Opinion
No. 106,752.
2012-07-27
Dustin J. HANSEN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Ellis District Court; Edward E. Bouker, Judge. Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Ellis District Court; Edward E. Bouker, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dustin J. Hansen appeals the district court's order affirming the suspension of his driver's license. He argues the officer lacked reasonable grounds to request an evidentiary breath test under the Kansas implied consent law. We affirm.
On August 10, 2008, at 3:02 a.m., Victoria Police Officer Cole Dinkel was dispatched to the location of an accident. Someone had called 9–1–1 to report that a person had fallen in the street and suffered a head injury. Upon arriving at the scene, the officer learned from witnesses that the injured person fell out of the back of Hansen's moving pickup truck. Officer Dinkel did not receive any reports of reckless driving or other inappropriate behavior. The injured person was transported by ambulance to the hospital.
Officer Dinkel contacted Hansen, who admitted he was driving his truck at the time of the accident. The officer told Hansen he had to investigate the accident just like he would an automobile injury accident. He saw that Hansen had bloodshot eyes and smelled a strong odor of alcohol emanating from his person. Hansen admitted that he had been drinking whiskey earlier that evening and had started drinking at 4 p.m. the day before.
Officer Dinkel conversed with an Ellis County Sheriff's deputy to determine the best course of action. The officer decided to “investigate further due to liabilities”—in other words, to ensure that Hansen was not intoxicated. Due to the chaotic nature of the scene, he thought it best to continue the investigation at the Law Enforcement Center (LEC). He asked Hansen to “ride over” to the LEC as a passenger, not an arrestee; Hansen agreed and rode voluntarily.
Officer Dinkel administered field sobriety tests to Hansen at the LEC. The officer observed no impairment clues on the walk-and-turn test (0 of 8) and the one-legged stand test (0 of 4). At that point, he gave Hansen the implied consent advisories and asked him if he would be willing to take a breath test; Hansen agreed. Then he read Hansen his Miranda rights. Hansen agreed to answer questions and admitted his belief that “he could not safely operate the vehicle.” Finally, after a 20–minute deprivation period, the officer asked Hansen to submit to a breath test; Hansen agreed and failed with a 0.139 blood alcohol level.
Based on the breath test result, the Kansas Department of Revenue suspended Hansen's driver's license for 1 year. He lost an administrative hearing and appealed to the district court. After hearing testimony from Officer Dinkel, the district judge affirmed the license suspension:
“[H]ere's where I think I come down on this. This is, I will admit, one of the closer cases I probably have been presented with, and I think what it comes down to is the burden of proof. I think here's where we are. We've got field sobriety tests that indicate no clues, which indicates no lack of impairment. On the other hand, we have somebody driving at 4:00 in the morning illegally, because it is illegal to carry a passenger in the bed of a truck; bloodshot eyes; odor of alcohol is strong; and he says that he was drinking whiskey from 4:00 p.m. the previous day to sometime earlier that evening.
“Very close set of facts. It's Mr. Hansen's burden. He hasn't met it.”
Hansen timely appeals.
Hansen argues the officer lacked reasonable grounds to request an evidentiary breath test. The State disagrees, citing Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150 (1998).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A breath test is a search subject to the Fourth Amendment. State v. Jones, 279 Kan. 71, 75–76, 106 P.3d 1 (2005). A law enforcement officer shall request a breath test if the officer has reasonable grounds to believe the person was driving under the influence of alcohol, and the person has been involved in a vehicle accident resulting in personal injury or death. K.S.A.2008 Supp. 8–1001(b)(1)(B).
The Kansas Supreme Court has recognized that “ ‘the issue as to whether an officer has reasonable grounds to believe someone is operating ... a vehicle while DUI is strongly related to whether that officer had probable cause to arrest.’ [Citation omitted.]” Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656, 256 P.3d 845 (2011). Probable cause exists when the totality of the circumstances known to the officer creates a reasonable belief that the defendant committed a specific crime. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010). In other words, when “ ‘the information leads a reasonable officer to believe that guilt is more than a possibility.’ “ Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 148 P.3d 538 (2006); see Allen, 292 Kan. at 657 (explaining that “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”). See also Smith, 291 Kan. at 515 (holding that defendant's list of facts did not negate the other factors presented).
Unlike in a criminal DUI case, the burden of proof is on the driver in an administrative action and subsequent appeal of that action. K.S.A. 8–1020(q); Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 462–63, 980 P.2d 1022 (1999). Generally, following a trial de novo, the appellate court reviews a district court's license suspension decision for substantial competent evidence. But in a case with undisputed facts, the appellate court exercises de novo review. Allen, 292 Kan. at 656–57.
Given the applicable legal standard, the officer here clearly had reasonable grounds, or probable cause, to believe that Hansen was DUI. The evidence against Hansen is at least as strong as that found in Campbell, in which this court affirmed the district court's conclusion that reasonable grounds had been shown. 25 Kan.App.2d at 430. There, reasonable grounds was based on the time of day–1:10 a.m.; a traffic violation—speeding; the odor of alcohol; the admission of alcohol consumption; and glazed and bloodshot eyes; Here, we have the time of day–3:02 a.m.; a traffic violation—driving with passenger in truck bed; the strong odor of alcohol; the admission of alcohol consumption: and bloodshot eyes.
Hansen contends that his passage of two field sobriety tests indicated he was not DUI and thus tipped the totality-of-the-circumstances scales in his favor. This argument has been rejected by this court on several occasions. See, e.g., Slack v. Kansas Dept. of Revenue, No. 102,908, 2011 WL 1004602, at *3, 5 (Kan.App.2011) (unpublished opinion) (despite passage of one field sobriety test, officer had reasonable grounds to believe DUI based on speeding, around 1 a.m., odor of alcohol, drinking admission, and bloodshot eyes); Dorzweiler v. Kansas Dept. of Revenue, No. 104,170, 2011 WL 1197206, at *1–2 (Kan.App.2011) (unpublished opinion) (despite passage of one-legged stand test [0 clues] and walk-and-turn test [1 clue], officer had reasonable grounds to believe DUI based on speeding, slow reaction to emergency lights, strong odor of alcohol, bloodshot eyes, crying, and antagonistic behavior).
Furthermore, this court has rejected Hansen's argument in the preliminary breath test (PBT) context. See State v. Edgar, 45 Kan.App.2d 340, 344–47, 246 P.3d 1103petition for rev. granted May 31, 2011 (officer had requisite reasonable suspicion of DUI to request PBT based on odor of alcohol and drinking admission). The Edgar court held: “[T]he fact that a driver passes one or more field sobriety tests does not dispel reasonable suspicion, as a matter of law, if other evidence justifies the officer's request for the PBT.” 45 Kan.App.2d at 347.
Here, Hansen's perfect performance on the one-legged stand and walk-and-turn tests did not negate the presence of other factors-the strong odor of alcohol, bloodshot eyes, and the admission to having consumed alcohol. See Smith, 291 Kan. at 515. Under these factual circumstances, a reasonable officer would believe that DUI was more than a mere possibility. Therefore, Officer Dinkel possessed reasonable grounds to request an evidentiary breath test under K.S.A.2008 Supp. 8–1001(b).
The district court did not err in affirming Hansen's driver's license suspension.
Affirmed.