Smith v. Kansas Dept. of Revenue

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,744

WILLIAM P. SMITH,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


SYLLABUS BY THE COURT

1.
Probable cause exists where the officer's knowledge of the surrounding facts and
circumstances creates a reasonable belief that a defendant committed a specific crime.
Probable cause does not require an officer have evidence of every element of the crime.

2.
The Fifth Amendment to the United States Constitution and §10 of the Kansas
Constitution Bill of Rights prevent any person from being compelled to be a witness
against himself or herself in a criminal case.

3.
During a lawful traffic stop, a law enforcement officer is not required to Mirandize
an individual before asking routine investigatory questions where the individual is not in
legal custody or deprived of his or her freedom in any significant way. This is true even
though the officer may suspect the individual has committed, is committing, or is about to
commit a crime and even though the individual is not free to leave during the lawful
detention.

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4.
Under the facts and circumstances of this case, a law enforcement officer who was
writing a warning ticket for a taillight violation was not required to Mirandize the vehicle
operator before asking him whether he had been drinking alcohol.

5.
Appellate courts generally avoid making unnecessary constitutional decisions.
Thus, where there is a valid alternative ground for relief, an appellate court need not
reach constitutional challenges to statutes.

Appeal from Norton District Court; WILLIAM B. ELLIOTT, judge. Opinion filed November 19,
2010. Affirmed.

Daniel C. Walter, of Ryan, Walter & McClymont, Chtd, of Norton, argued the cause and was on
the brief for appellant.

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

The opinion of the court was delivered by

BILES, J.: William P. Smith appeals from an administrative action by the Kansas
Department of Revenue suspending his driving privileges for 1 year following his arrest
for driving under the influence of alcohol (DUI). Smith later was convicted of DUI, and
that conviction was affirmed on appeal. State v. Smith, No. 101,831, unpublished Court
of Appeals opinion filed December 18, 2009.

In this appeal from the agency's action suspending his license, Smith challenges
whether there were reasonable grounds to support the administration of an evidentiary
breath test. He also attacks the constitutionality of K.S.A. 2009 Supp. 8-1012, which
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authorizes a preliminary breath test based on reasonable suspicion, rather than the higher
probable cause standard. We affirm the district court's order upholding the agency's
action.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 9 p.m. on July 24, 2007, Smith was driving a pickup truck,
pulling a combine header trailer. The taillights on the trailer were not working. A Kansas
Highway Patrol trooper observed the faulty lights and initiated a traffic stop. There was
nothing out of the ordinary regarding Smith's reaction to the stop or the manner in which
he pulled over his vehicle.

After stopping, but before the trooper made contact, Smith exited his vehicle and
attempted to fix the trailer lights. The trooper simultaneously exited his patrol vehicle,
but he stayed at the trailer's rear to see if Smith's efforts to fix the trailer lights worked.
When those efforts failed, the trooper approached him. Nothing out of the ordinary
occurred while Smith attempted to fix his trailer.

The trooper later testified that he detected a strong alcohol odor surrounding
Smith. He also noted Smith's eyes were bloodshot and watery. The trooper obtained
Smith's driver's license. He then asked Smith to sit in the patrol car while he issued a
warning for the equipment violation. Once in the patrol car, the trooper asked Smith if he
had been drinking alcohol that evening. Smith answered either a "few" or "three or four"
and that he had quit drinking approximately 30 minutes before.

Both men exited the patrol car and walked to Smith's truck where the trooper again
smelled alcohol. The trooper searched the truck. Smith does not challenge this search as
illegal. During the search, the trooper found a beer bottle cap on the center console, an
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open beer bottle containing a small amount of liquid on the floor beside the right rear
door, and a full can of beer in a rear seat cup holder. The record does not disclose
whether the can was open or sealed.

After searching the truck, they returned to the patrol car. While in the vehicle, the
trooper administered two prefield sobriety tests. He asked Smith to recite his ABC's from
"D" to "S" and to count backwards from 63 to 47. Smith correctly recited the alphabet,
but he missed one number, which he self-corrected.

The trooper asked Smith to perform two field sobriety tests. Smith agreed. The
trooper first administered the walk-and-turn test. While performing this test, Smith
exhibited two clues. He stepped off the line once, and he took an incorrect number of
steps. Smith said he had a bad knee. The second test administered was the one-leg stand.
Smith hopped during part of the test, which was one clue. Exhibiting one clue during the
test is considered a pass.

The trooper next asked Smith to take a preliminary breath test (PBT). Smith
agreed. The required protocol was followed. Smith failed the PBT with a result over .08,
but the actual result was not recorded. At that time, the trooper arrested Smith, and he
was transported to the Norton County Sheriff's Office, where Smith was tested on the
Intoxilyzer 5000. The required protocol for administering the evidentiary breath test was
followed. Smith's breath sample yielded a .099. At the conclusion of the test, the trooper
read Smith the Miranda warnings, and Smith said he did not wish to answer any
questions. The contact with Smith ended. The trooper completed a form certifying
Smith's failure of the breath test. He indicated the following facts established his belief
there were reasonable grounds to believe Smith was under the influence: (1) odor of
alcoholic beverages surrounding Smith; (2) alcoholic beverage containers found in
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Smith's vehicle; (3) Smith failed the sobriety tests; (4) Smith had bloodshot eyes; (5)
Smith stated he had consumed alcohol; and (6) Smith failed the preliminary breath test.

After an administrative hearing, the Department of Revenue issued an
administrative order suspending Smith's driving privileges for 1 year. Smith timely filed a
petition for review with the district court. The parties agreed the four issues were: (1) Did
the arresting officer lack probable cause to arrest Smith and lack reasonable grounds to
believe Smith had been operating a motor vehicle while under the influence of alcohol,
drugs, or both? (2) Is K.S.A. 2009 Supp. 8-1012 unconstitutional because it allows for
seizure of deep lung air based on reasonable suspicion grounds as opposed to probable
cause? (3) Were the results of Smith's breath-alcohol test inadmissible because he was
subjected to custodial interrogation without benefit of Miranda warnings? and (4) Did the
hearing officer erroneously apply the law to the facts?

Based on the transcript from the administrative hearing, the district court affirmed
the agency's action on each issue and upheld the suspension. Smith filed a notice of
appeal, essentially raising the same four issues. We transferred the case to this court. Our
jurisdiction comes under K.S.A. 20-3018(c) (transfer on court's own motion).

REASONABLE GROUNDS SUPPORTED THE EVIDENTIARY BREATH TEST

A law enforcement officer is required to request a person 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 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. 2009
Supp. 8-1001. The question we address in this case is whether there were reasonable
grounds to believe Smith had been operating his vehicle under the influence to support
the trooper's request to administer an evidentiary breath test. In this context, the issue as
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to whether an officer has reasonable grounds to believe someone is operating or
attempting to operate a vehicle while DUI is strongly related to whether that officer had
probable cause to arrest. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775, 148 P.3d
538 (2006). This court has found the term "reasonable grounds" synonymous in meaning
with "probable cause," but in doing so has noted an officer may have reasonable grounds
to believe a person is operating a vehicle under the influence sufficient to request a test
under the statute—but not have the probable cause required to make an arrest under
K.S.A. 8-1001. 282 Kan. at 776.

Smith incrementally challenges some of the evidence used to support the trooper's
determination that reasonable grounds existed. First, Smith argues there were additional
facts negating any determination of reasonable grounds. Second, Smith claims his
admissions to the trooper that he had been drinking should have been excluded from this
determination because he was not advised of his Miranda rights before he made the
incriminating statements. Third, Smith claims the PBT evidence should have been
excluded because K.S.A. 2009 Supp. 8-1012, which is the statute authorizing such tests,
is unconstitutional because it requires only an officer's "reasonable suspicion" to believe
the person sought to be tested has been operating a vehicle under the influence, instead of
the higher probable cause standard. Finally, and predicated upon his presumed success on
the first three contentions, Smith argues that without the admissions about drinking and
the PBT, there were no reasonable grounds under K.S.A. 2009 Supp. 8-1001(b) to justify
his arrest and evidentiary breath test.

Standard of Review

Following a district court's trial de novo, this court reviews the district court's
determination to suspend a license for substantial competent evidence. Bruch, 282 Kan.
at 772. Substantial competent evidence is "such legal and relevant evidence as a
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reasonable person might accept as being sufficient to support a conclusion." Drach v.
Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007).
Whether substantial competent evidence exists is a question of law. Redd v. Kansas
Truck Center, 291 Kan. ___, 239 P.3d 66 (2010) (slip op. at 8).

Discussion

This court must determine whether there were reasonable grounds, i.e., probable
cause, to support the trooper's decision to request the evidentiary breath test. Probable
cause exists where the officer's knowledge of the surrounding facts and circumstances
creates a reasonable belief that the defendant committed a specific crime. Probable cause
does not require an officer have evidence of every element of the crime. State v. Fewell,
286 Kan. 370, 377-78, 184 P.3d 903 (2008) (citing Draper v. United States, 358 U.S.
307, 311-12, 3 L. Ed. 2d 327, 79 S. Ct. 329 [1959]; State v. Abbott, 277 Kan. 161, 164,
83 P.3d 794 [2004]; State v. Aikins, 261 Kan. 346, 355, 932 P.2d 408 [1997].) Probable
cause is determined by evaluating the totality of the circumstances. Fewell, 286 Kan. at
377 (citing Illinois v. Gates, 462 U.S. 213, 230-31, 76 L. Ed. 2d 527, 103 S. Ct. 2317,
reh. denied 463 U.S. 1237 [1983]).

Here, the district court found Smith's arrest and subsequent evidentiary breath
testing were supported by a number of factors: (1) The trooper smelled alcohol during his
initial contact with Smith; (2) the trooper observed Smith's bloodshot and watery eyes;
(3) Smith admitted to having a few drinks that evening; (4) Smith admitted that his last
drink was approximately 30 minutes earlier; (5) the trooper smelled alcohol wafting from
Smith's truck; (6) the trooper viewed an open container in Smith's truck; (7) Smith
committed an error during the prefield sobriety test; (8) Smith presented two clues on the
walk-and-turn field sobriety test; (9) Smith presented one clue on the one-leg stand field
sobriety test; and (10) Smith failed the PBT.
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Smith counters that this does not amount to probable cause because: (1) He recited
the alphabet properly during the first prefield test; (2) he counted backwards in a
generally acceptable manner during the second prefield test; (3) his reaction time to the
initial lights and sirens was appropriate; and (4) he did not exhibit any balance or motor
skill issues throughout the stop. While these assertions are, for the most part, true, they
hardly diminish the other clues exhibited. We do not find these facts negate the others in
the determination as to whether the trooper should have requested the PBT or the
evidentiary breath test at the station.

Next, we consider Smith's claims that some of the facts the trooper relied upon
were unlawfully obtained. Specifically, Smith challenges his admissions to drinking and
the constitutionality of the PBT. Smith argues this evidence should be disregarded.
Addressing first Smith's admissions about drinking, he argues the trooper was required to
issue Miranda warnings before asking him any questions regarding his alcohol
consumption that evening.

The Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights prevent any person from being compelled to be a witness
against himself or herself in a criminal case. State v. Ninci, 262 Kan. 21, 34, 936 P.2d
1364 (1997). As is well known, in Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d
694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), the United States Supreme Court
expanded the rights protecting citizens from self-incrimination by holding: "[T]he
prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination." (Emphasis added.)
But the police are not required to administer Miranda warnings to everyone questioned.
Warnings are required only before a custodial interrogation occurs. State v. Jones, 283
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Kan. 186, 192-93, 151 P.3d 22 (2007) (quoting Oregon v. Mathiason, 429 U.S. 492, 495,
50 L. Ed. 2d 714, 97 S. Ct. 711 [1977]).

To determine whether Smith's contention is accurate, we must first decide whether
Smith was in custody when interrogated. This is a question over which an appellate court
has de novo review. Jones, 283 Kan. at 192.

The United States Supreme Court has held that in most circumstances persons
temporarily detained during a routine traffic stop are not "in custody" for the purposes of
Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 82 L. Ed. 2d 317, 104 S. Ct. 3138
(1984). The Berkemer Court provided two reasons for concluding persons detained in a
traffic stop are usually not in custody. First, the Court acknowledged a traffic stop
restricts a motorist's freedom, but found it is distinguishable from the stationhouse
interrogations the Miranda Court had in mind because the traffic stop is brief in nature.
See 468 U.S. at 436-38. Second, the Court found the public nature of traffic stops was
sufficient protection against potential illegal police conduct. 468 U.S. at 438-39. Based
on those conclusions, the Court found traffic stops were more analogous to "Terry stops,"
resulting from the case of Terry v. Ohio, 392 U.S. 1, 29, 20 L. Ed. 2d 889, 88 S. Ct. 1868
(1968), than custodial interrogations. This is true even though the officer may suspect the
individual has committed, is committing, or is about to commit a crime and even though
the individual is not free to leave during a lawful detention. Berkemer, 468 U.S. at 439.

But the Supreme Court declined to adopt a bright-line rule that Miranda warnings
are never required before questioning a suspect during a traffic stop because exceptional
circumstances may arise where a suspect's freedom of action is curtailed to a "'degree
associated with formal arrest.'" 468 U.S. at 440. In those circumstances that render the
traffic stop suspect "'in custody,'" Miranda warnings are still required. 468 U.S. at 440;
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see also Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984)
(citing Berkemer).

There is also no bright-line rule for determining when a person is in custody for
the purposes of Miranda. See State v. Fritschen, 247 Kan. 592, 600-03, 802 P.2d 558
(1990). An objective standard is employed, and the proper analysis is how a reasonable
person in the suspect's position would have understood the situation. State v. Hebert, 277
Kan. 61, 68, 82 P.3d 470 (2004). But the Berkemer court's analysis and the facts in that
case provide some guidance.

In Berkemer, the defendant was pulled over because a trooper observed the
defendant's car weaving in and out of its lane. After asking the defendant to step out of
his vehicle, the trooper observed the defendant having difficulty standing. At that time,
the trooper knew he would charge the defendant with a traffic offense of some kind, but
he did not arrest the defendant. Instead, the trooper asked the defendant whether he had
consumed any intoxicants, to which the defendant gave an incriminating response.
Further, the defendant's speech was slurred, and the trooper had difficulty understanding
him. The trooper formally arrested the defendant. The Berkemer Court found the
trooper's question regarding the defendant's consumption of intoxicants did not qualify as
a custodial interrogation and, thus, Miranda warnings were not required. 468 U.S. at 441-
42.

Smith's circumstances are nearly indistinguishable from those in Berkemer. One
difference is that Smith was seated in the patrol car when questioned and Berkemer was
not. As the Court of Appeals noted in Smith's criminal appeal, there are instances when a
defendant is in custody and the patrol car serves as a "'"temporary jail."'" State v. Smith,
No. 101,831, unpublished opinion filed December 18, 2009, slip op. at 6-7 (quoting State
v. Timley, 25 Kan. App. 2d 779, 781, 975 P.2d 264 (1998), rev. denied 266 Kan. 1115
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[1999]). But that was not the case here. Prior Kansas courts have held that a defendant
was not in custody despite being seated within a patrol car. State v. Price, 233 Kan. 706,
Syl. ¶ ¶ 5-6, 664 P.2d 869 (1983); State v. Almond, 15 Kan. App. 2d 585, Syl. ¶ ¶ 1-2,
811 P.2d 529 (1991). As such, this difference is not significant enough to distinguish it
from Berkemer. The Berkemer Court's analysis still applies here. The questioning
occurred while Smith was waiting for the trooper to issue a warning ticket for a taillight
infraction. The trooper had smelled alcohol, observed Smith's bloodshot and watery eyes.
He asked a limited number of questions regarding if Smith had been drinking and when
Smith had his last drink. This inquiry did not prolong the encounter. This court has held
that "general on-the-scene questioning of citizens in the fact-finding process does not
constitute custodial interrogation requiring a Miranda warning." Price, 233 Kan. 706,
Syl. ¶ 5. The trooper's questioning of Smith was not a custodial interrogation requiring
Miranda warnings.

With this determination made, we recap for convenience the facts existing at the
time the trooper requested the PBT pursuant to K.S.A. 2009 Supp. 8-1012(b). They were:
(1) smelling alcohol upon his initial contact with Smith; (2) observing Smith had
bloodshot and watery eyes; (3) Smith's admission to having a few drinks that evening; (4)
Smith's admission that his last drink was approximately 30 minutes before his contact
with the trooper; (5) the smell of alcohol wafting from Smith's truck; (6) viewing an open
container in Smith's truck; (7) Smith's difficulty with a prefield sobriety test; (8) Smith
presenting two clues on the walk-and-turn field sobriety test; and (9) Smith presenting
one clue on the one-leg stand field sobriety test.

We find these facts sufficiently strong to establish probable cause to proceed with
a PBT, even if the statute authorizing it only requires an officer's reasonable suspicion to
administer the test. The trooper's knowledge of these facts and circumstances certainly
created a reasonable belief that Smith was operating his vehicle under the influence of
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alcohol. Accordingly, we find this case does not require us to consider Smith's
constitutional argument. See Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 (2003)
("Appellate courts generally avoid making unnecessary constitutional decisions. Thus,
where there is a valid alternative ground for relief, an appellate court need not reach
constitutional challenges to statutes").

This conclusion necessarily leads to our final determination that reasonable
grounds supported Smith's arrest and the requested evidentiary breath test. The same facts
support both. The district court properly upheld the agency's decision to suspend Smith's
driving privileges.

Affirmed.

DAVIS, C.J., not participating.