Opinion
111,589.
05-15-2015
Stanley M. SCOTT, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
J. Brian Cox, senior litigation attorney, of Legal Services Bureau, Kansas Department of Revenue, for appellant. Kenneth M. Clark, of Wichita, for appellee.
J. Brian Cox, senior litigation attorney, of Legal Services Bureau, Kansas Department of Revenue, for appellant.
Kenneth M. Clark, of Wichita, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Department of Revenue (KDOR) appeals the district court's decision granting Stanley Scott's petition for judicial review and reversing the administrative suspension of Scott's driver's license based on a breath test failure.
We reverse the decision of the district court and remand for reinstatement of the administrative suspension.
The Traffic Stop
At 12:30 a.m. on July 28, 2012, Officer Timothy Shaner of the Rose Hill Police Department observed a car being driven in the rain without its headlights. Shaner activated his emergency lights, then sounded his siren, and ultimately had to honk his horn before the car finally stopped in the roadway. On approaching the car, Shaner observed several indications the driver—subsequently identified as Scott—might be driving under the influence of alcohol. Shaner testified that Scott seemed confused when Shaner told him why he had pulled him over and then made “exaggerated movements” to turn on his headlights. Shaner further observed that Scott smelled like he had consumed alcohol, had bloodshot eyes, and had mumbled speech which was difficult to understand. Shaner further observed that Scott fumbled to produce his driver's license and proof of insurance. There was an unopened can of beer in the car, which Scott referred to as “clean,” and Scott eventually admitted that he had consumed three or five beers prior to driving.
Shaner requested backup so he could conduct a driving under the influence (DUI) investigation. Kansas Highway Patrol Trooper Schreiver arrived, and Shaner returned to Scott's car, asking him to step out. After Shreiver patted Scott down for weapons, Shaner advised Scott that he wanted to conduct field sobriety tests to ensure he was safe to drive. Due to the rain and slick conditions, Shaner suggested that the tests be conducted in an area just down the road that had an overhang or back at the police station. Scott did not object to going to the police station for the tests, so Shaner placed him in handcuffs and drove him to the police station. Shaner stressed to Scott that he was not under arrest.
Once arriving at the station Shaner conducted the field sobriety tests, which Scott failed. Shaner placed Scott under arrest for DUI and then requested preliminary and evidentiary breath tests. The evidentiary breath test showed that Scott had a bloodalcohol content of .209 just over 1 hour after the stop.
The Administrative Proceedings
As a result of the breath test failure, Scott received a certified notice of mandatory suspension of his driver's license pursuant to K.S.A.2014 Supp. 8–1014(b)(2). Scott made a timely request for an administrative hearing, challenging whether Shaner had reasonable grounds to believe he was DUI and whether Shaner had probable cause to arrest him and to request the breath test. See K.S.A.2014 Supp. 8–1020(h)(2)(A), (B).
An administrative hearing officer subsequently affirmed the suspension. We do not have a record of the proceedings before the hearing officer. The order affirming the suspension indicates only generally that Scott had been arrested and that the arresting officer had reasonable grounds to believe Scott was DUI.
The District Court Proceedings
Scott then timely filed a petition in the district court for judicial review of the hearing officer's decision pursuant to K.S.A.2014 Supp. 8–259 and K.S.A.2014 Supp. 8–1020(o) and (p). The district court entered a pretrial order framing the issues as: (1) At what point was Scott under arrest? and (2) Did Shaner have probable cause to arrest him at that time?
The district court conducted a de novo hearing on Scott's petition for judicial review. In addition to Shaner's testimony about the details of the stop, the district court also reviewed a video recording of the traffic stop from the time of the stop until Scott was handcuffed and placed in the back of the patrol car. At the close of the hearing, the district court found that Shaner had arrested Scott when he placed him in handcuffs to drive him to the police station for further investigation. The court further ruled that the arrest was invalid for lack of probable cause and that the subsequent breath test was inadmissible, concluding that the KDOR therefore lacked authority to suspend Scott's driving privileges. The district court entered a brief journal entry of judgment simply incorporating the oral ruling and reversing the administrative order of suspension.
KDOR timely appealed the district court decision pursuant to K.S.A. 77–623 and K.S.A.2014 Supp. 60–2103.
Did the District Court Err in Finding Scott's Arrest to be Invalid?Framing the Issue
The validity of the suspension of Scott's driver's license is governed by the Kansas Implied Consent Law, K.S.A. 8–1001 et seq. Most pertinent to our inquiry are the following two basic provisions:
• K.S.A.2014 Supp. 8–1001(a), which provides:
“Any person who operates ... a vehicle within this state is deemed to have given consent, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs .”
• K.S.A.2014 Supp. 8–1001(b), which provides:
“A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If, at the time of the request, the officer has 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 ... (A) The person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution or city ordinance.” (Emphasis added.)
In Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 19–20, 290 P.3d 555 (2012), our Supreme Court interpreted K.S.A.2008 Supp. 8–1001(b) to require showings both of reasonable grounds to believe that a driver is DUI and a valid arrest before an officer is authorized to request an evidentiary breath test. If the arrest is invalid, so is the breath test subsequently requested based on that arrest, regardless of whether the officer had reasonable grounds to believe the person was DUI. 296 Kan. at 20–23. “To be lawful, a warrantless arrest must be supported by probable cause.”296 Kan. at 20. “Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant had committed or is committing a specific crime.” State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013) (citing Sloop, 296 Kan. at 20 ).
The KDOR seems to disregard the statutory distinction between reasonable grounds to believe a driver is DUI and probable cause to arrest the driver. However, based on the issues framed in the pretrial order, the question of Shaner's reasonable grounds to believe Scott was DUI when he requested a breath test was not before the district court. The KDOR accepts for purpose of this appeal that an arrest occurred when Scott was placed in handcuffs for transport to the police station. We need not revisit the question of whether voluntary transportation of a suspect to a safer location for performance of field sobriety tests must be inevitably characterized as an arrest, and we will leave that consideration for another day.
The only issue before the district court, which is now properly before this court, concerns the validity of Scott's arrest.
Standard of Review
Generally, an appellate court's review of the district court's determination of whether an officer had probable cause to make a warrantless arrest in a DUI case is a mixed question of law and fact. Kuenstler v. Kansas Dept. of Revenue, 40 Kan.App.2d 1036, 1041, 197 P.3d 874 (2008). This court must review the district court's factual findings in support of its judgment that Scott's arrest was invalid for substantial competent evidence and then determine whether those facts are sufficient to support the district court's resulting legal conclusion that the KDOR lacked legal authority to suspend Scott's driver's license as a result. See Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012).
Scott, as the challenging party in district court, bears the burden to prove the invalidity of the suspension. See K.S.A.2014 Supp. 77–621.
Probable Cause to Arrest
KDOR first suggests that the district court erroneously applied the law by relying solely on Shaner's subjective belief in deciding the probable cause issue, rather than making an objective determination based on the totality of circumstances from the standpoint of an objectively reasonable police officer. See State v. Ingram, 279 Kan. 745, 752, 113 P.3d 228 (2005) ; State v. Ramirez, 278 Kan. 402, Syl. ¶ 7, 100 P.3d 94 (2004). KDOR argues that whether the officer himself believed he had probable cause is not determinative.
KDOR misconstrues the district court's ruling. The district court did, in fact, emphasize Shaner's subjective belief that he lacked probable cause to arrest Scott when he placed him in handcuffs for transport to the police station to continue his DUI investigation by conducting field sobriety tests. Indeed, Shaner had reassured Scott that he was not under arrest at that point. But the court did not find Shaner's belief to be solely determinative of the issue of probable cause. The district court cited the subjective belief as one factor among others in reaching the legal conclusion that probable cause was lacking. The district court referred to “an odor of alcohol and bloodshot eyes and fumbling and all that” in reaching its conclusion that “the Wonderly case seems to specifically apply in this case.” In City of Norton v. Wonderly, 38 Kan.App.2d 797, 804–09, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008), a panel of this court found that probable cause for arrest had not been established on facts which the district court here found to be similar to the present case.
KDOR's argument misconstrues the holding in Wonderly just as it misconstrues the district court's decision on review here. In Wonderly, this court held only that the officer's subjective belief supported the court's conclusion that the officer lacked probable cause under the objective circumstances of that case; it did not hold that the officer's subjective belief, standing alone, determined the issue of probable cause. See 38 Kan.App.2d at 807–09.
KDOR next more directly challenges the district court's legal conclusion that Shaner lacked probable cause to arrest Scott for the same reasons this court found probable cause to be lacking in Wonderly.
In Wonderly, this court recognized that the question of whether an officer had probable cause to arrest is a legal conclusion subject to unlimited review on appeal. 38 Kan.App.2d at 808. In reaching its conclusion in Wonderly, this court reviewed and essentially balanced several unfavorable factors against several favorable factors observed at the scene of Wonderly's arrest:
“[P]rior to Wonderly's arrest, the admissible evidence showed that Wonderly initially disobeyed an order to get back into his truck, he had bloodshot eyes, the smell of alcohol was on his breath, and he admitted to drinking earlier that evening. Additionally, [the officer] knew that a motorist had called law enforcement earlier that night and accused Wonderly of driving his truck in a reckless manner.
“However, the evidence also indicated that [the officer] did not see Wonderly commit any traffic infractions while he followed Wonderly for 3 minutes. Wonderly pulled his truck over in a normal manner when [the officer] turned on the emergency lights, he did not fumble for his driver's license, and he had no problems getting out of his truck and walking to [the officer's] patrol car. Wonderly's speech was ‘fair’ and ‘not particularly slurred.’ [The officer] decided to transport Wonderly to the sheriff's office in order to request Wonderly to perform field sobriety tests. Apparently, [the officer] did not believe there was sufficient evidence to arrest Wonderly for DUI at the scene of the traffic stop, and [the officer] wanted to transport Wonderly to the sheriff's office to continue his investigation. [The officer] subsequently testified that his decision to arrest Wonderly for DUI was based on everything he had observed at the traffic stop and at the sheriff's office.
“... We conclude the district court erred in finding there was probable cause at the scene of the traffic stop to arrest Wonderly for DUI. Although [the officer] had reasonable suspicion for a stop, the limited evidence [the officer] had gathered at the scene of the traffic stop was insufficient to support probable cause for an arrest. The fact that [the officer] felt it was necessary to continue his investigation at the sheriff's office before formally arresting Wonderly for DUI supports this conclusion.” 38 Kan.App.2d at 808–09.
Based on this analysis, we agree with KDOR that, rather than controlling, Wonderly is clearly distinguishable from the case at bar. Unlike in Wonderly, the evidence here establishes a veritable litany of recognized indicia of impairment. As in Wonderly, Shaner observed that Scott had bloodshot eyes and an odor of alcohol and eventually admitted to drinking three to five beers. But while the officer in Wonderly did not observe any traffic infractions, Shaner observed Scott driving in the rain, late at night, without his headlights. While Wonderly pulled his truck over in a normal manner when the officer turned on his emergency lights, Shaner not only had to use emergency lights but also his siren and finally his horn to get Scott's attention, and then Scott stopped in the roadway.
While Wonderly did not fumble for his driver's license, Scott fumbled in complying with Shaner's request to see his license and proof of insurance. While Wonderly's speech was “fair” and “not particularly slurred,” Scott had mumbled speech which was difficult to understand. Further, Scott seemed disoriented and confused when Shaner told him why he had been pulled over and then made “exaggerated movements” to turn on his headlights; there was nothing to suggest that Wonderly had exhibited any confusion or abnormal reactions. In summary, while Wonderly exhibited some negative indications, his positive behaviors obviously would have given a reasonable officer some pause as to the extent of his possible impairment. Here, the observations made by Shaner in his interaction with Scott were of completely negative behaviors indicative of impairment. His subjective belief that he should have conducted field sobriety tests as a prelude to arresting Scott was not determinative of probable cause. Field sobriety tests, while useful, are not required.
The district court minimized this case as a routine “no-light traffic stop.” But this court has persuasively noted that the act of driving without headlights at night can indicate a diminished awareness of and failure to respond to driving conditions suggestive of alcohol consumption. Young v. Kansas Dept. of Revenue, No. 105,783, 2012 WL 1450445, at *4 (Kan.App.2012) (unpublished opinion) (citing State v. Becker, 36 Kan.App.2d 828, 829, 145 P.3d 938 [2006], rev. denied 283 Kan. 932 [2007]; City of Manhattan v. Feril, 35 Kan.App.2d 740, 741, 134 P.3d 666 [2006] ). By simply finding Wonderly to be controlling on the issue of probable cause, the district court made no attempt to reconcile important factual distinctions. By failing to address the totality of the circumstances from the objective viewpoint of a reasonable law enforcement officer, the district court short-circuited its function as factfinder and reached an unsupported legal conclusion.
Remedy
On review, we do not decide questions of fact, but we do look to undisputed evidence. Scott would suggest that the evidence noted above, which the district court appears not to have considered, is in dispute. The KDOR strongly suggests that it is not. The oral pronouncements by the district court make no specific or implied reference to the existence or resolution of any evidentiary disputes. While Scott notes that some of these facts, standing alone, do not factor into a probable cause determination, we must consider the totality of the circumstances rather than isolating individual facts. The KDOR suggests that this court must consider Shaner's testimony about the circumstances surrounding the traffic stop to be conclusive because it was uncontradicted and the district court did not find it untrustworthy. See Sullivan v. Kansas Dept. of Revenue, 15 Kan.App.2d 705, Syl. ¶ 3, 815 P.2d 566 (1991). In this regard, we would note that although Scott had the burden of proof in the district court, he did not testify. Without his testimony or some other direct evidence, it is difficult to conceive how the facts testified to by Shaner have been placed in dispute.
Based on the totality of the information and reasonable inferences available to Shaner at the scene, Shaner had a reasonable belief that Scott had committed or was committing the offense of DUI, which yielded a valid arrest upon probable cause at the time Shaner took Scott into custody for transportation to the police station. The KDOR thus had authority to suspend Scott's driving privileges based on the result of the evidentiary breath test.
Based on this determination, we reverse the judgment of the district court and remand the case with directions to enter an order reinstating the KDOR administrative suspension of Scott's driver's license.
Reversed and remanded with directions.