any reference to the PBT test failure inadmissible. After all, the officer referred to the PBT here in the face of Canas–Carrasco's challenge to the existence of reasonable grounds to request the Intoxilyzer. The PBT testimony was offered for the statutory purpose, i.e., “to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8–1001.” K.S.A.2013 Supp. 8–1012(d). Canas–Carrasco did not challenge the reasonableness of Officer Garrett's suspicion that he had been driving his pickup while DUI. K.S.A.2013 Supp. 8–1012(b). Nor did he challenge the officer's compliance with the one protocol included in K.S.A.2013 Supp. 8–1012, that the officer employed a PBT device approved by the Secretary of the Kansas Department of Health and Environment. K.S.A.2013 Supp. 8–1012(e). Noticeably absent from the PBT statute are the strict protocols for the admission of an actual evidentiary breath test conducted by, e.g ., an Intoxilyzer, pursuant to K.S.A.2013 Supp. 8–1002(a)(3).
Canas–Carrasco has failed to provide us with anything other than his contention regarding admissibility that would show that the district court erred as a matter of law when it considered the PBT failure. An unsupported assertion is not sufficient to permit us to review the validity of the assertion. When a litigant fails to adequately brief an issue, it is deemed abandoned. State v. Rojas–Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012).
Did Officer Garrett Have Reasonable Grounds to Believe That Canas–Carrasco Had Operated His Vehicle While He Was Under the Influence of Alcohol?
The only viable issue for our review is whether Officer Garrett had reasonable grounds to believe that Canas–Carrasco had operated his vehicle while he was under the influence of alcohol. K.S.A.2013 Supp. 8–1001(b) provides that a law enforcement officer must have reasonable grounds to believe a person is operating or attempting to operate a vehicle while under the influence of alcohol or drugs before an officer can request that person to submit to evidentiary testing. Our Supreme Court has found that the term “reasonable grounds” means essentially the same as does the term “probable cause.” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010).
Probable cause is the reasonable belief that a specific crime has been or is being committed by the defendant. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656–57, 256 P.3d 845 (2011), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20–21, 290 P.3d 555 (2012). Whether probable cause exists is determined by evaluating the totality of the circumstances and considering the information, and the fair inferences from that information, known to the officer at the time of arrest. 292 Kan. at 657. Courts are discouraged from merely counting the facts or factors that support one side of the determination or the other. State v. McGinnis, 290 Kan. 547, 553, 233 P.3d 246 (2010).
K.S.A.2013 Supp. 8–1012(d) says that a “law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test.” The fact that Canas–Carrasco failed the PBT constituted reasonable grounds for the officer to arrest him for DUI under K.S.A.2013 Supp. 8–1012(d).
But even if we had subject matter jurisdiction over the PBT argument and we had found the PBT inadmissible, the officer still had reasonable grounds to believe Canas–Carrasco was DUI. The dash cam video proves that Canas–Carrasco ran a red light at 1:35 a.m. The officer testified that Canas–Carrasco's eyes were watery and bloodshot, he smelled of alcohol, he slurred his words, he moved slowly, he fumbled getting his license and insurance, and he told the officer that he had been drinking.
In Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431–432, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998), a panel of this court found that an officer had probable cause to arrest a motorist for DUI when the officer saw the driver commit a traffic violation, the violation occurred early in the morning, the driver smelled of alcohol, the driver admitted to drinking, and the driver's eyes were glazed and bloodshot. We recognize that in Sloop our Supreme Court found that the probable cause standard used in Campbell was “overly generous.” 296 Kan. at 22–23. The Sloop court found that an officer does not have reasonable grounds to believe that a person is DUI just because he was stopped early in the morning, smelled of alcohol, had watery and bloodshot eyes, and admitted to drinking a beer. 296 Kan. at 14, 22–24. Other factors must exist for an officer to have reasonable grounds to believe a person is DUI. Nevertheless, the Sloop court did not reject the Campbell court's holding. Instead, the Sloop court distinguished Campbell because, for one reason, the officer in Campbell had witnessed the driver commit a traffic violation. 296 Kan. at 22–23.
In spite of Canas–Carrasco's briefed citations and arguments to the contrary, his case is most like Campbell, and we reach the same conclusion as did the Campbell court. On the factors present in this case, we are convinced that Officer Garrett had reasonable grounds to believe that Canas–Carrasco had committed a DUI at the time he took him into custody for evidentiary testing with the Intoxilyzer. The district court's decision here is supported by substantial evidence, and it therefore did not err in denying Canas–Carrasco's petition for relief from KDR's suspension of his driver's license.
Affirmed.