Opinion
No. 110,721.
2014-11-26
Paul W. LEWIS, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Ness District Court; Bruce T. Gatterman, Judge.Michael S. Holland II, of Holland and Holland, of Russell, for appellant.James G. Keller and John D. Shultz, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Ness District Court; Bruce T. Gatterman, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. James G. Keller and John D. Shultz, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before McAnany, P.J., Arnold–Burger, J., and Larson, S.J.
MEMORANDUM OPINION
PER CURIAM.
A deputy stopped Paul W. Lewis for an equipment violation and requested that Lewis perform field sobriety tests, which Lewis failed. He also failed the subsequent evidentiary breath test and received notice that his driver's license would be suspended. An administrative hearing officer and the district court both upheld the suspension. Lewis now appeals, arguing that the deputy lacked reasonable grounds to request the evidentiary breath test. Because we find that there was substantial competent evidence to support the district court's conclusion, we affirm.
Factual and Procedural History
At approximately 1 a.m., Deputy Tim Turner of the Ness County Sheriffs Office stopped a vehicle due to an equipment violation, as the driver was hauling a trailer without tail lights. Brandon Mitchell, a law enforcement officer who also worked for the sheriff's office, noticed Lewis driving without tail lights on the trailer at the same time but did not initiate the traffic stop. After a short encounter with Lewis, Turner asked Mitchell to join him at the stop to perform “SFST's,” or standardized field sobriety tests, as Turner lacked the credentials to perform the tests himself.
Although Mitchell did not notice any obvious signs of impairment when he initially encountered Lewis, Turner wanted Lewis to perform field sobriety tests. Mitchell administered two standard field sobriety tests: the walk-and-turn test and the one-leg-stand test. Mitchell first administered the walk-and-turn test in a parking lot, where Lewis displayed three “clues,” or indicators of impairment; specifically, he lost his balance during the instructions, began the test before Mitchell completed the instructions, and twice stepped off the line. During the one-leg stand test, Mitchell observed two clues: Lewis put his foot back down on the ground to regain his balance and swung his arms to maintain balance. As Mitchell tested Lewis, he noticed that Lewis smelled of alcohol and that his eyes appeared glazed. Lewis also admitted during the course of their interaction that he had consumed six beers on the evening in question.
Mitchell then administered the preliminary breath test (PBT). The PBT was not discussed or admitted at the district court hearing, but the notice of suspension form and notes from the administrative hearing officer indicate that Mitchell failed. Based on the results of the field sobriety tests and PBT, Mitchell arrested Lewis, transported him to the police station, and requested he submit to an evidentiary breath test. Lewis' test revealed his blood-alcohol concentration (BAC) to be .126, which is over the legal limit and constitutes a failure of the test. At that time, Lewis received notice that his driver's license would be suspended in 30 days unless he requested an administrative hearing with the Kansas Department of Revenue (Department), which he did.
At the administrative hearing, Lewis raised two issues: (1) that Mitchell lacked reasonable grounds to request an evidentiary breath test under K.S.A.2012 Supp. 8–1001(b)(1), and (2) that Lewis never received personal service of the certification and notice of suspension form, also called the DC–27. Ultimately, the administrative hearing officer affirmed the suspension.
Lewis then petitioned the district court for review of the suspension, renewing the arguments from the administrative hearing. However, Lewis later limited his issues to “just reasonable grounds to request testing.”
At the hearing before the district court, Mitchell recounted the night in question, including Lewis' failure of the field sobriety tests, the odor of alcohol emanating from him, his glazed eyes, and his admission that he had drank several beers that evening. Mitchell indicated that Lewis exhibited three clues during the walk-and-turn test: he lost his balance during the instruction phase, he began before instructions were finished, and he stepped off the line twice. However, when asked to name the eight possible clues on the walk-and-turn test, Mitchell admitted that he did not have all eight memorized and “would need to look at ... [his] notes.” Similarly, with the one-leg-stand test, Mitchell noted two clues: Lewis put his foot down and lost his balance during the test. Mitchell admitted that he was “not a hundred percent” certain of all the possible clues without his notes. But he explained that prior to starting the testing on Lewis, he “had kind of skipped through [his] notes and looked before the test started” to remind himself of the clues. He also indicated that he had “kind of a cheat sheet that I look at before I start the test.” He further testified that he tried not to pay attention to the sheet during the test to instead “focus on the driver.”
At the close of testimony, Lewis argued that Mitchell lacked any reason to conduct field sobriety tests and that, aside from the results of those tests, Mitchell lacked reasonable grounds to request an evidentiary breath test. The Department, on the other hand, contended that the entirety of the situation—including the early hour of the morning, the failed field sobriety tests, and the admission regarding the six beers—provided reasonable grounds. The district court agreed with the Department and determined that Mitchell did indeed have reasonable grounds to request further testing. The court concluded that under the totality of the circumstances—that is, the testing coupled with Mitchell's discovery of the odor of alcohol and Lewis' admission that he had consumed six beers that evening—led to there being reasonable grounds to request testing.
Lewis timely appealed the district court's ruling.
Analysis
The sole issue on appeal is whether Mitchell had reasonable grounds to request that Lewis submit to an evidentiary breath test under K.S.A.2012 Supp. 8–1001(b)(l).
Standard of review
When reviewing a district court's trial de novo in a driver's license suspension case, this court generally applies a substantial competent evidence standard. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010). Under this standard, this court “must determine whether the district court's factual findings are supported by substantial competent evidence,” or “ ‘such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ “ Smith, 291 Kan. at 514; Shrader v. Kansas Dept. of Revenue, 45 Kan.App.2d 216, 219, 247 P.3d 681 (2011), aff'd 296 Kan. 3, 290 P.3d 549 (2012). In reviewing the record under this standard, this court shall not reevaluate the district court's determination regarding the weight of conflicting evidence or credibility of witnesses. Shrader, 45 Kan.App.2d at 219. Importantly, the licensee—in this case Lewis—has the burden at the district court level to show that the agency decision should be set aside. K.S.A.2012 Supp. 8–1020(q).
Reasonable grounds to believe a person is operating a vehicle while under the influence of alcohol—in general.
Before a law enforcement officer requests a person to submit to one of the tests embraced by our Kansas implied consent statute, the officer must first have “reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both,” and the person has to have been arrested or taken into custody “for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.” K.S.A.2012 Supp. 8–1001(b)(1)(A). “ ‘Reasonable grounds to believe’ a driver is under the influence ... demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 631, 176 P.3d 938 (2008). The term reasonable grounds is synonymous with probable cause, and exists “where the officer's knowledge of the surrounding facts and circumstances creates a reasonable belief that the defendant committed a specific crime.” Smith, 291 Kan. at 515; see Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 22–23, 290 P.3d 555 (2012).
So with that understanding of reasonable grounds, we will next examine whether there was substantial competent evidence to support the district court's decision that such grounds existed.
The district court's decision is supported by substantial competent evidence.
In his brief, Lewis emphasizes that Mitchell noticed no problems with his driving prior to administering the field sobriety tests. Likewise, he points out that Turner initiated the stop for an equipment violation rather than a fault in his driving. These factors, he argues, suggest that Mitchell lacked reasonable grounds to request testing. But Lewis also fails to recognize all the other circumstances that led Mitchell to the reasonable belief that he had operated his vehicle under the influence.
“Generally, when a defendant admits to consuming alcohol, has bloodshot eyes, has committed traffic infractions, and makes a few albeit limited errors on field sobriety tests, Kansas courts have concluded that the officer had reasonable grounds to request a breath test.” Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 659, 256 P.3d 845 (2011). A review of Smith, Allen, and Schrader, which are similar to the instant case, is helpful to our analysis.
First, in Smith, a state trooper initiated a traffic stop due to the same equipment violation present in the instant case—that is, defective tail lights on a trailer. The trooper observed that the driver, Smith, smelled of alcohol and that he had bloodshot, watery eyes. Smith admitted to drinking that evening, and the trooper found an open beer bottle and full can of beer in Smith's truck. Smith failed the walk-and-turn test, but passed the one-leg-stand test by presenting only one clue. He also passed two nonstandardized field sobriety tests, making a total of only one mistake. Ultimately, Smith submitted to and failed an evidentiary breath test. Smith subsequently argued that the trooper lacked reasonable grounds to request the test.
When considering Smith's case, our Supreme Court summarized the factors that supported the trooper's decision, including the odor of alcohol coming from Smith, Smith's watery and bloodshot eyes, Smith's admission that he had been drinking, his failure of the walk-and-turn test, and the clue he presented during the one-leg-stand test. 291 Kan. at 515. Although Smith, like Lewis, pointed out several factors that suggested he was not impaired—including that he reacted appropriately to the traffic stop and showed no signs of impairment until the field sobriety tests-our Supreme Court reasoned that those factors “hardly diminish the other clues exhibited. We do not find these facts negate the others in the determination as to whether the trooper should have requested ... the evidentiary breath test at the station.” 291 Kan. at 515.
Like Smith, the driver in Allen demonstrated some behaviors that suggested he was not impaired: he reacted appropriately to being stopped, he passed the one-leg-stand test, and he communicated effectively with the officer. However, he also committed traffic infractions, failed the walk-and-turn test, smelled of alcohol, admitted to drinking, and had bloodshot and watery eyes. 292 Kan. at 657. These indicators, our Supreme Court reasoned, provided reasonable grounds to request the evidentiary breath test. 292 Kan. at 660.
Similarly, in Shrader, this court determined that reasonable grounds existed when the driver, who initially “appeared unaware that he was being subjected to a traffic stop” and started to walk away from the patrol car, demonstrated poor balance, smelled of alcohol, slurred his speech, and admitted to drinking. 45 Kan.App.2d at 220; see also Sjoberg v. Kansas Dept. of Revenue, No. 103,937, 2012 WL 3966511, at *8–9 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1247 (2013) (officer had reasonable grounds to request testing when the driver, who was driving appropriately and did not struggle with communication or coordination, exhibited bloodshot eyes, smelled of alcohol, admitted to drinking, and failed the walk-and-turn and one-leg-stand tests with two clues each).
Although Lewis committed no traffic infractions related to his driving, Lewis admitted during the early morning stop to drinking six alcoholic beverages. Mitchell observed that he had glazed eyes. Lewis failed both the walk-and-turn and one-leg-stand tests. Moreover, Lewis also smelled of alcohol.
In support of his position, Lewis argues that he was stopped only for an equipment violation, evidenced no bad driving, and had “[n]o difficulty in providing a driver's license, no slurred speech, [and] no difficulty communicating.” In other words, the officers had no basis to request that Lewis exit the car to take the various dexterity tests. But this argument fails for two reasons. First, it misstates the facts. Lewis is correct that the evidence supports a conclusion that that there was no bad driving and that Mitchell had no reason to believe Lewis was under the influence of alcohol until after Lewis stepped from the car. And we know Mitchell did not check the boxes for “slurred speech” or “difficulty communicating” on the DC–27 form as the basis for his reasonable grounds to believe that Lewis was under the influence of alcohol. But there is no evidence about how much, if any, difficulty Lewis exhibited in obtaining his driver's license. Moreover, we do not know what information the first officer, Turner, possessed. He is the one that made the initial contact with Lewis, requested that Lewis step from the car, and summoned Mitchell to do additional testing. Turner was not called to testify at the hearing before the district court, and Lewis did not testify about their conversation, if there was conversation, at the car.
Unlike a motion to suppress where the burden is on the State to present evidence of the validity of the search and the scope of the detention, the burden is on the driver in a civil driver's license proceeding to show that the agency decision should be set aside. See K.S.A. 22–3216(2); K.S.A.2012 Supp. 8–1020(q). As the district court noted, Mitchell was entitled to rely on the fact that Turner believed tests were necessary. There was no evidence presented by Lewis to indicate that Turner did not have a basis to ask Lewis to step from the car.
Second, reasonable grounds to believe a driver is operating a vehicle under the influence of alcohol and reasonable suspicion sufficient to prolong a traffic stop beyond its initial purpose under the Fourth Amendment to the United States Constitution jurisprudence are two distinct legal concepts. See Martin, 285 Kan. at 631 (“ ‘Reasonable grounds to believe’ a driver is under the influence and ‘reasonable suspicion’ sufficient under constitutional law are distinct legal concepts.”). Although Lewis suggests on appeal that the officers lacked any reason to request the field sobriety tests, we generally do not examine the officer's conduct from a constitutional Fourth Amendment perspective in an appeal from a driver's license suspension proceeding. See 285 Kan. at 631–33. In fact, the only time this court considers Fourth Amendment principles in a civil driver's license proceeding is when a driver challenges the probable cause for the arrest under K.S.A.2012 Supp. 8–1001(b). See Sloop, 296 Kan. at 23 (holding that the arrest for driving under the influence must be supported by probable cause before an officer can request testing under the Kansas implied consent statute). Otherwise, our Supreme Court has held that the exclusionary rule should not be applied in civil driver's license proceedings arising out of an arrest for driving under the influence. Martin, 285 Kan. at 641–42. Whether the stop exceeded its initial scope as an equipment violation is an issue properly raised in a motion to suppress during a criminal proceeding. If a court then finds that the officer had no basis to ask Lewis to step from the car, it is the exclusionary rule doctrine that would require the suppression of all subsequent evidence obtained from that stopevidentiary breath test included.
In sum, in a driver's license suspension civil proceeding, we look only to whether the officer had reasonable grounds (probable cause) to request the test and probable cause to arrest the driver for driving under the influence of alcohol. K.S.A.2012 Supp. 8–1001(b)(1). In making that determination, a court considers the “behavior of a driver before, during, and after he or she is behind the wheel.” Martin, 285 Kan. at 631. A review of the record here indicates that under a totality of the circumstances, the evidence before the district court was such that a reasonable person would accept it as sufficient to support a conclusion: namely, the conclusion that Mitchell had reasonable grounds to request further testing. Accordingly, we affirm the district court's decision.
Affirmed.