Opinion
111,756.
05-08-2015
Heath WEST, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. John D. Shultz, of Kansas Department of Revenue, for appellee.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
John D. Shultz, of Kansas Department of Revenue, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Heath West was arrested for driving under the influence of alcohol and his driving privileges were ultimately suspended by the Kansas Department of Revenue (KDR). The district court affirmed the suspension of his driving privileges, and West now appeals, arguing the deputy who conducted the stop did not possess reasonable grounds to request testing and the district court improperly admitted and considered evidence regarding whether the deputy had reasonable grounds. Finding no reversible error, we affirm the district court.
Factual and Procedural Background
In July 2011, while conducting a routine bar check, Deputy Kristopher Casper of the Wichita County Sheriff's Department observed West at a local bar. At approximately 4 a.m., Casper stopped West for driving the wrong way on a one-way street. The street apparently had been recently changed from a two-way to a one-way street, and West claimed he was unaware of the change. Casper admitted he did not observe weaving or swerving by West prior to the traffic stop but stated West parked on the wrong side of the roadway.
Upon making contact with West, Casper could smell a strong odor of alcohol coming from West. Casper testified at trial that West had slurred speech although this fact was not noted on the DC–27 form. However, the DC–27 form does note West had bloodshot eyes. When asked to produce his driver's license, West did so without fumbling. West admitted to consuming beer at the bar but claimed he had not consumed any since leaving the bar.
Because he smelled the odor of alcoholic beverage, Casper requested West to exit the vehicle and informed him that he wanted to perform field sobriety tests to make sure West could safely drive. West apparently exited the vehicle without difficulty.
Casper first asked West to perform the walk-and-turn test. Casper testified that officers are trained to look for eight indicators during this test. When asked to discuss the test based solely upon his memory, Casper recalled that West failed at least three of the indicators: he did not follow the heel-to-toe instruction, he stepped off the line, and he made an incorrect turn.
Casper then had West perform the one-leg-stand test. Casper testified West brought his arms up from his sides, swayed back and forth, failed to keep his leg straight, and his foot was not 6 inches or parallel as instructed. Casper claimed West triggered two out of four indicators. The DC–27 form indicated West exhibited poor balance or coordination and failed the field sobriety tests. Casper arrested West for driving under the influence and had a blood sample sent to the forensic laboratory. The results of the testing showed West's blood alcohol concentration to be .13.
In December 2011, West entered into a diversion agreement with the county attorney on the charge of driving under the influence. In the diversion agreement, West stipulated to the following facts:
“On July 29, 2011, Deputy Kristopher T. Casper was driving patrol at approximately 4:00 in the morning. He was at the high school to do a check and as he turned northbound on Indian Rd, the new one way, he noticed a vehicle coming from what appeared to be north of the tracks on Indian Rd. The vehicle continued down the wrong way on the one way street. Vehicle continued south past the do not enter signs. Depute turned on emergency equipment to make a traffic stop and turned around as the vehicle pulled to the west side of the road. The driver of the Dodge pickup did not park parallel to the curb nor did he use the old parking stalls from before the street became a one way. Upon approaching vehicle, Deputy recognized Heath West as the driver and he was told why he had been pulled over and asked if he had seen the three signs by H street. Driver said he did not realize street was a one way. West was asked for his driver's license, registration and insurance. Deputy was given license and insurance card but had to ask again for his registration. West was told that the Deputy had seen him at the bar earlier and asked if he had anything more to drink since then. He told officer he had beers at the bar, but nothing since. West was asked to step out and let Deputy do an eye check to see if he was safe to drive. The Horizontal Gaze Nystagmus evaluation was performed. West had equal tracking and pupils and no resting nystagmus. Next he was checked for lack of smooth pursuit. He had lack of smooth pursuit in both eyes. He had distinct and sustained nystagmus in both eyes. He did not have the onset of nystagmus prior to forty five degrees. Lastly he was checked for vertical nystagmus and no evidence was found. A PBT test was performed and he registered higher than .08 quickly. Two other tests for alcohol impairment were performed. The walk and turn test resulted in five out of eight clues present, enough to indicate impairment in this state. The One Leg Stand test resulted in two out four clues, indicating impairment. West was taken to patrol car and PBT was administered. The result was .119. West was placed under arrest for driving under the influence. The forensic laboratory report came back with a reading of 0.13 for Ethyl Alcohol.”
KDR suspended West's driving privileges, and after an administrative hearing, an administrative hearing officer upheld the suspension. West appealed the suspension to the district court which dismissed the case without prejudice, holding there was “not a credible excuse as to why this matter has not been adjudicated as originally scheduled.” West appealed the dismissal to this court, and a panel of this court reversed and remanded the case, ordering the district court to reexamine whether West's petition should have been dismissed. West v. Kansas Dept. of Revenue, No. 109,361, 2014 WL 802111, at *5–6 (Kan.App.2014) (unpublished opinion).
At the rehearing, in the interests of judicial economy, the district court considered the merits of West's petition rather than reviewing whether the dismissal was proper. During the hearing, West objected to the admission of the diversion agreement, claiming it was not relevant and not admissible by statute. West also objected to the admission of the preliminary breath test (PBT) results through the DC–27 form, claiming a lack of foundation as Casper admitted that the required deprivation period of 15 minutes had not been completed prior to administering the PBT. The district court overruled both objections. The district court's ruling was memorialized in a May 2014 journal entry: “Plaintiff failed to meet his burden to prove that the certifying officer lacked reasonable grounds to request testing.”
West timely appeals.
Although the issues statements in West's brief primarily focus on whether the diversion agreement and PBT results were properly admissible, his overarching argument is that there was not substantial competent evidence to support the suspension of his driver's license because the deputy did not possess reasonable grounds to request testing. We will examine this question first, because if there were reasonable grounds to request testing without consideration of the diversion agreement and PBT, then the evidentiary issues become moot.
West claims the standard of review is whether the district court's ruling was supported by substantial competent evidence and, if there is not a factual dispute, then this court may exercise de novo review. KDR contends the admission of evidence lies within the sound discretion of the trial court and an abuse of discretion standard of review is appropriate. KDR also states the adequacy of the legal basis upon which the district court relied in reaching its decision should be reviewed de novo.
West is correct that
“[i]n reviewing the trial court's ruling in this driver's license suspension case, we apply a substantial competent evidence standard. [Citation omitted.] ‘Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]’ “ Leffel v. Kansas Dept. of Revenue, 36 Kan.App.2d 244, 246, 138 P.3d 784 (2006).
While the district court's review of the KDR's action is by trial de novo, it is the licensee who bears the burden of proof to show the agency's suspension of his or her driver's license should be set aside. K.S.A.2011 Supp. 8–1020(q). When a law enforcement officer certifies that a licensee has failed a blood-alcohol test, Kansas law limits the district court's review to eight issues. See K.S.A.2011 Supp. 8–1020(h)(3)(A)(H). In the present case, only one issue is relevant: whether the law enforcement officer had reasonable grounds to believe West was operating his vehicle while under the influence of alcohol. K.S.A.2011 Supp. 8–1020(h)(3)(A). The term “ ‘reasonable grounds' “ is synonymous to the meaning of the term “ ‘probable cause.’ “ Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010). “ ‘ “Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.’ “ [Citations omitted.]” State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). The existence of probable cause is determined by the totality of the circumstances, including information in the officer's possession, fair inferences from that information, and other relevant facts. 277 Kan. at 164, 83 P.3d 794.
In this case, West contends Casper relied solely on the PBT results to establish objective justification to request additional testing. We disagree. Apart from the PBT results and the diversion agreement, the record shows Casper had reasonable grounds to believe West was operating a vehicle while under the influence of alcohol based on the following observations: West committed a traffic violation by driving the wrong way on a one-way street, improperly parked on the wrong side of the roadway, had the odor of alcohol, failed sobriety tests, had bloodshot eyes and slurred speech, demonstrated poor balance or coordination, and admitted he had consumed alcohol. Moreover, during a bar check, Casper had seen West at a local bar earlier that night before he stopped West for driving the wrong way on a one-way street. In light of this record, West's burden of proof, and the totality of the circumstances, we conclude there is substantial competent evidence, even without considering the diversion agreement and PBT, to show Casper had reasonable grounds to request testing.
Accordingly, we affirm the district court's upholding of KDR's suspension of West's driver's license. The issues pertaining to the admission of the diversion agreement and PBT are moot.
Affirmed.