Opinion
No. 107,154.
2013-01-11
Christopher K. KUHN, Appellant/Cross-appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellee/Cross-appellant.
Appeal from Rush District Court; Bruce T. Gatterman, Judge. Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant/cross-appellee. James G. Keller, deputy general counsel, Kansas Department of Revenue, for appellee/cross-appellant.
Appeal from Rush District Court; Bruce T. Gatterman, Judge.
Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant/cross-appellee. James G. Keller, deputy general counsel, Kansas Department of Revenue, for appellee/cross-appellant.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal by Christopher Kuhn of his driving license suspension. Kuhn challenges the constitutionality of K.S.A.2010 Supp. 8–1012. At the same time, we consider a cross-appeal by the Kansas Department of Revenue of the district court's finding that the arresting officer here, in the absence of a preliminary breath test, did not have reasonable grounds to request a breath test for alcohol. Because an appellate court avoids making any unnecessary constitutional decisions when there is a valid alternative ground for relief, we will consider the cross-appeal first.
There is no dispute about the facts.
Initially, the Department administratively suspended Kuhn's license for failing an evidentiary breath test under the authority of K.S.A.2010 Supp. 8–1014. Kuhn asked for judicial review. The parties submitted stipulated facts and written arguments to the district court for a determination whether or not the arresting officer had reasonable grounds to believe Kuhn was operating a vehicle while under the influence of alcohol, see K.S.A.2010 Supp. 8–1020(h)(2)(A), and whether the preliminary breath test statute, K.S.A.2010 Supp. 8–1012, was unconstitutional.
The district court affirmed the Department's administrative suspension of Kuhn's driving license based on the following relevant stipulated facts:
• Kuhn's vehicle rear-ended a baler that was marked with only a reflective triangle for slow-moving vehicles.
• The time of the collision was approximately 6:30 p.m. on August 28, 2010.
• It occurred on U.S. Highway 183 in Rush County, Kansas.
• There were no personal injuries, but there was property damage to the vehicles.
• Deputy Baalman contacted Kuhn at the scene and noted that he had an odor of alcohol coming from his person.
• Kuhn also had slurred speech.
• Kuhn admitted that he had consumed “enough” alcohol, and had been drinking Wild Turkey.
• Kuhn was given the preliminary breath test (PBT) warnings. Kuhn submitted to a PBT, and the results showed he was over the legal limit.
In affirming, the district court held that the aforementioned stipulated facts provided Deputy Baalman reasonable grounds to believe that Kuhn was driving while under the influence of alcohol. The district court went on to rule that Deputy Baalman did not have reasonable grounds to request testing under K.S.A.2010 Supp. 8–1001(b) without the PBT results. The district court also found K.S.A.2010 Supp. 8–1012 constitutional.
We first look at the cross-appeal.
The Department challenges the district court's finding that the facts available to Deputy Baalman at the scene provided sufficient reasonable grounds to believe Kuhn was under the influence only when taken together with Kuhn's PBT results. Essentially the Department maintains that resolving Kuhn's constitutional challenge to K.S.A.2010 Supp. 8–1012 is unnecessary given that the facts provided Deputy Baalman reasonable grounds to request an evidentiary breath test irrespective of the PBT results. We agree.
A brief review of the law is helpful at this point. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Similarly, determining a statute's constitutionality is a question of law subject to unlimited review. State v. Gaona, 293 Kan. 930, 957, 270 P.3d 1165 (2012). An appellate court typically reviews a district court's decision to suspend a driving license using the substantial evidence standard. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 657, 256 P.3d 845 (2011) (citing Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 233–34, 32 P.3d 705 [2001] ).
But this case arrives in our court in a different posture. Since the facts here are undisputed, this court's review is unlimited. See Allen, 292 Kan. at 657;Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008) (court held appellate court's review is unlimited when issues in a driving license suspension case involve strictly a legal question). Unlike the substantial evidence standard of review, this court's review must be made without deference to the district court's conclusion. See State v. Jones, 270 Kan. 526, 527, 17 P.3d 359 (2001). If the stipulated facts show that the PBT results were not essential to the reasonable grounds determination, then we will follow the guidance set forth in Allen, 292 Kan. 653, Syl. ¶ 3, and avoid making any unnecessary constitutional decisions when there is a valid alternative ground for relief. In Allen, the Kansas Supreme Court declined to address the constitutionality of the PBT in a driving license suspension case because other evidence established the officer had reasonable grounds to request an evidentiary breath test. 292 Kan. at 660; see Smith, 291 Kan. at 519.
An officer must have reasonable grounds to request a breath test .
To request an evidentiary breath test under K.S.A.2010 Supp. 8–1001(b), an officer must have reasonable grounds to support his or her suspicion that a driver was operating a vehicle while under the influence of alcohol. Shrader v. Kansas Dept. of Revenue, 45 Kan.App.2d 216, 219, 247 P.3d 681 (2011). Kansas courts rely on “probable cause” standards when evaluating whether an officer had reasonable grounds to request an evidentiary breath test. See Smith, 291 Kan. at 515;Gross v. Kansas Dept. of Revenue, 26 Kan.App.2d 847, 849, 994 P.2d 666,rev. denied 269 Kan. 932 (2000).
Probable cause is the reasonable belief that a specific crime has been or is being committed by the defendant. And it is determined by evaluating the totality of the circumstances without any rigid application of the factors and considering “the information and fair inferences therefrom, known to the officer at the time of the arrest.” Allen, 292 Kan. at 656–57. Our Supreme Court, however, has clarified that an officer may still have reasonable grounds sufficient to request a test under K.S.A.2011 Supp. 8–1001(b) but have insufficient probable cause to arrest the driver. See Smith, 291 Kan. at 514 (citing Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 148 P.3d 538 [2006] ).
To support its ruling, the district court reasoned that the facts in this case were distinguishable from those in Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 233 P.3d 286 (2010). The district court noted:
“In Poteet, the driver sustained personal injury from a finding that the driver'... so lost control of the car that it rolled onto its side,' and that the driver drove through a field and a barbed wire fence. By contrast, in this case, the driving error was limited to rear-ending a slow-moving vehicle.”
The district court read Poteet too restrictively. While it is true that this court considered the facts that the driver in Poteet drove through a field and a barbed wire fence in making its independent conclusion that the officer in that case had reasonable grounds to ask for a breath test, it considered those facts in conjunction with the officer's statement that he relied upon an odor of alcohol emanating from the driver. The district court erroneously concluded from this that the nature of the collision or the extent of the property damage to Kuhn's vehicle and the baler was dispositive in this case when it determined whether Baalman had sufficient reasonable grounds to request testing under K .S.A.2010 Supp. 8–1001(b). More importantly, the district court failed to recognize that “all of the factual information available to officers when the test was requested may be considered when determining whether the officers had a sufficient basis for the request.” Poteet, 43 Kan.App.2d at 416; see Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 768, 758 P.2d 226,rev. denied 243 Kan. 777 (1988).
Under K.S.A.2010 Supp. 8–1001(b), an officer must request testing if the officer has reasonable grounds to believe the driver was driving while under the influence and the nature of the vehicle accident or collision falls under one of two express conditions. First, if the accident or collision resulted in “property damage” or a personal injury of a nonserious nature. K.S.A.2010 Supp. 8–1001(b)(1)(B). Alternatively, if the accident or collision resulted in serious injury or death of any person, including the driver, and the driver could be cited for a traffic offense. K.S.A.2010 Supp. 8–1001(b)(2). Notably, the Kansas Legislature has indicated that an officer has probable cause to believe a driver is under the influence of alcohol whenever the driver operates a vehicle in such a manner as to cause serious injury to any person including the driver. K.S.A.2010 Supp. 8–1001(p).
Thus, the relevant statutory requirement is found under K.S.A.2010 Supp. 8–1001(b)(1)(B). The stipulated facts do not indicate any injuries occurred. The parties, however, stipulated that both Kuhn's vehicle and the baler sustained property damage because of the collision. It is immaterial whether the property damage to the vehicle occurred because the driver error caused a serious single-vehicle accident similar to Poteet or, as the facts indicate here, a rear-end collision into a slow-moving baler. The statute does not distinguish between the type of accident or collision and the extent of property damage to the vehicle or vehicles. What matters is only that property damage occurred. See K.S.A.2010 Supp. 8–1001(b)(1)(B).
Having satisfied the requirements of K.S.A.2010 Supp. 8–1001(b)(1)(B), the question becomes whether Deputy Baalman had reasonable grounds to request an evidentiary breath test. Despite the express condition under K.S.A.2010 Supp. 8–1001(b)(1)(B) being a separate requirement above and beyond Deputy Baalman's need for reasonable grounds, Deputy Baalman could also consider the facts of the collision in his determination of reasonable grounds. See K.S.A.2010 Supp. 8–1001(b); Poteet, 43 Kan.App.2d at 416.
The stipulated facts certainly reveal that Kuhn was an impaired driver. Deputy Baalman arrived at the scene of an accident on U.S. Highway 183 in which he observed Kuhn's vehicle had rear-ended a baler marked with a triangular-shaped reflective emblem for slow-moving vehicles. The record does not indicate, and Kuhn does not allege, that the baler had violated K.S.A. 8–1717. The collision occurred in August at approximately 6:30 p.m. The dashboard-camera evidence submitted to the district court shows the accident occurred during daylight hours on a clear, sunny day. In Kansas, a driver is required to keep his or her vehicle under proper control and drive within his or her range of vision so the driver can stop, slow down, or turn aside to avoid colliding with another vehicle. See Schmeck v. City of Shawnee, 231 Kan. 588, 591, 647 P.2d 1263 (1982). Once Deputy Baalman encountered Kuhn, he noticed the odor of alcohol coming from Kuhn and that his speech was slurred. And Kuhn admitted to Deputy Baalman that he had consumed “enough” alcohol, including Wild Turkey bourbon, prior to the collision with the baler. The totality of the circumstances was certainly sufficient for Deputy Baalman to have the reasonable belief that Kuhn was driving while under the influence.
Such a finding is in accord with Poteet, which found that the odor of alcohol coming from the driver, the driver's admission she had been drinking alcohol, and the facts of the single-vehicle accident provided sufficient reasonable grounds to believe that the driver was under the influence. 43 Kan.App.2d at 412–17.
The Department correctly points out that the facts here are also similar to those in Fleming v. Kansas Dept. of Revenue, No. 97,182, 2007 WL 2178261 (Kan.App.2007) (unpublished opinion). In Fleming, this court held that the odor of alcohol coming from the driver, the driver's bloodshot eyes, and the driver's admission he had been drinking alcohol provided reasonable grounds to believe that the driver at the scene of a single-vehicle accident was under the influence of alcohol. In doing so, the panel noted that this court in Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431–32, 962 P.2d 1150,rev. denied 766 Kan. 1107 (1998), and Gross, 26 Kan.App.2d at 848–50, had found probable cause for testing where the arresting officer detected the odor of alcohol on the driver's breath, the driver admitted consuming alcohol, and the driver's eyes appeared bloodshot and/or glazed. Fleming, 2007 WL 2178261, at *2.
In response, Kuhn argues that Fleming is not dispositive because unpublished opinions are only persuasive authority. See Supreme Court Rule 7.04(f) (2011 Kan. Ct. R. Annot. 57.) Instead, Kuhn claims that this court's opinion in City of Norton v. Wonderly, 38 Kan.App.2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008), which was issued the same year as Fleming, is more relevant to the determination of whether probable cause exists.
Fleming and the decisions it relies upon are all persuasive enough to convince us that Deputy Baalman had reasonable grounds to believe that Kuhn was driving while under the influence. Further, Wonderly is easily distinguishable from Kuhn's case. Wonderly involved the appeal of a criminal conviction for driving while under the influence in which this court addressed whether the officer had probable cause to make an arrest, whereas Kuhn is appealing an administrative license suspension in which the issue is whether Deputy Baalman had reasonable grounds to believe Kuhn was driving while under the influence and request testing. See 38 Kan.App.2d at 804. Civil proceedings under K.S.A. 8–1001 et seq. and criminal proceedings under K.S.A.2010 Supp. 8–1567 are “wholly separate from one another and are intended to serve two different purposes.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 642, 176 P.3d 938 (2008); see State v. Mertz, 258 Kan. 745, 758–61, 907 P.2d 847 (1995).
We think Kuhn is asking this court to reweigh the evidence regarding the impact his admission of drinking “enough” alcohol, slurred speech, and the odor of alcohol coming from his person had on Deputy Baalman's reasonable grounds determination prior to requesting the PBT. Kuhn contends “the accident that occurred did not involve [Kuhn] losing control of his vehicle, and there were no injuries to provide [Deputy Baalman] automatic probable cause to believe [Kuhn] was under the influence of alcohol.” The facts indicate that Kuhn did not control his vehicle sufficiently to avoid a rear-end collision with a properly marked baler traveling at a slow speed during daylight hours. More importantly, Poteet, contrary to the district court's reasoning, neither suggests, let alone stands for, the proposition that reasonable grounds only exist if the facts of the collision indicate the driver lost control of the vehicle to the extent that it caused major property damage, or that the driver was injured. As discussed previously, K.S.A.2010 Supp. 8–1001(b)(l)(B) only requires property damage.
Here, Deputy Baalman had reasonable grounds under K.S.A.2010 Supp. 8–1001(b) to ask Kuhn to take an evidentiary breath test irrespective of any PBT results. Because the PBT results were not essential to the reasonable grounds determination, we need not address the constitutionality of K.S.A.2010 Supp. 8–1012. See Allen, 292 Kan. 653, Syl ¶ 3.
The district court did not err in affirming the administrative suspension of Kuhn's driving license. But the district court did err in finding that the facts available to Deputy Baalman provided sufficient reasonable grounds to believe Kuhn was driving while under the influence only when taken together with Kuhn's PBT results. Accordingly, we reverse the district court's finding on that point. We affirm the district court's affirmation of Kuhn's license suspension. We dismiss Kuhn's appeal because it is moot.
Affirmed in part, reversed in part, and dismissed in part.