Opinion
No. 0110,939.
2014-11-7
Dick Benjamin Monroe BARNES, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Ellis District Court; Glenn R. Braun, Judge.Michael S. Holland II, of Holland and Holland, of Russell, for appellant.James G. Keller and John D. Shultz, deputy general counsel, of Kansas Department of Revenue, for appellee.
Appeal from Ellis District Court; Glenn R. Braun, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller and John D. Shultz, deputy general counsel, of Kansas Department of Revenue, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Dick Benjamin Monroe Barnes' direct appeal of the suspension of his driver's license for driving under the influence with a breath alcohol content of .160.
Barnes appeals here the determination of the district court upholding the suspension of his driver's license, arguing the law enforcement officer did not have probable cause to support his request for a preliminary breath test (PBT) and further arguing the statute authorizing PBT's unconstitutionally lowered the standard below the Fourth Amendment to the United States Constitution's requirement of probable cause.
Unfortunately for Barnes in this appeal, a panel of this court found probable cause existed for his stop and subsequent testing in Barnes' direct criminal appeal stemming from the same police stop on October 20, 2011. State v. Barnes, No. 109,870, 2014 WL 1707911, at *3–4 (Kan.App.2014) (unpublished opinion) (mandate issued May 29, 2014).
Barnes has candidly admitted that with his second DUI conviction for the same October 20, 2011, set of facts now being final and affirmed, there is no relief we can grant that will alter, change, or reverse his driver's license suspension under the provisions of K .S.A.2011 Supp. 8–1014(b)(2)(B).
Therefore, we dismiss Barnes' appeal in this case as moot.