Opinion
No. 105,546.
2012-09-28
Michael Allen LaRUE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge. Caleb Boone, of Hays, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, of Kansas Department of Revenue, for appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge.
Caleb Boone, of Hays, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, of Kansas Department of Revenue, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael Allen LaRue appeals from a ruling of the Ellis County District Court finding sufficient grounds for the Kansas Department of Revenue's administrative decision to suspend his driving privileges because he refused to submit to a breath test after being arrested for driving under the influence in violation of K.S.A. 8–1567. The district court made the correct call. We affirm LaRue's suspension.
On January 21, 2009, Hays Police Officer Joshua Burkholder made several trips to LaRue's home to serve him with notice regarding the City's intention to remove a dilapidated outbuilding from his property if he did not take it down himself within 30 days. Burkholder did not find LaRue there and had not served the notice. Just after 10 p.m., as his shift was ending, Burkholder made a final trip to LaRue's house. He did not have the notice with him at that time. Upon arriving, Burkholder saw a pickup truck in the driveway with the engine running and the brake lights on. Burkholder checked the tag on the truck and confirmed the vehicle was registered to LaRue. He then walked up the driveway toward the truck and saw a single occupant sitting in the driver's seat. But Burkholder could not identify the individual because of the truck's tinted windows.
Burkholder saw the backup lights on the truck come on, indicating the driver was shifting gears. Burkholder approached the driver's side door and indicated the occupant should roll down the window. The driver did so and, in response to Burkholder's question, identified himself as LaRue. Burkholder intended to call the police department and have his supervisor or another officer deliver the notice so he could serve LaRue. But when LaRue rolled down the window, Burkholder smelled a strong odor of alcohol coming from inside the cab. Burkholder continued to speak with LaRue as he waited for backup officers to arrive. LaRue displayed common characteristics of someone who had been drinking to the point of intoxication—slurred and mumbled speech and bloodshot, watery eyes.
LaRue then got out of his truck and headed toward his front door. Burkholder told him to stop because he was under arrest for driving under the influence. LaRue, who is a very large man, attempted to push past Burkholder. Burkholder restrained LaRue and, with the help of another officer, took him into custody. At the police station, LaRue was duly advised of his rights and obligations under the Kansas implied consent statutes. LaRue then refused to take a breath test. In due course, the KDR suspended LaRue's driving privileges based on the refusal. LaRue requested and received an administration hearing. The administrative law judge upheld the suspension. LaRue exercised his right to a trial to the district court on the suspension. Following the trial, the district court affirmed the suspension. LaRue has timely appealed that decision to this court.
LaRue raises two challenges here. First, he contends Burkholder engaged in an unreasonable search and seizure violating his rights under the Fourth Amendment to the United States Constitution. In a criminal prosecution, a court may prohibit the State from offering evidence obtained as the result of an improper search or seizure to remedy a Fourth Amendment violation. If there were a violation, the exclusionary rule presumably would bar Burkholder's observations and other evidence of LaRue's intoxication in a prosecution for DUI under K.S.A. 8–1567. We need not delve into a substantive analysis of Burkholder's actions and whether they comported with the Fourth Amendment. The Kansas Supreme Court has held the exclusionary rule should not be applied in administrative driver's license suspension proceedings because the deterrent purpose of the rule in fostering constitutionally correct conduct on the part of government agents may be sufficiently assured by excluding evidence from any related prosecution for the DUI offense itself. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 8, 176 P.3d 938 (2008).
The Martin court concluded any additional deterrent effect from applying the rule in suspension proceedings would be minimal especially as compared to the compelling public purpose in suspending driving privileges of individuals who either fail blood-alcohol tests or attempt to thwart DUI prosecutions by refusing those tests. 285 Kan. 625, Syl. ¶ 8. The former plainly represent a physical menace to other drivers sharing the roadways. The latter almost certainly believe they had consumed enough alcohol to be guilty of driving under the influence, prompting their refusal to take chemical tests establishing their blood-alcohol levels. They, too, likely represent a menacing presence behind the wheel. The Martin decision controls and undercuts LaRue's argument for exclusion of any of the evidence offered in the administrative hearing or the district court trial related to the suspension of his driving privileges.
Second, LaRue contends Burkholder lacked “reasonable grounds” to conclude he may have been operating or attempting to operate the truck in violation of K.S.A. 8–1567, and Burkholder, therefore, had a legally insufficient basis to arrest him and to request a breath test. If LaRue were correct, the suspension would be erroneous. But there was more than enough evidence to satisfy the required standard.
Under K.S.A.2011 Supp. 8–1001(b), a law enforcement officer “shall request a person to submit to a test” if the officer “has reasonable grounds to believe the person was operating or attempting to operate a vehicle under the influence of alcohol” and the person has been arrested for that offense. The appellate courts have equated the reasonable grounds required under K.S.A.2011 Supp. 8–1001 to probable cause to believe a person has committed a criminal offense. The Kansas Supreme Court recently reiterated that view and noted: “Probable cause exists where the officer's knowledge of the surrounding facts and circumstances 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). The standard has been set out in the often-cited case of Sullivan v. Kansas Dept of Revenue, 15 Kan.App.2d 705, 707, 815 P.2d 566 (1991): “It is sufficient [to establish reasonable grounds] if the information leads a reasonable officer to believe that guilt is more than a possibility.” In the legal scheme of burdens of proof, probable cause imposes a comparatively low threshold falling below, for example, the typical civil burden of more probably true than not true.
When a driver challenges the administrative suspension of his or her driving privileges for a test refusal, the district court conducts a de novo hearing. K.S.A.2011 Supp. 8–1020(p). The driver bears the burden of proving the agency action should be set aside. K.S.A.2011 Supp. 8–1020(q). On appeal in suspension cases, we review factual findings of the district court to determine if they are supported by substantial competent evidence. Smith, 291 Kan. at 514;Schoen v. Kansas Dept. of Revenue, 31 Kan.App.2d 820, 822, 74 P.3d 588 (2003); Lincoln v. Kansas Dept. of Revenue, 18 Kan.App.2d 635, 637, 856 P.2d 1357,rev. denied 253 Kan. 859 (1993). Substantial competent evidence refers to testimony, documents, stipulations, or other information received during a proceeding that a reasonable person would accept as furnishing an adequate basis for a particular conclusion. Hodges v.. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009); Schoen, 31 Kan.App.2d at 823–24. On appeal under that standard, we neither make credibility findings nor credit evidence conflicting with the trial court's fact determinations. Hodges, 288 Kan. 56, Syl. ¶ 7. If a point on appeal in a suspension case turns on a question of law, we apply a de novo standard of review to that issue. Gudenkauf v. Kansas Dept. of Revenue, 35 Kan.App.2d 682, 683, 133 P.3d 838 (2006).
Burkholder had plenty of evidence that LaRue was operating or attempting to operate the truck. Either is sufficient to support a DUI conviction. See K.S.A. 8–1567(a). LaRue was sitting behind the wheel of the truck with the engine running and the brake lights on, indicating the truck had been recently moved or was about to be moved. He was neither passed out nor asleep at the wheel. That's sufficient to furnish reasonable grounds that LaRue, at the very least, attempted to operate the truck. See State v. Kendall, 274 Kan. 1003, 1011, 58 P.3d 660 (2002) (conviction of attempted DUI properly based on evidence defendant was sitting in a truck with its engine running in the middle of a street; no movement of the vehicle required to prove an attempt); State v. Adame, 45 Kan.App.2d 1124, 1129, 257 P.3d 1266 (2011) (sitting in driver's seat and trying to start vehicle sufficient to establish attempt under DUI statute).
A driver may be found guilty of DUI if his or her blood-alcohol level is .08 or more. K.S.A. 8–1567(a)(1), (2). If the driver exceeds that level, his or her ability to operate a motor vehicle need not be degraded to any appreciable extent. In that respect, DUI is a status offense once the .08 threshold has been crossed. That is, the driver is legally deemed to be impaired if his or her blood-alcohol level is .08 or more. In turn, an officer need only have reasonable grounds to believe a driver meets that measure of impairment to request a blood-alcohol test. See K.S.A.2011 Supp. 8–1002(h). Here, LaRue's appearance coupled with the strong odor of alcohol in the truck cab furnished reasonable grounds for Burkholder to conclude LaRue's blood-alcohol level could well exceed .08.
In sum, Burkholder had reasonable grounds to believe LaRue was attempting to operate his truck while impaired within the meaning of K.S.A. 8–1567. In turn, Burkholder properly arrested LaRue for DUI and properly requested he take a breath test. The district court properly upheld the KDR's order suspending LaRue's driving privileges for refusing the test.
Affirmed.