Perez v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 113,587

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RODOLFO C. PEREZ, JR.,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 8, 2016.
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 SCHROEDER, P.J., HILL and GARDNER, JJ.

Per Curiam: Rodolfo C. Perez, Jr., appeals the district court's decision to affirm
the Kansas Department of Revenue's (KDOR) administrative order suspending his
driving privileges. Perez was stopped for speeding and refused both the preliminary
breath test and the Intoxilyzer test upon request by a Kansas Highway Patrol trooper.
Finding no error, we affirm.

FACTS

Pursuant to K.S.A. 8-1001 et seq., the KDOR suspended Perez' driver's license
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after he refused breath testing for alcohol. Perez petitioned the district court for review of
his driver's license suspension.

At trial, Trooper Steven Morris testified he observed Perez traveling east on U.S.
Highway 50 going 75 miles per hour in a 65-mile-per-hour zone. Trooper Morris initiated
a traffic stop. He testified there was an odor of alcohol coming from the vehicle,
requested Perez exit the vehicle, and administered field sobriety tests. Trooper Morris
testified Perez denied consuming alcohol and the odor of alcohol was the only indication
of alcohol consumption prior to Perez exiting the vehicle; however, he noticed Perez's
eyes were bloodshot.

Trooper Morris conducted two field sobriety tests: the walk-and-turn test and the
one-leg-stand test. During the walk-and-turn test, Perez exhibited three clues: starting the
test before being instructed, breaking the instructional position, and failing to touch heel
to toe three times. Perez performed the one-leg-stand test with no clues of impairment.

Trooper Morris also testified that as the stop progressed, the vehicle's passenger,
Perez' wife, told him she had not been drinking and Perez did not have that much to
drink. Finally, Trooper Morris testified Perez refused to submit to a preliminary breath
test and refused to submit to an Intoxilyzer test. The district court found Trooper Morris'
testimony was credible. Trooper Morris had reasonable grounds to request a breath test.
The district court declined to set aside the order suspending Perez' license. Perez timely
appeals.






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ANALYSIS

Did Trooper Morris have reasonable grounds?

On appeal, Perez argues there were insufficient facts to establish reasonable
grounds to believe he was operating a vehicle while under the influence of alcohol
because Trooper Morris did not observe any indicators of possible impairment before
approaching his vehicle and the odor of alcohol was not a sign of impairment.
Additionally, Perez argues he had no difficulty in following directions and his speech was
not slurred. Perez asserts he performed "exceptionally well" on the walk-and-turn test and
performed perfectly on the one-leg-stand test. Based on the totality of these
circumstances, Perez claims Trooper Morris did not have sufficient objective factors
indicating reasonable grounds to believe Perez was impaired.

In contrast, the KDOR argues there was substantial competent evidence
supporting the district court's finding of reasonable grounds to believe Perez was
operating a vehicle under the influence of alcohol. The KDOR argues the odor of alcohol,
Perez' bloodshot eyes, performance on the walk-and-turn test, and his wife's statement
support the district court's finding.

Anyone attempting to operate or operating a vehicle in Kansas is deemed to have
given consent to testing to determine the presence of alcohol or drugs. K.S.A. 2015 Supp.
8-1001(a). A law enforcement officer shall request the person submit to testing if the
officer has reasonable grounds to believe an individual was under the influence of alcohol
or drugs while operating or attempting to operate a vehicle and the person has been
arrested or otherwise taken into custody for any violation of a statute or ordinance.
K.S.A. 2015 Supp. 8-1001(b)(1)(A).

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Whether reasonable grounds exist is evaluated by looking to probable cause
standards. "'Probable cause is determined by evaluating the totality of the circumstances,'
giving consideration to 'the information and fair inferences therefrom, known to the
officer at the time of the arrest,' with 'no rigid application of factors.'" Swank v. Kansas
Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012) (quoting Allen v. Kansas
Dept. of Revenue, 292 Kan. 653, 656-57, 256 P.3d 845 [2011], disapproved in part on
other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20-21, 290 P.3d 555
[2012]).

Appellate courts review a district court's decision in a driver's license suspension
case to determine whether it is supported by substantial competent evidence. Swank, 294
Kan. at. 881. Substantial competent evidence refers to "'such legal and relevant evidence
as a reasonable person might accept as being sufficient to support a conclusion.'" Smith v.
Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010) (quoting 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. 176, 182, 239 P.3d 66 (2010). Appellate courts do not reweigh
evidence, make 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 licensee
has the burden of proving the agency's decision should be set aside. K.S.A. 2015 Supp. 8-
1020.

The facts reflect that Perez' vehicle was stopped for speeding. Upon contact with
the driver Perez, Trooper Morris noticed the smell of alcohol and asked Perez to exit the
vehicle. During the stop, Trooper Morris observed Perez' bloodshot eyes and requested
field sobriety testing. Perez passed the one-leg-stand test but failed the walk-and-turn test
with three clues, which supports the possibility of being impaired. Additionally, the
record reflects Perez' wife told Trooper Morris she had not been drinking and that Perez
"didn't have that much to drink." The district court found Perez' wife's statement weighed
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heavy in its finding that Trooper Morris had reasonable grounds to request the breath test
since Perez had denied consuming alcohol. Under the totality of the circumstances
standard, Trooper Morris had reasonable grounds to request breath testing.

Despite Perez' performance on the one-leg-stand test, there is substantial
competent evidence supporting the district court's finding Trooper Morris had reasonable
grounds to request Perez perform a breath test. Trooper Morris smelled an odor of
alcohol and detected bloodshot eyes. Likewise, Perez' performance on the walk-and-turn
test indicated possible impairment. Furthermore, Perez' wife indicated Perez "didn't have
that much to drink" after Perez told Trooper Morris he had not been drinking. A
reasonable person could accept this evidence as being adequate to conclude Trooper
Morris had reasonable grounds to request Perez submit to a breath test.

Affirmed.