Opinion
No. 107,355.
2013-07-26
Josh LAASER, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge. J. Brian Cox, senior litigation attorney, of Legal Services Bureau of Kansas Department of Revenue, for appellant. Bruce D. Mayfield, of Overland Park, for appellee.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge.
J. Brian Cox, senior litigation attorney, of Legal Services Bureau of Kansas Department of Revenue, for appellant. Bruce D. Mayfield, of Overland Park, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
In 2009, Josh Laaser was involved in an early morning single car accident in Overland Park, Kansas. A short time later, he was arrested for driving a motor vehicle under the influence of alcohol. After his arrest, he failed an Intoxilyzer 5000 breath alcohol test with a reading of .153. Based on a test result of .15 or greater than .15, the Kansas Department of Revenue (KDR) suspended his driver's license for 1 year. Following an administrative hearing, Laaser appealed to the trial court. After the trial, the court ruled that although Laaser failed the breath test, he did not fail it by a reading of .15 or greater than .15. The trial court found the test result of .153 alcohol concentration did not reflect the amount of alcohol in Laaser's breath when he was operating his motor vehicle. Rather, the trial court found that Laaser's breath alcohol concentration was lower when the accident occurred because of the burn off rate. As a result, the trial court held that Laaser's breath alcohol concentration was above .08 but below .15 when the accident happened. On appeal, the KDR contends that the trial court erred in consideration of Laaser's breath alcohol when the accident occurred and that it relied on erroneous findings in determining the extent of Laaser's breath alcohol concentration. We agree. Accordingly, we reverse and remand to the trial court with directions to reimpose the KDR's suspension of Laaser's driver's license.
Facts
On July 17, 2009, Laaser went to a bar with some friends around 5 p.m. During the approximately 9 hours he was at the bar, Laaser testified that he drank 4 to 6 pints of beer and had one shot. Laaser testified that shortly before leaving the bar he had a shot and half a pint of beer. Fourteen or fifteen minutes later, Laaser stated that he was involved in an accident around 2:39 a.m.
Around 2:49 a.m., after surveying the damage to his car, Laaser called his father to come pick him up and take him home. Officers eventually located Laaser at his home, and Laaser admitted to driving his car. At 4:54 a.m., approximately 2 hours and 15 minutes after Laaser's accident, Laaser submitted to an alcohol breath test. This test revealed that Laaser had a .153 breath alcohol concentration. In compliance with K.S.A.2009 Supp. 8–1002(a)(2), Officer David Reindl completed and served Laaser with an officer's certification and notice of suspension of his driving privileges.
Laaser requested an administrative license suspension hearing. See K.S.A.2009 Supp. 8–1020. At the conclusion of the evidentiary hearing, the administrative hearing officer's notes showed that Laaser had argued that “notice must provide essential parts of the statute” and that the “officer did not mention if the test was .150 and its consequences” and that Laaser was “not advised of the cut offline.” The administrative hearing officer, however, affirmed the suspension order.
Laaser petitioned for review under the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). K.S.A. 77–601 et seq. He alleged that he did not fail the breath test because the test was taken outside the 2–hour timeframe.
A trial on Laaser's petition was held in Johnson County District Court where the facts discussed above were either stipulated to or fully developed. The trial focused on whether Laaser's breath alcohol concentration was .15 or above when the accident happened. Laaser presented evidence of the burn off rate of alcohol in an attempt to show that his breath alcohol concentration was below .15 when the accident occurred. The trial court adopted Laaser's argument and found that although Laaser's breath alcohol concentration was above .08 when the accident happened, it was not over .15. This meant that Laaser's license would only be suspended for 30 days as opposed to 1 year if his breath test had been over .15.
Did the trial court exceed the scope of K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H)?
This case involves the interpretation and application of certain provisions of the Kansas Implied Consent Law, K.S.A.2009 Supp. 8–1001 et seq. On appeal, the KDR contends that the trial court went beyond the plain language of K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H) by requiring the administrative agency to prove that the .153 breath test result reflected the alcohol concentration in Laaser's breath when he was operating his motor vehicle about 2 hours and 15 minutes earlier. KDR argues that the trial court should have accepted the test reading of .153 because Laaser failed to challenge that the testing procedures used did not substantially comply with the Kansas Department of Health and Environment's (KDHE) procedures, that the officer was not certified, or that the Intoxilyzer was not certified. See K.S.A.2009 Supp. 8–1020(h)(2)(D)–(F).
At the administrative hearing, Laaser had the “burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification [were] false or insufficient.” K.S.A.2009 Supp. 8–1020(k). Upon review of KDR's administrative action by the trial court, Laaser also had the burden “to show that the decision of the agency should be set aside.” K.S.A.2009 Supp. 8–1020(q).
An appellate court reviews a trial court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). When there is no factual dispute, an appellate court exercises de novo review. Swank, 294 Kan. at 881. In the present case, the facts are essentially undisputed. The issues raised by the parties are matters of statutory interpretation which “raise pure questions of law subject to unlimited appellate review.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 1, 176 P.3d 938 (2008).
The statute at issue, K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H), controls the “scope” of an administrative license suspension hearing “[i]f the officer certifies that the person failed a breath test.” K.S.A.2009 Supp. 8–1020(h)(2). Our Supreme Court has determined that “K.S.A. [2009 Supp.] 8–1020(h)(2)(A)–(H) is clear and unambiguous; and its list of issues that may be decided in an administrative driver's license suspension hearing is exclusive ” (Emphasis added.) Martin, 285 Kan. 625, Syl. ¶ 2. Moreover, K.S.A.2009 Supp. 8–1020(p) provides: “If the court finds that the grounds for action by the agency have been met, the court shall affirm the agency action.” In this case, the “grounds for action by the agency” were the eight certified statements provided in K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H).
Therefore, KDR's administrative hearing was statutorily limited to whether the eight certified statements provided in K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H) were proven. The trial court's review of KDR's action was similarly limited to the following eight statements:
“(2) 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 ...;
(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.” K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H).
Keeping in mind the limited review authorized by the KJRA, we note that the trial court overturned KDR's suspension order. The trial judge found the following:
“The Petitioner [Laaser] has raised two issues. One is that this was not a failed test. Secondarily, that his breath alcohol would be below .15 had it been done within the timeframe of his operating of the motor vehicle.
....
“In this particular case, the Court agrees with the Petitioner that given all of the facts that are available and the law that is available, the Court does not believe that the Defendant—the Petitioner was over .15 at the time he operated the motor vehicle.
“The Court does not know exactly what his alcohol content would have been below that, but notes that it was greater than .08. So it is a failure, but it's not a failure of .15.”
In the present case, test failure is defined by statute: “Test failure' or ‘fails a test’ refers to a person's having results of a test ... which shows an alcohol concentration of .08 or greater in the person's blood or breath.” K.S.A.2009 Supp. 8–1013(h). If a person fails the test with a .15 or greater alcohol concentration, the legislature has directed that KDR “ shall ” suspend driving privileges as set out in K.S.A.2009 Supp. 8–1014(b)(2)(A)–(D). [Emphasis added.] Moreover, upon receipt of an officer's certification meeting the statutory requirements, the legislature has mandated that KDR “ shall proceed to suspend the person's driving privileges.” (Emphasis added.) K.S.A.2009 Supp. 8–1002(f).
Before the trial court, Laaser essentially argued that he did not fail the breath test because (1) the test was taken outside the 2–hour timeframe and (2) based on the burn-off rate of alcohol his breath alcohol concentration would have been below .15 when the accident occurred. We will address the 2–hour timeframe argument first.
2–hour timeframe
In Podrebarac v. Kansas Dept. of Revenue, 15 Kan.App.2d 383, 807 P.2d 1327 (1991), our court addressed the 2–hour timeframe issue. In Podrebarac, the trial court reversed the KDR's suspension of driving privileges because the breath test was conducted more than 2 hours after Podrebarac had operated his vehicle. On appeal, our court reversed the trial court and remanded with directions to affirm KDR's suspension of Podrebarac's driving privileges. 15 Kan.App.2d at 385–87.
The Podrebarac court held that the trial court had improperly “read the two-hour limitation in the criminal DUI statute into the definition of test failure under the implied consent statute.” 15 Kan.App.2d at 385. The court further explained that any delay which occurs between the time of driving and the taking of the breath test was “addressed by the language of the implied consent statute, which requires a law enforcement officer to have reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol,” and also by the requirement that reasonable suspicion “exist before an officer can request a person to submit to a test.” 15 Kan.App.2d at 387. Therefore, any delay between driving and the breath test is merely one factor in the officer's determination of reasonable grounds: “The longer the delay between the operation of the vehicle and the administration of the test, the more unreasonable the officer's grounds become for believing the person drove while under the influence of alcohol.” 15 Kan.App.2d at 387. The Podrebarac court further held that to consider whether the person actually drove while under the influence of alcohol or at a particular alcohol concentration level “disregards the plain language of the provisions of the implied consent statute, which imposes no such limitation.” 15 Kan.App.2d at 385.
In the present case, when the officers developed reasonable grounds to believe that Laaser had operated his motor vehicle while under the influence of alcohol, the officers knew that Laaser had been drinking, that he had been in an accident, and that he had fled the scene of that accident without reporting it. These facts combined with the brief time period (2 hours and 15 minutes) that occurred between the accident and Laaser's breath test provide substantial competent evidence to support the officers' reasonable belief that Laaser had operated his vehicle while under the influence of alcohol. Moreover, Laaser failed to challenge the officers' reasonable suspicion.
We also note that Laaser's breath alcohol test would likely have been administered within the 2–hour timeframe if Laaser had remained at the scene of the accident and had properly reported the accident. Because Laaser chose to flee the scene of the accident, officers had to run the tags of his car, locate him, and then have him submit to the breath test. Therefore, because Laaser caused the delay in testing, he should not be allowed to complain about the breath test being taken outside the 2–hour timeframe.
In this case, the trial court relied on Katz v. Kansas Dept. of Revenue, 45 Kan.App.2d 877, 256 P.3d 876 (2011), to find that Laaser's breath test was, in fact, a failed test. The trial judge stated:
“[In Katz,] the Court clearly said ... that the Department of Revenue is not required to prove that a person was actually operating a vehicle while under the influence of alcohol or had any—had a greater than .08 breath alcohol level at the time of operating the vehicle in order to meet the statutory certification requirements.
“The Court does believe that this was not [ sic ] a failed test, that the Defendant was operating the motor vehicle with a blood alcohol content of greater than .08.”
Thus, based on Podrebarac and Katz, Laaser's breath test of .153 still constitutes a failed test even though it was taken outside the 2–hour timeframe.
Burn-off rate
Next, Laaser argued that he did not fail the breath test because based on the burn off rate of alcohol his breath alcohol concentration would have been below .15 when the accident happened. This is an interesting issue because Laaser does not dispute the breath test result itself, nor does he dispute that he was operating or attempting to operate a vehicle. See K.S.A.2009 Supp. 9–1020(h)(2)(G) and (H). It seems that Laaser simply disputes whether the breath test result represents his alcohol concentration when he was driving,
A similar argument was raised in the Swank case. There, Swank challenged the sufficiency of proof of the temporal relationship between her test result and her driving, as well as the connection of both to the existence of the officer's reasonable grounds under K.S.A. 8–1020(h)(2)(A). Swank, 294 Kan. at 881. The Swank court held that, under K.S.A. 8–1020(h)(2)(A), KDR is not required to present evidence to establish that the defendant had a particular breath alcohol concentration when the defendant was driving. The court further stated that it is impossible for a breath or a blood test result to be obtained simultaneously with vehicle operation or an attempt to operate. Therefore, the only required temporal relationship between testing and driving is any implied by the reasonable grounds standard in K.S.A. 8–1020(h)(2)(A) and by K.S.A. 8–1020(h)(2)(F). Swank, 294 Kan. at 882.
During Laaser's trial, he presented evidence on the burn-off rate of alcohol. To present this evidence, Laaser called Officer David Reindl, the officer who administered Laaser's breath alcohol test. Officer Reindl testified that as a part of his training he took a class about the burn off rate of alcohol. Officer Reindl testified that alcohol burns off at a rate of .015 grams of alcohol per hour. KDR objected to this evidence on the grounds that Officer Reindl is not an expert on burn-off rates.
The trial court relied on State v. Armstrong, 236 Kan. 290, 689 P.2d 897 (1984), in finding that Laaser's breath alcohol was below .153 when the accident happened. In Armstrong, the court held:
“We recognize that blood alcohol content does not remain constant and the defendant might have had more or less alcohol in his blood when he was driving than he did when the sample was taken. It has been found that the peak alcohol level may be reached any time from 40 to 70 minutes after consumption. [Citation omitted.] From this point, alcohol is eliminated from the system at the rate of approximately .02% per hour, varying from .006% to .04% per hour. [Citation omitted.] The causes of these discrepancies include the defendant's tolerance, his weight, and the amount of food he consumed prior to drinking.” 236 Kan. at 294.
Here, the trial court stated the following:
“The Court further adopts as a fact that the Defendant—Petitioner [Laaser] consumed one shot of alcohol and one and a half pint [ sic ] of beer immediately prior to operating his vehicle. The Court further adopts that this was consumed about fourteen minutes prior to him leaving the bar on July 17, 2009.
“At the time, the Court believes that the Petitioner did weigh approximately 150 pounds and had eaten recently, as he indicated in his affidavit.
....
“In this particular case, the Court agrees with the Petitioner that given all of the facts that are available and the law that is available, the Court does not believe that the Defendant—the Petitioner was over .15 at the time he operated the motor vehicle.
“The Court does not know exactly what his alcohol content would have been below that, but notes that it was greater than .08. So it is a failure, but it's not a failure of .15.”
In making this finding, the trial court only focused on the alcohol Laaser drank immediately before driving and ignored the fact that Laaser had been at the bar since 5 p.m. and had already consumed roughly 4–5 pints of beer. We also note that while Laaser could remember what he drank, what time he stopped drinking, and what time he ate, he could not remember what he had eaten.
Additionally, although the trial court relied on the Katz case to determine that it was a failed test, it seems that the court ignored the rest of the holding in that case. Specifically, the Katz court held:
“We do not believe that courts may go beyond the plain and unambiguous statutory provisions and, by improperly employing a rule of statutory construction, require KDR to prove that the driver, at the time of operating a vehicle, in fact, was actually under the influence of alcohol. Additionally, we will not read into the statute a requirement that the subsequent breath test must reflect the alcohol concentration of the driver at the time of driving.” (Emphasis added.) 45 Kan.App.2d at 891.
This is exactly what the trial court did in this case. The trial court did not believe that Laaser's breath test results reflected the alcohol concentration in Laaser when the accident occurred. But, as clearly stated in Katz, the statute does not require that the later breath test reflect the alcohol concentration of the driver at the time of driving. As long as the breath test was correctly administered and the officer and the breath machine were properly certified, the breath test result gives KDR grounds to suspend the person's driving privileges. K.S.A.2009 Supp. 8–1002(f). Additionally, if a person fails the test with a .15 or greater alcohol concentration, KDR “ shall ” suspend driving privileges as set out in K.S.A.2009 Supp. 8–1014(b)(2)(A)–(D). (Emphasis added.)
Therefore, here, as in Katz, the trial court erred by going beyond the scope of the statute and requiring KDR to prove not only that Laaser was actually operating his vehicle while under the influence of alcohol but that the .153 breath test result reflected the alcohol concentration present in Laaser's breath when he was driving. For the trial court to consider whether Laaser actually drove at a particular alcohol concentration level “ ‘disregards the plain language of the provisions of the implied consent statute, which imposes no such limitation.’ “ Katz, 45 Kan.App.2d at 894 (quoting Podrebarac, 15 Kan.App.2d at 385). Moreover, the Armstrong court stated:
“Although it is theoretically possible that the defendant's blood alcohol level had increased since the time he last operated his car, it has been observed in other jurisdictions that the lapse of time usually favors a defendant who takes a blood alcohol test some time after termination of his driving because of the body's ability to ‘burn off’ alcohol.” 236 Kan. at 295.
Thus, the reasoning the trial court used to determine that Laaser's breath alcohol concentration was lower than .153 when he was driving was flawed. The fact that his breath alcohol increased over time and remained increased until his breath alcohol was taken 2 hours and 15 minutes later does not make sense based on the body's ability to “burn off” alcohol.
Therefore, we find that the trial court erred by going beyond the scope of the statute by requiring KDR to prove that the .153 breath test result reflected the alcohol concentration present in Laaser's breath when he was driving. As a result, we reverse the trial court's judgment and remand the case with directions to affirm KDR's driver's license suspension order.
Because we are reversing the trial court's order and affirming KDR's driver's license suspension order, it is not necessary to address KDR's other arguments on appeal.
Reversed and remanded with directions to affirm KDR's driver's license suspension order.