Opinion
No. 106,969.
2012-10-19
Edmund C. FISHER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge. Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before McANANY, P.J., MALONE and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Edmund C. Fisher asks us to reverse the district court's order affirming his driving license suspension because there is insufficient evidence in the record to conclude he was driving a car while intoxicated, and insufficient evidence that he refused a breath test because he blew into the breath testing machine two times. The record reveals that the police officer found Fisher reeking of alcohol and passed out in the driver's seat of his car with his foot on the brake, the engine running, and the headlights on. Further, Fisher twice failed to give an adequate breath sample, and there is no evidence this inability was due to a medical condition. We reject Fisher's claim of insufficient evidence and affirm the district court.
Fisher was found in his car at a convenience store.
Officer Kyle Tonniges of the Salina Police Department was dispatched to a parking lot in Salina at approximately 1:15 a.m. on March 14, 2010. When the officer arrived at the scene, he saw Officer Aaron Schultz speaking with Fisher. Officer Tonniges said Fisher was located in the driver's seat of a vehicle which was running with the headlights on.
Fisher's story was that on the evening of March 13, he drove through Salina after making a delivery in Colorado. Fisher, an over-the-road driver, checked into the Motel 6 in Salina at around 9:15 p.m. Afterwards, he went to a place called Maggie Mae's, where he had five vodka drinks. After drinking part of the fifth drink, Fisher started to feel light headed and “strange.” Fisher said he was having balance problems and was stumbling into walls. Fisher left the bar, got inside his car, locked the doors, and “passed out .”
According to Fisher, he was later awakened by a knock at his car window. Fisher opened his car door to find a woman. After some discussion, Fisher agreed to give the woman $40 if she would take him back to his motel. Fisher got into the passenger seat and the woman began driving. The next thing Fisher recalled was waking up and realizing he was at a gas/convenience store. Fisher gave the woman $40 for cigarettes. The woman jumped out of the car and Fisher returned to the driver's seat.
The next thing Fisher recalled was Officer Schultz knocking on his car door. Fisher said he was sitting in the driver's seat and the vehicle was on. Fisher agreed it was “possible” that he smelled like alcohol at the time. Fisher said Officer Schultz asked him to perform some field sobriety testing. Fisher agreed that he swayed when performing the walk-and-turn test. Fisher admitted that when he was asked to walk the line, he doubted he stayed on the line the whole time. Fisher said he put his foot down at some point during the one-leg stand test even though one of his instructions was to keep his foot up. Fisher admitted he had problems keeping his balance during the test.
Fisher was taken to the law enforcement center.
The officers took Fisher to a law enforcement center, where he agreed to submit to a breath test. Fisher said Officer Schultz told him to blow into a tube. Fisher stated that when he did so, Schultz advised him he had not blown enough and he “didn't get a reading.” Officer Schultz then reset the machine and told Fisher to blow again. Fisher said he blew again until the officer told him to stop. Fisher said that this time, Officer Schultz suddenly became “mad” and told him he was not even blowing. Fisher said he did not blow again after that. Fisher agreed he attempted to perform the breath test two times, but both times Officer Schultz told him he was not blowing hard enough.
Based on all of this, Officer Schultz signed a certification stating he had reasonable grounds to believe Fisher was operating or attempting to operate a vehicle while under the influence of alcohol or drugs. In his certification, Officer Schultz noted that Fisher was passed out in the driver's seat with his foot on the brake. Officer Schultz indicated Fisher had slurred speech, bloodshot eyes, difficulty communicating, and poor balance or coordination. Fisher admitted he had consumed alcohol or drugs, and Fisher failed a preliminary breath test. Officer Schultz also indicated Fisher had refused to submit or complete testing as requested by him.
The Department of Revenue suspended Fisher's driving license.
Once Schultz' certification of Fisher's breath test refusal was received, Fisher's driving privileges were suspended by the Kansas Department of Revenue. In due course, a hearing officer affirmed the suspension of Fisher's driving privileges. Fisher then sought review of the suspension order in the district court. There, he alleged he did not refuse to submit to a breath test, Officer Schultz did not see Fisher operate a vehicle, Fisher was able to perform the field sobriety tests, the preliminary breath test was not administered properly, and Officer Schultz did not have reasonable grounds to believe Fisher was operating a vehicle while under the influence of alcohol.
Then, in August 2011, the district court held a trial on Fisher's claims. Officer Schultz did not appear. After hearing the testimony of Officer Tonniges and Fisher, the district court affirmed the suspension of Fisher's driving privileges. The court concluded Fisher's story “very incredible” and there was “no doubt” Fisher had operated his vehicle, noting Fisher was in the driver's seat when the police arrived, the car was on, the keys were in the ignition, and the heater and headlights were on. The court also found that Fisher was “passed out drunk”—noting Fisher admitted he had passed out numerous times, it was possible he smelled of alcohol, and he possibly had bloodshot/watery eyes. The court said Fisher was too intoxicated to operate a vehicle and there was no evidence the officer had any reason to believe otherwise.
With regard to Fisher's refusal to submit a breath test, the court said that an insufficient sample is a refusal. The court found the evidence was that Fisher blew twice into the machine and gave a deficient sample or did not blow enough each time. The court said that although Fisher agreed to take the test and did not refuse the test initially, Fisher's failure to provide a sufficient sample equated to a refusal.
In this appeal, Fisher challenges the district court's decision on two grounds. First, he says there is insufficient evidence that Officer Schultz had reasonable grounds to believe he operated or attempted to operate a vehicle while under the influence of alcohol. Second, he says there is insufficient evidence he refused a breath test.
When a driver challenges the administrative suspension of his or her driving privileges, the district court conducts a de novo trial. K.S.A.2010 Supp. 8–1020(p). At trial, the driver bears the burden of proving the agency action should be set aside. K.S.A.2010 Supp. 8–1020(q). On appeal from the district court's decision, the appellate court determines whether that decision is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, Syl. ¶ 3, 281 P.3d 135 (2012). Substantial evidence is evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007).
The officer had reasonable grounds to believe Fisher was operating a vehicle while under the influence of alcohol
When we decide whether substantial competent evidence supports the district court's determinations, we will not weigh conflicting evidence, assess the credibility of the witnesses, or redetermine factual questions. Mitchell v. Kansas Dept. of Revenue, 32 Kan.App.2d 298, 301, 81 P.3d 1258 (2004). The district court clearly found Fisher was not a credible witness—noting his story was “incredible” and concluding there was “no doubt” he operated his vehicle. Thus, any testimony provided by Fisher that would cut against the district court's conclusion, in our view, lends little support to his claim.
When Fisher claims that there is no evidence he drove his vehicle, he is incorrect. Even though Officer Schultz did not testify at trial, his signed certification indicated he had reasonable grounds to believe Fisher was operating or attempting to operate the vehicle, noting Fisher was in the driver's seat with his foot on the brake. At trial, Fisher admitted that when Officer Schultz approached him, he was sitting in the driver's seat and the vehicle's engine was running. Officer Tonniges testified Fisher was in the driver's seat, the vehicle was running, and the headlights were on. All of this evidence clearly supports the district court's determination that Fisher operated his vehicle.
Along this line, we note that our Supreme Court has held that an officer does not have to actually observe a person operate his or her vehicle in order to have reasonable grounds to believe he or she operated a vehicle while under the influence. In Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 888 P.2d 832 (1995), an officer saw a vehicle stopped at a stop sign. The officer never saw the vehicle moving. When the officer approached the vehicle, he saw that it was running and in gear, the headlights were on, and the driver was passed out in the driver's seat with his foot on the brake. On appeal from the suspension of the driver's license, our Supreme Court ruled the KDR need only prove a law enforcement officer had reasonable grounds to believe a driver was operating or attempting to operate a vehicle—not that the person actually operated or attempted to operate the vehicle. 256 Kan. at 836. Thus, the court affirmed the driving license suspension.
Similarly, Fisher was sitting in the driver's seat, the vehicle was running, and the headlights were on. Under these facts, there was substantial evidence from which Officer Schultz could find reasonable grounds for believing Fisher had operated or attempted to operate his vehicle. It was not necessary for Officer Schultz to have actually observed Fisher driving his vehicle.
Substantial evidence supports that Officer Schultz had reasonable grounds to believe Fisher had operated or attempted to operate a vehicle while under the influence of alcohol.
Fisher refused the breath test.
Next, Fisher argues there is no substantial evidence to support the conclusion that he refused the breath test. Indeed, K.S.A.2010 Supp. 8–1020(h)(1)(D) allows Fisher to challenge Officer Schultz' certification that he refused to submit to and complete the test.
The refusal to submit to a breath test when properly requested by a law enforcement officer, and in the absence of a timely request for a hearing, results in the suspension of a person's driving privileges. K.S.A.2010 Supp. 8–1014(a), (c). K.S.A.2010 Supp. 8–1013(i) provides that a test refusal is “a person's failure to submit to or complete any test” of the person's blood or breath. K .S.A.2010 Supp. 8–1001(q) further provides: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.” (Emphasis added.) This court has construed the term “test refusal” as follows:
“A blood or breath alcohol test refusal as defined by K.S.A. 8–1013(i) does not have to be an intentional refusal. A refusal may be a conditional response such as a driver's request to speak to an attorney, silence when requested to submit to a chemical test for blood alcohol content, inability to produce an adequate sample not due to a medical condition, or inability to meet the preparatory steps required for a breathalyzer test.” (Emphasis added.) McRoberts v. Kansas Dept. of Revenue, 17 Kan.App.2d 680, Syl. ¶ 2, 843 P.2d 280 (1992), rev. denied 252 Kan. 1092 (1993).
We note that Fisher presented no evidence that he was unable to produce an adequate breath sample due to a medical condition. Furthermore, the evidence supports that Fisher's sample was indeed inadequate. First, Fisher admitted that Officer Schultz advised him he was not blowing hard enough. Fisher admitted that Officer Schultz got mad after his second blow and told him he was not even blowing. Second, even if Fisher had testified he believed his sample was sufficient (which he did not), the district court found Fisher not credible. To the contrary, Officer Schultz' certification indicated Fisher refused to submit to or complete testing as requested.
Fisher stresses that he actually blew into the testing machine two times so we should not consider his actions as a refusal to take the test. To accept Fisher's argument would permit drivers to circumvent the purpose of the breath test. Under Fisher's theory, a driver could agree to take the breath test and actually submit to a test, but—in an effort to skew the results—fail to provide a full breath.
Fisher also emphasizes that the KDR presented no actual evidence of a deficient test result—such as a machine printout. For support, Fisher cites Call v. Kansas Dept. of Revenue, 17 Kan.App.2d 79, 83, 831 P.2d 970,rev. denied 251 Kan. 937 (1992), where the court held that the failure to provide a deep lung breath sample required for testing by the intoxilyzer machine constitutes a test refusal unless the person can show the failure was due to a physical inability caused by a medical condition unrelated to alcohol or drugs. Fisher notes that in that case, the printout from the breathalyzer machine indicated the driver's sample was furnished, but deficient. Fisher says that here “nothing” supports a finding that he furnished a deficient sample.
Fisher's argument is unpersuasive for two reasons. First, the Call court did not hold—or even suggest—that physical evidence of a deficient sample is required in order to demonstrate a driver provided a deficient sample. Second, here there is evidence that Fisher furnished a deficient sample.
Substantial evidence supports the district court's conclusions that: (1) Officer Schultz had reasonable grounds to believe Fisher had operated or attempted to operate a vehicle while under the influence of alcohol; and (2) Fisher refused the breath test by failing to provide a sufficient sample.
Affirmed.