Opinion
110,817.
12-12-2014
Gary A. FRASER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Michael S. Mogenson and Edward C. Gillette, of Gillette Law Firm, P.A., of Mission, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Michael S. Mogenson and Edward C. Gillette, of Gillette Law Firm, P.A., of Mission, for appellant.
James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S J.
MEMORANDUM OPINION
PER CURIAM.
Gary A. Fraser appeals the district court's order upholding the suspension of his driver's license by the Kansas Department of Revenue (KDOR) for his refusal to take a breath test. He argues the arresting officer did not have reasonable grounds to believe he was operating his vehicle while under the influence of alcohol before requesting he take the test. He also argues the officer did not properly serve him with the notice of his suspension as required by statute. We find the district court's rulings on both issues were proper, and we affirm.
Facts
In December 2010, Lisa Dressier was travelling east bound on Kansas Avenue in Leavenworth County. As she approached a narrow bridge over Interstate 70, she heard the screeching of brakes from a car behind her and saw a fast moving car approaching. The car then veered off the road and flipped over. Dressier testified the car would have hit her had it not left the road. Dressier immediately stopped and called 911. She remained at the scene until officers arrived and then provided a written statement to them.
Fraser was driving the wrecked car with his wife Rita as a passenger. They had a different story about how the accident occurred. They both claimed a westbound vehicle was in Fraser's eastbound lane without its lights on and Fraser swerved to avoid hitting it head on.
Deputy Chris Smith responded to the scene. He observed a vehicle on a field access road with significant damage to the front end roof and passenger side, consistent with a roll-over accident. He took Dressler's statement.
Fraser and his wife were walking around outside the vehicle when Deputy Smith arrived. Smith saw a laceration on Fraser's head, and Fraser indicated he also had injuries to his shoulder and leg. When an ambulance arrived, Fraser refused treatment. Fraser told the deputy he did not have insurance and did not want to incur the costs an ambulance ride. Fraser was not have any difficulty breathing. Deputy Smith observed Fraser had bloodshot eyes and a mild odor of alcohol coming from his breath. He asked Fraser if he had consumed any alcoholic beverage, and Fraser indicated he had had a beer early in the evening. Because Fraser's breath smelled of alcohol, Deputy Smith asked Fraser to complete standard field sobriety tests. Fraser refused.
Deputy Smith testified he had determined Fraser was under the influence to the extent that he was not able to safely operate a motor vehicle based on the following: (1) Dressler's statement; (2) the evidence at the accident scene; (3) Fraser admitting to having consumed a beer; (4) his bloodshot eyes; and (5) the odor of alcohol on his breath. The deputy took Fraser into custody for additional testing. Once at the jail, Deputy Smith provided Fraser with the implied consent advisory form (DC–70). Deputy Smith also read the form aloud. After a 20–minute deprivation period, Smith asked Fraser to submit to a breath test on an Intoxilyzer 8000. Fraser did not attempt to provide a sample. The Intoxilyzer cycled through its functions and generated a report indicating “No test given.” Deputy Smith completed the officer's certification and notice of suspension form (DC–27). On that form, the deputy certified that Fraser “refused to submit to or complete testing.”
Also, on the DC–27 form, Deputy Smith certified that a copy of the DC–27 “is being served on [Fraser] on 12–11–2010 by ... personal service.” On another report, Deputy Smith indicated that he “completed a DC–27 and placed a pink copy in [Fraser's] hands.” At the administrative hearing, Deputy Smith testified he had no independent recollection of personally serving Fraser with the DC–27. Fraser testified he received his copy of the DC–27 from the person who signed his bond within 10 minutes of Fraser being booked into the jail. He stated: “After I got booked in I put my bond up. I was there, oh, probably about 10 minutes is all, and then the person that signed my bond, he handed me” the DC–27. Fraser timely requested an administrative hearing.
The administrative law judge (ALJ) reviewed the evidence presented at the administrative action and issue a suspension order based on the test refusal. KDOR then suspended Fraser's driver's license. Fraser filed a petition for judicial review, and the district court affirmed the decision after hearing testimony from Fraser and his wife and reviewing Deputy Smith's testimony from both the criminal case and the administrative the suspension hearing.
As we stated, Fraser argues in this appeal that Deputy Smith lacked reasonable grounds to believe he had been operating a vehicle while under the influence of alcohol and did not properly serve him with the DC–27 suspension notice.
Reasonable Grounds to Believe Fraser Had Been Operating a Vehicle Under the Influence
On appeal, this court generally reviews a district court's decision in a driver's license suspension case to determine if it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial evidence is relevant if it provides substance and “furnishes a substantial basis of fact” for this court to resolve the issues. Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 362, 102 P.3d 490 (2004). Whether an officer had reasonable grounds is a mixed question of law and fact. We give deference to the district court's factual findings but review the ultimate legal conclusion—whether reasonable grounds existed—independently. Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 415, 233 P.3d 286 (2010), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). Under this standard, we “do not consider other evidence that might support a different result as long as sufficient evidence supports the district court's decision.” 43 Kan.App.2d at 414. Nor do we “weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact.” Mitchell v. Kansas Dept. of Revenue, 32 Kan.App.2d 298, 301, 81 P.3d 1258 (2004).
K.S.A.2013 Supp. 8–1002(a) provides that “[w]henever a test is requested pursuant to this act and results in either a test failure or test refusal a law enforcement officer's certification shall be prepared.” Following a driver's refusal to consent to a breath-alcohol test, the officer must certify that reasonable grounds existed to believe that the driver was “operating or attempting to operate a vehicle while under the influence of alcohol....” K.S.A.2013 Supp. 8–1002(a)(1)(A).
Here, Fraser argues that because Deputy Smith did not have the required reasonable grounds, he had no authority to request a breath test for alcohol. He specifically argues that (1) reasonable grounds did not exist based on the possible indicators of impairment commonly observed in DUI cases that were not observed by Deputy Smith here, and (2) the district court improperly relied on the definition of probable cause used in Poteet in determining that reasonable grounds existed.
As to what Deputy Smith actually did observe, the district court heard testimony from Fraser, his wife, and also reviewed Deputy Smith's testimony from the administrative hearing and the jury trial in Fraser's criminal case. Dressier and the Frasers provided differing factual accounts of what caused Fraser to swerve off of the road. The court found Dressler's version that Fraser nearly rear-ended her to be more persuasive than the Frasers' version that a car was driving on the wrong side of the road at night with no headlights on. The court concluded that (1) Fraser was speeding at night when he came upon Dressler's car; (2) Fraser had to swerve to avoid colliding with Dressier and in so doing lost control of the vehicle, left the roadway, went down an embankment, and rolled the car before it came to rest; (3) Fraser sustained substantial personal injuries; (4) the car was totaled; (5) Fraser had an odor of alcohol on his breath; (6) Fraser had bloodshot eyes, and (7) Fraser admitted he had consumed alcohol prior to driving.
Other appellate court decisions examining whether reasonable grounds existed in this context are helpful. In Fleming v. Kansas Dept. of Revenue, No. 97, 182, 2007 WL 2178261 (Kan.App.2007) (unpublished opinion), a nearly factually identical situation, an officer arrived at the scene of the accident where the driver had bloodshot eyes, smelled of alcohol, and admitted to consuming a minor amount of alcohol. The Fleming court found the officer had reasonable grounds to request the driver to submit to a breath test. The court specifically noted that “involvement in an accident or collision is one of the express criteria for testing.” 2007 WL 2178261, at *2 ; See K.S.A.2013 Supp. 8–1001(b)(1)(B) ; see also Kuhn v. Kansas Dept. of Revenue, No. 107,154, 2013 WL 195693, at *3 (Kan.App.2013) (unpublished opinion) (reasonable grounds when officer arrived on scene of an accident and observed odor of alcohol on driver's breath and slurred speech from driver); Pfeifer v. Kansas Dept. of Revenue, No. 106,961, 2012 WL 4679695, *2–3 (Kan.App.2012) (unpublished decision) (reasonable grounds when officer arrived on scene of a single-motorcycle accident, a deputy noticed the odor of alcohol on the driver's breath, the driver admitted to consuming alcohol, and the driver persistently alleged that his wife was riding on the motorcycle with him when she was not). Notably, the Poteet court found reasonable grounds to believe a driver with alcohol on her breath was driving while intoxicated solely based on her involvement in a one-car accident in which she drove through a field and barbed wire fence, rolled her car onto its side, and sustained serious injuries involving helicopter transport to the hospital. 43 Kan.App.2d at 415. In this case, Deputy Smith observed most of the same indicators as in Poteet, plus bloodshot eyes and Fraser's admission to drinking a beer. The facts here support the district court's conclusion that Deputy Smith had reasonable grounds to believe Fraser was driving while impaired.
Nonetheless, Fraser asks us to focus on the lack of facts which he alleges are normally present in similar cases. He argues no alcoholic beverage containers were found in his car, the odor of alcohol was mild, he did not slur his speech, his eyes were not bloodshot (though the record contradicts this argument), he did not have any difficulty communicating, and he did not have any problems with his balance or coordination. While it appears these factors were not present in this case, we know of no requirement that a driver exhibit every sign of intoxication before an officer can request a breath test. Coherent speech and steady balance do not dissipate reasonable suspicion based on the indicators relied upon by Deputy Smith in concluding Fraser was an impaired driver. Moreover, Fraser is asking us to reweigh the evidence—something we cannot do on appeal. See Mitchell, 32 Kan.App.2d at 301. It was sufficient that the deputy observed enough signs to cause a reasonable officer to believe Fraser was driving while under the influence of alcohol. See Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431–32, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998).
We conclude the facts here provided a substantial factual basis to support Deputy Smith's belief Fraser was driving while impaired and, therefore, he did not control his vehicle sufficiently in trying to avoid a rear-end collision with Dressler's vehicle. Those facts supported the district court's ultimate conclusion that reasonable grounds existed for Deputy Smith to believe that Fraser had been driving his vehicle under the influence of alcohol.
Next, Fraser argues the district court erred in relying on the probable cause definition set out in Poteet which has since been disapproved in Sloop, 296 Kan. 13, Syl. 14.
When evaluating whether reasonable grounds exist, Kansas courts look to probable cause standards. Swank, 294 Kan. at 881. Probable cause is “ ‘determined by evaluating the totality of the circumstances,’ giving consideration to ‘the information and fair inferences there from, known to the officer at the time of arrest,’ with ‘no rigid application of factors.’ “ 294 Kan. at 881 (quoting Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656–57, 256 P.3d 845 (2011). In Sloop, our Supreme Court disapproved the language in Poteet which defined probable cause as something “ ‘more than a possibility’ or .... ‘mere possibility.’ “ 296 Kan. 13, Syl. 4.
Fraser's argument in this regard lacks support in the record. Although the district court referred to Poteet in its ruling in this case, the court did not rely on the now disapproved of “guilt is more than a mere possibility” language. Contrary to Fraser's argument, the record does not indicate that the court relied on or referred to the “ ‘mere possibility or possibility” definition in determining that Deputy Smith had reasonable grounds to believe Fraser was an impaired driver. Instead, the record suggests the court considered the totality of circumstances as required by our Supreme Court. See Swank, 294 Kan. at 881. The court noted, “You have to look at all of the circumstances.” The record reflects the court merely relied on Poteet to decide which facts it would consider when determining if reasonable grounds existed. The court did not utilize an improper legal standard in determining if reasonable grounds existed for the arresting officer to request that Fraser take a breath test.
Service of the Notice of Suspension
Fraser argues the district court erred when it determined, based on its interpretation of K.S.A.2013 Supp. 8–1002(c), that Deputy Smith properly served Fraser with the notice of suspension of his driving privileges when the deputy placed the DC–27 form with Fraser's personal effects.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Milano's Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). A fundamental rule of statutory construction requires giving effect to legislature's language rather than determining what the law should or should not be. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
K.S.A.2013 Supp. 8–1002(c) provides in pertinent part:
“When the officer directing administration of the testing determines that a person has refused a test ... the officer shall serve upon the person notice of suspension of driving of driving privileges.... If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles.”
Regarding personal service, the district judge in this case stated:
“[T]he DC–27 was ... placed in [Fraser's] personal property and given to him personally when he was released. And this comes from page 19 and page 27 of the administrative hearing transcript. I'm finding that is sufficient for personal service. There is not a requirement that the officer personally place the paper in the hands. It's that the individual while they're in custody ... be personally served....
“... [B]y placing it then with the property to be held with all of ... Fraser's other property and then personally handed to him before he was released from custody, satisfies the requirement of the statute.”
When asked by counsel for clarification regarding these findings, the court continued, “[T]he officer did not testify that he did not personally hand the paper to Mr. Fraser. It's that ... he could not testify that he did for certain, that the paper was part of [Fraser's] personal property and that he was personally served.” The district court relied on the Kansas Supreme Court's analysis in Byrd v. Kansas Dept. of Revenue, 295 Kan. 900, 905–07, 287 P.3d 232 (2012), explaining:
“There is not a requirement that the officer personally place the paper in the hands. It's that the individual, while ... in custody ... be personally served. And that personal service was accomplished through the procedures that were followed, which was the matter was filled out by the officer.”
Fraser argues for reversal, based on statutory interpretation. He contends the language of K.S.A.2013 Supp. 8–1002(c) contains clear, plain, and unambiguous language on its face directing that service shall be made in person by the officer on behalf of the division of vehicles. Fraser disagrees with the district court's finding that personal service was satisfied when Deputy Smith placed the notice with Fraser's property.
In our resolution of an issue of statutory interpretation, we must first look at the plain language of the statute in determining legislative intent. We must also consider provisions of an act in question in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012) ; see also McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006) (courts are not permitted to focus on an isolated part of an act but, instead, must consider and construe all parts together). The courts must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. Herrell v. National Beef Packing Co., 292 Kan. 730, 745, 259 P.3d 663 (2011).
We agree with Fraser that the language of K.S.A.2013 Supp. 8–1002(c) is not ambiguous. However, in determining whether the district court properly found the service requirement contained within it had been satisfied, one must also consider the provisions of K.S.A.2013 Supp. 8–1001(v) which Fraser has not mentioned. That section provides that this “act is a remedial law and shall be liberally construed to promote public health, safety and welfare.”
Black's Law Dictionary (4th Pocket ed.2011). defines a “remedial law” as “1. A law providing a means to enforce rights or redress injuries. 2. A law that corrects or modifies an existing law; esp. a law providing a new or different remedy when the existing remedy, if any, is inadequate.” K.S.A.2013 Supp. 8–1002(c) is a part of the statutory process that insures a driver whose license is going to be suspended for refusing to take a breath test receives immediate and personal notice of the suspension so as to avail himself or herself of the rights available under the law to appeal the suspension. Remedial laws require liberal construction. Liberal construction involves construing remedial legislation “ “ ‘to effectuate the purpose for which it was enacted” ‘ “; and, where a literal construction would defeat the legislative purpose, a statute should be construed according to its reason and spirit. Kite's Bar & Grill, Inc. v. Kansas Dept. of Revenue, 50 Kan.App. 493, 496–97, 329 P.3d 536 (2014) (quoting Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 [1978] ). Other panels of this court have also determined the purpose of K.S.A. 8–1002(c) is to ensure a person whose license has been suspended has notice of his or her right to appeal. See e.g., Byrd v. Kansas Dept. of Revenue, 43 Kan.App.2d 145, 154, 221 P.3d 1168 (2010), aff'd 295 Kan. 900 (2012) ; Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 355, 853 P.2d 69, rev. denied253 Kan. 856 (1993).
Here, Fraser testified he received the DC–27 within 10 minutes of being booked into jail. Clearly he was aware of his right to appeal because he exercised that right though his attorney 3 days after being arrested. These facts indicate that the service of the DC–27 on Fraser was effective and the purposes of the notice statute fulfilled.
Additionally, we note the district court apparently did not mention in rendering its ruling on this service issue that Deputy Smith's report, completed roughly at the time of the arrest, stated that he “completed a DC–27 and placed a pink copy in [Fraser's] hands.” Even though the deputy testified some 6 months later at the administrative hearing that he did not have an independent recollection of personally serving Fraser with the DC–27, this prior written report clearly amounts to support in the evidentiary record in addition to the rationale given by the district for a finding that the personal service requirement contained in K.S.A.2013 Supp. 8–1002(c) was satisfied in this case.
Affirmed.