Kevin Shepherd, of Topeka, for appellant. Andrew Bauch, assistant district attorney, Joel Cochran, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Kevin Shepherd, of Topeka, for appellant.
Andrew Bauch, assistant district attorney, Joel Cochran, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
Chad Anthony Frickey appeals his conviction of driving under the influence of alcohol (DUI). Frickey claims the district court erred in denying his motion to suppress the evidence because the law enforcement officer lacked probable cause to arrest him. Specifically, Frickey argues that the district court erred in considering the results of a horizontal gaze nystagmus (HGN) test and a preliminary breath test (PBT) in determining whether there was probable cause to arrest him for DUI. For the reasons explained herein, we affirm the district court's judgment.
In the early morning hours of January 6, 2013, Douglas County Sheriff's Deputy Bryon Revell was traveling westbound on North 1600 Road/County Road 442 in Douglas County when he observed an eastbound Nissan Sentra that appeared to be exceeding the posted speed limit of 55 miles per hour. Revell activated his radar, which indicated that the car was traveling 71 miles per hour. Revell stopped the car, identified Frickey as the driver, and informed him of the reason for the stop. When speaking with Frickey, Revell noticed a moderate odor of alcohol and saw that Frickey's eyes were bloodshot. When asked if he had consumed any alcohol, Frickey admitted to having “a couple” of drinks.
Revell then had Frickey exit the car so he could administer field sobriety tests. After observing clues of intoxication during an initial HGN test, Revell had Frickey get back into the Nissan while he repositioned his patrol car in order to administer additional field sobriety tests. Revell then administered the HGN test a second time, and Frickey displayed four out of a possible six clues of intoxication. Frickey also displayed three out of a possible eight clues of intoxication during the walk-and-turn test and two out of a possible four clues of intoxication during the one-leg-stand test. Frickey did not display any clues of intoxication during the alphabet test or the counting test.
After administering the field sobriety tests, Revell requested that Frickey submit to a PBT. Frickey agreed to take the test and registered a blood-alcohol content (BAC) of .101—which is above the legal limit. Revell then placed Frickey under arrest and transported him to the Douglas County Jail. There, Frickey took a breath-alcohol test on an Intoxilyzer 8000 machine, which revealed a BAC of .098.
The State charged Frickey with DUI, speeding, and failure to provide notice of change of address. Prior to trial, Frickey moved to suppress all evidence observed and collected during and following the investigative detention and arrest, arguing a lack of probable cause for his arrest.
At the suppression hearing, Revell testified about the events leading up to Frickey's arrest. Defense counsel objected to Revell's testimony regarding the results of the HGN test, asserting that HGN evidence is admissible only if it is qualified by a scientific expert. Defense counsel also objected to the admission of the PBT results because Revell did not properly observe the recommended 15–minute waiting period.
After considering the evidence presented at the suppression hearing—including the results of the HGN test and the PBT—the district court denied the motion to suppress, concluding that Officer Revell had probable cause to arrest Frickey based on a totality of the circumstances. Specifically, the district court found the following factors supported a finding of probable cause: (1) Frickey was speeding more than 10 miles per hour over the posted speed limit; (2) he had bloodshot eyes and smelled of alcohol; (3) he admitted to consuming alcohol; (4) he exhibited clues of impairment during the walk-and-tum test, the one-leg-stand test, and the HGN test; and (5) his PBT results.
Frickey waived his right to a jury trial, and the case proceeded to a bench trial on stipulated facts. At trial, Frickey preserved his right to appeal the denial of his motion to suppress. Based on the stipulated evidence, the district court found Frickey guilty as charged. Frickey timely appealed his convictions.
On appeal, Frickey contends the district court erred in denying his motion to suppress because Revell lacked probable cause to arrest him. Specifically, Frickey argues that the district court erred in considering the results of the HGN test and the PBT in determining whether Revell had probable cause to arrest him for DUI. Without the HGN and PBT results, Frickey asserts that the remaining evidence does not rise to the level of probable cause. The State argues that the district court did not err in considering the results of the HGN test and the PBT in determining whether Revell had probable cause to arrest Frickey for DUI. In the alternative, the State argues that even without the HGN or PBT results, Revell still had probable cause to arrest Frickey for DUI.
Where, as here, the material facts as to a district court's decision on a motion to suppress are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The State bears the burden of proof for a suppression motion. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
In order for a warrantless arrest to be lawful, the arrest must be supported by probable cause. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). Probable cause is defined as “ ‘the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime.’ “ 296 Kan. at 20. In attempting to establish probable cause, the evidence relied on need not establish guilt beyond a reasonable doubt. “ “ ‘It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility. ’ “ “ 296 Kan. at 20. Probable cause is determined by evaluating the totality of the circumstances. 296 Kan. at 20. “ ‘[T]here is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other.’ “ 296 Kan. at 20.
The sole question in this case is whether the district court erred in finding that Revell had probable cause to arrest Frickey for DUI. The totality of the circumstances that formed the basis for Revell's arrest of Frickey included Frickey's speed; the odor of alcohol; Frickey's bloodshot eyes; his admission that he had been drinking; the failed field sobriety tests, including the HGN test; and the PBT results. In order to determine whether the district court's probable cause finding is supported by the totality of the circumstances, we must first address Frickey's allegations that the district court erred in considering the results of the HGN test and the PBT.
HGN test results
Frickey argues that the district court erred in considering the results of the HGN test in determining whether Revell had probable cause to arrest him because the State failed to provide the proper foundation by a scientific expert in accordance with State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992). In Witte, the Kansas Supreme Court distinguished the HGN test from other field sobriety tests because it is based on scientific principles. 251 Kan. at 322. Accordingly, the Witte court held that HGN test results may not be admitted at trial unless it meets the foundation requirements for scientific evidence set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). 251 Kan. at 329–30.
Recognizing that Kansas law prohibits the introduction of HGN test results at trial in the absence of the Frye foundation requirements for scientific evidence, this court recently considered the question of whether HGN evidence can be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT. See City of Wichita v. Molitor, 46 Kan.App.2d 958, 962–63, 268 P.3d 498 (2012), rev. granted 291 Kan. 1243 (2013). In answering this question affirmatively, the Molitor court cited numerous cases from other jurisdictions where HGN test results have been found to be properly considered as a factor in determining whether probable cause exists to charge a driver with DUI and noted the absence of any contrary authority. 46 Kan.App.2d at 964–65.
The district court acknowledged Molitor as persuasive authority for its decision to consider the HGN test results in determining that Revell had probable cause to arrest Frickey. Frickey argues that the district court erred in relying on Molitor because it was wrongly decided and because its holding was limited to the use of HGN evidence in determining whether reasonable suspicion exists to request a PBT. Frickey contends that Molitor does not support the district court's use of HGN evidence as a factor to establish probable cause for his arrest—a higher standard of proof than reasonable suspicion.
Frickey correctly notes that Molitor's holding was specific to a reasonable suspicion analysis. Moreover, Molitor's precedential value is not yet clear because our Supreme Court has granted a petition for review and has not yet issued its opinion. We will sidestep the issue of whether the HGN test results were admissible to determine probable cause because resolution of the issue is not determinative of the case. As discussed below, we conclude there was sufficient probable cause for Frickey's arrest even without considering the HGN test results.
Frickey also argues that the district court erred in considering the PBT results as a factor in determining whether probable cause supported his arrest because Revell did not properly observe the recommended 15–minute waiting period. The State argues that the district court did not err in considering Frickey's PBT results at the suppression hearing.
The admission of the PBT is governed by statute. The Kansas Legislature has specifically authorized the Kansas Department of Health and Environment (KDHE) to adopt rules and regulations regarding PBT devices when used for “law enforcement purposes.” K.S.A.2013 Supp. 65–1,107(d), (e). KDHE regulations require that any preliminary breath testing occur on an approved PBT device and in accordance with “the procedures specified in the manufacturer's instruction manual for the device in use.” K.A.R.28–32–14(b)(l).
At the suppression hearing, Revell testified that the operator's manual for his PBT device, the Alco–Sensor III, recommends a 15–minute deprivation, or observation, period prior to testing. The purpose of the deprivation period is to make sure that mouth alcohol—not only from a recent drink but also from stomach regurgitation—does not falsely elevate the test. “Complying with the deprivation period regardless of when the suspect said he or she last took a drink ensures that regurgitation doesn't skew the test result.” Sjoberg v. Kansas Dept. of Revenue, No. 103,937, 2012 WL 3966511, at *4 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1247 (2013).
Here, it is undisputed that more than 15 minutes elapsed between Revell's initial contact with Frickey and Revell's administration of the PBT. But Revell did leave Frickey's immediate presence when he repositioned his patrol car and had Frickey get back inside the Nissan. Thereafter, 12 minutes and 20 seconds elapsed between Revell's second contact with Frickey and the PBT. At the suppression hearing, the State conceded Frickey was not in Revell's immediate presence for the 15 minutes prior to the PBT. Thereafter, defense counsel objected to the admission of the PBT results based on a lack of foundation. The district court took the objection under advisement and ultimately ruled that Revell substantially complied with the manual's directives despite any failure to strictly observe the 15–minute deprivation period.
Frickey cites no regulatory or statutory basis for requiring strict compliance with PBT testing procedures. This court has held that substantial compliance with Intoxilyzer testing procedures is sufficient in certain circumstances. See Martin v. Kansas Dept. of Revenue, 38 Kan.App.2d 1, 10, 163 P.3d 313 (2006). “Substantial compliance” is defined as “ “ ‘compliance in respect to the essential matters necessary to assure every reasonable objective.’ “ “ 38 Kan.App.2d at 9. In Martin, this court determined the officer substantially complied with the “ ‘immediate presence’ “ requirement for an alcohol breath test where the officer stepped out of the testing room several times for only a few seconds at a time during the deprivation period. 38 Kan.App.2d at 10. In finding that there was substantial compliance, this court noted there was no evidence that the defendant “belched, burped, vomited, regurgitated, or otherwise introduced substance into his mouth from his stomach during the testing period.” 38 Kan.App.2d at 10.
In State v. Cox, No. 110,447, 2014 WL 3732019, at *7 (Kan.App.2014) (unpublished opinion), this court recently stated that:
“[T]he substantial-compliance approach is consistent with the totality-of-the-circumstances view that courts take when looking to see whether there was probable cause to arrest. Even tests administered at odds with strict testing procedure will, after all, produce evidence that is of some value in determining whether the one performing the test was intoxicated. [Citation omitted.]”
Here, from the time Frickey was pulled over, he was either observed directly by Revell or by video camera. Revell testified that he did not see Frickey drink anything or put anything in his mouth during the traffic stop. There is no allegation that there was alcohol in Frickey's car or on his person, and Revell did not observe any. Additionally, Frickey did not claim that he drank alcohol within 15 minutes of administration of the PBT or that he put anything in his mouth, burped, or regurgitated contents from his stomach. We conclude the district court properly found that Revell substantially complied with the recommended 15–minute deprivation period and, therefore, properly considered the PBT results in determining that Revell had probable cause to arrest Frickey.
K.S.A.2013 Supp. 8–1012(d) states that “a law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test.” Thus, assuming the PBT results were properly admitted, Revell had probable cause to arrest Frickey for DUI. However, as we will next discuss, we also conclude that Revell had probable cause to arrest Frickey for DUI even without the HGN or PBT evidence.
Probable cause without HGN or PBT evidence
Frickey contends that in the absence of HGN or PBT results, the remaining evidence does not provide probable cause sufficient to support his arrest. As noted above, probable cause is determined by evaluating the totality of the circumstances, considering the information known to the officer at the time of the arrest and the inferences an officer can fairly draw from such information. Sloop, 296 Kan. at 20.
Frickey points to some things he did correctly which did not indicate impairment. For instance, he did not display any clues of intoxication during the alphabet test or the counting test. He also was polite and cooperative during the encounter, and his speech was clear and understandable without any slurring. However, these factors do not negate the determination of probable cause. See Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514–15, 242 P.3d 1179 (2010) (probable cause existed to request evidentiary breath test even though driver performed some things correctly during some of the field sobriety tests); State v. Edgar, 296 Kan. 513, 524, 294 P.3d 251 (2013) (competing evidence of sobriety does not negate initial evidence of intoxication).
Here, there were many factors that supported a determination of probable cause under the totality of the circumstances. These factors included Frickey's speed, the odor of alcohol, Frickey's bloodshot eyes, his admission that he had been drinking alcohol, and the failed walk-and-turn and one-leg-stand field sobriety tests. Notably, Revell testified that even without the PBT, he still would have arrested Frickey, The evidence available to Revell prior to arresting Frickey for DUI, even without considering the results of the HGN test and the PBT, was sufficient to lead a reasonable officer to believe that Frickey's guilt was more than a possibility. See Sloop, 296 Kan. at 20.
Based on the totality of the circumstances, Revell had probable cause to arrest Frickey for DUI, even without considering the results of the HGN test and the PBT. Therefore, we conclude the district court did not err in denying the motion to suppress evidence based on Frickey's claim that Revell lacked probable cause to arrest him.