Opinion
No. 103,937.
2012-09-7
Scott D. SJOBERG, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge. J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, of Topeka, for appellant. Douglas E. Wells, of Topeka, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, of Topeka, for appellant. Douglas E. Wells, of Topeka, for appellee.
Before LEBEN, P.J., GREEN and MARQUARDT, JJ.
MEMORANDUM OPINION
LEBEN, J.
We review this case anew on remand from the Kansas Supreme Court, which concluded that we had not applied the correct standard in deciding the case. So we begin with a review of the three different rules that may apply in determining whether a law enforcement officer has acted within the law in investigating a potential DUI case.
Let's assume first that the officer has stopped a driver for a traffic violation, as occurred in Sjoberg's case. If so, here's how the three rules might play out after that stop:
• To measurably extend the traffic stop beyond what's required to handle the traffic infraction itself ( i.e., checking license and registration and then writing a ticket for the infraction), the officer must have reasonable suspicion, which is a particularized and objective basis for suspecting the person stopped is involved in criminal activity. State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3–4, 190 P.3d 234 (2008).
• To arrest the driver on a DUI charge, the officer must have probable cause to arrest. Probable cause exists when the officer's knowledge of the events creates a reasonable belief that a defendant has committed, is committing, or is about to commit a specific crime. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, Syl. ¶ 2, 256 P.3d 845 (2011). Probable cause does not require that an officer have evidence of every element of a crime. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, Syl. ¶ 1, 242 P.3d 1179 (2010).
• To request that the driver take a preliminary breath test or an evidentiary breath test to determine the level of alcohol in the driver's system, the officer must have reasonable grounds. Kansas courts evaluate ‘reasonable grounds' by looking to probable cause standards. Swank v. Kansas Dept. of Revenue, 294 Kan. ––––, 281 P.3d 135, 142(2012).
In Sjoberg's case, we are called upon to determine whether the officer had reasonable grounds to conclude that Sjoberg was operating a vehicle while under the influence of alcohol, see K.S.A.2007 Supp. 8–1001(b), not whether the officer had reasonable suspicion to extend a traffic stop for further investigation. Our Supreme Court's remand order recognizes the importance of this distinction:
Although the Court of Appeals opinion stated that the issue in the case was whether the arresting officer had reasonable grounds to request a breath test, the opinion relied in part on its review of State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008), where this court found sufficient grounds to establish reasonable suspicion of DUI in order to permit the officer's further detention of the driver for DUI investigation. Appellee petitions for our review of the Court of Appeals opinion, arguing in part that the Court of Appeals confused the applicable standards, i.e., reasonable suspicion for an investigatory detention, probable cause for an arrest, or reasonable grounds to request an evidentiary breath test. We agree.
Appellee's petition for review in the above-captioned case is granted and the case is summarily remanded to the Court of Appeals for a reconsideration of its decision based upon the reasonable ground standard. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653[, 256 P.3d 845] (2011); Smith v. Kansas Dept. of Revenue, 291 Kan. 510[, 242 P.3d 1179] (2010).
The point is, of course, well taken: our Supreme Court has also explained that [r]easonable suspicion is a less demanding standard than probable cause. Pollman, 286 Kan. 881, Syl. ¶ 6. Thus, by considering cases applying the reasonable-suspicion standard, we could inadvertently tip the scale in favor of the Kansas Department of Revenue.
We therefore reconsider the case under the reasonable-grounds standard. Since Kansas courts generally consider that standard equivalent to the probable-cause standard, see Swank, 281 P.3d at 142, we may consider precedents applying either of those standards. To the extent that there is any difference between the reasonable-grounds and probable-cause standards, our Supreme Court has noted that an officer may have reasonable grounds ... but not have the probable cause required to make an arrest. Smith, 291 Kan. at 514 (citing Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 148 P.3d 538 [2006] ). Thus, to the extent there is any difference in these standards, relying upon cases decided under the probable-cause standard could favor Sjoberg, but we know of no case that has found a difference between those two standards decisive.
Sjoberg's license was suspended for 1 year by the Department of Revenue based on a failed breath test, which was taken shortly after he was arrested for a DUI based on the officer's conclusion that there was probable cause to arrest Sjoberg for a DUI offense. An officer must ask a person to submit to a breath, blood, or urine test to determine the presence of alcohol or drugs if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence. K.S.A.2007 Supp. 8–1001(b)(l). Sjoberg's contention in his appeal of his license suspension has been that the officer didn't have reasonable grounds to believe Sjoberg had been operating his vehicle while under the influence of alcohol.
We cite in this opinion to the statutes in place on the date of Sjoberg's encounter with law enforcement.
Factual Background
We reviewed the facts of the case in detail in our earlier opinion. See Sjoberg v. Kansas Dept. of Revenue, No. 103, 937, 2011 WL 4906843 (Kan.App.2011) (unpublished opinion), rev. granted June 25, 2012. In our prior decision, however, we did not consider some arguments made on appeal by the Department of Revenue about rulings the district court made that narrowed the facts that could be considered in determining whether the officer had reasonable grounds. We will provide a bit more discussion of those issues in this opinion.
Our story begins at 12:43 a.m. on March 2, 2008; Kansas Highway Patrol Trooper Josh Kellerman pulled Scott Sjoberg over for having a nonworking headlight. When Kellerman approached the car, the driver's and passenger's windows were down and the moon roof was open. Kellerman smelled pizza in the car. After Sjoberg produced his driver's license and registration, Kellerman asked Sjoberg to sit in the patrol car with Kellerman. Kellerman then noticed a little alcohol odor; he testified that the more Sjoberg spoke, the stronger the alcohol smell got. Kelierman also saw that Sjoberg's eyes were bloodshot. Sjoberg admitted to having a few drinks before the KU basketball game and one drink after the game when he and his companion stopped at a bar and had pizza and a beer.
Kelierman then administered a preliminary breath test, which showed that Sjoberg's alcohol level was almost twice the legal limit. Kelierman admitted that he did not comply with his training and the test device's manual by waiting 15 to 20 minutes before administering the test; the test was conducted about 5 minutes after the stop. The district court admitted evidence of the preliminary breath test results at trial over Sjoberg's objection that testing protocols weren't followed.
Kelierman then called for another officer so that they'd have more light to conduct field-sobriety tests. Kelierman asked Sjoberg to complete the horizontal gaze nystagmus, walk-and-turn, and one-leg-stand sobriety tests. On the walk-and-turn test, Kelierman observed two clues of intoxication: Sjoberg lost his balance during the instructions and made an improper turn. Before the one-leg-stand test, a few cars drove by in the lane of traffic closest to where Kelierman and Sjoberg were. Kelierman moved his car to shield the area, and Sjoberg thanked him. When Sjoberg performed the test, Kelierman again observed two clues: Sjoberg used his arms for balance and put his foot down.
Kelierman and Sjoberg got back into the patrol car, and Kelierman asked Sjoberg to take another preliminary breath test. Sjoberg refused; Kelierman arrested him for driving under the influence. Later, at a police station, Sjoberg took and failed an Intoxylizer breath test, which resulted in the suspension of his driver's license. After an administrative hearing, the Department of Revenue affirmed the suspension.
Sjoberg petitioned the Douglas County District Court to review the Department's action, which resulted in a trial in which the evidence we've noted was presented to the district court. The district court found that the preliminary breath test results should not have been considered in the reasonable-grounds determination because Kellerman had failed to wait the required 15 to 20 minutes before administering the test. The district court concluded that Kellerman didn't have reasonable grounds to believe that Sjoberg was driving under the influence, and it overturned the suspension. The district court also held that the results of the horizontal gaze nystagmus test should not have been considered in assessing reasonable grounds.
Analysis
Before we assess whether the officer had reasonable grounds to believe that Sjoberg was driving while intoxicated, we must first consider whether certain facts that were excluded from consideration by the district court should have been considered. Our Supreme Court has held that all of the circumstances related to the driver's situation should be considered when assessing reasonable grounds. See Smith, 291 Kan. at 515. Specifically, the district court determined that it would not consider, for purposes of determining reasonable grounds, the result of the initial preliminary breath test, the refusal to take a second preliminary breath test, or the officer's interpretation of the results of the horizontal gaze nystagmus test.
First Preliminary Breath Test Result
The Department insists that compliance with the 15–minute deprivation period is not required before the officer can use a preliminary breath test result in his or her reasonable-grounds determination. Sjoberg insists that the opposite is true.
K.S.A.2007 Supp. 65–1, 107(d) authorized the Kansas Department of Health and Environment (KDHE) to create rules and regulations that establish the criteria for preliminary breath test screening devices before they can be used for law-enforcement purposes, including an officer's reasonable-grounds determination. See Leffel v. Kansas Dept. of Revenue, 36 Kan.App.2d 244, Syl. ¶¶ 4, 5, 138 P.3d 784 (2006).
The regulations pertaining to preliminary breath test devices in effect when Sjoberg was stopped listed the requirements that the device must meet before being approved by the KDHE. K.A.R. 28–32–6 (2006). Additionally, the regulations required that the device be operated according to the manufacturer's written directions. K.A.R. 28–32–7(a) (2006). A few weeks after Sjoberg was stopped, the KDHE revoked these regulations and promulgated new ones. But the requirement that the device be operated according to the manufacturer's instructions remained unchanged. K.A.R. 28–32–14(c).
Here, the operator's manual for the preliminary breath test device that Kellerman used suggests a 15– to 20–minute deprivation period before testing. Kellerman testified at trial that he was trained to observe the deprivation period, and he admitted that he did not do so in this case. The police video reflects that Kellerman told Sjoberg that a recent drink would cause the results to skyrocket. But Kellerman testified that unless a suspect indicated that his or her last drink was fairly recent, he didn't worry about the deprivation period. Nevertheless, the deprivation period's purpose is to make sure that mouth alcohol—not only from a recent drink but also from stomach regurgitation—doesn't falsely elevate the test. Complying with the deprivation period regardless of when the suspect said he or she last took a drink ensures that regurgitation doesn't skew the test result.
Kellerman's use of the testing device 5 minutes after the stop was a substantial departure from the instruction manual's 15–minute deprivation period. The district court properly ruled that the preliminary breath test result could not be used for the law-enforcement purpose of determining whether there were reasonable grounds to believe that Sjoberg was driving under the influence of alcohol. Moreover, such a ruling makes sense in light of the influence preliminary breath tests have: An officer can arrest a person for driving under the influence based solely on the preliminary breath test's results. K.S.A.2007 Supp. 8–1012(d).
Preliminary Breath Test Refusal
The Department contends that Sjoberg's refusal of the second preliminary breath test can be included in Kellerman's reasonable-grounds determination. Sjoberg counters that the preliminary breath test refusal can only be considered in a preliminary breath test refusal prosecution, not for determining whether a person is driving under the influence.
Refusing to submit to a preliminary breath test is a traffic infraction. K.S.A.2007 Supp. 8–1012(d). Kansas courts have found that a preliminary breath test refusal is admissible to prove that the defendant was guilty of refusing the test, but not to prove that the defendant was guilty of driving under the influence. State v. Wahweotten, 36 Kan.App.2d 568, 573–76, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007). But this case doesn't present a situation where the refusal is being introduced as evidence to show that Sjoberg's guilty of a crime; rather, Sjoberg is questioning Kellerman's ability to use the refusal when determining reasonable grounds for an officer to conclude that Sjoberg was driving under the influence. K.S.A.2007 Supp. 8–1012(d) explicitly states that the preliminary breath test results can be used to assist an officer in determining whether to request tests under K.S.A.2007 Supp. 8–1001. Wahweotten suggests that the preliminary breath test refusal can be used for the same statutorily indicated purpose as well. 36 Kan.App.2d at 576 ( [T]he legislature's intent under K.S.A.2005 Supp. 8–1012 was to limit the use of evidence of a preliminary breath test ... to the circumstances that are specifically set forth in the statute.). We conclude that the officer could take into account Sjoberg's refusal to take a second preliminary breath test, though the significance of that fact in determining reasonable grounds is obviously lessened when the person had already voluntarily taken the test once before.
Horizontal Gaze Nystagmus Test Results
The Department also argues that the district court improperly excluded the results from the horizontal gaze nystagmus (HGN) test from the reasonable-grounds determination. The HGN field-sobriety test asks the suspect to follow an object in the police officer's hand with his or her eyes as the officer moves the object back and forth horizontally; it's considered a sign that the suspect's blood-alcohol level is above .10 if the suspect exhibits four or more out of the six possible points. State v. Witte, 251 Kan. 313, 315–17, 836 P.2d 1110 (1992); see Black's Law Dictionary 805 (9th ed.2009). Had the district court let Kellerman testify on this point, he would have explained that he observed Sjoberg exhibit all six clues during the test.
In 1982, the Kansas Supreme Court concluded that for HGN results to be admissible, the proponent must establish the result's admissibility pursuant to the standard articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Witte, 251 Kan. 313, Syl. ¶ 2. But as the Department points out, Sjoberg's HGN results were not being admitted at trial to prove guilt. Kellerman was testifying about how the field-sobriety-test results—including the HGN test—supported his belief that Sjoberg was driving under the influence.
Some opinions from our court have declined to decide the issue about whether HGN results may be considered in determining whether an officer had reasonable grounds to believe a driver was intoxicated. E.g., Martin v. Kansas Dept. of Revenue, 38 Kan.App.2d 1, 7–8, 163 P.3d 313 (2006); Spencer v. Kansas Dept. of Revenue, No. 93,765, 2006 WL 2043016, at *3 (Kan.App.2006) (unpublished opinion). In the context of a criminal case, however, in which the question was whether an officer had reasonable suspicion to request a preliminary breath test, our court has concluded that an officer's testimony about HGN results could be considered in determining the reasonable-suspicion question. City of Wichita v. Molitor, 46 Kan.App.2d 958, Syl. ¶ 6, 268 P.3d 498 (2012), petition for review filed February 13, 2012.
In our prior ruling in Sjoberg's case, we concluded that we need not answer this question because it wasn't necessary to consider the HGN testing to conclude that the officer here had reasonable grounds to believe Sjoberg was driving while intoxicated. After reconsideration, that is still our conclusion. We therefore need not determine whether the district court erred by excluding the HGN testimony.
Other Factual Disputes
In addition to its challenge to the district court's exclusion of some evidence from reasonable-grounds consideration, the Department of Revenue also challenges some factual findings the district court made.
According to the Department, the district court erroneously found that: (1) Sjoberg was mimicking Kellerman's actions on the walk-and-turn test; (2) the wind and passing traffic adversely impacted Sjoberg's ability to perform the field-sobriety tests; (3) Kellerman said he only smelled a faint scent of alcohol; (4) Kellerman observed Sjoberg's eyes as only bloodshot, not extremely bloodshot; and (5) Sjoberg's statements about when he last drank were consistent.
First, although the district court initially found that Sjoberg was mimicking Kellerman, it amended its conclusion and stated that it couldn't determine whether Sjoberg was mimicking or not. Whether Sjoberg was mimicking Kellerman was therefore not a factual finding that the district court made.
Second, Kellerman testified that, based on his experience, the wind wasn't at a level that would make the field-sobriety tests unfair. But the sound of blowing wind is heard in the police video and Sjoberg's clothing is seen to be blowing a good amount as well. Moreover, Sjoberg remarked at trial how the wind was blowing so strongly that it pushed him while he was standing and made it difficult to do the field-sobriety tests.
Additionally, before the one-leg-stand test, Sjoberg commented to Kellerman that it had to be scary for the officers too with all the cars coming towards them. Kellerman remarked that he didn't know why people weren't getting over in the far lane of traffic. At trial, Sjoberg testified that he was scared for his safety because the cars driving on the highway weren't getting over into the far lane and were passing just a few feet from him. He said that he couldn't concentrate on anything but whether he was safe. Although Kellerman said that he felt things were safe and it was his job to make sure that they were, Kellerman did say that the cars were fairly close and he recalled that Sjoberg's attention had been diverted at some point. Kellerman also said that it wouldn't be proper to conduct field-sobriety tests when the suspect is concerned for his safety. The speed limit on that part of the highway was 70 miles-per-hour.
Third, Kellerman did testify that the alcohol odor got stronger as Sjoberg spoke to him. In the police video, however, Kellerman said that he could smell just a little bit of an alcohol odor; one that he described a bit later as not real strong.
Fourth, Kellerman testified that Sjoberg's eyes appeared extremely bloodshot. But he also noted that his incident report described Sjoberg's eyes as merely bloodshot.
Fifth, Sjoberg first told Kellerman that he drank earlier before the game; it wasn't until a little later that he told Kellerman about the postgame beer. Sjoberg said that he'd had four beers before the game and another after—at about 10:30 or 11 p.m. On cross-examination, he clarified that he got the beer at 11:30 p.m. and probably finished it by midnight or 12:30 a.m. Kellerman admitted that Sjoberg didn't say his last drink was between 11:30 p.m. and 12:30 a.m., but Kellerman himself testified that he didn't see any inconsistencies in Sjoberg's testimony about when Sjoberg's last drink was.
The Department has not shown that the district court's factual findings weren't supported by substantial evidence—a reasonable person would accept the evidence we've just noted as sufficient to support the district court's findings. Moreover, as Sjoberg points out, the Department is in essence asking this court to do what it cannot—reweigh the evidence and reassess the witnesses' credibility. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009); Snyder v. Kansas Dept. of Revenue, No. 103,767, 2011 WL 1196917, at *2 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (October 7, 2011).
Consideration of Reasonable Grounds
We turn now to consideration of whether the officer had reasonable grounds to conclude that Sjoberg was driving while intoxicated. In doing so, we rely upon the facts found by the district court and any other facts that aren't in dispute.
Before stopping Sjoberg, Kellerman didn't see any typical clues of intoxication: Kellerman observed Sjoberg having no troubles staying in his lane, maintaining his speed, braking, accelerating or decelerating, pulling the car off the road, or stopping the car; Sjoberg didn't weave, straddle or cross the lane lines, turn with a wide radius, swerve, drift, drive more than 10 miles under the speed limit, act inconsistently with his turn signal, make an unsafe lane change, throw objects from the car, follow another vehicle too closely, or almost hit another vehicle or person.
Although the Department insists that Sjoberg's nonworking headlight indicates intoxication, this wasn't described as a typical intoxication clue at trial, and we find no basis to give it any weight in the reasonable-grounds determination. The lateness of the hour when the suspect is stopped, on the other hand, does support an inference that there's a greater likelihood of encountering an intoxicated driver. See Kohn v. Kansas Dept. of Revenue, No. 103,703, 2011 WL 768000, at *2 (Kan.App.2011) (unpublished opinion) (finding that the time of the stop—after 1 a.m.—was one factor that supported reasonable grounds to request testing); Horton v. Kansas Dept of Revenue, No. 101, 047, 2009 WL 3270833, at *2 (Kan.App.2009) (unpublished opinion) (same). As the district court noted, however, the time of day could also be explained in this case based on the nighttime basketball game and Sjoberg's explanation that he'd eaten after the game.
Kellerman said that his suspicions about intoxication arose when he approached Sjoberg's vehicle and noticed that the windows were down and the moon roof was open. Based on his experience and training, opening the car in such a manner can be a sign that a suspect is trying to air the car out and get rid of an incriminating smell. But Kellerman admitted at trial that several innocent explanations exist for having the windows and moon roof open, and Sjoberg had testified that the temperature was warm that night.
Sjoberg didn't exhibit several other common clues of alcohol impairment: Sjoberg didn't attempt to flee, didn't act in a disorderly or threatening manner, didn't have difficulty communicating or slurred speech, didn't fumble when he got his license, had no trouble exiting his car, didn't stumble, wasn't slow in responding to Kellerman's questions or instructions, and didn't have alcohol or drugs in the car. The police video confirms these observations.
Sjoberg's eyes were bloodshot, but they weren't watery, glazed, or droopy. And Kellerman acknowledged that a person's eyes can be bloodshot for reasons other than intoxication, including the time being as late as it was in this case. Kellerman only noticed the alcohol smell after he had Sjoberg in his patrol car; again, Kellerman recognized that a person can smell like alcohol yet not be intoxicated.
Kellerman did observe Sjoberg exhibit some clues of intoxication on the field-sobriety tests. Kellerman admitted that the walk-and-turn and one-leg-stand tests are not normal activities, and Sjoberg didn't exhibit the six other clues on the walk-and-turn test or the two other clues on the one-leg-stand test.
Based upon the district court's findings, the officer had detected bloodshot eyes and a mild odor of alcohol. In addition, Sjoberg had admitted that he'd drunk one beer quite recently and that he'd drunk four to five beers over the course of the day, and there were some clues of impairment in field-sobriety tests (the district court found that Sjoberg exhibited at least two clues of impairment on the walk-and-turn test and had a balance problem at one point in the one-leg-stand test), though there also was a possible innocent explanation for that based on wind and traffic. In addition, it was nearly 1 a.m.
The closest published Kansas appellate case to these facts is Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431–32, 962 P.2d 1150,rev. denied 266 Kan. 1107 (1998). In Campbell, the driver was stopped for driving 72 miles per hour in a 55 mile-per-hour zone at about 1:10 a.m. The officer immediately noted an odor of alcohol on the driver's breath. The driver had glazed and bloodshot eyes, and he admitted having had a few drinks. Our court found that these facts were more than sufficient to satisfy a reasonably prudent officer that [the suspect] had been driving under the influence. (Emphasis added.) Thus, the court found that there was probable cause to arrest Campbell. 25 Kan.App.2d at 432.
The facts of Campbell are very similar to Sjoberg's case. Sjoberg was stopped just before 1 a.m., had bloodshot eyes, and admitted to drinking right before he was pulled over. As in Campbell, the lateness of the hour provides some support for an inference of drunk driving. Here, unlike Campbell, Sjoberg had some difficulty in field-sobriety tests; no field-sobriety tests were considered in the probable-cause determination in Campbell.
We recognize, as we did in our earlier Sjoberg opinion, that this case presents a judgment call. The district court provided a carefully reasoned written opinion coming out the other way. But once we have the facts in hand, either undisputed ones or those as found by the district court, we must independently review the ultimate legal questionhere, whether the officer had reasonable grounds to believe Sjoberg had been driving under the influence of alcohol. See Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 415–16, 233 P.3d 286 (2010).
We also recognize that the district court noted potential innocent explanations for some of the facts, including the lateness of the hour (not unusual based on attendance at a KU men's basketball game) and some difficulties in field-sobriety tests (potentially explainable based on wind and traffic conditions). We note, however, that in the context of determining whether the reasonable suspicion to extend a traffic stop exists, our Supreme Court has said that courts should analyze all circumstances and not eliminate from consideration factors that might have an innocent explanation. State v. Coleman, 292 Kan. 813, 817–18, 257 P.3d 320 (2011). The same concept applies when determining reasonable grounds for concluding whether a person was driving under the influence of alcohol. State v. Ramirez, 278 Kan. 402, 406–09, 100 P.3d 94 (2004) (applying this rule to officer's determination of probable cause to arrest); Fleming v. Kansas Dept. of Revenue, No. 97, 182, 2007 WL 2178261, at *2 (Kan.App.2007) (unpublished opinion) (applying this rule to officer's determination of reasonable grounds in license-suspension case). We must consider reasonable grounds based on all the circumstances. While the district court correctly notes that the weight to be given to some of them may be less than suggested by the officer or by the Department of Revenue, they cannot be altogether excluded from consideration.
In our view, Trooper Kellerman had reasonable grounds to believe that Sjoberg had been driving while intoxicated. A person commits a DUI offense in Kansas when he or she either is unable to drive safely, K.S.A.2007 Supp. 8–1567(a)(3), or has a blood-alcohol level of .08 or above, K.S.A.2007 Supp. 8–1567(a)(l), and the latter, strict-liability option does not require any bad driving to constitute a crime. Our court recently made this point in Cline v.. Kansas Dept. of Revenue, No. 103,123, 2011 WL 148897, at *2–3 (Kan.App.2011), rev. denied 291 Kan. 910 (2011), where we found that the driver's admission that he had recently consumed two mixed drinks supplied reasonable grounds to believe there was a violation of the Kansas blood-alcohol-level statute:
Cline ... told Trooper Walker that he had two mixed drinks earlier in the evening. That alone furnished a reasonable ground to request a chemical or blood test. In K.S.A. 8–1567, Kansas has criminalized the status offense of driving with a blood-alcohol level of .08 or more. The offense requires only that the person drive or attempt to drive a vehicle (which Cline clearly did) and that the person exceed the requisite blood-alcohol level. Neither the person nor his or her driving need be impaired by the alcohol to violate the statute. Cline's statement to Trooper Walker that he had recently consumed more than a negligible amount of alcohol provided probable cause or a reasonable ground to believe a violation had occurred and, in turn, to arrest and to require a test.2011 WL 148897, at *2.
In Sjoberg's case, as in Campbell, there are factors beyond the mere admission of recent drinking to support the officer's reasonable-grounds conclusion—an odor of alcohol, bloodshot eyes, the early-morning hour, and some clues of impairment in field-sobriety tests. See also Allen v. Kansas Dept of Revenue, 292 Kan. 653, 659–60, 256 P.3d 845 (2011) (finding reasonable grounds from odor of alcohol, bloodshot eyes, admission of drinking, three impairment clues on walk-and-turn test, one clue of impairment on one-leg-stand test, brief driving irregularities, and status of driver as a minor); Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 518–19, 242 P.3d 1179 (2010) (finding reasonable grounds from odor of alcohol, bloodshot and watery eyes, admission to having had a few drinks with one only 30 minutes before stop, open container, two impairment clues on walk-and-turn test, and one impairment clue on one-leg-stand test).
As the court concluded in Allen, [u]nder these factual circumstances, [the trooper] had good reason to ‘believe that guilt [was] more than a possibility.’ 292 Kan. at 660 (quoting Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775–76, 148 P.3d 538 [2006] ). Trooper Kellerman had reasonable grounds to believe that Sjoberg had been driving while intoxicated.
The district court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.