Opinion
No. 108,940.
2013-10-25
STATE of Kansas, Appellee, v. Dennis E. FORD, Appellant.
Appeal from Kingman District Court; Larry T. Solomon, Judge. Michael S. Holland, II, of Holland and Holland, of Russell, for appellant. Matthew W. Ricke, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Kingman District Court; Larry T. Solomon, Judge.
Michael S. Holland, II, of Holland and Holland, of Russell, for appellant. Matthew W. Ricke, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
LEBEN, J.
Dennis Ford appeals his DUI conviction, arguing that one of the pieces of information that led to his arrest—a preliminary breath test that showed him above the legal limit—was illegally obtained. Specifically, Ford argues that the Kansas statute allowing a preliminary breath test if an officer has “reasonable suspicion” the person is driving while intoxicated, K.S.A.2012 Supp. 8–1012(b), violates the United States Constitution, which allows a search only on a showing of “probable cause,” a more stringent standard.
But in Ford's case, the officer had sufficient indicators that Ford was driving while intoxicated to have probable cause to so conclude, even without regard to the preliminary breath test. So even if the statute had required probable cause to request a preliminary breath test, as Ford argues is constitutionally required, the officer had probable cause. We therefore have no need to resolve the constitutional question Ford has raised, and we affirm the district court's judgment.
We first briefly set out the facts involved in Ford's encounter with a police officer. A Kansas Highway Patrol trooper stopped Ford based on the lack of working lights to see his license plate, not based on any bad driving. But when the trooper, James Reams, approached Ford's truck, Reams smelled alcohol and observed that Ford's eyes were bloodshot.
Reams asked Ford if he had been drinking. Ford admitted that he had been drinking “[a] little bit of beer” at a friend's house. Asked to quantify how much he had been drinking, Ford replied, “Probably too much for you.”
Reams asked Ford to perform two field-sobriety tests. On the walk-and-turn test, Reams said that Ford showed three out of eight possible clues of impairment—an improper turn, failure to touch heel to toe twice, and stopping while walking. On the one-leg-stand test, Reams said that Ford showed two of four clues of impairment—putting his foot down while trying to balance and swaying while trying to balance. Reams said that based on these field tests and other indicators of intoxication, he believed he had probable cause at that point to arrest Ford for driving under the influence of alcohol.
But Reams instead asked Ford if he would take a preliminary breath test; Ford agreed. That test showed Ford's alcohol level above the legal limit, and Reams formally arrested Ford at that point. After his arrest, Ford agreed to take an evidentiary blood test, and it showed a level of .11, over the legal limit of .08.
Before trial, Ford moved to suppress the evidentiary blood test, contending that it was obtained only because the officer had first illegally obtained a preliminary breath test showing intoxication. Ford contended that the Kansas statute allowing an officer to request a preliminary breath test if the officer has reasonable suspicion the person has been driving while intoxicated, K.S.A.2012 Supp. 8–1012, is unconstitutional. Ford claims that the preliminary breath test is a search, and that searches cannot be had on less than probable cause under the Fourth Amendment to the United States Constitution.
The district court denied Ford's motion. Afterward, Ford pled guilty to a second-time DUI offense, while preserving his right to appeal the denial of the motion to suppress evidence.
On appeal, Ford urges that we address the constitutionality of K.S.A.2012 Supp. 8–1012, while the State argues that we need not do so because Reams had probable cause to arrest Ford under the facts presented in evidence to the district court. We agree with the State.
We review the district court's ruling on a motion to suppress in two steps. First, we review the district court's factual findings to determine whether they are supported by substantial evidence. If so, we must accept them. Second, we then review the ultimate legal conclusion at issue independently, without any required deference to the district court. State v. Martinez, 296 Kan. 482, 485, 293 P .3d 718 (2013).
We proceed, then, to determine whether Reams had probable cause to believe that Ford was driving while intoxicated. That's significant in at least two ways here. First, if Ford had probable cause before asking for the preliminary breath test, then the officer took no unconstitutional action in Ford's case even if Ford is right that the statute should require probable cause before a preliminary breath test is requested. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656–60, 256 P.3d 845 (2006) (finding that officer had probable cause to administer preliminary breath test, thus making determination of constitutionality of statute authorizing such tests on reasonable suspicion unnecessary), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012); Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 518–19, 242 P.3d 1179 (2010) (same). Second, if Ford had probable cause to arrest Ford even without the preliminary breath test results, then it wouldn't matter what the preliminary breath test showed—the officer would still have been entitled to request the evidentiary blood test, which showed that Ford was driving with an alcohol level above legal limits.
The district court in Ford's case properly found that Reams had probable cause even before asking for the preliminary breath test. Reams testified to several factors that he said supported his probable-cause determination: (1) Ford smelled of alcohol; (2) Ford had bloodshot eyes; (3) Ford admitted to drinking beer at a friend's house; (4) Ford conceded that the amount of beer he had consumed was “[p]robably too much for [the officer]”; (5) Ford scored three of eight impairment clues on the walk-and-turn test; and (6) Ford scored two of four impairment clues on the one-leg-stand test.
When considering whether the officer had probable cause, Ford rightly notes that there were some facts in his favor. He reacted to the officer's traffic stop appropriately, he didn't show any clues of bad driving, he didn't slur his speech in talking with the officer, he didn't fumble around trying to get his license, and he didn't make any mental errors in responding to the field-sobriety testing. Ford also notes that he had told the officer about a heart condition that Ford thought might affect his ability to do field-sobriety tests, and Ford was wearing cowboy boots, which might have impacted the tests as well. Since probable cause is determined based upon all of the circumstances, Allen, 292 Kan. at 657, these facts are worth noting.
But we agree with the district court that Reams had enough information to conclude that there was probable cause to believe that Ford was driving while intoxicated. See State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004) (noting that probable cause is the reasonable belief that a specific crime is being or has been committed and that the defendant committed the crime). Ford's case is similar to Smith, in which the Kansas Supreme Court found that an officer had probable cause based on evidence that the driver smelled of alcohol, had bloodshot eyes, admitted to drinking, possessed an open container, presented two clues of impairment on the walk-and-turn test, and presented one clue of impairment on the one-leg-stand test—even though the driver hadn't shown any bad driving. 291 Kan. at 518–19. Aside from the open container—present in Smith but not in our case—the officers in the two cases relied on essentially the same information. We agree with the district court that Reams had probable cause to believe that Ford was driving while intoxicated before Reams asked for the preliminary breath test.
Given that conclusion, there is no need to address Ford's argument about the constitutionality of K.S.A.2012 Supp. 8–1012. Even if probable cause should be required—rather than reasonable suspicion—to request a preliminary breath test, Reams had probable cause before he asked for the preliminary breath test. And even if Reams had never obtained a preliminary breath test, he had probable cause sufficient to arrest Ford without it. We therefore decline to address Ford's constitutional argument; appellate courts generally should avoid addressing constitutional objections to a statute unless it's actually necessary to decide the case. Smith, 291 Kan. at 519 (citing Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 [2003] ).
The district court's judgment is affirmed.