Opinion
112,113.
07-17-2015
Garrison PEACE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Michael S. Holland, II, of Holland and Holland, of Russell, for appellant. John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Michael S. Holland, II, of Holland and Holland, of Russell, for appellant.
John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Garrison Peace appeals the district court's decision affirming the Kansas Department of Revenue's (KDOR) suspension of his driver's license for refusing a breathalyzer test. Peace claims Sergeant James Phlieger lacked reasonable grounds to request testing. Based on the facts of this case, Sergeant Phlieger had reasonable grounds to request Peace submit to the breathalyzer test. We affirm.
Facts
On April 13, 2013, Sergeant Phlieger of the Plainville Police Department observed a vehicle stop near an intersection. As he pulled up behind the vehicle, the driver activated his emergency hazard lights. Accordingly, Sergeant Phlieger pulled up alongside the vehicle and asked the driver, who he later identified as Garrison Peace, if he needed any assistance. Sergeant Phlieger's brief conversation with Peace through the passenger side window of his patrol car led him to suspect Peace was “possibly under the influence.” Consequently, Sergeant Phlieger effectuated a traffic stop of Peace's vehicle.
Upon making direct contact with Peace, Sergeant Phlieger detected an odor of alcohol. Peace admitted he had consumed alcohol that evening. Sergeant Phlieger also noted that Peace's speech was “very slurred” and his eyes were “very bloodshot”; in fact, according to Sergeant Phlieger, “[Peace's eyes] were almost nothing but red. They were very droopy, watery.” When Sergeant Phlieger asked Peace for his driver's license, Peace had some difficulty providing it. Sergeant Phlieger explained, “I asked him three times for his driver's license. He handed me a military identification and then after telling me that he didn't have his license, his license was at home, he did ultimately find his license in his wallet.”
Sergeant Phlieger requested that Peace step out of his vehicle, and after Peace complied with his request, Sergeant Phlieger noticed that Peace was having “balance problems.” Sergeant Phlieger asked Peace if he would perform some field sobriety tests, but Peace claimed he had “a medical problem that affected his balance.” Sergeant Phlieger subsequently inquired as to the nature of Peace's problem, and Peace “told [him] it was a mental problem.” When Sergeant Phlieger then indicated that he did not understand how such a condition would affect his balance, Peace amended his story slightly: “He ... told me that he had a high frequency hearing loss and that that would—and that was the cause of his equilibrium, his balance problems.”
Sergeant Phlieger offered no other tests for Peace to perform after he refused field sobriety testing. Sergeant Phlieger's preliminary breath test (PBT) device was not working. Sergeant Phlieger testified that based on his observation, training, and experience, he believed Peace was under the influence of alcohol to such a degree that he was rendered incapable of safely driving a vehicle. Consequently, Sergeant Phlieger placed Peace under arrest for driving under the influence (DUI).
Peace refused to take the breathalyzer test at the Plainville Police Station. The KDOR administratively suspended Peace's driving privileges due to his refusal to submit to evidentiary chemical testing following his arrest. Peace requested judicial review of the suspension, and the sole issue before the district court was whether Sergeant Phlieger had reasonable grounds to believe Peace had been operating a vehicle while under the influence of alcohol, drugs, or both. After reviewing the evidence—Sergeant Phlieger's testimony and the parties' arguments—the district court affirmed the order of suspension, finding Peace failed to “meet his burden to prove that [Sergeant Phlieger] lacked reasonable grounds to request testing.” The district judge explained:
“Well, the court finds that [Peace] was stopped near South Section Line and South Third Street. And I'm not exactly sure of the sequence, but the officer pulled up to check on him because this was an unusual thing apparently, and Mr. Peace activated his emergency lights. The thing I'm not sure is whether he activated his emergency lights and then the officer pulled up, I think that's how it happened, but at any rate, somewhat simultaneously those things happened.
“The officer began to speak with Mr. Peace. He smelled the odor of alcohol. Mr. Peace's speech was very slurred. That was emphasized by the officer in his tone of voice. He described Mr. Peace's eyes as, ‘they were red. Actually, they were nothing, almost nothing but red. They were droopy.’
“The officer asked Mr. Peace to get out his DL, he got out a military ID and claimed he did not have his DL, said it was at home. Later he found his DL in his wallet or in his car.
“And as far as the balance thing is concerned, I don't know enough about how high frequency hearing loss could affect balance. I tend to think it probably wouldn't, but that is speculation at best, so I am not even considering that.
“But I think with what I have just reiterated on the officer's testimony, that the officer had reasonable grounds and I so find.”
Analysis
Did Sergeant Phlieger have reasonable grounds?
Peace contends that the district court erred in upholding the KDOR's suspension of his driving privileges because Sergeant Phlieger lacked reasonable grounds to believe he was operating a vehicle while under the influence of alcohol and, thus, Sergeant Phlieger had no statutory authority to request he submit to evidentiary blood alcohol testing. The KDOR argues the “totality of the circumstances in this case would lead any reasonable and prudent officer to believe that [Peace] was operating his vehicle while under the influence of alcohol.”
Any person who operates or attempts to operate a vehicle in Kansas is “deemed to have given consent ... to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.” K.S.A.2014 Supp. 8–1001(a). A law enforcement officer shall request evidentiary blood alcohol testing if the officer has reasonable grounds to believe the person was operating a vehicle while under the influence and the officer had arrested or otherwise taken the person into custody for any offense involving DUI. K.S.A.2014 Supp. 8–1001(b)(1)(A). The reasonable grounds test is strongly related to the standard for determining whether an officer had probable cause to arrest. See State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). Accordingly, 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, Syl. ¶ 3, 17–20, 290 P.3d 555 (2012).
“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. [Citation omitted.]” Johnson, 297 Kan. at 222, 301 P.3d 287 ; see Sloop, 296 Kan. at 20–21, 290 P.3d 555. In other words, “ ‘[p]robable cause exists where “the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” [Citation omitted.]” Sloop, 296 Kan. at 21, 290 P.3d 555. “ ‘As in other totality of the circumstances tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other.’ [Citations omitted.]” 296 Kan. at 20, 290 P.3d 555.
This court reviews the district court's decision by determining whether its underlying factual findings are supported by substantial competent evidence, which is sufficient to support its legal conclusions; only when there is no factual dispute does this court exercise de novo review. See Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial competent evidence possesses both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015). When reviewing factual findings, appellate courts 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).
Peace argues that despite the district court's finding to the contrary, reasonable grounds did not exist in this case because Sergeant Phlieger did not conduct a DUI investigation. Specifically, Peace maintains that while he indicated that he was physically unable to perform the field sobriety testing, Sergeant Phlieger could have “conducted non-standardized field sobriety tests such as an alphabet test, finger to thumb test, accounting test, and numerous other tests which [would] not require physical balance or coordination.” According to Peace, without such testing, Sergeant Phlieger's observations during the traffic stop were insufficient to establish probable cause or reasonable grounds. While Peace does not cite any caselaw supporting this assertion, he references City of Norton v. Wonderly, 38 Kan.App.2d 797, 172 P.3d 1205, rev. denied 286 Kan. 1176 (2008), and provides a lengthy quotation from our Supreme Court's decision in Sloop, which arguably suggests his intention to rely upon the probable cause determinations in these two cases.
As the State asserts, and we agree, Wonderly is clearly distinguishable. Although Officer Pat Morel did not observe any traffic infractions, he effectuated a traffic stop of Wonderly's truck based upon a phone call from a motorist who indicated Wonderly had exhibited erratic driving. After stopping his truck in a normal manner, Wonderly exited the vehicle and Officer Morel had to instruct him twice to get back inside. Officer Morel detected the odor of alcohol when he approached the driver's side window, but he could not tell whether the odor came from Wonderly, his passengers, or the truck itself. Wonderly had bloodshot eyes, but he produced his driver's license without incident. Officer Morel asked Wonderly to step outside his truck, and Wonderly, who exhibited no problems walking, proceeded to Morel's patrol car and sat down inside as instructed. At this point, Officer Morel discerned the smell of alcohol on Wonderly's breath, and when he questioned Wonderly as to whether he had consumed alcohol, Wonderly said that he had “some drinks at a local bar earlier that evening and one or two drinks at a bar in Lenora, Kansas.” 38 Kan.App.2d at 800, 172 P.3d 1205. Officer Morel observed Wonderly's speech was not particularly slurred.
Due to the unfavorable weather that evening and the fact that Officer Morel wanted to continue his investigation, Officer Morel decided to transport Wonderly to the sheriff's office to perform field sobriety tests. Wonderly was ultimately convicted for DUI, and, on appeal, a panel of this court determined that Officer Morel effectively placed Wonderly under arrest when he transported him to the sheriff's office, and while Officer Morel had reasonable suspicion for the traffic stop, the limited evidence he had gathered at the scene was insufficient to support a finding of probable cause for an arrest. 38 Kan.App.2d at 801, 804–09, 172 P.3d 1205. In reaching this conclusion, the panel noted: “The fact that [Officer] Morel felt it was necessary to continue his investigation at the sheriff's office before formally arresting Wonderly for DUI supports this conclusion.” 38 Kan.App.2d at 809, 172 P.3d 1205.
Peace's argument that Wonderly supports his claim Sergeant Phlieger lacked reasonable grounds to believe he was operating a vehicle while under the influence of alcohol lacks merit. Here, Peace was arrested for DUI based on his contact with Sergeant Phlieger and then refused to take the breath test when offered. In Wonderly, Officer Morel had not placed Wonderly under arrest and decided to transport him to the sheriff's office to continue his DUI investigation.
In Sloop, a law enforcement officer pulled Sloop over for a defective tag light after he had followed Sloop for approximately 8 to 10 blocks. Although Sloop committed no traffic violations, the officer noticed that while executing a left hand turn, Sloop was “ ‘sitting unusually close to his steering wheel’ “ and he was somewhat hesitant going into his turn. 296 Kan. at 14, 290 P.3d 555. Sloop provided the officer his driver's license without incident, and the officer noted that Sloop's speech was “ ‘not as clear as it could be but [ ] not inherently slurred either.’ “ 296 Kan. at 14–15, 290 P.3d 555. The officer detected an odor of alcohol emanating from Sloop, and his passenger and Sloop's eyes were “watery and bloodshot.” 296 Kan. at 14, 290 P.3d 555. When the officer asked Sloop if he had been drinking, Sloop initially replied, “ ‘Nothing really,’ “ but then stated he had consumed “ ‘like one beer at a friend's house.’ “ 296 Kan. at 14–15, 290 P.3d 555. Sloop did not stumble upon exiting his vehicle and was steady on his feet. Our Supreme Court determined that under the totality of the circumstances, the officer did not have probable cause to believe Sloop was DUI. 296 Kan. at 23, 290 P.3d 555.
However, in Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998), this court determined that a law enforcement officer had reasonable grounds to request evidentiary chemical testing on facts similar to those present in this case. Campbell was stopped by a law enforcement officer for speeding—72 miles per hour in a 55–mile–per–hour zone. Upon making contact with Campbell, the officer smelled alcohol on his breath and noticed his eyes appeared “glazed and blood shot,” and Campbell subsequently admitted that he “had a few drinks.” 25 Kan.App.2d at 431, 962 P.2d 1150. A panel of this court determined that these facts were “more than sufficient to satisfy a reasonably prudent police officer that Campbell had been [DUI].” 25 Kan.App.2d at 431–32, 962 P.2d 1150 ; see Hansen v. Kansas Dept. of Revenue, No. 106,752, 2012 WL 3136517 (Kan.App.2012) (unpublished opinion) (law enforcement officer had probable cause to believe Hansen was DUI because a person fell out of the back of his moving pickup truck [there were no reports of reckless driving], Hansen's eyes were bloodshot, the officer detected a strong odor of alcohol emanating from Hansen's person, and Hansen admitted to drinking earlier that evening).
In Sloop, however, our Supreme Court found the Campbell court's definition of the probable cause standard “overly generous.” 296 Kan. at 22, 290 P.3d 555. However, the Supreme Court did not overturn Campbell 's ultimate probable cause determination. See Sloop, 296 Kan. at 21–23, 290 P.3d 555. In fact, a panel of this court recently explained:
“The KDOR notes the court in Sloop distinguished, but did not overturn, a Kansas Court of Appeals case, Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998). The court in Sloop noted: ‘The primary factual difference between Campbell and the instant case is that Campbell was speeding, i.e., committing a moving violation, while Sloop was driving legally before being stopped for an improper tag light.’ 296 Kan. at 22, 290 P.3d 555. Campbell has continued to be favorably cited by both our court and the Kansas Supreme Court. [Citations omitted.]” Hoeffner v. Kansas Dept. of Revenue, No. 109,606, 2014 WL 2589806, at *4 (Kan.App.2014) (unpublished opinion).
See also Johnson, 297 Kan. at 222, 301 P.3d 287 (citing Campbell ); State v. Stejskal, No. 109,298, 2014 WL 702524, at *2–3 (2014 Kan.App.) (unpublished opinion) (deeming Campbell instructive despite Sloop ); McClure v. Kansas Dept. of Revenue, No. 109,025, 2013 WL 5870119, at *4 (Kan.App.2013) (unpublished opinion) (same).
Similar to Campbell and unlike Sloop, the totality of the circumstances in this case supports the district court's decision to uphold the suspension of Peace's driving privileges for the following reasons:
• Sergeant Phlieger testified Peace activated his emergency hazard lights, and although it is unclear why Peace undertook this action, Sergeant Phlieger's testimony suggests Peace did so without cause.
• Sergeant Phlieger detected the odor of alcohol when he first made contact with Peace.
• Sergeant Phlieger detected the odor of alcohol coming from Peace when he made closer contact.
• Peace admitted to consuming alcohol.
• Sergeant Phlieger observed that Peace's speech was “very slurred” and his eyes were “very bloodshot.” In fact, according to Sergeant Phlieger, “[Peace's eyes] were almost nothing but red. They were very droopy, watery.”
• Peace had a great deal of difficulty providing Sergeant Phlieger with his driver's license, and this court has found that fumbling with a driver's license and providing the wrong document upon request to be indicators of impairment. See State v. Huff, 33 Kan.App.2d 942, 945–46, 111 P.3d 659 (2005) ; Foster v. Kansas Dept. of Revenue, No. 104,777, 2011 WL 3795515, at *3 (Kan.App.2011) (unpublished opinion); Burroughs v. Kansas Dept. of Revenue, No. 96,549, 2007 WL 3085363 (Kan.App.2007) (unpublished opinion).
• Peace refused to submit to field sobriety testing, which is another fact that this court has determined to be an indicator of DUI. See Huff, 33 Kan.App.2d at 946, 111 P.3d 659 (finding that court may consider refusal to take field-sobriety tests); State v. Rubick, 16 Kan.App.2d 585, 587–88, 827 P.2d 771 (1992) (noting that driver's refusal to take field-sobriety tests is admissible).
As noted by a panel of this court in McClure, “[I]t is not necessary that the driver exhibit every sign of possible intoxication. It is sufficient that the police officer observe enough signs of intoxication to make a reasonable police officer believe the driver was operating a vehicle while under the influence of alcohol.” 2013 WL 5870119, at *4.
Conclusion
In conclusion, based upon the totality of the circumstances and the multiple indicators of alcohol impairment Sergeant Phlieger observed, the district court did not err in finding reasonable grounds existed for Sergeant Phlieger to request Peace take the breathalyzer test after he had been placed under arrest for DUI. We affirm.
Affirmed.