Brumitt v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 113,416

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DEREK BRUMITT,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 15, 2017.
Affirmed.

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

John D. Shultz, deputy general counsel, of Legal Services, Kansas Department of Revenue, for
appellee.

Before BRUNS, P.J., SCHROEDER, J., and HEBERT, S.J.

PER CURIAM: Derek Brumitt appeals from the administrative suspension of his
driver's license after a de novo trial in district court. On appeal, Brumitt contends that
K.S.A. 2016 Supp. 8-1012 is unconstitutional. As a result, Brumitt argues that the district
court erred in determining that reasonable grounds existed for requesting testing under
the Kansas Implied Consent Law, K.S.A. 8-1001 et seq. We do not find K.S.A. 2016
Supp. 8-1012 to be unconstitutional nor do we find that the results of the tests, revealing
that Brumitt's blood alcohol concentration was over the legal limit, should be suppressed.
Thus, we affirm the administrative suspension of Brumitt's driver's license.
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FACTS

On January 6, 2013, Sergeant Tim Greenwood of the Hays Police Department
observed that a license plate light was not functioning on Brumitt's vehicle. Sergeant
Greenwood attempted to initiate a traffic stop by activating the emergency equipment on
his patrol vehicle. However, Brumitt failed to stop his vehicle for another six blocks.
Ultimately, Brumitt pulled his vehicle into a parking lot and stopped.

Although Sergeant Greenwood believed Brumitt's failure to stop could be an
indication of impairment, he did not observe any other traffic violations. During the stop,
Brumitt was able to provide his driver's license without difficulty. According to Sergeant
Greenwood, Brumitt was reluctant to speak with him and kept avoiding eye contact.
Sergeant Greenwood noted that it was difficult to determine whether Brumitt's speech
was slurred because "he had a big ol' wad of dip" in his mouth. Sergeant Greenwood
asked Brumitt if he had consumed any alcohol, and Brumitt initially indicated he had not
had anything to drink that night. Later, Brumitt changed his answer and admitted that he
drank a few beers at some point prior to the stop.

Sergeant Greenwood directed Brumitt to exit his vehicle to perform some field
sobriety tests. The sergeant indicated that Brumitt was "awkward getting out of the
vehicle." Moreover, the officer noted five clues of impairment during the "walk and turn"
test. Specifically, Brumitt lost his balance during the instruction phase, stopped walking
throughout the test, failed to touch heel to toe throughout the test, stepped off the line
throughout the test, and used his arms for balance in the first portion of the test.
According to Sergeant Greenwood, Brumitt failed to follow the instructions of the test as
to how to walk. Sergeant Greenwood also had Brumitt complete the one-legged stand
test, during which he swayed and "kept putting his foot down."

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After these tests and after waiting 15 minutes, Sergeant Greenwood requested that
Brumitt submit to a preliminary breath test (PBT). Brumitt consented by orally
responding "Yes," and he participated in the test. The results of the PBT indicated that
Brumitt would test over the legal limit of .08 on an evidentiary blood alcohol content test.
Shortly after conducting the PBT, Sergeant Greenwood arrested Brumitt on suspicion of
operating a vehicle under the influence of alcohol.

A subsequent evidentiary blood alcohol content test was performed, and the result
of the test revealed that Brumitt's blood alcohol concentration was .08 or greater.
Sergeant Greenwood also completed and served on Brumitt an Officer's Certification and
Notice of Suspension (DC-27) form. On the DC-27 form, Sergeant Greenwood stated his
reasonable grounds to believe that Brumitt had been under the influence of alcohol: odor
of alcoholic beverages, failed sobriety tests, slurred speech, bloodshot eyes, difficulty in
communicating, poor balance or coordination, admission to consuming alcohol, and
failed PBT.

On January 11, 2013, Brumitt filed a request for an administrative hearing to
review his driver's license suspension. The Kansas Department of Revenue (KDOR) held
a hearing on the matter on June 26, 2013. At the hearing, Brumitt argued that Sergeant
Greenwood did not have probable cause to arrest Brumitt or request an evidentiary blood
alcohol content test. Ultimately, the administrative hearing officer disagreed with Brumitt
and upheld the suspension of his driver's license.

On July 3, 2013, Brumitt filed a petition for judicial review of the administrative
decision in district court. Ultimately, the district court held a trial de novo on February
11, 2015. Brumitt called Sergeant Greenwood as a witness, and the KDOR introduced the
DC-27 form into evidence. The parties did not present further evidence. After the
presentation of closing arguments by counsel, the district court found that Sergeant
Greenwood had reasonable grounds to suspect that Brumitt had operated his vehicle
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under the influence of alcohol. Accordingly, the district court affirmed the KDOR's
administrative suspension of Brumitt's license.

ANALYSIS

The Kansas Judicial Review Act (KJRA) defines the scope of judicial review of
state agency actions. K.S.A. 2016 Supp. 77-603(a); see Ryser v. State, 295 Kan. 452, 458,
284 P.3d 337 (2012). Appeals from administrative suspensions of driver's licenses are
subject to review under the KJRA except that appeals to the district court are de novo.
K.S.A. 2016 Supp. 8-259(a); see Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 516,
213 P.3d 1061 (2009). On appeal, the burden of proving the invalidity of the agency
action rests on the party asserting such invalidity—in this case Brumitt. K.S.A. 2016
Supp. 77-621(a)(1).

We review a district court's ruling in a driver's license suspension case for
substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881,
281 P.3d 135 (2012); see Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 118,
200 P.3d 496 (2009). Notwithstanding the KDOR's invitation to do so, we find it
unnecessary in this case to delve into the issue of whether or not the negative finding
standard is applicable in driver's license suspension cases reviewed under the KJRA.
Instead, we will follow the direction given to us by the Legislature in K.S.A. 2016 Supp.
77-621(c)(7) and review the record on appeal to determine if the district court's decision
is based on evidence that is substantial when viewed in light of the record as a whole. See
K.S.A. 2016 Supp. 77-621(c)(7).

Substantial competent evidence is such legal and relevant evidence as a reasonable
person might accept as being sufficient to support a conclusion. Gannon v. State, 298
Kan. 1107, 1175, 319 P.3d 1196 (2014). Whether substantial competent evidence exists
is a question of law. Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66
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(2010). However, in evaluating the evidence presented at trial, we are not to weigh
conflicting evidence nor are we to evaluate the credibility of witnesses. Hodges v.
Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).

We note that the administrative suspension or restriction of a driver's license is
separate and distinct from the bringing of criminal charges against the driver stemming
from the same incident. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 642, 176
P.3d 938 (2008); State v. Gee, 27 Kan. App. 2d 739, 743, 8 P.3d 45 (2000). A driver's
failure of a breath test or refusal to submit to testing is often the "starting point for a
parallel set of procedures, one criminal and one civil, that are independent of one
another." 27 Kan. App. 2d at 743. In fact, K.S.A. 2016 Supp. 8-1020(t) specifically states
that the disposition of criminal charges against a driver "shall not affect the suspension or
suspension and restriction to be imposed under this section."

Furthermore, the Kansas Supreme Court has held that there is no remedy for
violations of the Fourth Amendment to the United States Constitution in administrative
driver's license cases. Specifically, our Supreme Court determined in Martin that the
exclusionary rule generally does not apply in administrative suspension of driving
privileges cases. See Martin, 285 Kan. 625, Syl. ¶ 8. Since the Martin decision, multiple
panels of our court have also held that the exclusionary rule does not apply in
administrative appeals. See Witthuhn v. Kansas Dept. of Revenue, No. 115,220, 2017 WL
947271, at *2 (Kan. App. 2017) (unpublished opinion); Maupin v. Kansas Dept. of
Revenue, No. 115,068, 2016 WL 5867243, at *2 (Kan. App. 2016) (unpublished
opinion); Schwerdt v. Kansas Dept. of Revenue, No. 110,086, 2014 WL 3294078, at *3
(Kan. App. 2014) (unpublished opinion).

Accordingly, "a petitioner may raise Fourth Amendment claims, but 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.
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390, 396, 204 P.3d 562 (2009) (citing Martin, 285 Kan. at 646). Although we do not find
Brumitt's argument regarding the constitutionality of K.S.A. 2016 Supp. 8-1012
persuasive, as a practical matter we do not exclude otherwise admissible evidence in
driver's license suspension cases. Moreover, appellate courts generally avoid addressing
unnecessary constitutional questions where valid alternative grounds for relief exist. State
ex. rel. Schmidt v. City of Wichita, 303 Kan. 650, 658, 367 P.3d 282 (2016).

Based on our review of the record in this case, we conclude that the district court
did not err in finding that Brumitt failed to meet his burden to prove the invalidity of the
KDOR's action. Rather, we find there is substantial competent evidence based on our
review of the record as a whole to support a finding that Sergeant Greenwood had
sufficient evidence of intoxication to request that Brumitt submit to an evidentiary blood
alcohol content test under K.S.A. 2012 Supp. 8-1001(b), which states:

"A law enforcement officer shall request a person to submit to a test . . . [i]f the
officer has 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 . . . [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, . . . in violation of a state statute or a city ordinance . . . . The law
enforcement officer directing administration of the test or tests may act on personal
knowledge or on the basis of the collective information available to law enforcement
officers involved in the accident investigation or arrest."

Hence, a law enforcement officer has authority to request blood alcohol content
testing if the officer has reasonable grounds to believe the driver was operating a vehicle
while under the influence of alcohol and the officer has arrested or taken the driver into
custody. "Reasonable grounds" under the Implied Consent Law is analogous to "probable
cause." See Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, Syl. ¶¶ 3-4, 290 P.3d 555
(2012). Probable cause is the reasonable belief—drawn from the totality of the
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circumstances and reasonable inferences known to the law enforcement officer—that the
defendant has committed or is committing a specific act. See State v. Hardy, 305 Kan.
1001, 1011, 390 P.3d 30 (2017) (citing Sloop, 296 Kan. at 20) (probable cause is
determined by evaluating the totality of the circumstances).

Here, a review of the record reveals that at the time of the request, Sergeant
Greenwood had a reasonable belief to ask Brumitt to submit to an evidentiary breath test.
Based on the trial testimony of Sergeant Greenwood and on the statements set forth in the
DC-27 form, there is evidence of several indicators that Brumitt was driving under the
influence of alcohol. K.S.A. 2016 Supp. 8-1002(b) provides that a "signed certification or
a copy or photostatic reproduction [of a DC-27 form] shall be admissible in evidence in
all proceedings brought pursuant to this act, and receipt of any such certification, copy or
reproduction shall accord the department authority to proceed as set forth herein." As
such, the statements contained in the DC-27 form are admissible evidence that can be
considered by a district court in an administrative suspension case regardless of whether
the certifying officer testifies at trial. Pfeifer v. Kansas Dept. of Revenue, 52 Kan. App.
2d 591, 601, 370 P.3d 1200 (2016).

Based on the testimony of Sergeant Greenwood and the contents of the DC-27
form, we find that the officer had the following information when he requested the
evidentiary blood alcohol content test:

 Brumitt had failed to stop his vehicle for six blocks while being pursued by
a patrol vehicle with its emergency equipment on;
 Brumitt smelled of alcohol;
 Brumitt had bloodshot eyes;
 Brumitt had some difficulty communicating;
 Brumitt initially denied drinking but later admitted that he had a few beers;
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 Brumitt was awkward getting out of the vehicle and appeared to be
impaired;
 Brumitt displayed five clues of impairment on the "walk and turn" field
sobriety test;
 Brumitt displayed two clues of impairment on the "one-leg stand" field
sobriety test; and,
 Brumitt consented to taking a PBT and the results indicated that he would
test over .08.

Despite his arguments to the contrary, Brumitt carried the burden of proof at the
de novo trial and in this appeal to show the invalidity of the action taken by the KDOR in
suspending his driver's license. Our review of the record on appeal leads us to the
conclusion that he has failed to meet this burden. Instead, we find substantial competent
evidence to support the district court's conclusion that Sergeant Greenwood had
reasonable grounds to request an evidentiary test.

Affirmed.