Gomez v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 117,514

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

FELIX GOMEZ,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed February 2, 2018.
Affirmed.

Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.

John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before POWELL, P.J., STANDRIDGE, J., and STUTZMAN, S.J.

PER CURIAM: Felix Gomez was arrested for driving under the influence of
alcohol, and as a result, the Kansas Department of Revenue (KDR) suspended his driving
privileges. Gomez challenged his suspension, and after an administrative hearing, the
KDR affirmed the suspension. Gomez then sought judicial review in the Ford County
District Court, and the district court affirmed the KDR's administrative action. After a
careful review of the record on appeal, we affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2016, Officer Chad Kelley of the Dodge City Police Department
observed Gomez' vehicle fail to maintain its lane of traffic and then observed the vehicle
cross over the centerline of the road. Kelley stopped Gomez; upon making contact,
Kelley observed unopened bottles of alcohol on the passenger's side floorboard. Gomez
admitted to consuming alcohol. Kelley also smelled alcohol coming from Gomez and
observed that Gomez' eyes were glossy. Kelley administered field sobriety tests which
Gomez did not successfully complete. Kelley then administered a preliminary breath test
(PBT) on Gomez. Before doing so, Kelley performed a mouth check on Gomez to verify
there was nothing in his mouth. Kelley then observed a 15-minute deprivation period
before administering the PBT. Gomez failed the PBT, and Kelley immediately placed
Gomez under arrest and handcuffed him. Kelley testified, "Once he was in handcuffs, I
know he didn't take anything else into his mouth."

Kelley transported Gomez to the Dodge City Police Department where Gomez
agreed to submit to a breath test on an Intoxilyzer 8000. This test requires a 20-minute
deprivation period. A video of the Intoxilyzer 8000 test is in the record on appeal. Gomez
remained handcuffed for the duration of the testing, and no visual or audible indications
of regurgitation or belching are present for the duration of the video. Approximately 8
minutes and 40 seconds into the video, Kelley checked Gomez' mouth to "double-check"
there was nothing in it. Kelley administered the test approximately 22 minutes and 57
seconds after the recording of the video began, but only 14 minutes and 17 seconds after
the check of Gomez' mouth. Gomez' Intoxilyzer 8000 test result was .094―over the legal
limit.

KDR suspended Gomez' driver's license. Gomez timely requested an
administrative review of the suspension of his driver's license; KDR conducted a hearing
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and affirmed the suspension. Gomez timely petitioned for judicial review of KDR's
decision.

The district court held a trial on February 13, 2017. At trial, the State admitted into
evidence the Kansas Department of Health and Environment (KDHE) protocol checklist
for the admission of a test with the Intoxilyzer 8000. This protocol does not contain any
requirement that the person conducting the Intoxilyzer 8000 test should check the mouth
of the individual taking the test before he or she blows into the instrument. Kelley did not
testify that he was required to check Gomez' mouth prior to administering the test.

The district court's February 22, 2017 journal entry held: "The plaintiff failed to
meet his burden to prove that the testing procedures used were not in substantial
compliance with the procedures set out by [KDHE]." The district court upheld KDR's
suspension of Gomez' driving privileges.

Gomez timely appeals.

DID THE DISTRICT COURT ERR IN AFFIRMING THE SUSPENSION
OF GOMEZ' DRIVER'S LICENSE?

On appeal, Gomez argues the district court erred in upholding the suspension of
his driver's license because the Intoxilyzer 8000 testing protocol was not substantially
complied with.

The parties in this appeal disagree as to the correct standard of review to be
applied in the case at hand. Gomez argues we are to review the district court's action for
substantial competent evidence, while the State argues that a negative finding of fact
standard applies. However, under either standard of review, the State argues the district
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court was correct in its ruling. Our standard of review of a driver's license suspension is
well established:

"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. 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 State's argument to the contrary, the negative
finding standard does not apply in driver's license suspension cases reviewed under the
KJRA. Love v. Kansas Dept. of Revenue, No. 112,135, 2015 WL 4879188, at *2 (Kan.
App. 2015) (unpublished opinion), rev. denied 303 Kan. 1078 (2016). This is because the
KJRA provides that an agency action must be supported by 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). In evaluating the evidence presented
at trial, we do not weigh conflicting evidence nor do we evaluate the credibility of
witnesses. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Whether
substantial competent evidence exists is a question of law. Redd v. Kansas Truck Center,
291 Kan. 176, 182, 239 P.3d 66 (2010)." Lonnberg v. Kansas Dept. of Revenue, No.
115,957, 2017 WL 2901180, at *2 (Kan. App. 2017) (unpublished opinion).

"At a driver's license suspension administrative hearing, if the officer certifies that
the person failed a breath test, the scope of the hearing is limited to whether the testing
procedures used substantially complied with the procedures set out by [KDHE]." Schoen
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v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, Syl. ¶ 4, 74 P.3d 588 (2003).
Substantial compliance is defined as "'compliance in respect to the essential matters
necessary to assure every reasonable objective.'" Orr v. Heiman, 270 Kan. 109, 113, 12
P.3d 387 (2000); Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 9, 163 P.3d 313
(2006). "The substantial compliance standard requires the petitioner in a driver's license
suspension case to demonstrate a violation of the KDHE procedures that strikes at the
purpose for the protocol and casts doubt upon the reliability of the subsequent test results.
This must be determined on a case-by-case basis." Mitchell v. Kansas Dept. of Revenue,
41 Kan. App. 2d 114, 122-23, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009).

Several other panels of our court have examined the relationship between mouth
checks, deprivation periods, and KDHE protocols. Because the Intoxilyzer 8000 testing
protocol does not include a mouth check, an officer's failure to perform a mouth check
prior to the deprivation period equates to substantial compliance with the protocol. See
Muller v. Kansas. Dept. of Revenue, No. 110,757, 2014 WL 2871407, at *6-7 (Kan. App.
2014) (unpublished opinion) (holding when Intoxilyzer protocol was silent on issue of
foreign objects in subject's mouth and testimony did not indicate procedure requiring
mouth check, protocol was substantially complied with when no mouth check occurred);
State v. Hosler, No. 108,111, 2013 WL 2321191, at *2-4 (Kan. App.) (unpublished
opinion), rev. denied 298 Kan. 1206 (2013) (holding when no evidence exists that mouth
check is required such requirement is not part of protocol). However, when an officer
testifies that he or she is required to check the mouth of the subject to begin a deprivation
period then this requirement will be read into the KDHE protocol. If the officer failed to
follow the procedure he or she testified to, then the officer did not substantially comply
with the protocol. See Shaw v. Kansas Dept. of Revenue, No. 114,517, 2016 WL
3569948, at *4-6 (Kan. App. 2016) (unpublished opinion) (holding when officer testified
that procedure of testing requires visual inspection of subject's mouth and officer did not
perform mouth check, then officer did not substantially comply with protocol); State v.
Perry, No. 93,830, 2005 WL 2076580, at *2 (Kan. App. 2005) (unpublished opinion)
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(same). Therefore, resolution of this issue is entirely dependent upon the officer's
testimony on the protocol for the breath test.

In the case at hand, while it is undisputed that Kelley performed a mouth check on
Gomez, it is the timing of the mouth check which is at issue. If the deprivation period
prior to an Intoxilyzer 8000 test only begins after the mouth check, then Gomez' second
deprivation period was 14 minutes and 17 seconds—less than the required 20-minute
deprivation period. Gomez argues that Kelley's testimony regarding the PBT and the
Intoxilyzer 8000 procedures indicate that Kelley knew a deprivation period begins only
after the officer checks the mouth of the subject.

Kelley testified about the PBT procedure he follows:

"Q. [GOMEZ' COUNSEL]: . . . Is there anything you have to do in terms of like
an observation period?
"A. [KELLEY]: There's a 15-minute deprivation period.
"Q. [GOMEZ' COUNSEL]: What do you do at the start of the deprivation
period?
"A. [KELLEY]: The first thing I do is check, make sure there's nothing in his
mouth."

He then testified to his Intoxilyzer 8000 procedure:

"Q. [GOMEZ' COUNSEL]: Okay, and what's the procedure for taking an
evidentiary breath test with the Intoxilyzer?
"A. [KELLEY]: It's another 20-minute deprivation period.
. . . .
"Q. [GOMEZ' COUNSEL]: You're not supposed to let them eat or put stuff in
their mouth, right?
"A. [KELLEY]: Correct."

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Kelley further testified:

"Q. [GOMEZ' COUNSEL]: . . . [W]hat do you understand deprivation period to
be then? . . . What is your role before or in conducting a deprivation period?
"A. [KELLEY]: Deprive them of having anything in their mouth.
"Q. [GOMEZ' COUNSEL]: Okay. Does it follow that you would want to check
what's in their mouth before the start of the deprivation period?
"A. [KELLEY]: I checked when I was initially doing field sobriety. Once he was
in handcuffs, I know he didn't take anything else into his mouth.
"Q. [GOMEZ' COUNSEL]: Okay. So why did you check at all then?
"A. [KELLEY]: Because—
"Q. [GOMEZ' COUNSEL]: We're suggesting that the video shows that at a point
about eight minutes in, you did check. So why did you check at all?
"A. [KELLEY]: Just to double-check."

However, Kelley definitively testified:

"Q. [KDR]: Nowhere on that Intoxilyzer protocol does it require you to actually
check the individual's mouth, does it?
"A. [KELLEY]: No, it doesn't."

The KDHE protocol states, in pertinent part: "Keep the subject in your immediate
presence and deprive the subject of alcohol for 20 minutes immediately preceding the
breath test." The protocol does not contain any requirement that the deprivation period
begins only after the test administrator checks the subject's mouth, and Kelley testified as
such. It simply requires the subject be deprived of alcohol for 20 minutes immediately
preceding the breath test.

Here, Gomez was placed in handcuffs immediately after he failed the PBT, and he
remained in these handcuffs until after the administration of the Intoxilyzer 8000 test.
Based on a review of the video, there is no indication that Gomez burped, regurgitated, or
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took anything into his mouth during the period before Kelley administered the Intoxilyzer
8000 test. Additionally, Kelley testified, "Once he was in handcuffs, I know he didn't take
anything else into his mouth." Like in Muller, 2014 WL 2871407, at *6-7, and Hosler,
2013 WL 2321191, at *2-4, there is no support in the record on appeal that a mouth
check is required under the protocol of the Intoxilyzer 8000 at the beginning of the
deprivation period. Kelley testified that a mouth check is not part of the KDHE protocol,
and he only checked Gomez' mouth before the Intoxilyzer 8000 test to "double-check."
Finally, and perhaps most significantly, Gomez did not indicate, nor does he argue now,
that he did in fact burp, regurgitate, or otherwise take anything into his mouth during this
period. Under these facts, where there has not been testimony that a mouth check was
part of the testing protocol or procedures for the Intoxilyzer 8000, there was substantial
competent evidence to support a finding that Kelley substantially complied with the
KDHE protocol. The district court did not err in upholding KDR's suspension of Gomez'
driver's license.

Affirmed.