State v. Chavez-Zbarra

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No. 102,285

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,
v.
JOSEPH C. CHAVEZ-ZBARRA,
Appellee.

SYLLABUS BY THE COURT

1.
On a two-lane roadway in Kansas, a vehicle shall be driven upon the right
half of the roadway, except when overtaking and passing another vehicle
proceeding in the same direction or when an obstruction exists making it necessary
to drive to the left of the center of the highway.

2.
Driving left of center in violation of K.S.A. 8-1514 is an absolute liability
offense.


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3.
The only proof required to convict an individual of an absolute liability
offense is that the individual engaged in the prohibited conduct.

Appeal from Barton District Court; HANNELORE KITTS, judge. Opinion filed
December 11, 2009. Reversed and remanded.

Douglas A. Matthews, county attorney, and Steve Six, attorney general, for
appellant.

Michael S. Holland II, of Holland and Holland, of Russell, for appellee.

Before HILL, P.J., CAPLINGER and LEBEN, JJ.


HILL, J.: This is a State appeal of a district court's order suppressing all evidence
seized by a police officer after he made a traffic stop of the defendant for crossing the
center line on a two-lane road. Because the court here confused failing to drive on the
right half of the road, in violation of K.S.A. 8-1514, with a lane violation defined by
K.S.A. 8-1522, we hold the court improperly suppressed the evidence and reverse and
remand.


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The deputy saw the defendant's car cross the center line.

Barton County Sheriff's Deputy Thomas Fischer was patrolling northbound on
U.S. Highway 281 just inside the city limits of Great Bend a little after 2 a.m. one
morning in September 2008. The deputy saw a southbound Dodge Durango on Highway
281cross the center line and then return to the southbound lane. Highway 281 is a two-
lane road at that location. The deputy turned around, activated his emergency lights, and
stopped the Dodge because it had crossed the center line. The driver was the defendant,
Joseph C. Chavez-Zbarra. Eventually, after further investigation, the deputy arrested the
defendant for driving under the influence of alcohol, defined by K.S.A 2008 Supp. 8-
1567; driving left of center, contrary to K.S.A. 8-1514; and driving while his license was
suspended, in violation of K.S.A. 2008 Supp. 8-262.

The defendant filed a motion to suppress evidence based on his argument that the
deputy lacked reasonable suspicion for the traffic stop. The district court agreed and
sustained the motion. While making its ruling the court referred to a Court of Appeals
case:

"Unfortunately, this is a case, after the testimony of Deputy Fischer, that we
had just recently the same way is that it falls exactly into the decision that
was handed down by the Court of Appeals that says that stopping a vehicle
for one-time drifting across the lane, the center of the lane does not give
reason to stop a vehicle and does not present reasonable cause to stop the
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vehicle and check for anything, and this goes right there. So B and it does
away with the reasonableness of the stop, and I have to follow that, and this
is B this takes care of the motion to suppress. And it's a very B well, it's not
that recent anymore, but it's fairly recent, the case, and I cannot tell you
what the name of the case is, but I can give it to you this afternoon."

In its written order, the court suppressed "all evidence seized subsequent to
the initial illegal stop of the defendant's vehicle."

In this appeal, the State contends there was reasonable suspicion to stop Chavez-
Zbarra for a violation of K.S.A. 8-1514 based on his single instance of crossing the center
line. The State contends that both Chavez-Zbarra and the district court were "confused as
to which statute was at issue" when applying State v. Ross, 37 Kan. App. 2d 126, 149
P.3d 876, rev. denied 284 Kan. 950 (2007).

We employ an unlimited standard of review.

The parties do not dispute the facts here which leaves simply a question of law.
See State v. Thompson, 284 Kan. 763, 771-72, 166 P.3d 1015 (2007); State v. Huff, 278
Kan. 214, 219, 92 P.3d 604 (2004).
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The reason for the traffic stop in this case was an apparent violation of K.S.A. 8-
1514. The portion of the statute applicable here is:

"(a) Upon all roadways of sufficient width, a vehicle shall be
driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another
vehicle proceeding in the same direction under the
rules governing such movement;
(2) When an obstruction exists making it
necessary to drive to the left of the center of the
highway, except that any person so doing shall yield
the right-of-way to all vehicles traveling in the proper
direction upon the unobstructed portion of the highway
within such distance as to constitute an immediate
hazard."

Our Supreme Court has most recently considered this statute in State v. Hopper,
260 Kan. 66, 917 P.2d 872 (1996). In that case, Hopper was charged with driving left of
center in violation of K.S.A. 8-1514. On appeal, the court held that failure to drive on the
right side of the road is an absolute liability offense. 260 Kan. at 70-72. The court
stated: "The only proof required to convict an individual of an absolute liability offense
is that the individual engaged in the prohibited conduct." 260 Kan. at 70. Despite road
conditions that may have existed at the time of the stop, the court held there was
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reasonable suspicion that Hopper violated K.S.A. 8-1514 due to (1) evidence Hopper
drove left of center, and (2) no evidence to support the application of any of the
exceptions listed in the statute. 260 Kan. at 72-73.

Likewise, it is undisputed that Chavez-Zbarra crossed the center line of the
highway on a two-lane road. There is no evidence to support the application of any
exception listed in K.S.A. 8-1514 (i.e., there is no evidence Chavez-Zbarra was passing
another vehicle proceeding the same direction, there is no evidence there was an
obstruction making it necessary for Chavez-Zbarra to drive left of center). Thus, it is
clear that Chavez-Zbarra violated K.S.A. 8-1514. This violation gave rise to reasonable
suspicion to stop Chavez-Zbarra. After all, Kansas law provides that an officer may stop
any person whom the officer "reasonably suspects is committing, has committed or is
about to commit a crime." K.S.A. 22-2402 (1).

Even though the district court gave no citation for the case it was relying upon, it
seems likely it was referring to Ross. When Ross' vehicle was stopped after it crossed the
fog line one time, a panel of this court held the officer lacked reasonable suspicion for a
violation of K.S.A. 8-1522 because there was no testimony that there was a hazard to
Ross, there was no testimony the officer was concerned Ross was asleep or intoxicated,
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the vehicle was not weaving, and Ross only crossed the fog line once and for a short
time. 37 Kan. App. 2d at 127, 130-31.

Simply put, Ross is inapplicable here. First, Ross allegedly violated K.S.A. 8-
1522. When a motorist is charged with violating K.S.A. 8-1522, the court must consider
the circumstances surrounding the violation when determining whether reasonable
suspicion supported the stop because the statute only requires the motorist to drive "as
nearly as practicable" within the lane. Chavez-Zbarra, on the other hand, was charged
with violating K.S.A. 8-1514 and the testimony supported this charge. Failure to comply
with K.S.A. 8-1514 is an absolute liability offense. Hopper, 260 Kan. at 70-72.

Second, Ross' violation occurred when he crossed the "white line at the right edge
of the outside lane," indicating he was driving on a road with two lanes traveling in the
same direction. (Emphasis added.) 37 Kan. App. 2d at 127. K.S.A. 8-1522 is the
applicable statute when a motorist commits a lane violation. See K.S.A. 8-1522 (stating,
"Whenever any roadway has been divided into two [2] or more clearly marked lanes for
traffic, the following rules in addition to all others consistent herewith shall apply").
Chavez-Zbarra crossed the center line of the highway on a two-lane road. K.S.A. 8-1514
is the applicable statute when a motorist crosses the center line of a roadway.

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The district court erred when it sustained the motion to suppress on these grounds.

Reversed and remanded.