Opinion
No. 102,223.
2012-09-28
Kathryn SWANK, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
Appeal from Allen District Court; Daniel D. Creitz, Judge. John D. Shultz and Matt Franzenburg, of Legal Services Bureau, Kansas Department of Revenue, of Topeka, for appellant. Charles H. Apt III, of Apt Law Offices, LLC, of Iola, for appellee.
Appeal from Allen District Court; Daniel D. Creitz, Judge.
John D. Shultz and Matt Franzenburg, of Legal Services Bureau, Kansas Department of Revenue, of Topeka, for appellant. Charles H. Apt III, of Apt Law Offices, LLC, of Iola, for appellee.
Before MARQUARDT, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Department of Revenue (KDR) appealed the district court's order reversing the KDR's suspension of Kathryn Swank's driver's license. On appeal, this court reversed and reinstated the suspension. Swank v. Kansas Dept. of Revenue, No. 102,223, unpublished opinion filed January 29, 2010, rev. granted April 11, 2011. Swank appealed the decision to the Kansas Supreme Court. The Kansas Supreme Court reversed and remanded the case to this court for additional consideration. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 281 P.3d 135 (2012). We affirm the district court's decision.
At 1:46 a.m. on June 7, 2008, Officer Jacob Morrison was dispatched to investigate a verbal disturbance at Jana Waddell's residence. Waddell told Morrison about a verbal altercation at her ex-husband's house between herself and Swank. According to Waddell, following the altercation, Swank chased Waddell in her automobile as Waddell drove home. According to Waddell, Swank was driving erratically and nearly hit Waddell's vehicle. Waddell also told Morrison that Swank was extremely intoxicated.
Officer Morrison went to Waddell's ex-husband's home, found Swank there, and asked her if she had been “chasing Miss Waddell around.” Swank replied in the affirmative and informed Officer Morrison that she had been drinking alcohol prior to driving her car. At approximately 2:01 a.m., Officer Morrison arrested Swank for suspicion of driving while under the influence of alcohol (DUI). At the sheriffs office, Officer Morrison found an open can of beer in Swank's car that was still cool to the touch. Swank's test at the sheriff's office registered her blood-alcohol content over the legal limit of .08.
At the district court hearing, Swank testified that she drank three beers prior to driving her vehicle. She also testified that before her arrest and after she returned to her home, she drank a bottle of Hot Damn Schnapps. At the conclusion of the hearing, the district court reversed the KDR's suspension of Swank's driver's license. The district court found that it could not determine “from the evidence that the officer had reasonable grounds to believe the person was operating a vehicle while under the influence .” The KDR timely appealed. This court reversed the district court. Swank filed a petition for review with the Kansas Supreme Court, which was granted. The Supreme Court held that this court erred in its interpretation of K.S.A.2008 Supp. 8–1020(h)(2) and remanded the case with directions.
“In reviewing a district court's ruling in a driver's license suspension case, an appellate court typically applies a substantial competent evidence standard. [Citation omitted.] Substantial evidence is evidence possessing relevance and substance that furnishes a basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is legal and relevant evidence sufficient to reasonably support the conclusion reached by the district court. [Citation omitted.] However, where the issue raised in a driver's license suspension case involves strictly a legal question, an appellate court's review is unlimited. [Citation omitted.] Interpretation of a statute is a question of law over which an appellate court has unlimited review. [Citation omitted.]” Mitchell v. Kansas Dept. of Revenue, 41 Kan.App.2d 114, 118, 200 P.3d 496,rev. denied 289 Kan. 1279(2009).
K.S.A.2008 Supp. 8–1020(h)(2) states:
“If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8–2, 128, and amendments thereto, while having alcohol or other drugs in such person's system;
(B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8–1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of health and environment;
(E) the person who operated the testing equipment was certified by the Kansas department of health and environment;
(F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and
(H) the person was operating or attempting to operate a vehicle.”
The KDR claims that under Kansas law the standard of reasonable grounds has been equated with probable cause. See Sullivan v. Kansas Dept. of Revenue, 15 Kan.App.2d 705, 707, 815 P.2d 566 (1991). Probable cause is defined as “that quantum of evidence that would lead a reasonably prudent police officer to believe that guilt is more than a mere possibility.” Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431, 962 P.2d 1150,rev. denied 266 Kan. 1107 (1998). Furthermore, a determination of reasonable grounds only requires a reasonably prudent officer to believe that it is more than a possibility a motorist operated a vehicle under the influence; no proof beyond a reasonable doubt is necessary. City of Dodge City v. Norton, 262 Kan. 199, 203–04, 936 P.2d 1356 (1997). Finally, hearsay information may be used as a basis for a probable cause or reasonable grounds determination. See State v. Morgan, 222 Kan. 149, 152, 563 P.2d 1056 (1977).
The KDR cites Campbell, where the facts established probable cause of DUI. In Campbell, the motorist was speeding at 1:10 a.m ., smelled of liquor, admitted having had a few drinks, and his eyes were glazed and bloodshot. The KDR compares Campbell to the facts of Swank's case and argues that Officer Morrison had reasonable grounds to believe Swank had been driving under the influence.
Swank counters that under K.S.A.2008 Supp. 8–1020(h)(2), Morrison was required to establish that Swank had been operating a vehicle with a blood-alcohol content of .08 or higher. According to Swank, this language is conjunctive, and each element must be proven to uphold the suspension of her driver's license. She argues that because the KDR did not establish she operated a vehicle with a blood-alcohol content of .08 or higher, the district court made the correct determination in reversing the suspension of her driver's license.
The KDR argues that under K.S.A.2008 Supp. 8–1020(h)(2)(A) an officer can have reasonable grounds to believe an offender was driving while intoxicated without first establishing that the offender had been driving with a blood-alcohol content of .08 or higher. An officer can never determine blood-alcohol levels at the time of operation of the vehicle due to the 20–minute deprivation period before a breath test can be administered.
The KDR argued initially that Swank's intervening consumption of alcohol was not an issue that could be decided by the district court in a driver's license suspension case. The KDR now agrees that postdriving alcohol consumption is a fact potentially relevant to whether the officer had reasonable grounds to believe the individual was operating a vehicle while under the influence of alcohol “but is not an absolute defense.”
At the district court hearing, Morrison testified that he did not ask Swank if she had consumed any alcohol from the time she got to the house until he arrived. Swank testified that she drank a half pint of Hot Damn. The Supreme Court stated: “Such consumption is a factor to be considered and evaluated, not ignored.” 294 Kan. at –––– (slip op. at 12). Postdriving alcohol consumption is relevant and a factor to consider and evaluate on the issue of whether the officer had a reasonable belief that an individual has been driving under the influence. Swank had already exited the vehicle before Morrison arrived, and Swank would have had an opportunity to consume more alcohol. Morrison's failure to inquire about postdriving alcohol consumption made the blood-alcohol test results questionable.
Judge Creitz, in rendering his decision from the bench following the February 26, 2009, evidentiary hearing, stated:
“Petitioner had the burden of proof, and the Court finds that petitioner has indeed met her burden of proof pursuant to [K.S.A.2008 Supp. 8–1020(h)(1)(A) ], that here the law enforcement officer did not have reasonable grounds to believe the defendant was operating or attempting to operate the motor vehicle while under the influence of alcohol. As I read the statute, it's—You know, you have to meet not only—the defendant admitted the driving. That's really not an issue. The issue is the intervening—intervening consumption, which is really uncontroverted; and I'm looking at the Respondent's exhibits that have been submitted and I see that her statements are consistent with what was provided in the discovery, so—and I read K.S.A.—as I read (h)(1), K.S.A. [2008 Supp. 8–1020], it's conjunctive, not disjunctive; and what I mean by that, paragraph one, you have to prove A, B, C and D; and the same applies to paragraph two, when a breath test failure has occurred you have to prove all of those A through H, and it's “and H”. They are conjunctive, not disjunctive, so—And here this is not a refusal. This is a breath test, so actually be dealing the (h)(2), I believe, (A). And, again, it has the same language. So having said that, the petitioner's petition is granted and the license is reinstated and that be the order of the Court.”
The order from this hearing, filed on March 5, 2009, stated:
“That after hearing all the evidence the court finds that it cannot be determined from the evidence that the officer had reasonable grounds to believe the person was operating a vehicle while under the influence, in accordance with KSA 8–1020(h)(2)(A), in that the evidence does not establish that the Petitioner had a blood alcohol level of .08 or greater.”
Here the district court found that Swank carried her burden of proving that the officer did not have reasonable grounds to believe she was operating a vehicle under the influence. In other words, the evidence Swank provided was both relevant and substantial and provided a basis of fact from which the issue could be reasonably determined. See Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). The district court cited Swank's undisputed testimony that she had indulged in postdriving alcohol consumption. Officer Morrison did not ask Swank if she had consumed any alcohol after she exited her vehicle.
In addition, the district court made a finding that Morrison did not have reasonable suspicion that Swank was driving while under the influence. This is essentially a negative finding. When challenging this finding, KDR must prove the district court's arbitrary disregard of undisputed evidence or must prove some extrinsic consideration such as bias, passion, or prejudice. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008). Because the district court is the finder of fact here, and KDR has not claimed that the court disregarded undisputed evidence or that the court was biased or prejudiced, we find that the district court did not err in dismissing the suspension.
Affirmed.