Sjoberg v. Kan. Dep't of Revenue

284 P.3d 375

Scott D. SJOBERG, Appellee,

v.KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 103,937.

Court of Appeals of Kansas.

Sept. 7, 2012.

Appeal from Douglas District Court; Paula B. Martin, Judge.

J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, of Topeka, for appellant.

Douglas E. Wells, of Topeka, for appellee.

Before LEBEN, P.J., GREEN and MARQUARDT, JJ.

MEMORANDUM OPINION

LEBEN, J.

We review this case anew on remand from the Kansas Supreme Court, which concluded that we had not applied the correct standard in deciding the case. So we begin with a review of the three different rules that may apply in determining whether a law enforcement officer has acted within the law in investigating a potential DUI case.

Let's assume first that the officer has stopped a driver for a traffic violation, as occurred in Sjoberg's case. If so, here's how the three rules might play out after that stop:

• To measurably extend the traffic stop beyond what's required to handle the traffic infraction itself ( i.e., checking license and registration and then writing a ticket for the infraction), the officer must have reasonable suspicion, which is a particularized and objective basis for suspecting the person stopped is involved in criminal activity. State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3–4, 190 P.3d 234 (2008).

• To arrest the driver on a DUI charge, the officer must have probable cause to arrest. Probable cause exists when the officer's knowledge of the events creates a reasonable belief that a defendant has committed, is committing, or is about to commit a specific crime. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, Syl. ¶ 2, 256 P.3d 845 (2011). Probable cause does not require that an officer have evidence of every element of a crime. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, Syl. ¶ 1, 242 P.3d 1179 (2010).

• To request that the driver take a preliminary breath test or an evidentiary breath test to determine the level of alcohol in the driver's system, the officer must have reasonable grounds. Kansas courts evaluate ‘reasonable grounds' by looking to probable cause standards. Swank v. Kansas Dept. of Revenue, 294 Kan. ––––, 281 P.3d 135, 142(2012).

In Sjoberg's case, we are called upon to determine whether the officer had reasonable grounds to conclude that Sjoberg was operating a vehicle while under the influence of alcohol, see K.S.A.2007 Supp. 8–1001(b), not whether the officer had reasonable suspicion to extend a traffic stop for further investigation. Our Supreme Court's remand order recognizes the importance of this distinction:

Although the Court of Appeals opinion stated that the issue in the case was whether the arresting officer had reasonable grounds to request a breath test, the opinion relied in part on its review of State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008), where this court found sufficient grounds to establish reasonable suspicion of DUI in order to permit the officer's further detention of the driver for DUI investigation. Appellee petitions for our review of the Court of Appeals opinion, arguing in part that the Court of Appeals confused the applicable standards, i.e., reasonable suspicion for an investigatory detention, probable cause for an arrest, or reasonable grounds to request an evidentiary breath test. We agree.

Appellee's petition for review in the above-captioned case is granted and the case is summarily remanded to the Court of Appeals for a reconsideration of its decision based upon the reasonable ground standard. See Allen v. Kansas Dept. of Revenue, 292 Kan. 653 (2011); Smith v. Kansas Dept. of Revenue, 291 Kan. 510 (2010).

The point is, of course, well taken: our Supreme Court has also explained that [r]easonable suspicion is a less demanding standard than probable cause. Pollman, 286 Kan. 881, Syl. ¶ 6. Thus, by considering cases applying the reasonable-suspicion standard, we could inadvertently tip the scale in favor of the Kansas Department of Revenue.

We therefore reconsider the case under the reasonable-grounds standard. Since Kansas courts generally consider that standard equivalent to the probable-cause standard, see Swank, 281 P.3d at 142, we may consider precedents applying either of those standards. To the extent that there is any difference between the reasonable-grounds and probable-cause standards, our Supreme Court has noted that an officer may have reasonable grounds ... but not have the probable cause required to make an arrest. Smith, 291 Kan. at 514 (citing Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 776, 148 P.3d 538 [2006] ). Thus, to the extent there is any difference in these standards, relying upon cases decided under the probable-cause standard could favor Sjoberg, but we know of no case that has found a difference between those two standards decisive.

Sjoberg's license was suspended for 1 year by the Department of Revenue based on a failed breath test, which was taken shortly after he was arrested for a DUI based on the officer's conclusion that there was probable cause to arrest Sjoberg for a DUI offense. An officer must ask a person to submit to a breath, blood, or urine test to determine the presence of alcohol or drugs if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence. K.S.A.2007 Supp. 8–1001(b)(l). Sjoberg's contention in his appeal of his license suspension has been that the officer didn't have reasonable grounds to believe Sjoberg had been operating his vehicle while under the influence of alcohol.

We cite in this opinion to the statutes in place on the date of Sjoberg's encounter with law enforcement.

Factual Background

We reviewed the facts of the case in detail in our earlier opinion. See Sjoberg v. Kansas Dept. of Revenue, No. 103, 937, 2011 WL 4906843 (Kan.App.2011) (unpublished opinion), rev. granted June 25, 2012. In our prior decision, however, we did not consider some arguments made on appeal by the Department of Revenue about rulings the district court made that narrowed the facts that could be considered in determining whether the officer had reasonable grounds. We will provide a bit more discussion of those issues in this opinion.

Our story begins at 12:43 a.m. on March 2, 2008; Kansas Highway Patrol Trooper Josh Kellerman pulled Scott Sjoberg over for having a nonworking headlight. When Kellerman approached the car, the driver's and passenger's windows were down and the moon roof was open. Kellerman smelled pizza in the car. After Sjoberg produced his driver's license and registration, Kellerman asked Sjoberg to sit in the patrol car with Kellerman. Kellerman then noticed a little alcohol odor; he testified that the more Sjoberg spoke, the stronger the alcohol smell got. Kelierman also saw that Sjoberg's eyes were bloodshot. Sjoberg admitted to having a few drinks before the KU basketball game and one drink after the game when he and his companion stopped at a bar and had pizza and a beer.

Kelierman then administered a preliminary breath test, which showed that Sjoberg's alcohol level was almost twice the legal limit. Kelierman admitted that he did not comply with his training and the test device's manual by waiting 15 to 20 minutes before administering the test; the test was conducted about 5 minutes after the stop. The district court admitted evidence of the preliminary breath test results at trial over Sjoberg's objection that testing protocols weren't followed.

Kelierman then called for another officer so that they'd have more light to conduct field-sobriety tests. Kelierman asked Sjoberg to complete the horizontal gaze nystagmus, walk-and-turn, and one-leg-stand sobriety tests. On the walk-and-turn test, Kelierman observed two clues of intoxication: Sjoberg lost his balance during the instructions and made an improper turn. Before the one-leg-stand test, a few cars drove by in the lane of traffic closest to where Kelierman and Sjoberg were. Kelierman moved his car to shield the area, and Sjoberg thanked him. When Sjoberg performed the test, Kelierman again observed two clues: Sjoberg used his arms for balance and put his foot down.

Kelierman and Sjoberg got back into the patrol car, and Kelierman asked Sjoberg to take another preliminary breath test. Sjoberg refused; Kelierman arrested him for driving under the influence. Later, at a police station, Sjoberg took and failed an Intoxylizer breath test, which resulted in the suspension of his driver's license. After an administrative hearing, the Department of Revenue affirmed the suspension.

Sjoberg petitioned the Douglas County District Court to review the Department's action, which resulted in a trial in which the evidence we've noted was presented to the district court. The district court found that the preliminary breath test results should not have been considered in the reasonable-grounds determination because Kellerman had failed to wait the required 15 to 20 minutes before administering the test. The district court concluded that Kellerman didn't have reasonable grounds to believe that Sjoberg was driving under the influence, and it overturned the suspension. The district court also held that the results of the horizontal gaze nystagmus test should not have been considered in assessing reasonable grounds.

Analysis

Before we assess whether the officer had reasonable grounds to believe that Sjoberg was driving while intoxicated, we must first consider whether certain facts that were excluded from consideration by the district court should have been considered. Our Supreme Court has held that all of the circumstances related to the driver's situation should be considered when assessing reasonable grounds. See Smith, 291 Kan. at 515. Specifically, the district court determined that it would not consider, for purposes of determining reasonable grounds, the result of the initial preliminary breath test, the refusal to take a second preliminary...