Opinion
110,948.
05-08-2015
Ryan AUSMUS, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
This is an appeal from a district court's denial of a petition for judicial review regarding the administrative suspension of Ryan Ausmus' driving privileges. The district court held that the Kansas Department of Revenue (KDR) properly suspended the driving privileges after Ausmus refused to submit to an evidentiary breath test. We affirm.
Factual and Procedural Background
At 12:12 a.m. on August 28, 2012, Officer Matthew Vogt of the Hays Police Department stopped a vehicle driven by Ausmus for speeding and no tag light. Officer Vogt testified that, although in his experience drivers would usually stop within 1 block after activation of emergency lights, Ausmus drove for 4 or 5 blocks before stopping his vehicle. The officer considered this as an indication of impairment.
Upon making contact with Ausmus, Officer Vogt noticed an “odor of an alcoholic beverage” coming from Ausmus' vehicle. Ausmus' eyes were also bloodshot. When the officer questioned Ausmus about alcohol use, Ausmus admitted to consuming “several beers” about 1 hour earlier.
On the other hand, Ausmus did not have slurred speech or other difficulties communicating. Since Ausmus had his driver's license ready when the officer approached, there was no evidence of difficulty retrieving the license. Officer Vogt also testified that Ausmus' behavior was “polite and cooperative.”
Officer Vogt asked Ausmus to perform two standardized field sobriety tests, the walk and turn and the one-leg stand. Ausmus passed both tests, exhibiting only one clue of impairment in the process of taking the tests. After providing oral notices to Ausmus in compliance with K.S.A.2014 Supp. 8–1012(c), Officer Vogt asked Ausmus to submit to a preliminary breath test (PBT). Ausmus consented to the test. The PBT showed Ausmus' blood-alcohol content was greater than the legal limit.
Officer Vogt arrested Ausmus for driving under the influence of alcohol (DUI). Ausmus then refused to submit to an evidentiary breath test, and as a result, the KDR suspended his driver's license. Ausmus petitioned for judicial review, claiming Officer Vogt “lacked reasonable grounds to request testing.” Ausmus also raised several “sub-issues,” including a challenge to the constitutionality of the PBT statute, K.S.A.2014 Supp. 8–1012.
At the conclusion of the bench trial, the district court found that Officer Vogt lacked reasonable grounds to request an evidentiary breath test without considering the incriminating PBT results. With the PBT results, however, the district court found the officer had reasonable grounds to request the evidentiary breath test. The district court rejected Ausmus' constitutional argument, but its rationale is unknown. The district court adopted the analysis of another district judge, and the other judge's analysis is not in the record on appeal. By written order, dated October 29, 2013, the district court affirmed the KDR's suspension of Ausmus' driving privileges.
Ausmus filed a timely appeal.
Discussion
On appeal, Ausmus does not dispute that Officer Vogt had reasonable grounds to request an evidentiary breath test if the incriminating PBT results were factored into the officer's decisionmaking. But Ausmus attacks the admissibility of the PBT, arguing the test was an unreasonable search which violated the Fourth Amendment to the United States Constitution. Ausmus makes the following prayer: “[T]he appellant ... requests the court to grant his petition challenging the suspension of his driving privileges ... as the officer lacked probable cause/reasonable grounds without the illegally obtained PBT results. ” (Emphasis added.) Ausmus, therefore, claims the PBT evidence violated his constitutional rights and the remedy is to exclude the PBT results from the evidence in this administrative proceeding.
Our standard of review: “Although generally an appellate court applies a substantial competent evidence standard of review when examining a district court's ruling in a driver's license suspension case ... the issues before us here require statutory and constitutional interpretation. These raise pure questions of law subject to unlimited review.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
At the outset, it is important to highlight the relevant statutes. Under K.S.A.2014 Supp. 8–1012(a) : “Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath or saliva, or both.” K.S.A.2014 Supp. 8–1012(b) provides that an officer may request a driver to submit to a PBT “if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs.”
On appeal, Ausmus contends that despite the implied consent provision of K.S.A.2014 Supp. 8–1012(a), the PBT statute is violative of the Fourth Amendment because K.S.A.2014 Supp. 8–1012(b) requires only “reasonable suspicion” to test, not the higher “reasonable grounds” standard used prior to the 2006 amendments to the statute. See L.2006, eh. 211, sec. 1. Importantly, the reasonable grounds standard is “strongly related” to probable cause. State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). And our court has observed that the reasonable grounds/probable cause standard gives constitutional legitimacy to searches under the Kansas implied consent statutes. See State v. Declerck, 49 Kan.App.2d 908, 920–22, 317 P.3d 794, rev. denied 299 Kan. –––– (June 20, 2014).
Aside from the constitutional issue Ausmus raises, however, we must first consider the remedy he proposes—to suppress evidence of the PBT results in the KDR administrative hearing. Our Supreme Court has addressed the exclusionary rule in the context of administrative hearings: “The exclusionary rule is a judicially created remedy, designed to deter the government from engaging in unconstitutional conduct.” Martin, 285 Kan. at 640. The exclusionary rule does not apply in driver's license suspension proceedings. 285 Kan. at 646. Our Supreme Court has explained the reason for its decision:
“The deterrent effect of the rule is already accomplished in the criminal arena. Any additional deterrent effect on law enforcement violation of the Fourth Amendment and § 15 to be gleaned from extension of the rule beyond the criminal DUI setting would be minimal, and it cannot outweigh the remedial imperative of preventing alcohol and/or drug-impaired drivers from injury or killing themselves or others. Responsive administrative license regulation is essential to that public good. It should not be hamstrung by application of the rule here.” Martin, 285 Kan. at 646.
As a consequence of Martin, while a driver may raise Fourth Amendment claims, “such claims have no practical effect (meaning such claims do not trigger the exclusion of resultant evidence) in the administrative context.” Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 396, 204 P.3d 562 (2009).
On this basis, our court recently found that it was unnecessary to address the driver's contention that the arresting officer violated his constitutional rights when he administered a PBT:
“The instant case is obviously a review of an administrative proceeding and, because the exclusionary rule is inapplicable, the relief Hagan requests—suppression of the [PBT] results—is unavailable. See LaRue v. Kansas Dept. of Revenue, No. 105,546, 2012 WL 4677598, at *1–2 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1246 (2013).” Hagan v. Kansas Dept. of Revenue, No. 109,804, 2014 WL 1707863, at *3 (Kan.App.2014) (unpublished opinion).
Citing Martin, our court in LaRue v. Kansas Dept. of Revenue, No. 105,546, 2012 WL 4677598, at *1 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1246 (2013), observed:
“ ‘The Kansas Supreme Court has held the exclusionary rule should not be applied in administrative driver's license suspension proceedings because the deterrent purpose of the rule in fostering constitutionally correct conduct on the part of government agents may be effectively assured by excluding evidence from any related prosecution for the DUI offense itself.” ’
Ausmus does not address the holding from Martin. He also does not argue “a violation of a mandatory provision of the Implied Consent Law by an officer of the State,” i.e., an unlawful arrest. See Martin, 285 Kan. at 639 ; see also Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, Syl. ¶ 3, 290 P.3d 555 (2012) (“An arrest must be lawful before an arresting officer is authorized to request [an evidentiary] test under K.S.A.2008 Supp. 8–1001 [b][1][A] to determine the presence of alcohol or drugs.”). As a result, we deem any such arguments to be waived or abandoned on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
We are duty bound to follow Martin. Accordingly, because the exclusionary rule does not apply in driver's license suspension proceedings, we affirm the district court's decision upholding the KDR's administrative suspension of Ausmus' driving privileges. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012); Hagan, 2014 WL 1707863, at *3.
Affirmed.