Opinion
No. 107,856.
2013-08-30
STATE of Kansas, Appellee, v. Emily S. SWINGLE, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert and David J. Kaufman, judges. John E. Stang and John E. Rapp, of Hulnick, Stang & Rapp, P.A., of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert and David J. Kaufman, judges.
John E. Stang and John E. Rapp, of Hulnick, Stang & Rapp, P.A., of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Emily S. Swingle appeals her convictions for felony driving under the influence, a violation of K.S.A.2009 Supp. 8–1567, and for refusing a preliminary breath test, an infraction violating K.S.A.2009 Supp. 8–1012, arguing the Sedgwick County District Court erred in denying her motion to suppress evidence because a sheriff's deputy arrested her without probable cause. The officer had sufficient facts to arrest Swingle, so he did not violate her rights. The district court correctly denied her motion and permitted the evidence to be used against her. Swingle also argues that the district court should have considered sentencing her to house arrest, as permitted by recent amendments to K.S.A. 8–1567. Given longstanding Kansas law recognizing that a defendant should be punished under the statutes in effect at the time of the offense, the district court properly rejected that option in sentencing Swingle. We, therefore, affirm in all respects.
On April 21, 2010, at about 7:30 p.m., Sedgwick County Sheriff's Deputy Andrew Dodge was dispatched to a one-car mishap in rural Sedgwick County. At the scene, he found a four-door sedan in a field on the north side of an east-west dirt road. The car left the roadway, crossed a ditch, and hit a fence before stopping. The car had damage to the front end and a large hole toward the passenger side of the windshield where a fencepost had entered. The post then apparently went through the rear passenger door and came to rest just outside the sedan.
Swingle was kneeling behind the car when Dodge arrived. She identified herself as the driver. A man at the scene said he was Swingle's boyfriend. The record at the suppression hearing was unclear on whether he was a passenger in the car or had arrived at the scene in his own vehicle. According to Dodge, Swingle was emotionally upset but did not appear to be physically injured. Swingle explained to Dodge that she had been following another vehicle eastbound on the road. As the dust kicked up by that vehicle increasingly impaired her view of the road, she applied her brakes and lost control of her car.
Dodge asked Swingle for her driver's license. She had difficulty getting the license out of her wallet. As Dodge approached Swingle, he noticed a strong odor of alcohol about her. He asked whether she had been drinking, and she denied having consumed any alcohol. Swingle's eyes were bloodshot. According to Dodge, Swingle asked him to repeat himself, was slow to respond to some of his questions, and gave responses he characterized as scattered. At the hearing on Swingle's motion to suppress, Dodge agreed her demeanor and behavior—with the exception of the odor of alcohol—would have been consistent with her having been in a significant motor vehicle mishap. But her appearance and actions also were consistent with intoxication, according to Dodge, and ultimately formed part of the basis for his decision to arrest Swingle for DUL He also considered the circumstances of the mishap and the evidence Swingle had been drinking.
Based on his observations, Dodge asked Swingle if she would take some field sobriety tests. Those tests are intended to reveal the subject's ability to understand the instructions and to measure the subject's physical coordination in performing the required tasks. A poor performance on the tests would be consistent with a degree of intoxication impairing mental and physical abilities. Swingle agreed to take the tests. But Dodge testified that the dirt road had some sizeable stones and the grassy field was uneven, so neither provided the sort of clear, flat surface conducive to fairly administering the tests. Dodge, therefore, asked Swingle if she would go with him to a nearby QuikTrip to perform the tests in the store's paved parking lot. She agreed to that as well.
Swingle sat in the backseat of Dodge's patrol car for the mile-and-a-half drive to the QuikTrip. Dodge neither informed her she was under arrest nor placed her in handcuffs. At the suppression hearing, Dodge testified that had Swingle declined to go to the QuikTrip or some other suitable location to perform the tests, he would have arrested her for DUI based on the circumstances of the motor vehicle mishap and her appearance and actions at the scene.
At the QuikTrip, Dodge explained both the walk-and-turn test and the one-leg-stand test to Swingle. He testified that she seemed to have some difficulty understanding the directions, so he repeated them. But he testified she performed both field sobriety tests without displaying any indicators of impairment. Dodge then asked Swingle if she would take a preliminary breath test and read the related advisory to her. Swingle declined to take the preliminary breath test. At that point, Dodge told Swingle she was under arrest. Dodge then drove her to the Sedgwick County jail. At the jail, Swingle agreed to take a breath test. That test, administered with an Intoxilyzer 8000, indicated her alcohol level to be .111, in excess of the .08 legal limit.
The Sedgwick County District Attorney charged Swingle with felony DUI, no proof of insurance, and refusing a preliminary breath test. The State later dismissed the no-insurance charge, and it doesn't otherwise figure in this case.
As we have indicated, Swingle filed a motion to suppress on the grounds Dodge functionally arrested her without probable cause when he took her to the QuikTrip and then formally arrested her there also without probable cause. As a result, Swingle argued the results of the breath test should have been excluded as evidence. Dodge was the only witness to testify at the suppression hearing. The district court ruled that Swingle was effectively under arrest when Dodge drove her to the QuikTrip. But the district court found that Dodge had probable cause to arrest Swingle for DUI at that point based on her having driven off the road and her appearance and comportment at the scene. The district court also ruled that Swingle's performance on the field sobriety tests did not negate or overcome the evidence supporting probable cause.
Swingle later went to trial on stipulated facts, and the district court found her guilty of DUI and refusing a preliminary breath test. At her sentencing on February 14, 2012, Swingle requested that she be allowed to serve part of her incarceration on house arrest, as provided in the amended version of K.S.A. 8–1567 that became effective July 1, 2011. The district court found the amendment was not retroactive and denied that request. On the DUI charge, Swingle received a sentence of 180 days in jail, with work release; postrelease supervision of 12 months; and a fine of $2,500. She received a $90 fine on the infraction for refusing the preliminary breath test.
Swingle has timely appealed.
Swingle reprises the issues she asserted in the district court, challenging her arrest and the admissibility of the breath test results as evidence and arguing she should have been considered a candidate for house arrest. Swingle launches her attack on the breath test on three fronts: (1) Dodge functionally arrested her at the scene without probable cause; (2) Dodge lacked probable cause to arrest her at the QuikTrip; and (3) Dodge had no reasonable basis to request that she submit to the Intoxilyzer 8000 breath test. For purposes of the appeal, we essentially combine them into the single issue of probable cause to arrest.
In reviewing a district judge's ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district court if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden).
An arrest is a seizure within the meaning of the Fourth Amendment to the United States Constitution and must be based on probable cause. Kansas has codified the probable cause standard for arrests in K.S.A. 22–2401(c). Probable cause to arrest requires that an officer have knowledge of facts that would lead a reasonably cautious person to believe a crime had been committed and the suspect committed it. Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (“This Court repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.”); Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); see Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20–21, 290 P.3d 555 (2012). Probable cause to arrest for DUI furnishes a sufficient legal basis for a law enforcement officer to request a breath test. K.S.A. 8–1001(b) (grounds for requesting chemical test of alcohol level); Sloop, 296 Kan. at 19 (K.S.A. 8–1001 authorizes chemical test of alcohol level upon lawful arrest, i.e., one based on probable cause).
For purposes of this appeal, we assume but do not decide that Dodge arrested Swingle when he asked her to go to the QuikTrip to take the field sobriety tests and she agreed. The district court came to that legal conclusion, although it might be fairly debated. Given our resolution—that Dodge had probable cause to arrest Swingle—the debate amounts to an academic exercise.[*]
[*] An individual legally may be considered under arrest if the circumstances are such that a reasonable person in that position would not feel free to leave. United States v. Guzman–Padilla, 573 F.3d 865, 885 (9th Cir.2009); United States v. Brown, 441 F .3d 1330, 1347 (11th Cir.2006) (individual in custody requiring Miranda warnings if reasonable person would not feel free to leave). The person need not be told he or she is under arrest. The subjective intent or belief of the law enforcement officer is irrelevant. Brown, 441 F.3d at 1347. Here, Dodge asked rather than ordered Swingle to go to the QuikTrip, and she agreed. She was not handcuffed or otherwise restrained. Dodge did not inform Swingle she would be arrested if she refused to go. In arguably similar circumstances, this court held that transporting a person a short distance to facilitate the safe performance of field sobriety tests did not amount to an arrest. State v. Barriger, 44 Kan.App.2d 648, 652–53, 239 P.3d 1290 (2010), rev. denied 292 Kan. 966 (2011).
We turn to the evidence. At the scene, Dodge saw a car driven a fair distance off the road. In his testimony, Dodge alluded to the absence of readily apparent reasons for the mishap. The road appeared to be in good condition and without observable defects or obstructions, according to Dodge. The mishap occurred during daylight hours, and nobody suggested the weather was inclement or in any way contributed to the situation. Swingle told Dodge her line of sight was obscured by dust from another vehicle. But by the time Dodge arrived, that was an unverifiable explanation.
As we have already recounted, Dodge found Swingle to be unsteady in her physical actions and in her responses to his inquiries. Her eyes were bloodshot. And Swingle smelled strongly of alcohol. But she denied having drunk any alcoholic beverages. The mishap itself is consistent with and would be indicative of an impaired driver, although there could be other explanations, including the one Swingle offered. Similarly, Swingle's discombobulation could have been the product of intoxication or the emotional trauma of the mishap or a combination of the two. But the odor of alcohol and Swingle's dissembling about it don't fall in that category. Particularly in combination, they present significant evidence supporting Swingle's intoxication. That is, she lied about drinking because she knew she had been driving when she really shouldn't have been. Thompson v. State, 138 Idaho 512, 516, 65 P.3d 534 (Ct.App.2003) (defendant's denial of alcohol consumption despite odor of alcohol on breath evidence of consciousness of guilt supporting probable cause to arrest); see State v. Appleby, 289 Kan. 1017, 1061, 221 P.3d 525 (2009) (giving false information to law enforcement officer investigating crime admissible as evidence of consciousness of guilt).
Looking at all of those circumstances, we agree with the district court that Dodge had probable cause to arrest Swingle for DUI at the scene of the mishap before taking her to the QuikTrip for the field sobriety tests. Dodge had no basis for evaluating the truth of Swingle's explanation for driving off the road. And especially in light of her apparent lie about not drinking, he had reason to question it. Likewise, Dodge had no obligation to discount Swingle's appearance and reactions as solely the product of the mishap rather than intoxication in making a probable cause determination. Swingle's alternative spin on the circumstances could be a defense to the DUI charge at trial, but it doesn't negate the probable cause to arrest at the scene.
Swingle's good performance on the field sobriety tests at the QuikTrip does not cancel out or materially diminish the probable cause evidence. That is particularly true given the ways a DUI offense may be proven. Her success on the tests indicates that she was not obviously impaired physically by the alcohol she had consumed. But physical impairment is not an element necessary to establish a DUI under K.S.A. 8–1567. A person is guilty of DUI if he or she operates a motor vehicle with an alcohol level of .08 or higher without regard to impairment. K.S.A. 8–1567(a)(1). The person may be wholly unimpaired. The status of having an alcohol level exceeding the statutorily prohibited level is sufficient to convict.
Here, Dodge had ample reason—probable cause—to draw that conclusion. Swingle, of course, admitted driving. She smelled strongly of alcohol, yet denied any consumption. That is sufficient to establish probable cause to arrest for a violation of K.S.A. 8–1567(a)(l). Swingle's performance on the field sobriety tests had only limited relevance to a charge based on that means of violating K.S.A. 8–1567.
In sum, Dodge had probable cause to arrest Swingle and to have her submit to the Intoxilyzer 8000 breath test. The district court correctly denied the motion to suppress. We, therefore, affirm Swingle's conviction.
In her remaining point on appeal, Swingle asserts that she ought to be eligible for house arrest, as provided in amendments made to K .S.A. 8–1567 in 2011 and 2012—after the incident resulting in her conviction. The version of K.S.A. 8–1567 in effect when Swingle committed the offense did not allow house arrest for anyone with four or more convictions. This was Swingle's fourth DUI. The district court rejected the request as a matter of law. That is, Swingle had no legal basis to request house arrest as a possible form of punishment. The district court, therefore, did not address whether Swingle was deserving of house arrest as an alternative to imprisonment.
Swingle argues that the amendments operate as procedural or remedial measures and, therefore, ought to be applied retroactively, making her eligible for house arrest.
As a general rule, “a statute applies prospectively unless there is clear language in the statute that the legislature intended that it applies retroactively.” Welty v. U.S.D. No. 259, 48 Kan.App.2d 797, Syl. ¶ 1, 302 P.3d 1080 (2013); State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010). In addition, the Kansas Supreme Court has long held that criminal defendants will be sentenced based on the statutory punishment in effect at the time they committed the offense. 291 Kan. at 559;State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As the court has stated: “It is a fundamental rule that a person convicted of a crime is given the sentence in effect when the crime is committed.” State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001).
Given that well established history, we must assume that had the Kansas Legislature intended retroactive application of the amendments to K.S.A. 8–1567 extending house arrest to four-time DUI offenders, it would have included clear language accomplishing that purpose. The amendments are conspicuously lacking anything resembling a directive for retroactive application.
Swingle contends we should apply the canon of statutory construction allowing procedural or remedial amendments to operate retroactively when a statute is silent. See Williams, 291 Kan. at 557 (noting the canon). Under Kansas Supreme Court precedent, it seems unlikely the house-arrest amendment is procedural. State v. Sylva, 248 Kan. 118, 120–21, 804 P.2d 967 (1991) (amendment to criminal sentencing statutes making certain offenses punishable with presumptive probation is substantive rather than procedural); see State v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001) (citing State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 [1980], court states “[t]he prescription of a punishment for a criminal act is substantive, not procedural, law”); State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991) (a “substantive” criminal statute “involves the length or type of punishment”). Nor is the amendment obviously remedial in the sense of reforming or extending an existing right to enhance the public welfare or of correcting a defect in the earlier statutory language. See Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 461, 264 P.3d 102 (2011) (remedial statutes “ ‘ “reform or extend existing rights” ‘ ”); In re Care & Treatment of Hunt, 32 Kan.App.2d 344, 360, 82 P.3d 861,rev. denied 278 Kan. 845 (2004). Here, Swingle had no right to house arrest before the amendments, so her existing rights were not altered, as by allowing house arrest to substitute for more of the required period of incarceration. Nor was there a statutory defect in the preamendment version of K.S.A. 8–1567, where the legislature had attempted to allow house arrest for four-time DUI offenders but the effort failed because the language was ineffective.
Given the settled law on retroactivity generally and criminal statutes particularly, we cannot infer some legislative intent that the house-arrest provisions in the recent amendments to K.S.A. 8–1567 should be applied to DUI prosecutions based on incidents occurring before they became effective. The district court, therefore, correctly found that Swingle was not eligible for house arrest.
Affirmed.