Opinion
No. 109,025.
2013-10-25
Carol McCLURE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Thomas District Court; Glenn D. Schiffner, Judge. Troy V. Huser, of Huser Law Offices, P.A., of Manhattan, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Thomas District Court; Glenn D. Schiffner, Judge.
Troy V. Huser, of Huser Law Offices, P.A., of Manhattan, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Carol McClure appeals the district court ruling that affirmed the administrative suspension by the Kansas Department of Revenue (KDOR) of her driver's license for refusal to take a breath test. She argues the arresting officer did not have reasonable grounds to believe she was operating or attempting to operate her vehicle while under the influence of alcohol, drugs, or both. We conclude the decision of the district court was supported by substantial competent evidence and its legal conclusion was correct. We affirm.
On October 3, 2010, Trooper Perry Frey of the Kansas Highway Patrol arrested McClure after he received a dispatch advising of a possible drunk driver leaving a convenience store in Goodland. He testified he located the vehicle described in the dispatch about five blocks away from the convenience store. Shortly thereafter, he observed the driver fail to use a turn signal. He continued to follow the vehicle and observed it stop at an intersection that did not have a stop sign, traffic light, or any other vehicles in it. He caught up to the vehicle, turned on his emergency lights, and the vehicle pulled over. As it did, the vehicle almost struck the curb but otherwise the driver successfully pulled over and parked.
Trooper Frey then approached the vehicle and asked the driver, McClure, for her driver's license, registration, and proof of insurance. McClure was “kind of slow” to respond but did produce the requested documentation. While talking to McClure, Trooper Frey noticed an odor of intoxicants and that her eyes were bloodshot and watery. McClure denied that she had consumed alcohol and explained to Trooper Frey that he was smelling a French hair gel product that had been in her car for the last 3 weeks. McClure testified that as a professional hair stylist, it was not unusual for her to have many hair care products in her vehicle.
In order to determine whether the odor was alcohol from McClure or from the hair products, Frey asked McClure to exit the vehicle. As she did so, trash blew out and the trooper observed her leaning against the vehicle and having trouble with her fine motor skills while trying to recover the trash. Once she was outside the car, he could smell the alcohol on her breath. Frey conducted an HGN test but did not administer other field sobriety tests because of the strong wind. He testified that during the HGN test, McClure was swaying back and forth.
Trooper Frey requested McClure to submit to a preliminary breath test. However, when he went back to his vehicle to retrieve the test, McClure got back in her car and drove away. He followed her approximately eight blocks to her home. At trial, McClure testified her mother had been in the vehicle with her during the stop. She stated her mother had suffered a traumatic brain injury 3 years prior to these events and she was “throwing a tantrum” because of the sirens and the lights. McClure said she then became afraid her mother might get out of the car and fall. McClure also testified she had told Trooper Frey she needed to take her mother home and offered to have him follow her.
Trooper Frey's testimony did not mention anything about McClure's mother or whether McClure had asked him to follow her to her home. When Trooper Frey arrived at McClure's residence, McClure was not assisting her mother. Instead, he observed her “fleeing to her house.” A police officer who had also arrived then apprehended and arrested McClure. At the police station, Trooper Frey provided the implied consent notices to McClure both orally and in writing. He requested that she take a breath test, and she refused.
On the “Officer Certification and Notice of Suspension” form, Trooper Frey listed the following facts as the reasonable grounds for his belief that McClure was under the influence of alcohol—odor of alcoholic beverages, failed sobriety test, slurred speech, bloodshot eyes, the refusal of the preliminary breath test, driving clues during the chase, and the HGN test.
The KDOR suspended McClure's driver's license. An administrative hearing officer reviewed the suspension and affirmed the administrative action. McClure filed a petition for judicial review. The district court, after hearing testimony from Trooper Frey and McClure and watching the video taken from Trooper Frey's police cruiser, affirmed the hearing officer's decision. The court clarified that it was only determining whether the arresting trooper had reasonable grounds to believe or suspect that McClure was under the influence of alcohol. Its journal entry stated McClure had failed to meet her burden to prove the certifying officer lacked reasonable grounds to request that she take a breath test after she was arrested.
In this appeal, McClure again argues Trooper Frey did not have reasonable grounds to believe she had been operating her car under the influence of alcohol. Without such grounds, he was not authorized to request a breath test for alcohol—the test that McClure refused after her arrest, resulting in the suspension of her license. See K.S.A.2010 Supp. 8–1001.
On appeal, we determine whether substantial evidence supports the district court's factual findings. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). If the facts are so supported, then we must independently determine whether those facts provided reasonable grounds for the officer to believe that McClure had been operating a vehicle under the influence of alcohol. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656–58, 256 P.3d 845 (2011), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012).
We first note the findings of the district court. The court based its decision on Trooper Frey's testimony that (1) McClure failed to use her turn signal, (2) she stopped at an uncontrolled intersection, (3) Trooper Frey smelled alcohol coming from the vehicle, (4) he smelled alcohol on McClure's breath once she exited the vehicle, (5) McClure had bloodshot eyes, (6) she was argumentative with him, and (7) she showed impaired judgment by choosing to leave the scene. The court specifically chose not to consider whether McClure had been swaying while she was outside of her vehicle because the court did not know whether the slight swaying shown on the video was caused by consumption of alcohol or by the windy conditions. When we compare the trial testimony and the video recording from the trooper's police cruiser to the district court's findings, it is readily apparent that substantial evidence supported those factual findings.
Based upon the issue McClure raises, we must next decide whether the facts as established by the district court support its conclusion that Trooper Frey had reasonable grounds to request McClure take a breath test after being arrested. In other words, did the officer have reasonable grounds to believe that McClure had been driving the vehicle and, while doing so, she was either so intoxicated that she was incapable of driving safely or that her blood-alcohol concentration would have exceeded .08. See K.S.A.2010 Supp, 8–1001(b); K.S.A.2010 Supp. 8–1567(a)(1), (a)(3).
In looking to other decisions of the appellate courts of this state in our analysis of McClure's argument, we see that “Kansas courts evaluate ‘reasonable grounds' by looking to probable cause standards. [Citation omitted.] ‘Probable cause is determined by evaluating the totality of the circumstances,’ giving consideration to ‘the information and fair inferences therefrom, known to the officer at the time of arrest,’ with ‘no rigid application of factors.’ “ Swank, 294 Kan. at 881 (quoting Alien, 292 Kan. at 656–57). We add that in Sloop, our Supreme Court clarified that Kansas no longer defined probable cause as something “more than a mere possibility” and language to that effect was confusing and unnecessary. 296 Kan. 13, Syl. 4.
McClure argues this case is similar to City of Norton v. Wonderly, 38 Kan.App.2d 797, 808–09, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008), where another panel of this court found that probable cause did not exist to support Wonderly's arrest for driving under the influence (DUI). KDOR argues that Wonderly does not apply in this case because it involved an appeal from a criminal DUI conviction and not an administrative suspension of a driver's license as we have here. While we believe this is a distinction without a difference in terms of its effect in this case, Wonderly does contain facts that differentiate it from those here.
While the defendant in Wonderly disobeyed an officer's order to get back into his truck, had bloodshot eyes, an odor of alcohol on his breath, and admitted to drinking earlier, other facts indicated no impairment. The arresting officer followed defendant for 3 minutes and observed no traffic infraction. The defendant pulled over in a normal manner when the officer turned on his emergency equipment, did not fumble in retrieving his driver's license, had no difficulty walking or getting out of his truck, and his speech was not slurred.
In contrast, Trooper Frey in this case observed many signs indicating McClure might have been driving under the influence. McClure (1) committed a traffic violation, (2) displayed odd driving behaviors by stopping unnecessarily at an uncontrolled intersection, (3) had bloodshot eyes, (4) had an odor of alcohol on her breath, (5) displayed poor motor skills, (6) apparently lied about not drinking, and (7) showed extremely impaired judgment by choosing to leave the scene before the conclusion of the stop.
We find Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150,rev. denied 266 Kan. 1107 (1998), to be more instructive here. In Campbell, the arresting officer observed Campbell driving his vehicle 17 miles over the speed limit at approximately 1:10 a.m. The officer stopped Campbell, smelled liquor on his breath, and observed that Campbell's eyes were bloodshot and glazed. Campbell admitted he had consumed a few drinks. Campbell defined probable cause using the phrase that guilt is “more than a mere possibility.” 25 Kan.App.2d at 431. As we previously noted, this phrase was disapproved of by our Supreme Court in Sloop. However, the disapproval of that definition did not result in a disapproval of the Campbell court's conclusion. See Sloop, 296 Kan. at 22; see also Kuhn v. Kansas Dept. of Revenue, No. 107,154, 2013 WL 195693 at *4 (Kan.App.2013) (unpublished opinion) (continuing to rely on Campbell ). The Campbell court affirmed the district court's holding that the officer had probable cause sufficient to request that Campbell perform field sobriety tests. 25 Kan.App.2d at 432.
In Kuhn, an unpublished decision we find persuasive, another panel of this court considered a situation where the officer arrived at the scene of an accident and noticed the driver had an odor of alcohol on his breath along with slurred speech. The driver admitted he had consumed alcohol. Based on those facts alone, the Kuhn court held that the officer had reasonable grounds to ask the driver to take a breath test under K.S.A.2010 Supp. 8–1001. 2013 WL 195693, at *5.
McClure asks us to focus on the facts weighing against the finding of probable cause. She argues she did not have slurred speech, difficulty communicating, or poor balance and coordination. However, as demonstrated by the cases cited above, it is not necessary that the driver exhibit every sign of possible intoxication. It is sufficient that the police officer observe enough signs of intoxication to make a reasonable police officer believe the driver was operating a vehicle while under the influence of alcohol.
The record here contains sufficient evidence to support the district court's factual findings and the court's conclusion that reasonable grounds existed for Trooper Frey to believe that McClure had been operating her vehicle under the influence of alcohol.
Affirmed.