Opinion
No. 110680.
05-08-2015
Lynn L. DEINES, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
John M. Lindner, of Lindner, Marquez & Koksal, of Garden City, for appellant. James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
John M. Lindner, of Lindner, Marquez & Koksal, of Garden City, for appellant.
James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
Lynn L. Deines appeals the administrative suspension of his driver's license. After a traffic stop, Deines was arrested for driving under the influence of alcohol or drugs (DUI). During the police investigation that preceded the arrest, Deines refused to attempt any field sobriety test, the preliminary breath test (PBT), or the evidentiary breath test. We affirm the district court's ruling which upheld the suspension of Deines' driver's license.
Factual and Procedural Background
At about 11:20 p.m. on August 21, 2010, Officer Doug Heit of the Garden City Police Department observed a driver run a stop sign, come to a halt in the middle of the intersection, and then continue driving. Having observed the traffic violation, the officer conducted a vehicle stop and identified Deines as the driver.
Officer Heit noticed that Deines exhibited several clues of impairment. Deines smelled of alcohol, had “very slurred” speech, bloodshot eyes, and had difficulty retrieving his driver's license from his wallet, dropping it twice before handing it to the officer. The officer characterized Deines as nervous, rude, and upset. Deines admitted to Officer Heit that he had recently consumed alcohol and a “ ‘drug to help’ him with his pain,” although Deines claimed his doctor said he “could drive being on this medication.” The officer asked Deines to step from his vehicle, whereupon Deines stumbled getting out of the car. Officer Heit concluded that Deines “appeared like he was either intoxicated or something else was going on.” Deines refused to attempt any field sobriety test or the PBT at the officer's request.
In district court testimony, Deines confirmed that prior to the vehicle stop he had left the Elks Club where he had consumed an alcoholic drink. He testified that he had stopped for the stop sign and then proceeded slowly into the intersection due to surrounding sight obstructions. Deines provided numerous innocent explanations for his behavior that evening. He testified that his tendons had “shrunk” during a high fever associated with spinal meningitis, and “I do not have full mobility in my joints.” Deines testified he has “no vision” in his right eye and “very limited vision” in his left eye, so “depth perception becomes a major issue, especially at night.” Deines also testified he suffers from “COPD and a very limited breathing capacity.” Deines attributed the effects from a “light stroke ” in 2009, as causing his speech to be occasionally slurred. At least some of these explanations were articulated to Officer Heit during the traffic stop. With regard to his refusals to perform the field sobriety, PBT, and evidentiary breath tests, Deines testified, “I said that I couldn't. I did not say that I wouldn't.”
For his part, Officer Heit testified that in his 10 years with the police department, “90 percent of the people” allege some sort of physical injury or breathing problem when asked to perform sobriety tests. The officer said his “concern” with Deines was “he did not attempt to do the test whatsoever.”
Deines was arrested at the scene for DUI. At the police station, Deines refused to attempt the evidentiary breath test. Deines testified that in 1995 or 1996, “I got pulled over and was asked to blow into that type of mechanism.” Deines said, “It took everything I had to get the tone on the machine to activate it,” and “with my lung condition today, there is no way that I could do it.”
Deines asked to have a blood alcohol test instead of a breath test. Officer Heit inquired of his supervisor but was told the department was too busy to spare an officer for transport to the hospital. Officer Heit testified that Deines did not ask for an independent blood test to be taken at his own expense. The officer testified that such a request would have been honored had it been made.
Officer Heit completed a certification and notice of suspension, indicating that Deines “refused to submit to or complete testing as requested by a law enforcement officer.” A Kansas Department of Revenue (KDR) hearing officer affirmed the suspension. Deines brought the present action for judicial review but, after a bench trial, the Finney County District Court denied relief. Deines filed a timely notice of appeal.
Reasonable Suspicion to Stop
For his first argument on appeal, Deines contends the district court erred in concluding that Officer Heit properly stopped Deines' vehicle upon the officer's reasonable and articulable suspicion that a traffic offense had occurred. See State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998) ; see also State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991) (traffic stop always constitutes a seizure and, therefore, officer must have articulable facts sufficient to constitute reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ).
In particular, Deines notes the district court found that Officer Heit's recollection of the intersection as a “T” intersection was incorrect, yet the district court found this error was “not decisive of any of the main issues of this case.” According to Deines, however, “[t]he nature of the intersection is absolutely critical to the officer's reasonable and articulable suspicion.”
The State responds that the exclusionary rule does not apply in driver's license suspension cases. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 646, 176 P.3d 938 (2008). We therefore need not consider the legality of the stop and whether the evidentiary breath test is fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Secondly, as to the merits, the State cites the district court's finding that Officer Heit observed Deines violate a stop sign and stop in the middle of a controlled intersection. Thus, according to the district court, the officer “had a duty to pull [Deines] over and further investigate.”
While a licensee may raise Fourth Amendment claims in a licensing proceeding, “such claims have no practical effect (meaning such claims do not trigger the exclusion of resultant evidence) in the administrative context.” Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 396, 204 P.3d 562 (2009). This court has previously applied Martin multiple times in declining to apply the exclusionary rule in a licensing proceeding. See Koenig v. Kansas Dept. of Revenue, No. 99,314, 2008 WL 5455289, at *3 (Kan.App.2008) (unpublished opinion) (Recognizing the exclusionary rule does not apply to licensing administration under Martin.) rev. denied 289 Kan. 1279 (2010); Schraeder v. Kansas Dept. of Revenue, No. 101,662, 2010 WL 1253630, at *2 (Kan.App.2010) (unpublished opinion) (same); Gates v. Kansas Dept. of Revenue, No. 107,717, 2012 WL 6634429, at *2 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1244 (2013) (same); Schwerdt v. Kansas Dept. of Revenue, No. 110,086, 2014 WL 3294078, at *4 (Kan.App.2014) (unpublished opinion) (“Because Martin rejected a similar argument, we are duty bound to apply Kansas Supreme Court precedent.”).
We conclude that, assuming the vehicle stop was an improper violation of the Fourth Amendment, the exclusionary rule would not apply in this administrative setting. Moreover, if we were to consider the merits of Deines' argument, it is apparent that Officer Heit had reasonable and articulable suspicion of a traffic violation to justify the vehicle stop. Officer Heit testified that from his perspective behind Deines' car, he saw Deines drive through the stop sign without stopping. K.S.A. 8–1528(b) generally requires every driver of a vehicle approaching a stop sign to stop prior to entering an intersection. Officer Heit's eyewitness testimony provided substantial competent evidence that Deines had committed a traffic violation, thus justifying the vehicle stop.
Probable Cause to Arrest for DUI
For his second issue, Deines contends the district court “erred in finding that the officer had reasonable grounds, or probable cause, to believe that [he] was driving while intoxicated.” Deines argues that without any results from field sobriety testing or a PBT, Officer Heit lacked probable cause to arrest him and require that he submit to an evidentiary breath test.
Review is under the Kansas Judicial Review Act (KJRA), though the proceeding below was a trial de novo. K.S.A.2014 Supp. 8–1020(p). The facts were disputed below; so we review the trial court's probable cause determination for substantial competent evidence. See Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). To the extent we must decide a legal question such as statutory interpretation, our review is unlimited. See Martin, 285 Kan. at 629 ; Mitchell v. Kansas Dept. of Revenue, 41 Kan.App.2d 114, Syl. ¶ 1, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009).
The applicable Kansas statute required Officer Heit to request an evidentiary breath test when “[t]he person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.” K.S.A.2010 Supp. 8–1001(b)(1)(A). In Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, Syl. ¶ 3, 290 P .3d 555 (2012), our Supreme Court held that “[a]n arrest must be lawful before an arresting officer is authorized to request [an evidentiary breath] test ... to determine the presence of alcohol or drugs.” A lawful arrest in this context means an arrest based on probable cause to believe that a specific crime has been or is being committed and the defendant committed it. 296 Kan. at 20–21.
Importantly, the same statute mentioned earlier required Officer Heit to have “reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both,” before requesting the evidentiary breath test. (Emphasis added.) K.S.A.2010 Supp. 8–1001(b)(1). This close correlation between “probable cause” and “reasonable grounds to believe” has been noted by our Supreme Court who observed that the “reasonable grounds test of ... 8–1001(b) is strongly related to the standards for determining probable cause to arrest.” State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). Thus, as in the case on appeal, where the facts supporting the arrest for DUI are also the facts supporting the request for an evidentiary breath test, the probable cause analysis may coincide with the reasonable grounds analysis. Compare Sloop, 296 Kan. at 15 (field sobriety tests were conducted after the arrest).
In short, Deines properly describes this question on appeal as whether the trial court “erred in finding that the officer had reasonable grounds, or probable cause, to believe that [Deines] was driving while intoxicated.” “Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime.” Johnson, 297 Kan. at 222 (citing Sloop, 296 Kan. at 20 ).
In ruling against Deines, the trial court noted Officer Heif's testimony that Deines had bloodshot eyes, slurred speech, and “had difficulty communicating.” The trial court also found:
“[Deines] at least appeared to run a stop sign, stopped out in a controlled intersection, did smell of alcohol, did admit to using alcohol and taking pain killers prior to the stop, and was having some difficulty in getting out of his vehicle. Probable cause or reasonable grounds existed for the officer to come into contact with [Deines] and to seek both field testing and ... alcohol testing, of which he both refused to take. There was apparently nothing in [Deines'] actions that would have indicated any problem with being able to take the tests other than [Deines] simply stating that he could not do the field tests and, later on, the breath test.”
We are persuaded that substantial evidence supported the trial court's probable cause determination. Deines admitted consuming both alcohol and a prescribed medication. Deines exhibited tangible signs of significant alcohol consumption, including bloodshot eyes, an odor of alcohol, and agitation. Deines further exhibited a lack of attention and coordination—running the stop sign, stopping late in the intersection, fumbling and repeatedly dropping his driver's license, and stumbling when stepping from the vehicle.
Then, when Officer Heit asked Deines to perform field sobriety tests and the PBT, Deines refused. Officer Heit testified he was less concerned with Deines' allegations regarding disabilities than with his repeated refusals to even attempt the tests. In this regard, the officer's concern was reasonable because Deines' refusals could be considered evidence of a consciousness of guilt. See State v. Nye, 46 Kan.App.2d 182, 192–94, 261 P.3d 923 (2011), rev. denied 293 Kan. 1112 (2012).
The present case is, therefore, distinguishable from Sloop, where the driver drove legally, did not slur his speech, did not fumble with his license, and did not stumble when stepping from the vehicle. The present case is also distinguishable from the recent decision of our Supreme Court in City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015). In Molitor, the reasonable grounds standard was not met when a driver struck a curb on stopping, had watery and bloodshot eyes, and admitted to consuming two or three beers and a strong odor of alcohol was emanating from the vehicle. Our Supreme Court emphasized that, aside from striking the curb, the driver had not exhibited a lack of coordination and, “most importantly,” had passed two standardized field sobriety tests. 301 Kan. at 268. In contrast, Deines violated a stop sign, exhibited a noteworthy lack of coordination and dexterity, and refused testing. Under the totality of the information and inferences available to Officer Heit, we conclude there was probable cause to arrest Deines and reasonable grounds to request the evidentiary breath test.
Inability to Complete the Evidentiary Breath Test
For his final issue, Deines contends the district court erred in finding that he failed to prove he was physically incapable of performing the evidentiary breath test due to medical conditions. In response, the KDR presents two arguments. First, it argues the defense of being physically incapable of performing the evidentiary breath test requires an actual attempt rather than, as in the present case, simply a failure to submit to the test. Alternatively, the KDR posits that if the medical defense was available to Deines, the district court did not err in concluding that Deines failed to meet his burden to show that he was physically unable to provide an adequate breath sample.
The district court found Deines “failed to prove ... that he was physically incapable of performing requested tests due to medical conditions.” In particular, the district court wrote:
“[Deines] presented no medical opinion or such as to any malady other than a breathing test done on September 25, 2012, more than two years after the arrest. None of it, including the breathing test, was backed by any medical testimony from any medical practitioner.... [T]his court is only provided with speculation as to his ability to perform the tests.”
Our review is again for substantial competent evidence, Call v. Kansas Dept. of Revenue, 17 Kan.App.2d 79, 84, 831 P.2d 970, rev. denied 251 Kan. 937 (1992), with unlimited review on legal questions such as statutory interpretation. See Martin, 285 Kan. at 629 ; Mitchell, 41 Kan.App.2d 114, Syl. ¶ 1.
We begin the analysis with the fact that Deines refused to attempt the evidentiary breath test. A driver's license suspension is appropriate when there is a “test failure” or a “test refusal.” See K.S.A.2010 Supp. 8–1001(k). Since a “[t]est failure” occurs when the “results of a test administered ... show an alcohol concentration of .08 or greater,” a test failure is not at issue here. K.S.A.2014 Supp. 8–1013(h).
K.S.A.2010 Supp. 8–1001(q) provides: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs. ” (Emphasis added.)
The uncontroverted evidence showed that Deines refused to attempt the evidentiary breath test. But the KDR argues that before his medical exception may be applicable, “K.S.A.2010 Supp. 8–1001(q) requires at least an attempt to blow into the Intoxilyzer.” For his part, Deines raised this defense provided in K.S.A.2010 Supp. 8–1001(q) in his petition for review, pleading that he “did not refuse testing, but rather, is unable to submit to testing because of a physical/medical condition unrelated to the ingestion of alcohol.”
We find it unnecessary to resolve the parties' differing views of the statutory language. Under either the KDR's or Deines' reading of the statutes, Deines bore the burden to make a showing at trial that he was either unable to submit to testing or attempted but failed to complete testing and “the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.”K.S.A.2010 Supp. 8–1001(q) ; see Call, 17 Kan.App.2d at 84.
We agree with KDR to this extent—a person who refuses to attempt the evidentiary breath test is limiting the potential evidence of inability, i.e., that the driver tried but could not complete the test. If “testimony that [the person] attempted but was unable to blow air sufficiently for a breath test is insufficient, absent other competent evidence, to prove inability to take the test,” testimony omitting the attempt is also insufficient. Call, 17 Kan.App.2d 79, Syl. ¶ 3. In the present case, for example, the only evidence of an attempt was Deines' testimony that he had, with difficulty, completed an evidentiary breath test about 15 years before the traffic stop. Deines' testimony that he could not complete the test offered by Officer Heit was, absent other competent evidence, of even less probative value than the situation considered in Call.
Deines offered medical records to corroborate his claimed inability, but the trial court refused to admit the records without expert medical testimony. Deines now appears to challenge the evidentiary ruling on appeal. Evidentiary rulings are subject to a multistep analysis. See State v. Gaona, 293 Kan. 930, 952, 270 P.3d 1165 (2012).
At trial, Deines produced a report from a pulmonary laboratory regarding testing he underwent 2 years after the traffic stop. As part of the proffer, a pulmonary technician also testified to the authenticity of the report. The technician testified, however, that she was unqualified to give medical testimony or opinions regarding the medical records. The trial judge excluded the pulmonary report based on a lack of expert medical testimony, stating, “They mean nothing because they are medical records full of medical data. I have no idea how far it applies to what we are talking about. It is just pure speculation by this court.”
On appeal, Deines contends the pulmonary report “speaks for itself,” but having examined the report we agree with the trial court. The report is full of medical data far beyond common knowledge. We could only speculate as to its meaning.
We take guidance from Gaona, where counsel “sought to admit [medical] records with no supporting foundation or medical testimony .” 293 Kan. at 953. The trial court excluded the records, and our Supreme Court noted “multiple sound legal reasons” for the trial court's decision. 293 Kan. at 954. Among them were the proponent's failures to lay a foundation for the records or show their relevance. Deines similarly failed to lay a proper foundation for the pulmonary report or show its relevance.
Moreover, the pulmonary report was of little value without evidence on the pulmonary capacity needed to complete an evidentiary breath test. Deines recognized this in a pretrial questionnaire filed about 8 months before trial, when he stated that a doctor's report on his alleged inability to complete the evidentiary breath test “is impossible without the specifications of the intoxilyzer machine.” Deines later obtained a continuance of the trial on the basis that a “doctor agreed to provide expert consultation but first required the functional specifics of the intoxilyzer machine.” The fact such evidence was not presented at trial provides another reason for excluding the pulmonary report. Even if it could be understood, its relevance was not shown absent proof regarding the pulmonary capacity needed for an individual to complete the evidentiary breath test.
In short, the trial court concluded: “[T]he proof offered by [Deines] was little more than his words at the scene of the arrest and in the courtroom.” Deines' testimony, which lacked even an allegation of a failed attempt, was not sufficient to show the failure to provide a breath sample was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs. Deines' failure to submit to the test was therefore a test refusal, and there were proper grounds for the suspension of his driver's license.
Deines raises another point in passing while arguing his inability to provide a breath sample. Deines contends Officer Heit “was not justified in failing to give ... a blood test.” Deines does not cite legal authority in support of the point, however, and we deem it waived or abandoned on appeal. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
Affirmed.