Opinion
No. 108,842.
2013-10-25
Wayne Eugene HESTER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Linn District Court; Richard M. Smith, Judge. Daniel F. Meara, of Fort Scott, for appellant. Ted E. Smith, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Linn District Court; Richard M. Smith, Judge.
Daniel F. Meara, of Fort Scott, for appellant. Ted E. Smith, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before BUSER, P.J., BRUNS, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Wayne Eugene Hester appeals from the district court's decision affirming his driver's license suspension. According to Hester, the police officer violated a mandatory statutory requirement to consider the preliminary breath test (PBT) results. Consequently, Hester contends his evidentiary breath test should be suppressed for purposes of the administrative suspension and his driving privileges reinstated. We affirm.
On July 23, 2011, Officer Clint Johnson, now Chief Johnson, observed a pickup truck cross the center line and weave in its own lane of traffic. Chief Johnson initiated a traffic stop and identified the driver as Hester. Following his observations of Hester, which included the performance of two field sobriety tests and a PBT with a .062 result, Chief Johnson arrested Hester on suspicion of operating a vehicle under the influence of alcohol or drugs. Hester failed the subsequent evidentiary breath test.
When served with notice of the suspension of his driver's license, Hester requested an administrative hearing. The administrative hearing officer affirmed the suspension. Hester petitioned for review from the district court. The district court affirmed.
The district court found the sole issue for trial was whether Chief Johnson had reasonable grounds to believe Hester was operating a vehicle under the influence of alcohol. Hester does not dispute the following findings of fact made by the district court:
“1. Chief Johnson testified that he observed [Hester] cross the center line and weave within his own lane.
“2. After [Chief] Johnson initiated his emergency lights [Hester] was slow to respond by pulling over.
“3. [Chief] Johnson testified that he believed [Hester] had a difficult time negotiating the turn from Main Street onto the street on which he stopped.
“4. [Chief] Johnson noticed a smell of consumed alcohol emanating from [Hester].
“5. [Chief] Johnson observed that [Hester]'s eyes were bloodshot.
“6. [Chief] Johnson testified that [Hester] had a difficult time following his instructions in producing his driver's license and proof of insurance.
“7. [Hester] was unable to perform the one-legged stand and walk and turn field sobriety tests. [Chief Johnson] believed that [Hester] stated he was unable to do so because of a war injury. [Hester] testified that he had never been in a war but that he [was] shot by his ex-wife. In any event, the parties agree that [Hester] offered to pull down his pants in order to demonstrate his scars. This was an offer that [Chief Johnson] declined.
“8. [Hester] appeared somewhat unkept as his shirt was already unbuttoned.
“9. [Hester] agreed to the administration of a preliminary breath test which had a digital readout. Without objection the readout was admitted and was .062.
“10. [Chief] Johnson testified that [Hester] was slow to respond; that he had to repeat his questions or requests and that [Hester] appeared to be swaying, unsteady or had balance problems.”
After Chief Johnson made the above observations, he arrested Hester on suspicion of DUI and transported him to the Linn County Sheriff's Office. At that time Hester agreed to an evidentiary breath test, which he failed.
The district court concluded that based on the totality of the circumstances, Chief Johnson had reasonable ground to believe Hester was operating his vehicle under the influence of alcohol and to request the evidentiary breath test.
Did the District Court Err in Affirming Hester's Driver's License Suspension?
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. 294 Kan. at 881. In the present case, the facts are undisputed.
Hester maintains he is raising an issue regarding an officer's authority under K.S.A.2012 Supp. 8–1012(d). To the extent Hester raises an issue of statutory interpretation, the issue would “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).
Hester argues K.S.A.2012 Supp. 8–1012(d), which states in part the PBT results “shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made,” mandates an officer's consideration of those results. Citing Martin, 285 Kan. at 639, Hester maintains Chief Johnson violated this mandatory provision, which requires suppression of the test results in the administrative license suspension proceeding and reinstatement of his driver's license.
Hester cites to the following trial testimony, alleging it shows Chief Johnson admitted he disregarded the PBT results.
“Q. And what was the result of that preliminary breath test?
“A. 0.062.
“Q. Okay, .062? In other words, below the .08 presumption level set by statute; isn't that correct?
“A. Correct.
“Q. But in spite of this result, you arrested Mr. Hester; isn't that correct?
“A. Correct.”
Martin held the exclusionary rule is not applied in a license suspension proceeding. 285 Kan. 625, Syl. ¶ 8; see Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395–96, 204 P.3d 562 (2009). In Martin, the petitioner cited two cases—Meigs v. Kansas Dept. of Revenue, 16 Kan.App.2d 537, 825 P.2d 1175 (1992), and Ostmeyer v. Kansas Dept. of Revenue, 16 Kan.App.2d 639, 827 P.2d 780 (1992)—where the exclusionary rule was applied in license suspension proceedings. The Supreme Court distinguished Meigs and Ostmeyer because they involved a violation of a mandatory provision of the implied consent law by an officer of the State. 285 Kan. at 639. Even if K.S.A.2012 Supp. 8–1012(d) is a mandatory provision requiring suppression in a driver's license suspension proceeding if violated, it would not be applicable in Hester's case.
The chief problem with Hester's argument is that he failed to raise this argument below. Generally, issues not raised at the administrative hearing or before the district court cannot be raised on appeal. See In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 785–87, 148 P.3d 538 (2006), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). Hester specifically identified the issue before the district court as “whether or not the law enforcement officer had probable cause to make an arrest.” Even if Hester's assertion is viewed as reasonably related to the issue of probable cause to arrest, Chief Johnson testified he considered the PBT results. The attorney for the Kansas Department of Revenue asked Chief Johnson what he did after completion of field sobriety testing. Chief Johnson answered that he had the PBT administered by another officer who was present at the scene. The attorney then asked, “Did the outcome of that test play a part in your decision to arrest or request a subsequent evidentiary breath test?” Chief Johnson answered, “Yes, it did.”
The sole viable issue on appeal is whether Chief Johnson had reasonable grounds to believe Hester was operating a vehicle while under the influence of alcohol. Chief Johnson had reasonable grounds, which included the results of the PBT.
An officer must have reasonable grounds to support his or her suspicion that a driver was operating a vehicle while under the influence of alcohol. See K.S.A.2012 Supp. 8–1001(b); Shrader v. Kansas Dept of Revenue, 45 Kan.App.2d 216, 219, 247 P.3d 681 (2011), aff'd296 Kan. 3, 290 P.3d 549 (2012). Kansas courts rely on “probable cause” standards when evaluating whether an officer had reasonable grounds to request an evidentiary breath test. See Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P .3d 1179 (2010). Probable cause is determined by evaluating the totality of the circumstances. 291 Kan. at 515.
Here the district court found the PBT was but one investigative tool at the disposal of Chief Johnson. Further, citing State v. Barner, No. 102,364, 2010 WL 597019 (Kan.App.2010) (unpublished opinion), the Kansas Department of Revenue persuasively argues a PBT result below .08 should not automatically immunize a driver from a subsequent DUI investigation, including arrest and further evidentiary testing.
Although Barner was a criminal case, the analysis regarding the defendant's PBT result is instructive. In that case the defendant argued any reasonable suspicion he was operating his vehicle under the influence of drugs or alcohol was nullified after the PBT resulted in a finding that his blood-alcohol concentration was .07—under the .08 legal limit to drive. The Barner court rejected the argument because the police officer still knew the same five factors that led to a reasonable suspicion the defendant was operating his vehicle under the influence. The Barner court further mentioned that the PBT result was right on the border of the .08 legal limit. In any event, the Barner court acknowledged the district court's suggestion that the statutorily defined .08 blood-alcohol limit “simply creates a presumption that, at that level of intoxication, a driver is unsafe on the roadways.” 2010 WL 597019, at *3–4.
The undisputed facts certainly provided Chief Johnson with reasonable grounds to believe Hester was operating a vehicle while under the influence of alcohol. Chief Johnson observed Hester cross the center line and weave within his own lane. He observed Hester had bloodshot eyes and had an odor of alcohol. Hester's inability to perform the toe-to-heel test and one-leg-stand test were indications of impairment. Chief Johnson was not required to believe Hester's explanation for his inability to perform the tests. See City of Dodge City v. Norton, 262 Kan. 199, 205, 936 P.2d 1356 (1997) (Defendant allegedly could not complete field sobriety testing because of previous surgeries; regardless, the Supreme Court determined there was probable cause to arrest the defendant, noting that “ ‘[D]rivers who fail field sobriety tests due to impairments other than drunkenness will be protected by the results of the blood or breath testing performed following arrest.’ “ [quoting State v.. Larson, 12 Kan.App.2d 198, 204, 737 P.2d 880 (1987) ].
Finally, Hester's PBT result of .06 was close enough to the .08 legal limit that it added just one more factor to Chief Johnson's reasonable suspicion that Hester was operating his vehicle while under the influence of alcohol.
It is clear that Chief Johnson met the statutory requirement to consider the result of the PBT in making his decision to arrest Hester. However, the statute is clear that the result of the PBT is to assist a law enforcement officer in making the decision to arrest but is not the determinative factor in making that decision. The totality of the circumstances supported the district court's findings and decision upholding the suspension of Hester's driver's license.
Affirmed.