Opinion
111,452.
09-19-2014
Ryan Trevor JOHNSON, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellant. Kevin Shepherd, of Topeka, for appellee.
Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellant.
Kevin Shepherd, of Topeka, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Department of Revenue (KDR) appeals the district court's ruling setting aside an administrative order suspending Ryan Trevor Johnson's driving privileges. The KDR had suspended Johnson's driving privileges due to his refusal to submit to blood-alcohol testing after his arrest for driving under the influence of alcohol (DUI).
As discussed in this opinion, we affirm the district court because the KDR failed to provide a copy of the dash cam video recording of the traffic stop encounter and field sobriety tests which the district court reviewed and considered in making its ruling. On appeal, KDR had a duty to proffer a complete record on all matters for which the agency seeks review, see Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008). In the absence of such a record, we presume the district court acted properly. See State v. Crum, 286 Kan. 145, 161, 184 P.3d 222 (2008). For this reason, we affirm the district court's ruling.
Factual and Procedural Background
At about 2 a.m. on July 3, 2012, Deputy Sean Swords stopped Johnson's vehicle for traveling 69 miles per hour in a 50 miles per hour speed zone. No other moving violations or inappropriate driving were noted by the officer.
Upon talking with Johnson, Deputy Swords detected an “ ‘odor of alcoholic beverages.’ “ Johnson told the deputy he had consumed “several drinks” at “ ‘Baby Dolls' “—a so-called gentleman's club within about 1 hour of the traffic stop. Deputy Swords noticed that Johnson's eyes were “bloodshot, watery and glazed.” Although Johnson offered an innocent explanation for his bloodshot eyes, Deputy Swords concluded that in context with Johnson's admission to drinking alcoholic beverages and the odor of alcohol, the condition of Johnson's eyes was “an indicator for alcohol in his system.” Of note, the deputy characterized Johnson's behavior as “argumentative,” and he testified to admonishing Johnson “several times” to keep his hands out of his pockets when he first encountered him.
On the other hand, Deputy Swords noted that Johnson did not have slurred speech and that his balance prior to performing field sobriety testing was “fairly normal.” Deputy Swords also indicated that Johnson's hands appeared to be steady when he produced his driver's license.
Deputy Swords asked Johnson to perform some field sobriety tests; specifically, the walk-and-turn and the one-leg-stand tests, but according to Deputy Swords, he was unable to successfully administer these tests due to Johnson's “uncooperativeness” in failing to follow the officer's instructions. For example, Deputy Swords asked Johnson to repeat the walk-and-turn test after Johnson started the test before the deputy had concluded his instructions, but Johnson responded that he could not complete the test due to prior knee surgery. According to Deputy Swords, Johnson's knees did appear “abnormal,” and he candidly acknowledged he had “never seen anybody with knees like [Johnson's] before.”
Deputy Swords did not ask Johnson to recite the alphabet, count, or perform other field dexterity tests because they are not required. Instead, Deputy Swords asked Johnson to take a preliminary breath test (PBT). The results of the PBT were disregarded by the district court, however, because the deputy failed to properly administer the test.
Deputy Swords arrested Johnson for DUI. As a consequence, the KDR suspended Johnson's driving privileges because of his failure to submit to a blood test after the arrest. Johnson sought judicial review, and at the hearing before the district court, Deputy Swords testified that, as memorialized on his Officer's Certification and Notice of Suspension (commonly known as a DC–27 form), the grounds he relied upon to arrest Johnson included: (1) “odor of alcoholic beverages”; (2) “failed sobriety tests”; (3) “bloodshot eyes”; and (4) “person stated alcohol/drugs consumed.” During the hearing, however, the deputy testified that speeding, the inability to “follow clear and simple directions,” and/or the refusal to complete field sobriety testing “could” qualify as additional indicators of impairment.
After considering the evidence—which included reviewing the dash cam video recording of the traffic stop and field investigation—the district court reversed the KDR's administrative order of suspension. The district court found that Johnson's refusal to submit to chemical testing did not support a suspension because “under the totality of the circumstances, Deputy Swords lacked probable cause to believe [Johnson] operated his vehicle under the influence of alcohol” and, thus, he had no statutory authority to request chemical testing. The district court determined that while Deputy Swords noted “a faint smell of alcohol,” Johnson's bloodshot eyes, and Johnson's admission to “coming from Baby Dolls,” Johnson “otherwise acted fairly responsibly and appropriately” during the traffic stop: “[Johnson] did not make incorrect or slurred answers to questions asked by Deputy Swords, [he] did not fumble or stumble[,] ... and [his] explanation of the prior knee surgery which limited his ability to perform field sobriety tests, seemed to be accepted by the officer at the time.” The district judge explained:
“I respectfully disagree that [this case] meets the Sloop [v. Kansas Dept. of Revenue, 296 Kan. 13, 17–20, 290 P.3d 555 (2012),] standard.... I'm required to take a look at the totality of the circumstances. And I think that this deputy's testimony and his information that he's presented, first at the criminal proceeding and in this report, has been credibly honest and forthright. He admitted that ... Johnson, had a physical deformity with his legs or a situation with his legs that he hadn't seen. His—his conduct at the time of the tests showed that at least he felt that there was no reason to pursue the test further. I—basically, the speeding was—was a factor. There was at least a possible explanation for his bloodshot eyes, but the tape shows and the officer reported that he made no incorrect answers, didn't slur his speech, no problem communicating, and otherwise acted fairly responsibly and appropriately to the [officer's] information.
“And so based upon the officer's determination and statements and evidence as to what he considered at the time of the arrest, I am going to find that it doesn't meet the Sloop standard....” (Emphasis added.)
The KDR filed a timely appeal of the district court's ruling which reversed the order suspending Johnson's driving privileges.
Discussion
K.S.A.2012 Supp. 8–1001(b) authorizes law enforcement officers to request blood alcohol testing if the officer has reasonable grounds to believe the driver was operating a vehicle while DUI, and the officer arrests or takes the person into custody for any offense involving DUI. An officer's statutory authority to request chemical testing depends upon the legality of the individual's warrantless arrest. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 17–20, 290 P.3d 555 (2012). For an arrest to be valid, it must be supported by probable cause. K.S.A. 22–2401(c) ; 296 Kan. at 20. As recently formulated by our Supreme Court: “Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime.” State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013) ; see Sloop, 296 Kan. at 20–21.
Of particular importance to this appeal, an arrest not supported by probable cause is illegal and does not provide a law enforcement officer with the authority to request an evidentiary chemical test. 296 Kan. 13, Syl. ¶ 6. Moreover, a driver's refusal to take an unauthorized evidentiary chemical test may not provide the grounds for suspending his or her driving privileges under K.S.A.2012 Supp. 8–1014(a)(1). 296 Kan. 13, Syl. ¶ 6.
In the present case, the district court found the arresting deputy lacked probable cause to arrest Johnson for DUI and, as a result, the deputy did not have authority to request evidentiary chemical testing under K.S.A.2012 Supp. 8–1001. In reaching this conclusion, the district court relied upon Deputy Swords' testimony and a dash cam video recording of the traffic stop and field sobriety tests.
On appeal, KDR contends that “uncontroverted facts” demonstrate that Deputy Swords had probable cause to arrest Johnson for DUI. In particular, KDR notes: (1) Johnson was speeding at approximately 2 a .m.; (2) Johnson admitted that he had consumed alcohol within 1 hour of the traffic stop; (3) Deputy Swords detected an odor of alcohol coming from Johnson; (4) Johnson's eyes were bloodshot, watery, and glazed; (5) Johnson refused to perform field sobriety tests due to “some sort of knee and balance problems, but had been standing and walking around without showing any balance issues”; and (6) Johnson was “antagonistic and uncooperative ... towards Deputy Swords during the stop.”
In response, Johnson initially argues:
“Here, [KDR] failed to provide the total record that the trial court considered in making its ruling. [KDR] failed to include the video recording admitted into evidence at the bench trial in this case. [KDR], as the party asserting error, has the burden to designate a record which affirmatively shows prejudicial error by the trial court.... It is totally inappropriate for [KDR] to request this court to conduct a substantial competent evidence analysis without having a full record of the evidence before the trial court.”
In cases involving a driver's license suspension, we review the district court's ruling to determine whether its underlying factual findings are supported by substantial competent evidence and are sufficient to support its legal conclusions; only when there is no factual dispute do we exercise de novo review. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial competent evidence is evidence possessing both relevance and substance 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). When reviewing factual findings, we do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Johnson's argument is meritorious. Obviously, the video recording constituted important evidence because it provided impartial, eyewitness information that was especially probative of the critical issue before the district court.
In his brief in support of his petition for judicial review, Johnson argued that Deputy Swords did not have probable cause to arrest him because, in part, “[b]ased on the video recording of Mr. Johnson outside his vehicle, it does not appear he exhibited any clues of impairment. Mr. Johnson's interaction with Deputy Swords was appropriate; his speech was clear and understandable without any slurring.” (Emphasis added.)
At the hearing in district court, Deputy Swords testified the video recording began upon activation of his overhead emergency lights and ended upon the conclusion of the field sobriety tests and his decision to arrest Johnson. Importantly, Deputy Swords testified that, with the exception of the PBT (which was not considered by the district court,) the video recorded all of the grounds for his decision to arrest Johnson.
Given its importance, Johnson offered the video recording into evidence without objection, and the district court viewed it during the hearing. At the conclusion of the hearing, the district court also specifically referenced the video recording in formulating its decision that Deputy Swords did not have probable cause to arrest Johnson for DUI. The district court noted that “the tape shows that the officer reported that he made no incorrect answers, didn't slur his speech, no problem communicating, and otherwise acted fairly responsibly and appropriately to the [officer's] information.”
In his appellee's brief, Johnson, once again, raised the importance of the video recording, yet the KDR did not request that a copy of the video be added to the record on appeal or file a reply brief to respond to Johnson's objection. See Rules of Appellate Practice 3.02(d) (2013 Kan. Ct. R. Annot. 19) and 6.05 (2013 Kan. Ct. R. Annot. 46).
As the appellant, the KDR had the duty to proffer a complete record on all matters for which the agency seeks review, as it is the appellant's burden to designate a record sufficient to support claimed errors. See Kelly, 287 Kan. at 526. In the absence of such a record, we presume that the district court acted properly and the claim of error fails. Crum, 286 Kan. at 161.
In this appeal, KDR's failure to include a copy of the video recording makes it impossible for us to evaluate the propriety of the district court's decision. As Johnson asserts, we are unable to thoroughly review the evidentiary basis for the district court's probable cause determination because, despite the KDR's assertion to the contrary, the district court did not premise its decision upon uncontroverted facts. The central basis for the district court's decision was its determination that Johnson “acted fairly responsibly and appropriately” during the traffic stop.
We are persuaded the district court based its ruling, in part, on its review of the video recording, as neither Deputy Swords nor the KDR characterized Johnson's behavior in this manner. Indeed, while the deputy conceded that Johnson did not have any difficulty communicating with him during the traffic stop and did not “have that big of an issue” with maintaining his balance, Deputy Swords repeatedly testified that Johnson was argumentative and uncooperative. The district court clearly relied upon the video recording in finding to the contrary when it considered the totality of the circumstances memorialized on the video.
By neglecting to provide us with the opportunity to review the video recording, the KDR has failed to meet its burden to designate a record sufficient to support its appeal and has hindered our ability to evaluate whether substantial competent evidence supports the district court's ruling. Under these circumstances, we presume the district court's ruling is proper.
Affirmed.