Dauer v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 115,823


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LOREN T. DAUER
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.



MEMORANDUM OPINION

Appeal from McPherson District Court; JOHN B. KLENDA, judge. Opinion filed May 12, 2017.
Affirmed.

James D. Sweet, of James D. Sweet Law Office, of Salina, for appellant.

Donald J. Cooper, of Kansas Department of Revenue, for appellee.

Before BRUNS, P.J., HILL and SCHROEDER, JJ.

Per Curiam: Loren T. Dauer appeals the district court's approval of the
administrative suspension of his driving license for refusing a chemical test when
requested by a police officer. He contends the district court erred in finding that the
officer had reasonable grounds to believe that he was operating a car while under the
influence of alcohol. Finding no error, we affirm.

Around 1:30 a.m. in mid-October 2014, Lindsborg police officer Derek Bartlett
saw Dauer driving a car with no taillights. There were no assemblies, brake lights,
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taillights, blinker, or reverse lights on the car. Officer Bartlett activated his emergency
lights to initiate a traffic stop. The car sped up, turned eastbound into a parking lot, drove
along the north side of the building, and then stopped. Dauer did not signal his turns. As
the car was sliding to a stop, a person wearing blue jeans, brown boots, and a black coat
immediately got out of the car from the driver's side door and ran north. That person fell
down twice while running away. Officer Bartlett began looking for the runner. About a
minute or two later, an individual wearing the described clothing came forward. The
person had dirt and grass stains on his knees consistent with falling down. Officer Bartlett
then identified the individual as Dauer. The officer noticed that Dauer's eyes were
bloodshot and watery, there was a very strong odor of alcohol coming from his person,
and he swayed slightly on multiple occasions.

Officer Bartlett arrested Dauer. The officer placed Dauer in handcuffs and read
him the Miranda warnings. The officer asked Dauer if he would submit to field sobriety
tests or a blood test. Dauer refused.

Officer Bartlett searched the car. He found an open beer bottle in the center
console cup holder with some alcohol in it and two beer cans. The officer did not observe
anyone else in the car. Some time later, he reviewed video footage of the stop and saw
that another person got out of the car using the driver's side door. The passenger's side
door was welded shut. The individual was never identified. "Dauer Power" was written in
spray paint on the back window. Dauer did not indicate that anyone else was driving the
car.

On the DC-27 form, the officer marked the following as the reasonable grounds
for his belief that Dauer was under the influence of alcohol: the odor of alcoholic
beverages, alcoholic beverage containers were found in the car, and Dauer's bloodshot
eyes.

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Dauer was given notice of his license suspension. At an administrative hearing the
Kansas Department of Revenue affirmed the suspension of Dauer's driving privileges
because the officer had reasonable grounds to believe that Dauer was operating a vehicle
while under the influence of alcohol, and Dauer had refused to submit to a blood test.
Dauer sought judicial review of the suspension in the McPherson County District Court.

The district court held a de novo hearing. The only issue was whether there were
reasonable grounds to believe Dauer had been operating a car while under the influence
of alcohol. Officer Bartlett testified. No other evidence was presented. The district court
found that the officer had probable cause or reasonable grounds to believe Dauer was
operating a car under the influence of alcohol. The court affirmed the administrative
suspension of Dauer's driving license. Dauer timely appeals.

Dauer contends on appeal that the district court erred because Officer Bartlett did
not have reasonable grounds to believe Dauer was the driver of the car, or that Dauer was
under the influence of alcohol.

Under Kansas law, a person's driving privileges may be suspended for refusal to
take a blood, breath, or urine test if the officer was authorized to request such test under
the statute. K.S.A. 2016 Supp. 8-1014(a). A law enforcement officer is required to
request that a person submit to a test of the person's blood, breath, urine or other bodily
substance to determine the presence of alcohol or drugs if, "at the time of the request, 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 the person
has been arrested or taken into custody for a violation of a statute, county resolution, or
city ordinance. K.S.A. 2016 Supp. 8-1001(b).

Following a trial de novo in an administrative driving license suspension case,
appellate courts review whether the district court's decision was supported by substantial
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competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d
135 (2012). Substantial competent evidence means "'such legal and relevant evidence as a
reasonable person might accept as being sufficient to support a conclusion.' [Citation
omitted.]" Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010).
In determining whether the trial court's decision was supported by substantial competent
evidence, appellate courts do not reweigh conflicting evidence, make witness credibility
determinations, or redetermine questions of fact. Mitchell v. Kansas Dept. of Revenue, 32
Kan. App. 2d 298, 301, 81 P.3d 1258 (2004). The ultimate legal conclusion, i.e., whether
reasonable grounds existed, is a question of law subject to unlimited review. Poteet v.
Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 415, 233 P.3d 286 (2010).

Reasonable grounds under K.S.A. 2016 Supp. 8-1001(b) is "strongly related to the
standard for determining probable cause." State v. Johnson, 297 Kan. 210, 222, 301 P.3d
287 (2013). Kansas courts use probable cause standards when reviewing whether an
officer had reasonable grounds to request an evidentiary test. Allen v. Kansas Dept. of
Revenue, 292 Kan. 653, 656, 256 P.3d 845 (2011). In turn then, probable cause to arrest
for driving under the influence furnishes reasonable grounds for an officer to request an
evidentiary test. However, it is possible that an officer may have reasonable grounds
sufficient to request a test under K.S.A. 2016 Supp. 8-1001(b), but have insufficient
probable cause to arrest the driver. Smith, 291 Kan. at 514. Probable cause to arrest
means "the reasonable belief, drawn from the totality of information and reasonable
inferences available to the arresting officer, that the defendant has committed or is
committing a specific crime." Johnson, 297 Kan. at 222.

Officer Bartlett testified that although he did not see Dauer operate the car, he did
see a person he believed to be the driver immediately get out of the car from the driver's
side door as the car slid to a stop. He testified that if the person was not the driver, then
that person would have been sitting on the driver's lap. The person ran away, but then
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came forward. The officer identified the person as Dauer. Dauer was wearing the same
clothing as the individual that ran out of the car.

The Department need only prove that the officer had reasonable grounds to believe
Dauer was the person operating a car, not that Dauer was actually the person operating
the car. See Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 836, 888 P.2d 832
(1995). The timing of Dauer's exit from the driver's side door of the car was sufficient to
furnish the officer with such reasonable grounds. It would be unreasonable for anyone
other than the driver to get out of the car from the driver's side door as the car slid to a
stop.

The district court found there were reasonable grounds to believe Dauer was under
the influence of alcohol because he:

 committed traffic infractions—he did not use his turn signals and they were
evidently broken;
 accelerated after the officer tried to stop him;
 took off running once the car was stopped;
 had bloodshot and watery eyes;
 was swaying and had trouble with his balance on multiple occasions;
 had a strong odor of an alcoholic beverage about him;
 had an open container of alcohol and empty containers of alcohol in his car;
 refused a field sobriety test; and
 refused a breath test.

Officer Bartlett actually testified that Dauer was offered a blood test, not a breath
test. But the court likely misspoke because this was not a contested fact. The remaining
factual findings are all supported by Officer Bartlett's uncontroverted testimony.
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This court next reviews the district court's legal conclusion that the officer had
reasonable grounds to believe Dauer was under the influence of alcohol. See Poteet, 43
Kan. App. 2d at 415.

Dauer contends the odor or presence of alcohol, without more, does not provide
the reasonable grounds that Dauer was under the influence. He cites City of Hutchinson v.
Davenport, 30 Kan. App. 2d 1097, Syl. ¶ 3, 54 P.3d 532 (2002). But unlike Davenport,
this is not a case where the odor of alcohol alone was asserted as reasonable suspicion to
justify a traffic stop.

Officer Bartlett started the traffic stop because Dauer's car had no taillights. After
the officer turned on his emergency lights, Dauer sped up and continued away from the
officer. Dauer turned into a parking lot. As Dauer's car came to a stop, he immediately
took off running. When Dauer came forward, the officer noticed that his eyes were
bloodshot and watery, there was a very strong odor of alcohol coming from his person,
and he swayed slightly on multiple occasions. Officer Bartlett located an open beer bottle
in Dauer's car. Dauer refused to take a field sobriety test.

Our court has considered all of these types of facts to be indicators of intoxication.
Fleeing the scene is an indicator of impaired judgment. See McClure v. Kansas Dept. of
Revenue, No. 109,025, 2013 WL 5870119, at *3 (Kan. App. 2013) (unpublished
opinion). The odor of alcohol and bloodshot eyes are factors that suggest a person is
under the influence. See Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430,
431, 962 P.2d 1150 (1998). Poor balance can indicate impairment. See State v. Chacon-
Bringuez, 28 Kan. App. 2d 625, 633-34, 18 P.3d 970 (2001). Possession of an open
container is another factor that may be considered in determining whether there is
probable cause to believe a person is under the influence. City of Dodge City v. Webb, 50
Kan. App. 2d 393, 398, 329 P.3d 515 (2014). The refusal to take a field sobriety test can
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indicate consciousness of guilt. See State v. Huff, 33 Kan. App. 2d 942, 945-46, 111 P.3d
659 (2005); State v. Rubick, 16 Kan. App. 2d 585, 587-88, 827 P.2d 771 (1992).

In our view, there were sufficient signs of intoxication to support a reasonable
belief that Dauer was under the influence of alcohol. Thus, the district court did not err in
concluding that the officer had reasonable grounds to believe Dauer was driving under
the influence of alcohol.

Affirmed.