Opinion
No. 106,978.
2012-12-14
Rafael GARCIA, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge. Michael S. Holland II, of Holland and Holland, of Russell, for appellant. John D. Schultz and James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. John D. Schultz and James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this appeal by Rafael Garcia of his driving license suspension, we conclude that even without the results of the preliminary breath test (PBT), there were reasonable grounds for the police officer to request a breath test. Therefore, we decline to address the question of the constitutionality of K.S.A.2009 Supp. 8–1012 and uphold the suspension.
Garcia was stopped for an illegal turn.
The facts of this case are uncontested. In late September 2009, at approximately 2 a.m., Sergeant Dan Koemer of the Hays Police Department stopped Garcia after he saw his car make a left turn at an intersection from the outer right lane of a two-lane, one-way street. Within the first minute of talking to Garcia, Sgt. Koemer noticed a moderate odor of alcohol coming from Garcia's person. When asked if he had been drinking, Garcia admitted that he had consumed “a few.” Sgt. Koemer also observed that Garcia's eyes were bloodshot.
Sgt. Koerner asked Garcia to perform field sobriety testing. Because Sgt. Koemer was personally unable to administer the one-leg stand test, he only asked Garcia to do the walk-and-turn test. During the final nine steps of the walk-and-turn test, Garcia exhibited one clue by failing to touch his heel to toe. Under the national protocols for such tests, an individual fails the walk-and-turn test if the individual demonstrates two or more of the eight clues an officer is trained to look for. Sgt. Koemer also asked Garcia to perform two nonstandard field sobriety tests: the finger-to-nose-test and the alphabet test. Before doing the latter, Garcia admitted to Sgt. Koerner that he knew his alphabet. But Garcia stumbled and stopped during the test and was only able to recite the letters from “N to G.” Garcia then told Sgt. Koerner that he did not know the alphabet very well. Garcia had the same difficulties during a second attempt of the alphabet test.
Sgt. Koerner requested Garcia to take a PBT. Sgt. Koerner admitted at trial that at the time of his request, he had custody of Garcia's driving license, Garcia was in his temporary custody, the emergency lights on his vehicle were still flashing, and a reasonable person would not have felt free to leave. Garcia agreed to take the PBT after Sgt. Koerner read him the required PBT advisory. The test yielded a breath alcohol concentration sufficient to indicate to Sgt. Koerner that Garcia would test over .08.
Administrative action suspends Garcia's license.
Then, in April 2011, the Kansas Department of Revenue suspended Garcia's driving privileges for failing an evidentiary breath test under the Kansas Implied Consent Law, K.S.A. 8–1001 et seq. Garcia filed a timely petition for review of the administrative hearing order. His petition claimed inter alia that Koerner did not have reasonable grounds to request testing under K.S.A. 8–1001 et seq. and the portion of the implied consent law (K.S.A.2009 Supp. 8–1012), which provides that a licensee in Kansas is deemed to give consent to submit to a PBT, is unconstitutional.
In due course, the district court held a trial de novo on Garcia's petition, hearing only the testimony of Sgt. Koerner. At the conclusion of the trial, the district court held that Sgt. Koerner had reasonable grounds to request an evidentiary breath test. The district court ruled that there were sufficient facts to show “more than a mere possibility of impairment” without even taking into consideration the PBT results that were over the legal limit. The district court also noted that it had previously ruled the use of the PBT constitutional.
In this appeal, Garcia attacks his license suspension on two fronts. First, he claims that the PBT law is unconstitutional because it implies consent to an otherwise unconstitutional search under the Fourth Amendment to the United States Constitution. In his second attack, Garcia maintains that Sgt. Koerner lacked reasonable grounds to request an evidentiary breath test under the Kansas Implied Consent Law, K.S.A. 8–1001 et seq. , without relying on the “improperly obtained” PBT results. The Department counters that resolution of Garcia's constitutional challenge is unnecessary given that Sgt. Koerner had more than sufficient evidence to support reasonable grounds to request an evidentiary breath test without even considering the PBT results.
Following guidance from prior cases, we examine the issue of reasonable grounds first.
Courts refrain from making unnecessary constitutional rulings. In Allen v. Kansas Dept. of Revenue, 292 Kan. 653, Syl. ¶ 3, 256 P.3d 845 (2011), our Supreme Court observed: “Appellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge to a statute.” In Allen, the court declined to address the constitutionality of the PBT in a driving license suspension case because other evidence established the officer had reasonable grounds to request an evidentiary breath test. 292 Kan. at 660; see Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010). We follow the guidance set forth in Allen and Smith. Resolution of this case only requires answering whether the district court correctly ruled that Sgt. Koerner had reasonable grounds to believe Garcia was driving while under the influence, without regard to the PBT results.
We list some general rules of the law of license suspension.
An appellate court reviews a district court's decision to suspend a driving license using the substantial evidence standard. Allen, 292 Kan. at 657 (citing Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 233–34, 32 P.3d 705 [2001] ). Whether substantial evidence exists is a question of law. Smith, 291 Kan. at 514. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
“When a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene.” Unruh v. Purina Mills, 289 Kan. 1185, 1195, 221 P.3d 1130(2009).
Garcia, as the licensee in the administrative action and subsequent appeal of that action, had the burden of proving the invalidity of agency action suspending his driving license. See K.S.A.2009 Supp. 8–1020(k); Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 462–63, 980 P.2d 1022 (1999).
An officer must have reasonable grounds to support his or her suspicion that a driver is under the influence of alcohol in order to request an evidentiary breath test to determine the level of alcohol in a driver's system. K.S.A.2009 Supp. 8–1001(b)(1); see Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 875–76, 881–82, 281 P.3d 135 (2012). Whether an officer has reasonable grounds for a particular action involves a mixed question of law and fact. In such cases, an appellate court must defer to the district court's factual findings and reviews the ultimate legal conclusion—whether reasonable grounds existed—independently. Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 416, 233 P.3d 286 (2010).
Generally, Kansas courts rely on “probable cause” standards when evaluating whether an officer had reasonable grounds to request an evidentiary breath test. See Smith, 291 Kan. at 514–15;Gross v. Kansas Dept. of Revenue, 26 Kan.App.2d 847, 849, 994 P.2d 666,rev. denied 269 Kan. 932 (2000). Probable cause is the reasonable belief that a specific crime has been or is being committed by the defendant. Probable cause is determined by evaluating the totality of the circumstances without any rigid application of the factors and considering “the information and fair inferences therefrom, known to the officer at the time of arrest.” Allen, 292 Kan. at 656–57.
We must not lose sight of the type of case this is. The Kansas Supreme Court has clarified that an officer may still have reasonable grounds sufficient to request a test under K.S.A.2009 Supp. 8–1001 but have insufficient probable cause to arrest the driver. See Smith, 291 Kan. at 513–14 (citing Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775–76, 148 P.3d 538 [2006] ).
In our view, the most instructive case concerning the issues raised in this case is Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150,rev. denied 266 Kan. 1107 (1998). In Campbell, the arresting officer stopped the driver at about 1:10 a.m. for driving 72 miles per hour in a 55 mile-per-hour zone. The arresting officer immediately noted the odor of alcohol on the driver's breath. The driver admitted having had a few drinks. His eyes appeared glazed and bloodshot. This court found these observations by the arresting officer prior to even giving the field sobriety tests were more than sufficient evidence for a reasonably prudent officer to have reasonable grounds to believe that the driver was driving while under the influence of alcohol and probable cause to arrest. 25 Kan.App.2d at 431–32.
Here, other than the nature of the traffic violation, Garcia's case is similar to Campbell. The analogous facts that occurred before Sgt. Koerner asked Garcia to perform field sobriety testing are as follows: (1) Sgt. Koerner stopped Garcia for making an improper left turn at an intersection from the outer right hand lane of a two-lane, one-way street; (2) the traffic stop occurred at approximately 2:06 a.m.; (3) Sgt. Koerner smelled the odor of alcohol coming from Garcia; (4) Garcia admitted that he had a few drinks; and (5) Sgt. Koerner observed that Garcia had bloodshot eyes. Similar to Campbell, the district court here determined that there was probable cause for Sgt. Koerner to believe Garcia was driving while under the influence of alcohol regardless of the field sobriety tests.
An opposing view is offered by Garcia. He contends we should follow the directions offered in City of Norton v. Wonderly, 38 Kan.App.2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008), and thus conclude that Sgt. Koerner, in the absence of the PBT results, did not have reasonable grounds to believe that Garcia was driving while under the influence. In Wonderly, the officer arrested Wonderly and transported him to the station for field sobriety testing because Wonderly disobeyed an order to get back into his truck, had bloodshot eyes, the smell of alcohol was on his breath, and had admitted to drinking earlier that evening. The officer also knew of a motorist's report of Wonderly driving reckless. The Wonderly court ruled that the officer lacked probable cause at the scene of the traffic stop to arrest Wonderly for driving while under the influence. 38 Kan.App.2d at 808–09. The court cited the following evidence in support of its decision: (1) the officer did not observe Wonderly commit any traffic infractions; (2) Wonderly pulled over in a normal manner during the traffic stop; (3) Wonderly did not fumble for his license; (4) Wonderly had no problems getting out of his vehicle and walking to the police car; and (5) Wonderly did not have slurred speech.
Garcia's case is clearly distinguishable from Wonderly for two reasons. First, Sgt. Koerner, unlike the officer in Wonderly, observed Garcia commit a traffic infraction before initiating the traffic stop. Second, Wonderly involved the appeal of a criminal conviction for driving while under the influence in which this court addressed whether the officer had probable cause to make an arrest. Garcia, however, is appealing an administrative driving license suspension in which the issue is whether Sgt. Koerner had reasonable grounds to believe Garcia was driving while under the influence and thus ask for a breath test, not whether there was probable cause for an arrest. The Kansas Supreme Court in Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 642, 176 P.3d 938 (2008), noted that the civil proceedings under K.S.A. 8–1001 et seq. and the criminal proceedings under K .S.A. 8–1567 are “wholly separate from one another and are intended to serve two different purposes.” Clearly, in State v. Mertz, 258 Kan. 745, 758–61, 907 P.2d 847 (1995), the court held that a suspension of a driving license for driving while under the influence is a civil remedy designed to protect the public and not a criminal sanction designed to punish a driver.
The circumstances here, like Campbell, gave Sgt. Koerner good reason to “believe that guilt [was] more than a possibility” that Garcia was driving while under the influence. See Bruch, 282 Kan. at 775–76. Therefore, substantial evidence supports the district court's finding that Sgt. Koerner had reasonable grounds to believe Garcia was driving while under the influence. The district court did not err in affirming the administrative decision to suspend Garcia's driving license. Because Sgt. Koerner had reasonable grounds without the results of the PBT to request Garcia submit to an evidentiary breath test under the Kansas Implied Consent Law, we need not address the constitutionality of K.S.A.2009 Supp. 8–1012. See Allen, 292 Kan. 653, Syl. ¶ 3.
Affirmed.