Opinion
No. 112042.
07-10-2015
Ryan K. TAYLOR, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Angela C. Hasty, of Law Office of Angela Hasty, L.L.C., of Leawood, for appellant. John D. Shultz and James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Angela C. Hasty, of Law Office of Angela Hasty, L.L.C., of Leawood, for appellant.
John D. Shultz and James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
Opinion
PER CURIAM.
Ryan K. Taylor appeals from the district court's order affirming the suspension of his driver's license. He argues that the law enforcement officer lacked both reasonable suspicion and reasonable grounds to believe Taylor was driving under the influence of alcohol or drugs. Taylor also argues that K.S.A.2014 Supp. 8–1012 is unconstitutional.
Facts
At about 2:19 a.m. on July 16, 2013, Officer Robert Bulit of the Mission Police Department observed a vehicle traveling westbound on Shawnee Mission Parkway. The vehicle caught Bulit's attention because it was being driven on top of the fog line. He continued to follow the vehicle, saw it weaving heavily within its lane, and, at one point, saw it straddle two lanes. He stopped the vehicle, which Taylor was driving. Taylor stopped his vehicle properly, he did not fumble when retrieving his license, his speech was not slurred, he was cooperative and polite, and there was no alcohol in the vehicle. But Bulit noticed that Taylor's eyes were bloodshot and that there was a faint odor of alcoholic beverages coming from the vehicle. Taylor told Bulit that he was coming from the Plaza, an area Bulit testified was commonly known for having a lot of bars and bar traffic. When asked how much Taylor had to drink, he first responded, “ ‘Not very much’ “ and later stated that he had “ ‘[t]wo.’ “ Taylor also told Bulit that he was taking medication for allergies.
Eventually, Bulit asked Taylor to get out of the vehicle and submit to field sobriety tests. Taylor did not have any problems getting out of his vehicle. But after Taylor got out, Bulit noticed that the smell of alcohol went from what had been a faint smell to what Bulit described as “moderate.” Once Taylor was out of the vehicle, Bulit administered the horizontal gaze nystagmus (HGN) test. During that test, Bulit noticed that Taylor had a visible sway in his stance. Bulit then had Taylor perform a walk-and-turn test and noticed three clues of impairment during the test. Bulit testified that two clues constitute a failure on that test.
Next, Bulit asked Taylor to perform a one-leg-stand test. Taylor performed that test with no clues of impairment. Bulit also asked Taylor to perform an alphabet test, which Taylor performed with no errors. Finally, Bulit asked Taylor to submit to a preliminary breath test (PBT). Taylor refused and, afterward, Bulit placed him under arrest. At the police station, Taylor also refused to submit a sample of his breath to an Intoxilyzer 8000 machine.
As a result of his refusal to submit to the evidentiary breath test at the police station, Taylor's driver's license was suspended. Taylor requested an administrative hearing. It was held on October 15, 2013. The hearing officer affirmed the decision to suspend Taylor's driver's license. Taylor then filed a petition for review in Johnson County District Court. A pretrial order was filed that identified the only issue to be decided at trial as: “Whether there were reasonable grounds at the time a test was requested to believe petitioner had been operating a vehicle while under the influence of alcohol.”
A trial was held on May 6, 2014, and Bulit was the only witness. He testified to the events of July 16, 2013, outlined above. A video of the traffic stop also was admitted into evidence. After hearing the evidence and the arguments of both parties, the district court ruled against Taylor and ordered the attorney for the Kansas Department of Revenue to prepare a journal entry. Specifically, the district court found that the video of the incident showed that Taylor's vehicle was weaving in its lane and swerved over the fog line on the side of the road, straddling it for a period of time. Although the district judge stated he did not observe any clues of impairment when Taylor was performing the walk-and-turn test on the video, the court specifically referred to Bulit's testimony that he had a better opportunity to view Taylor's performance on the test and then noted that Bulit believed Taylor failed it. Finally, the court concluded the following factors supported a finding that reasonable grounds existed to request a breath test: (1) Taylor's driving behavior occurred at 2:15 a.m.; (2) Taylor had bloodshot eyes; (3) Taylor stated to Bulit that he was coming from the Plaza; (4) Taylor admitted to consuming alcohol; (5) Taylor's car smelled of alcohol, and Taylor himself smelled of alcohol; and (6) Taylor swayed during the HGN test. Taylor appeals.
Analysis
1. Legal authority to request a breath test
Taylor asserts on appeal that Bulit lacked the legal authority to request a breath test. But Taylor's sole argument appears to be that Bulit lacked the level of suspicion necessary to request a PBT. Taylor argues in the first section of his brief that reasonable suspicion did not exist to request a PBT under K.S.A.2014 Supp. 8–1012(b). He also makes other references to the PBT throughout his argument. And conspicuously missing from his brief is any reference to Taylor's refusal at the police station to submit a sample of his breath to an Intoxilyzer 8000 machine.
K.S.A.2014 Supp. 8–1012(b) does indeed require a law enforcement officer to have reasonable suspicion that a person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs before requesting a PBT. Further, Taylor did refuse to take a PBT. And although refusal of a PBT is a traffic infraction under K.S.A.2014 Supp. 8–1012(d), Taylor is appealing from the district court's order affirming the suspension of his driver's license. The district court did not rely on Taylor's refusal to submit to the PBT when it affirmed the suspension of his license. Therefore, Taylor's refusal to submit to the PBT is irrelevant to his appeal.
This case arose from Taylor's refusal to submit to an evidentiary breath test. The administration of evidentiary breath tests is governed by K.S.A.2014 Supp. 8–1001. As opposed to the refusal of a PBT, refusal to submit to an evidentiary breath test can subject a driver to the suspension of his or her driver's license. K.S.A.2014 Supp. 8–1014. To that end, a key distinction for courts between a PBT and an evidentiary breath test is the level of suspicion necessary for a law enforcement officer to request each test. Again, requesting a PBT requires reasonable suspicion. But requesting an evidentiary breath test requires “reasonable grounds.” K.S.A.2014 Supp. 8–1001(b). Our Supreme Court has determined that the term “reasonable grounds” as used in K.S.A.2014 Supp. 8–1001(b) is synonymous with the term “probable cause.” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 513–14, 242 P.3d 1179 (2010). Probable cause is a higher standard than reasonable suspicion but a lower standard than necessary to establish guilt beyond a reasonable doubt. Bixenman v. Kansas Dept. of Revenue, 49 Kan.App.2d 1, 6, 307 P.3d 217 (2013).
This court generally reviews the district court's decision to suspend a driver's license to determine whether it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 871 (2012). “Substantial competent evidence is ‘such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ “ Smith, 291 Kan. at 514, 242 P.3d 1179. As noted above, the test for whether reasonable grounds existed to request an evidentiary breath test under K.S.A.2014 Supp. 8–1001(b) is strongly related to the standard for determining probable cause, which is the standard of proof necessary to support a warrantless arrest. See State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). “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 has committed or is committing a specific crime.” 297 Kan. at 222, 301 P.3d 287. Whether probable cause exists is a question of law subject to unlimited review by this court. City of Dodge City v. Webb, 50 Kan.App.2d 393, 397, 329 P.3d 515 (2014).
Having set forth the standard of review and the standard of proof, we now move to the first issue presented for decision: Whether the district court's findings are supported by substantial competent evidence. The facts of this case are largely undisputed, but Taylor asserts in his brief that the district court's finding that he swayed during the administration of the HGN test is not supported by the record on appeal. Contrary to this assertion, the district court's factual finding that Taylor swayed during the HGN test is supported by Bulit's testimony that Taylor “had a visible sway in his stance.” Thus, Bulit's testimony establishes that the district court's finding on this issue is supported by substantial competent evidence. Although we will consider the evidence regarding the visible sway in Taylor's stance during the HGN test, we will not consider the results of the HGN test administered to determine whether reasonable grounds existed to request Taylor to submit to an evidentiary breath test. See City of Wichita v. Molitor, 301 Kan. 251, 262, 341 P.3d 1275 (2015) (before results from an HGN test may be considered by court for any purpose, the State must establish reliability of such test). There is no evidence in the record here to demonstrate that the State met its burden to establish the reliability of the HGN test.
Taylor also asserts that he showed no clues of impairment during any of the field sobriety tests. The district judge's finding on this point was ambiguous. The judge found that, based on his own review of the video, he believed Taylor passed the walk-and-turntest. The judge specifically noted, however, that Bulit testified that he was in a better position to view the test and Bulit believed Taylor failed it. The video of Taylor's stop was included in the record on appeal and we have viewed it. Based on our review, we conclude there is insufficient evidence to support the district court's view that Taylor passed the walk-and-tum test.
First, when Bulit testified at trial, he did not merely testify as to whether Taylor passed or failed the walk-and-tum test. Rather, he testified that Taylor exhibited three out of a possible eight clues in the test that indicate impairment. He then testified that two clues constitute a failure because it indicates impairment over the legal limit. The three clues Bulit noted were: (1) Taylor stepped out of position during the instmction phase; (2) he began the test before he was instructed, even though he had been told not to; and (3) he failed to turn as instructed. After viewing the video at the hearing, the district court judge stated that he could not see the turn, that he did not observe any clues of impairment, and that Taylor “seemed to be doing okay.” After reviewing the video, however, we find each of the clues observed by Bulit to be clearly identifiable.
First, during the instructional phase, Bulit told Taylor to stand with one foot in front of the other until Bulit told him to begin. Although Taylor's feet are not visible at this point in the video, his legs clearly separate during Bulit's instructions and before Taylor was told to begin the test. Second, the audio unquestionably indicates that Taylor started the test before Bulit told him to begin. Third, Bulit instructed Taylor to turn around by taking several small steps around his front foot with his back foot. Bulit demonstrated this technique. Despite this instruction and the district court's finding to the contrary, Taylor turned by lifting and turning his front foot. He also failed to bring his back foot around his front foot, but instead stepped to the inside of his front foot as he turned. Therefore, the district court's finding that it believed Taylor passed the walk-and-turn test is not supported by substantial competent evidence.
There appear to be no other factual disputes by the parties. Therefore, we turn to the next issue presented for determination: Whether reasonable grounds existed to request Taylor to submit to an evidentiary breath test.
Taylor argues that any reasonable grounds the officer may have had to believe Taylor was driving under the influence completely disappeared as a matter of law after he performed all the sobriety tests successfully. The only supporting authority he cites for his argument is State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013). In Edgar, the defendant challenged the officer's authority to request a PBT. He argued that any reasonable suspicion the officer initially had to request the PBT was dispelled after he passed three field sobriety tests.
Edgar is not helpful to Taylor in this case. First, in Edgar, the Supreme Court never reached the question of whether reasonable suspicion actually existed to request the PBT. Rather, it simply found that the district court erred by failing to consider all of Edgar's field sobriety tests in its analysis of whether reasonable suspicion existed to request the PBT. 296 Kan. at 525–26, 294 P.3d 251. Second, and more importantly, the court specifically rejected Edgar's argument that his successful completion of three field sobriety tests negated any reasonable suspicion that existed before the tests were administered. The Supreme Court stated:
“The crux of Edgar's argument is that the officer's initial reasonable suspicion for requesting the PBT disappeared as a matter of law once Edgar successfully completed the three field sobriety tests. But that is not our caselaw. Reasonable suspicion must be determined in each case on the basis of the totality of the circumstances as viewed by a reasonable law enforcement officer. [Citation omitted.]” 296 Kan. at 524, 294 P.3d 251.
The court held that the whole picture must be taken into account when determining whether reasonable suspicion existed to request a PBT. In making a determination about both reasonable suspicion and reasonable grounds under K.S.A.2014 Supp. 8–1001, the court held that the quantity and quality of all information available to the officer prior to making a request for testing must be taken into account in the analysis. See 296 Kan. at 525, 294 P.3d 251.
In holding that competing evidence of sobriety does not negate initial evidence of intoxication, the Edgar court cited with approval to several unpublished cases from this court. 296 Kan. at 524, 294 P.3d 251. For example, in a case concerning a driver's license suspension, the court found the following facts supporting a finding of reasonable grounds: “time of day—3:02 a.m.; a traffic violation—driving with passenger in truck bed; the strong odor of alcohol; the admission of alcohol consumption[;] and bloodshot eyes.” Hansen v. Kansas Dept. of Revenue, No. 106,752, 2012 WL 3136517, at *2 (Kan.App.2012) (unpublished opinion). Despite defendant Hansen's argument that his perfect performance on the field sobriety tests tipped the scales of the totality of circumstances test in his favor, a panel of this court found that reasonable grounds existed for an evidentiary breath test because the sobriety tests did not negate the presence of other factors indicating he was driving under the influence. 2012 WL 3136517, at *3.
We readily acknowledge that there was competing evidence of sobriety in this case. Taylor successfully completed the one-leg-stand test and a test based on the alphabet. Furthermore, he did not have slurred speech, did not fumble when retrieving his license, was cooperative, and did not have any problems getting out of his vehicle. However, these facts must be considered along with the numerous indices of impairment that Bulit noted prior to requesting the evidentiary breath test. These indices include the fact that Taylor swerved over the fog line, he was stopped in the early morning hours, he was coming from the Plaza, his eyes were bloodshot, he and his car smelled like alcohol, he admitted to consuming alcohol, and he visibly swayed during the HGN test. Finally, although the district court believed that Taylor passed the walk-and-turn test, substantial competent evidence did not support that belief.
Under the totality of these circumstances, Bulit had a reasonable belief that Taylor drove his vehicle under the influence of alcohol or drugs. As such, he had reasonable grounds to request an evidentiary breath test. Because Taylor refused to submit to that test, we affirm the district court's decision upholding the suspension of Taylor's driver's license.
2. Constitutionality
Next Taylor argues that K.S.A.2014 Supp. 8–1012 is unconstitutional. Specifically, he argues that the statute impermissibly allows warrantless searches and therefore violates the Fourth Amendment to the United States Constitution. First, as discussed above, K.S.A.2014 Supp. 8–1012 concerns the administration of a preliminary breath test and is irrelevant to this appeal. But even assuming that Taylor had made a similar claim concerning the constitutionality of the statute governing evidentiary breath tests, his claim would still fail because he raises it for the first time on appeal.
Generally, constitutional grounds for reversal cannot be raised for the first time on appeal. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 729, 317 P.3d 70 (2014). Our Supreme Court recently reiterated that Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant raising a constitutional issue for the first time on appeal to affirmatively invoke and argue an exception to that general rule. State v. Godfrey, 301 Kan. ––––, Syl., 350 P.3d 1068, 2015 WL 3439127 (No. 109,086, filed May 29, 2015). The court further reiterated that failure to satisfy Rule 6.02(a)(5) in this respect amounts to an abandonment of the constitutional claim. 301 Kan. ––– –, Syl.
The record on appeal indicates that Taylor did not challenge the constitutionality of any statutes at any time during the proceedings below. In addition, Taylor violated Supreme Court Rule 6.02(a)(5), by failing to explain in his brief why the issue is properly before this court. Although Taylor filed his brief on December 12, 2014, before the decision in Godfrey was issued, his brief was filed over 9 months after State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), within which the Kansas Supreme Court acknowledged Rule 6.02(a)(5) had not been strictly enforced in the past but warned future litigants that they should take care to comply with that rule or risk a finding that an issue is improperly briefed and deemed waived or abandoned. Williams was filed on March 7, 2014. For this reason, the constitutional claim raised by Taylor is dismissed.
Affirmed in part and dismissed in part.