Opinion
No. 108,092.
2013-02-15
Tonalea PEARCE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Rawlins District Court; Glenn D. Schiffner, Judge. Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Rawlins District Court; Glenn D. Schiffner, Judge.
Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Tonalea Pearce asks us to overturn the Rawlins County District Court order denying her appeal of the administrative suspension of her driving license. She maintains that the officer who asked her to submit to a breath test for consumed alcohol did not have reasonable grounds to request testing after her auto accident. As there is ample evidence to support the findings of the district court on this point, we affirm.
The history of this case is not complex. Officer Jason Poore was dispatched to the scene of an accident in the early morning hours of October 6, 2010. Upon arrival, Officer Poore saw that a vehicle appeared to have been involved in a severe accident. The vehicle had entered a yard and struck a dead tree, and there were skid marks on the sidewalk and curb.
Pearce was the driver of the vehicle. Pearce later indicated that she was unsure how the accident occurred, and the last thing she remembered was getting in her car and leaving the Corner Pocket, where she worked as a bartender. After the accident, Pearce spoke on her cell phone with her boyfriend. Pearce told him to bring a chain so he could pull her vehicle out of the yard.
At the scene, Officer Poore noticed that Pearce had blood on the front of her shirt and on various areas of her body, although Poore described the blood as not “life-threatening.” Pearce had a cut on the bridge of her nose. When Officer Poore asked Pearce about the cut, Pearce indicated she had hit her head on the steering wheel. Officer Poore asked Pearce if she needed medical attention, and Pearce declined.
While Officer Poore spoke with Pearce, he noticed she was having problems with balance and coordination. Pearce also seemed confused. Officer Poore smelled an odor of alcoholic beverage and noticed that Pearce's speech was slurred. Officer Poore asked Pearce if she had been drinking, and Pearce said she had not.
Officer Poore knew these facts were consistent with excessive alcohol consumption, but he did acknowledge at trial that some of Pearce's symptoms could have been consistent with head trauma and blood sugar issues. Officer Poore, an emergency medical technician (EMT), had medical training with regard to concussions and diabetes. Officer Poore testified he did not do anything to rule out the possibility that Pearce was suffering from a concussion other than to look at Pearce's eyes. Officer Poore had been trained that when a concussion occurs, a person's eyes are dilated differently. Poore also did not do anything to rule out the possibility that Pearce was having a blood-sugar problem, although he knew Pearce prior to the accident and was aware she was a diabetic.
At some point, the officers allowed Pearce to get into her vehicle and move it out of the yard. No one objected to Pearce moving the vehicle on her own. After the vehicle was moved, Pearce told Officer Poore she needed to return to the Corner Pocket to retrieve her insulin. Officer Poore then walked with Pearce to the Corner Pocket. Along the way, Officer Poore noticed Pearce was continuing to have balance and coordination problems and she was continuing to slur her words. When Pearce and Officer Poore returned to the scene of the accident, the Chief of Police instructed Poore to arrest Pearce and transport her to the sheriff's office. Pearce was not asked to perform field sobriety tests and was not offered a preliminary breath test.
At the sheriff's office, Pearce submitted to a breath test. The result of this test indicated the presence of .149 grams of alcohol per 210 liters of breath. Officer Poore testified that he has been trained that substances such as acetone may interfere with the breath test. Officer Poore acknowledged that if a person's blood sugar is high, the body will produce acetone, which exits the body through orifices such as the mouth and nose. However, Officer Poore also testified the breath test machine is designed to detect the presence of acetone—and the machine notifies the user of the presence of such “interferents.” Officer Poore was not notified of the presence of any interferents during Pearce's test, and the test came back as valid.
Officer Poore said he talked with Pearce about alcohol consumption right before Pearce submitted the breath test. Officer Poore said he asked about alcohol consumption at this point for “evidentiary purposes”—“to determine if [Pearce] was, in fact, driving under the influence of alcohol, and if that had contributed to the accident.” Officer Poore said Pearce admitted to consuming alcohol at that point-indicating she had “consumed two shots.” Officer Poore testified that Pearce told him she had “started” at 1:50 a.m. and “stopped” at 2 a.m., which did not make sense to Poore based on the timing of Pearce's car accident.
Pearce's driving license was suspended based on the above events. Officer Poore certified he had reasonable grounds to believe Pearce had been operating a vehicle while under the influence of drugs or alcohol, noting Pearce had an odor of alcoholic beverage, slurred speech, difficulty communicating, poor balance or coordination, and Pearce admitted to consuming alcohol.
In this appeal, Pearce argues Officer Poore lacked reasonable grounds to believe she had been operating a vehicle while under the influence of alcohol. First, we establish our standard of review.
This court generally reviews a district court's decision in a driving license suspension case to determine whether it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Under this standard, we first determine whether the district court's factual findings are supported by substantial competent evidence. Substantial evidence possesses both relevance and substance and furnishes a substantial basis of fact from which the issues may be resolved. Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 362, 102 P.3d 490 (2004). In reviewing the record for substantial competent evidence, we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Mitchell v. Kansas Dept. of Revenue, 32 Kan.App.2d 298, 300–01, 81 P.3d 1258 (2004). We next determine, independently, whether the district court's factual findings are sufficient to support its legal conclusions. Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 415, 233 P.3d 286 (2010).
Kansas courts evaluate “reasonable grounds” by referring to probable cause standards. Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). 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. Pearce's argument is unpersuasive.
Our statute, K.S.A.2010 Supp. 8–1001(b) provides that before an officer requests a driver to submit to alcohol testing, the officer must 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.” Here, Officer Poore's stated bases for believing Pearce was under the influence of alcohol or drugs were that Pearce had an odor of alcoholic beverage, slurred speech, difficulty communicating, poor balance or coordination, and Pearce admitted to consuming alcohol. In affirming the suspension of Pearce's driving license, the district court relied upon the smell of alcohol, slurred speech, difficulty in communicating, unsteady stance, poor balance, and Officer Poore's training and experience.
It seems to us that the district court's factual findings are supported by the record. At trial, Officer Poore testified that when he spoke with Pearce at the scene of the accident, he noticed she was having problems with balance and coordination and that she seemed confused. Officer Poore also smelled an odor of alcoholic beverage and noticed that Pearce's speech was slurred.
On appeal, Pearce does not dispute the district court's factual findings on these points. In fact, Pearce actually admitted at trial that Officer Poore's observations with regard to her physical condition, such as her slurred speech and balance and coordination problems, were apparent. Instead, Pearce's argument goes to causation: Pearce contends all these things were caused by diabetes or concussion, not by alcohol use.
Pearce may not correctly understand her burden of proof. At an administrative hearing on the suspension of a driving license, the driver has “the burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification [were] false or insufficient.” K.S.A.2010 Supp. 8–1020(k). In turn, then, when the district court reviews the Kansas Department of Revenue's administrative action, the driver has the burden “to show that the decision of the agency should be set aside.” K.S.A.2010 Supp. 8–1020(q).
It was Pearce's burden to prove the facts set forth in Officer Poore's certification were false or insufficient. Pearce failed to do so. In addition, Pearce failed to convince the court, with sufficient facts, that she was in diabetic shock or suffering from a concussion at the time of the car accident. It was not the Kansas Department of Revenue's burden to prove the negative, in other words, that Pearce was not in diabetic shock or suffering from a concussion. It only needed to prove the facts set forth in Officer Poore's certification.
The question before us is whether Officer Poore had reasonable grounds to believe Pearce was under the influence of drugs or alcohol. Given our standard of review, we must decide if there is substantial competent evidence supporting the district court's conclusion that there were reasonable grounds. We do not consider other evidence that might support a different result as long as sufficient evidence supports the district court's decision. See In re Estate of Antonopoulos, 268 Kan. 178, 193, 993 P.2d 637 (1999).
It is apparent that in this case there is substantial competent evidence to support the district court's conclusion that Officer Poore had reasonable grounds to believe Pearce was under the influence of drugs or alcohol In Poteet, 43 Kan.App.2d at 412, the case cited by the parties on appeal, this court held an officer had reasonable grounds to believe a driver was under the influence of drugs or alcohol where (1) he saw the driver had been in an accident in which she drove through a field and a barbed-wire fence; and (2) the officer smelled alcohol. In reaching its conclusion, the court noted:
“[T]he legislature has indicated that an officer has probable cause to believe a person is under the influence of alcohol whenever the person operates a vehicle in such a manner as to cause serious injury to anyone, including the driver. K.S.A.2007 Supp. 8–1001(k). Certainly the combination of the facts of Poteet's accident plus the reported odor of alcohol about her was sufficient.” 43 Kan.App.2d at 417.
Likewise, Officer Poore saw that Pearce had been involved in a “severe” accident in which her vehicle entered a yard and struck a dead tree, leaving skid marks on the sidewalk and curb. Officer Poore also smelled alcoholic beverage. These facts were in addition to those discussed above ( i.e., the slurred speech and balance and coordination problems), which Pearce does not challenge other than to say they were caused by something other than alcohol use. Like in Poteet, the circumstances of the accident, along with the smell of alcohol and Pearce's other physical behaviors, provided Officer Poore with reasonable grounds to believe Pearce was under the influence of alcohol.
These facts compare favorably with Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431, 962 P.2d 1150,rev. denied 266 Kan. 1107 (1998), where the court held that the officer had probable cause to arrest the driver where the driver was speeding at 1:10 a.m., the officer smelled alcohol on the driver, the driver admitted to having a few drinks, and the driver's eyes were glazed and bloodshot. Also, in Sullivan v. Kansas Dept. of Revenue, 15 Kan.App.2d 705, 707–08, 815 P.2d 566 (1991), the court found reasonable grounds existed where the officer noticed the driver speeding, observed an open beer can and smelled alcohol, the driver admitted to consuming beer, and the driver performed unsatisfactorily on the field sobriety tests.
Pearce argues her case differs from Poteet because in Poteet, the court relied upon Poteet's admission to drinking alcohol when finding reasonable grounds. Pearce argues her admission to drinking alcohol cannot be considered because (1) her admission to taking shots referred to insulin, not alcohol; and (2) her statement was not made until after she was arrested and the officer had already decided to request a breath test. Pearce also notes that, unlike Poteet, she provided a sufficient explanation for the smell of alcohol. We reject Pearce's arguments on this point for several reasons.
First, contrary to Pearce's claim, the Poteet court did not rely upon Poteet's admission to drinking when holding the officer had reasonable grounds to believe Poteet was under the influence of alcohol. Instead, the court relied only upon the facts surrounding Poteet's accident and the smell of alcohol. See 43 Kan.App.2d at 416–17.
Second, the district court in this case did not rely upon Pearce's admission to consuming drugs or alcohol when affirming the suspension of her driving license. Likewise, we need not rely on that fact to affirm the district court's decision. The combination of facts articulated by Officer Poore, even without Pearce's admission to consuming drugs or alcohol, provided the officer with reasonable grounds to believe Pearce was under the influence of alcohol.
Third, Pearce asks us to reweigh the evidence. In affirming the suspension of Pearce's driving license, the district court relied on the fact that Officer Poore testified he smelled alcohol. The district court obviously rejected Pearce's testimony that the smell was caused by her blood-sugar level. As noted, this court will not reweigh the evidence on appeal. See Mitchell, 32 Kan.App.2d at 301.
Further, Pearce's reliance on the ruling in City of Norton v. Wonderly, 38 Kan.App.2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008), is misplaced. In Wonderly, there were several factors that cut against a finding that the officer had reasonable grounds to believe Wonderly was under the influence. As a panel of this court pointed out, Wonderly had not committed any traffic infractions, Wonderly pulled his truck over in a normal manner and did not fumble for his driver's license, Wonderly had no problems getting out of his truck and walking, and his speech was not slurred. To the contrary, as discussed here, Officer Poore observed several facts that support a finding of reasonable grounds to believe Pearce was under the influence. We need not reach the same result as the Wonderly court, as this case is distinguishable on the facts. Moreover, the Wonderly court dealt with whether the officer had probable cause to arrest for driving while under the influence, whereas this is a driving license suspension case.
We acknowledge that several facts about this case are indeed troubling. First, Pearce was not asked to perform any field sobriety tests and was not asked to perform a preliminary breath test prior to her arrest. Second, the officers at the scene allowed Pearce to get into her vehicle and move it to a different location. Finally, it was the Chief of Police who instructed Officer Poore to arrest Pearce. Officer Poore did not testify that it was his decision to arrest Pearce for driving while under the influence of alcohol.
Nonetheless, our standard of review dictates the result here. The facts cited by the district court when holding Officer Poore had reasonable grounds to believe Pearce was under the influence of alcohol are supported by substantial competent evidence. Moreover, these facts are sufficient to support a legal determination that Officer Poore had reasonable grounds to believe Pearce was under the influence of alcohol. Much of Pearce's argument requires us to reweigh the evidence, something we cannot do on appeal. See Mitchell, 32 Kan.App.2d at 301. We must affirm the suspension of Pearce's driving license.
Affirmed.