Sloop v. Kansas Dept. of Revenue

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,334

KENNETH W. SLOOP, JR.,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


SYLLABUS BY THE COURT

1.
Statutory interpretation is a question of law, and the appellate court's review is
unlimited.

2.
In interpreting a statute, the fundamental rule to which all other rules are
subordinate is that the intent of the legislature governs if that intent can be ascertained.
The intent of the legislature is to be derived in the first place from the words used.

3.
An arrest must be lawful before an arresting officer is authorized to request a test
under K.S.A. 2008 Supp. 8-1001(b)(1)(A) to determine the presence of alcohol or drugs.

4.
Some prior appellate decisions have used the following language in their calculus
to determine whether probable cause exists to arrest: "It is sufficient if the information
leads a reasonable officer to believe that guilt is more than a possibility" or "more than a
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mere possibility." Such language defining probable cause in terms of "possibilities" is
unnecessary and confusing, and is disapproved.

5.
Under the facts of this case, the evidence was insufficient to establish probable
cause for the defendant's arrest.

6.
Because the evidence in this case was insufficient to establish probable cause for
the defendant's arrest, his arrest was unlawful. The arresting officer therefore had no
authority under K.S.A. 2008 Supp. 8-1001(b) to request the defendant to take an
evidentiary breath test. The defendant's refusal to take an unauthorized test cannot be the
basis for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(1). They
are therefore reinstated.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 10,
2010. Appeal from Shawnee District Court; DAVID E. BRUNS, judge. Opinion filed December 14, 2012.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed.

Kenneth B. Miller, of Rork Law Office, Topeka, argued the cause and was on the brief for
appellant.

James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, argued the cause and
was on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: Kenneth W. Sloop, Jr., appeals from an administrative action by the
Kansas Department of Revenue (KDOR) suspending his driving privileges for 1 year
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under K.S.A. 2008 Supp. 8-1014(a)(1). Per this statute, privileges can be suspended for
refusing to take a breath test the arresting officer is authorized to request under K.S.A.
2008 Supp. 8-1001(b). The district court and Court of Appeals affirmed the
administrative suspension.

We conclude the officer's statutory authority to request Sloop to take the breath
test depends upon a valid arrest. We additionally conclude the arrest was invalid because
the officer had no probable cause to support it. And we further conclude Sloop's refusal
to take a breath test the officer had no statutory authority to request cannot be the basis
for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(1). So we
reverse the lower courts' decisions and reinstate his driving privileges.

FACTS

The essential facts are straightforward. Around midnight on October 24, 2008,
Topeka police officer Cris Bergerhofer noticed Kenneth Sloop make a left-hand turn
from the southbound lane of Gage Boulevard. While Sloop committed no traffic
violations in making his turn, Officer Bergerhofer followed Sloop because he was "sitting
unusually close to his steering wheel" and because he had been somewhat hesitant going
into his turn (started turning, stopped, and started turning again). Bergerhofer followed
Sloop for about 8 to 10 blocks. During that time, Sloop did not commit a traffic
infraction. But because Sloop's tag light was out, Bergerhofer activated his emergency
lights and stopped Sloop.

Bergerhofer requested Sloop's driver's license, and Sloop handed it over without
fumbling it. According to Bergerhofer, both Sloop and his unnamed passenger smelled of
alcohol, and Sloop's eyes were watery and bloodshot. When Bergerhofer asked if he had
been drinking, Sloop replied, "Nothing really," and then, according to Bergerhofer, said
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that he had "like one beer at a friend's house." Bergerhofer did not ask Sloop when he had
consumed the beer.

Bergerhofer testified that Sloop's speech was "impaired" but not "slurred."
According to Bergerhofer, "impaired" meant "not as clear as it could be but [] not
inherently slurred either."

Bergerhofer then ordered Sloop out of the car. Sloop did not stumble upon exiting
and was steady when walking to the back of the car. Bergerhofer had him complete the
horizontal gaze nystagmus test, whose results were not offered at the later hearing. Sloop
also performed a preliminary breath test, the results of which also were not offered at the
hearing because Bergerhofer later realized at the police station the test had been
administered improperly. After the preliminary breath test, Bergerhofer arrested Sloop
and took him to the station in handcuffs for further testing. Bergerhofer stated that he
took Sloop to the station because he wanted to film the field sobriety tests and his squad
car lacked video equipment.

At the station, Bergerhofer performed two field sobriety tests. On the walk-and-
turn test, Sloop was expected to take nine heel to toe steps on a straight line, make a turn,
and then take the same nine steps back to the starting position. Bergerhofer testified that
Sloop failed to touch heel to toe on three of his first nine steps, i.e., Sloop missed by
"[a]bout an inch, inch-and-a-half." Sloop also made an incorrect turn because he pivoted
instead of taking a series of small steps. The failure to execute a correct turn combined
with the failure to touch heel-to-toe meant that Sloop exhibited two clues which,
according to Bergerhofer, indicate a possibility of impairment.

On the one-leg stand test, Sloop was expected to stand on one leg with his arms to
his side and count for about 30 seconds. Bergerhofer stated that Sloop swayed during this
test, which presented one clue of impairment. When asked about how much swaying a
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person is allowed, Bergerhofer responded, "It's to a degree subjective. Usually if they are
swaying, they are swaying." Bergerhofer testified that only one clue meant Sloop passed
this test. After performing the two field sobriety tests, Sloop refused to take the
evidentiary breath test Bergerhofer requested: the Intoxilyzer 8000.

The district court relied upon the following prearrest evidence: Sloop's breath
smelled of alcohol; he had bloodshot and watery eyes; he admitted to having one beer
earlier in the evening; and he was stopped in the early morning hours. The court also
relied upon the following postarrest evidence: Sloop's failure to step properly on three
occasions, his failure to turn as instructed during the walk-and-turn test, and his swaying
on the one-leg stand test. Combining this evidence, and relying upon Sullivan v. Kansas
Dept. of Revenue, 15 Kan. App. 2d 705, Syl. ¶ 2, 815 P.2d 566 (1991), the court
concluded that a reasonable officer could have believed that it was "more than a
possibility" that Sloop operated his vehicle while under the influence of alcohol.
Although affirming the suspension, the court admitted "[t]he evidence of intoxication . . .
is much weaker than the evidence presented in the vast majority of the driver's license
suspension actions that come before this Court."

The Court of Appeals affirmed. Sloop v. Kansas Dept. of Revenue, No. 103,334,
2010 WL 5140016 (Kan. App. 2010) (unpublished opinion). Among other things, it held
substantial evidence supported the district court's conclusion that Bergerhofer had
reasonable grounds to believe Sloop was operating a vehicle while under the influence, in
violation of K.S.A. 2008 Supp. 8-1001(b). It basically repeated the "more than a
possibility" language from Sullivan but with a modifier: "A law enforcement officer has
such reasonable grounds if, under all the circumstances, a reasonably prudent police
officer would believe the person's guilt is 'more than a mere possibility. [Citations
omitted.]'" (Emphasis added.) 2010 WL 5140016, at *4.

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We granted Sloop's petition for review. Our jurisdiction is under K.S.A. 60-
2101(b) and K.S.A. 20-3018(b).

ANALYSIS

Issue 1: Sloop's arrest was unlawful, which means there was no authority to request he
take the breath test under K.S.A. 2008 Supp. 8-1001(b).

Standard of review

Our analysis requires us to interpret K.S.A. 2008 Supp. 8-1001(b). Statutory
interpretation is a question of law, and this court's review is unlimited. Accordingly, we
are not bound by the lower courts' interpretations. State v. Hopkins, 295 Kan. __, 285
P.3d 1021, 1023 (2012).

Discussion

By Kansas statute, any person who operates or attempts to operate a vehicle in this
state is deemed to have given consent to submit to one or more tests of the person's
blood, breath, urine, or other bodily substance to determine the presence of alcohol or
drugs. K.S.A. 2008 Supp. 8-1001(a). Subsection (b) of that statute establishes the
conditions, some in the alternative, that a law enforcement officer must meet to obtain
authority for requesting such tests. Because Officer Bergerhofer arrested Sloop and
believed he had reasonable grounds to request the later breath test, two of the statute's
conditions apply to this case:

"(b) A law enforcement officer shall request a person to submit to a test or tests
deemed consented to under subsection (a): (1) if [First] the officer has reasonable
grounds to believe the person was operating or attempting to operate a vehicle while
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under the influence of alcohol or drugs, or both . . . and [Second] one of the following
conditions exists: (A) The 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, . . . in violation of a state statute or a city
ordinance." (Emphasis added.) K.S.A. 2008 Supp. 8-1001(b).

Sloop challenges the existence of both of these italicized conditions, which is
within the scope of the matters allowed at the administrative hearing and thus within the
reviewing court's purview. Under K.S.A. 2008 Supp. 8-1020(h)(1), those matters are "(A)
A law enforcement officer had reasonable grounds to believe the person was operating or
attempting to operate a vehicle while under the influence of alcohol or drugs, or both,"
and "(B) the person was in custody or arrested for an alcohol or drug related offense."

At oral arguments the parties addressed a number of points concerning both of
these conditions. But we only need to examine one of Sloop's contentions because we
agree with him—and it is dispositive. And here is why.

We begin by acknowledging Officer Bergerhofer arrested and handcuffed Sloop at
the scene. The KDOR acknowledged at oral arguments that under our facts the arrest
itself was a necessary condition for Bergerhofer to later request Sloop to take the
Intoxilyzer test at the station. We observe a number of courts have held that when
arresting for any offense involving operation or attempted operation of a vehicle while
under the influence of alcohol or drugs, the arrest must be a lawful one. See Schuster v.
State Dept. of Tax. & Revenue, 283 P.3d 288, 294 (N.M. 2012) (collecting cases).

In Schuster, the New Mexico Supreme Court examined NMSA 66-8-112(F),
which contained the conditions authorizing the motor vehicle division to administratively
revoke a person's driving privilege. Similar to K.S.A. 2008 Supp. 8-1001(b), two of the
necessary threshold conditions included (1) the "officer had reasonable grounds to
believe the driver was driving a motor vehicle while under the influence of intoxicating
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liquor or drugs," and (2) "the person was arrested." NMSA 66-8-112(F)(1) and (2). The
Schuster court focused on the latter condition, and in analyzing "arrest" it held:

"Whether the exclusionary rule applies in license revocation hearings does not
control whether MVD [motor vehicle division] must analyze the constitutionality of the
arrest of a driver charged with DWI. The question is did the Legislature intend a finding
under Section 66-8-112(F)(2) that 'the person was arrested' to include a finding that the
person's arrest was constitutional. If the answer is no, even an unconstitutional arrest will
satisfy the requirement in Section 66-8-112(F)(2). If the answer is yes, the legislature has
provided the remedy for an unconstitutional arrest: MVD is prohibited from revoking the
driver's license. See Section 66-8-112(G)" [If, inter alia, the element of "the person was
arrested" in 66-8-112(F)(2) is not found by the motor vehicle division, "the person's
license shall not be revoked."] Schuster, 283 P.3d at 293.

The Schuster court concluded, "[C]onsistent with these other jurisdictions, . . . the
plain meaning of the word 'arrest' means an arrest that complies with the protections of
the Fourth Amendment to the United States Constitution" and the New Mexico
Constitution. 283 P.3d at 294. Accordingly, an arrest and the underlying police activity
leading to the arrest were required to be constitutional before a driver's license could be
revoked under New Mexico's Implied Consent Act.

Particularly under the plain language of our own statute, we agree the arrest must
be lawful. See State v. Hendrix, 289 Kan. 859, Syl. ¶ 2, 218 P.3d 40 (2009) ("In
interpreting a statute, the fundamental rule to which all other rules are subordinate is that
the intent of the legislature governs if that intent can be ascertained. Intent of the
legislature is to be derived in the first place from the words used."); Steffes v. City of
Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007) ("An appellate court merely
interprets the language as it appears; it is not free to speculate and cannot read into the
statute language not readily found there."). As noted, K.S.A. 2008 Supp. 8-1001(b)(1)(A)
provides that the officer shall request a person to submit to a test deemed consented to if
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"[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 . . . ." (Emphasis added.)

By using the disjunctive "or" to introduce the phrase "or otherwise taken into
custody," the legislature clearly intended to distinguish that general category from the
more specific "arrest." But if we interpret the legislature's "arrest" to include an invalid
arrest, or if we include an invalid arrest within the generic "otherwise taken into custody,"
then the legislature's arrest distinction becomes diluted at best and superfluous at worst.
After all, the arrest, whether valid or invalid, would be amply covered by "taken into
custody." See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, Syl. ¶ 5, 181
P.3d 549 (2008) ("As a general rule, statutes are construed to avoid unreasonable results.
There is a presumption that the legislature does not intend to enact useless or meaningless
legislation.").

The same problems would occur with a comparable interpretation of the similar
language and structure of K.S.A. 2008 Supp. 8-1020(h)(1)(B) regarding the permissible
scope of the license suspension hearing when the officer has certified that the driver
refused the test. It too distinguishes whether "the person was in custody or arrested for an
alcohol or drug related offense." (Emphasis added.) See Schuster, 283 P.3d at 294
(making same point about New Mexico's statutes: "the person was arrested" appearing in
both N.M. Stat. Ann. § 66-8-112(E)(2) for permissible scope of the hearing and in
subsection (F)(2) as a required condition of an order revoking driving privileges).

Now that we have established K.S.A. 2008 Supp. 8-1001(b) requires that the arrest
be lawful, we next examine whether Officer Bergerhofer effected a lawful arrest of Sloop
at the scene. To do so, we first look at the legal standard. To be lawful, a warrantless
arrest must be supported by probable cause. See K.S.A. 22-2401(c); State v. Ramirez, 278
Kan. 402, 405, 100 P.3d 94 (2004). We have defined probable cause as follows:
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"Probable cause is the reasonable belief that a specific crime has been or is being
committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161,
164, 83 P.3d 794 (2004). Existence of probable cause must be determined by
consideration of the information and fair inferences therefrom, known to the officer at the
time of the arrest. Bruch, 282 Kan. at 775-76. Probable cause is determined by evaluating
the totality of the circumstances. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006). As
in other totality of the circumstances tests, there 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. State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246
(2010); see Smith, 291 Kan. at 515 (holding that the defendant's list of facts did not
negate the other factors presented)." Allen v. Kansas Dept. of Revenue, 292 Kan. 653,
656-57, 256 P.3d 845 (2011).

We have attempted to further explain probable cause by placing its required
quantum of proof lower on the evidentiary ladder than the amount of proof needed for a
criminal conviction and lower than the amount needed for a civil judgment. So we have
added that in attempting to establish probable cause:

"'It is not necessary that the evidence relied upon establish guilt beyond a reasonable
doubt. The evidence need not even prove that guilt is more probable than not. It is
sufficient if the information leads a reasonable officer to believe that guilt is more than a
possibility. [Citation omitted.]'" (Emphasis added.) Bruch v. Kansas Dept. of Revenue,
282 Kan. 764, 775-76, 148 P.3d 538 (2006) (quoting Sullivan v. Kansas Dept. of
Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 [1991]).

Indeed, just last year Allen quoted this italicized language from Bruch. See Allen,
292 Kan. at 660 ("Trooper Walker had good reason to 'believe that guilt [was] more than
a possibility.' See Bruch, 282 Kan. at 775-76."). But use of this additional, italicized
factor is no longer approved for several reasons. First, it crept into our caselaw apparently
without explanation. Second, it has received undue emphasis in the probable cause
calculus, sometimes to the exclusion of other considerations. See, e.g., Campbell v.
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Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431, 962 P.2d 1150, rev. denied 266
Kan. 1107 (1998) (exclusively providing that "[p]robable cause to arrest is that quantum
of evidence that would lead a reasonably prudent police officer to believe that guilt is
more than a mere possibility." [Emphasis added.]).

In exploring this unexplained creep, our research shows that for this particular
language, Bruch cited Sullivan, 15 Kan. App. 2d at 707 (Probable cause does not require
that the evidence prove guilt beyond a reasonable doubt nor to prove that guilt is more
probable than not. "It is sufficient if the information leads a reasonable officer to believe
that guilt is more than a possibility."). In turn, Sullivan cited State v. Lamb, 209 Kan. 453,
467, 497 P.2d 275 (1972) ("It is only necessary that the information led a reasonable
officer to believe that guilt is more than a possibility . . . .").

And Lamb in turn cited Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L.
Ed. 2d 327 (1959). But the applicable pages in the Draper opinion, 358 U.S. at 311-13,
do not contain any "more than a possibility" language. Indeed, according to Draper's
primary reference: "Probable cause exists where 'the facts and circumstances within their
[the arresting officers'] knowledge and of which they had reasonably trustworthy
information [are] sufficient in themselves to warrant a man of reasonable caution in the
belief that' an offense has been or is being committed." 358 U.S. at 313 (quoting Carroll
v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 [1925]).

Now that we have clarified the appropriate standard of probable cause to arrest, we
can apply it to the facts of this case. In other words, we must determine whether probable
cause supports Sloop's arrest—when considering "the information and fair inferences
therefrom known to the officer at the time of the arrest." Bruch, 282 Kan. at 775-76.

Typically, this court would follow the appropriate standards of review to examine
the findings and conclusions of the district court regarding its holding of probable cause
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to arrest. But in this case that court did not examine this particular question. See Sloop,
2010 WL 5140016, at *2 ("The [district] court never did specifically address whether
probable cause existed for the arrest."). Nevertheless, at oral arguments the parties
debated the issue of probable cause to arrest and effectively invited us to make the
determination because the essential facts are undisputed.

In arguing support for probable cause, the KDOR pointed to the early morning
hours and Sloop's behavior during the left-hand turn; the strong odor of alcohol in the car,
on the passenger, and then on Sloop; Sloop's watery and bloodshot eyes; his "nothing
really" response to whether he had been drinking; and his admission to consumption (one
beer). In response to questioning, the KDOR cited Campbell, 25 Kan. App. 2d at 431, as
its best legal support. As the Court of Appeals panel in this case approvingly summarized
that decision:

"In Campbell, which, as here, involved an administrative appeal of a driver's license
suspension, this court held that probable cause to arrest the driver existed when an officer
observed the driver speeding [72 mph in a 55 mph zone] at 1:10 a.m., the officer smelled
alcohol on the driver, the driver admitted to having a few drinks, and the driver's eyes
were glazed and bloodshot." Sloop, 2010 WL 5140016, at *4.

But we find it sufficiently distinguishable. The primary factual difference between
Campbell and the instant case is that Campbell was speeding, i.e., committing a moving
violation, while Sloop was driving legally before being stopped for an improper tag light.

More important, the Campbell court's articulated test for probable cause to arrest
was overly generous to the KDOR, i.e., requiring only "that quantum of evidence that
would lead a reasonably prudent police officer to believe that guilt is more than a mere
possibility." (Emphasis added.) 25 Kan. App. 2d at 431. Furthermore, the Campbell panel
was not making a de novo determination of probable cause. Rather, it was reviewing the
district court's holding of probable cause for the DUI arrest, a holding the panel declared
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it was reviewing only for substantial competent evidence to support. 25 Kan. App. 2d at
431. So there is a serious question whether the Campbell court felt restricted by either, or
both, of these standards in arriving at its holding of probable cause.

We also note that while Bergerhofer observed Sloop's behavior during the turn, he
followed Sloop for 8 to 10 blocks without observing further driving concerns. Sloop's
speech was not slurred, he did not fumble while producing his license, and he did not
stumble when exiting his vehicle and was steady when walking to the rear. We have no
way of knowing how much the results of the preliminary breath test (which were later
invalidated) contributed to Bergerhofer's decision to arrest at the scene. But we do know
that it was not until immediately after Bergerhofer received what he thought were valid
results that he arrested Sloop. And unlike the lower courts when they determined that
KDOR met the additional condition of "reasonable grounds to believe" under K.S.A.
2008 Supp. 8-1001(b)(1), we do not consider the results of Sloop's field sobriety tests or
other postarrest conduct in our probable cause to arrest calculus.

In short, we conclude de novo from the undisputed facts that there was no
probable cause for Sloop's arrest. See Allen, 292 Kan. at 657 ("Probable cause is
determined by evaluating the totality of the circumstances.") The arrest is therefore
unlawful. See K.S.A. 22-2401(c) (warrantless arrest requires probable cause); Ramirez,
278 Kan. at 405. And a lawful arrest is required before the officer is authorized to request
the driver to breathe into the Intoxilyzer 8000 under K.S.A. 2008 Supp. 8-1001(b). See
Schuster, 283 P.3d at 294. So Officer Bergerhofer had no statutory authority to request
Sloop to take this test at the police station.

Sloop's driving privileges were administratively suspended by KDOR solely
because he refused to take this breath test. See K.S.A. 2008 Supp. 8-1014(a)(1) ("if a
person refuses a test, the division . . . shall . . . suspend the person's driving privileges for
one year"). So Sloop's suspension, because it is based upon his refusal to take an
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unauthorized test, is invalid. Cf. K.S.A. 2008 Supp. 8-1002(f) (when breath test is
requested and results in refusal, if officer fails to meet the statutory certification
requirements, the division shall dismiss the administrative proceeding and return any
license surrendered by the person); K.S.A. 2008 Supp. 8-1020(k) ("the licensee has the
burden of proof by a preponderance of the evidence to show that the facts set out in the
officer's certification are false or insufficient and that the order suspending or suspending
and restricting the licensee's driving privileges should be dismissed." [Emphasis added.]).

The judgment of the Court of Appeals is reversed. The judgment of the district
court is reversed, and Sloop's driving privileges are reinstated.