Pruitt v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 115,709

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN J. PRUITT,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed November 22, 2017.
Affirmed.

James F. McMahon, of McConnell & McMahon, of Overland Park, for appellant.

J. Brian Cox, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue,
for appellee.

Before BUSER, P.J., BRUNS, J., and STUTZMAN, S.J.

PER CURIAM: John J. Pruitt appeals from the suspension of his driver's license
after a de novo trial in district court. On appeal, Pruitt contends that the district court
erred in affirming the administrative order of suspension for failure to take a breath test
following his arrest. Specifically, Pruitt argues that the district court erred in concluding
that a law enforcement officer had reasonable grounds to believe he was operating a
motor vehicle under the influence of alcohol and/or drugs. Pruitt also argues that there
was not substantial competent evidence to support the length of his suspension.
Furthermore, he argues that the district court erred by not allowing him to amend his
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petition for de novo review. Finally, Pruitt argues that the district court did not give him
an adequate opportunity to respond before it affirmed the administrative suspension.
Based on our review of the record, we do not find that the district court erred. Thus, we
affirm.

FACTS

At approximately 11:15 p.m. on the night of December 24, 2013, Officer David
Marshall of the Overland Park Police Department saw a vehicle make a right turn from
Santa Fe onto 83rd Street without signaling. In addition, Officer Marshall observed that
the vehicle made a "wide" turn—meaning the driver turned into a lane other than the
closest one. In making the turn, the driver of the vehicle nearly collided with Officer
Marshall's patrol vehicle.

Although Officer Marshall had difficulty doing so due to snow piling up on the
street, he was able to turn around to pursue the vehicle. In doing so, Officer Marshall
activated his emergency siren and lights. Moreover, the video camera in the officer's
patrol vehicle recorded the pursuit.

Unfortunately, the driver of the vehicle—who was ultimately identified as Pruitt—
refused to stop despite passing several places where he could have safely pulled over as
he was required by law to do. As a result, Officer Marshall continued to pursue Pruitt on
83rd Street. At one point, Officer Marshall used the PA system in his vehicle to direct
Pruitt to stop his vehicle. However, Pruitt continued to drive with the officer pursuing
him.

At the intersection of 83rd and Metcalf, Pruitt briefly stopped at a red light.
Nevertheless, as soon as the light turned green, Pruitt drove away. At one point during the
pursuit, Officer Marshall estimated that Pruitt was driving approximately 20 mph but still
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refused to stop. At another point, Officer Marshall deactivated his emergency equipment
and contacted his supervisor to advise him of a possible DUI, and his supervisor gave
permission to continue the pursuit. The officer then reactivated his emergency equipment
and continued to follow Pruitt's vehicle. Furthermore, at some point during the pursuit,
Pruitt nearly collided with another vehicle.

Pruitt eventually pulled into the driveway of his residence near 82nd Terrace in
Overland Park and stopped. Officer Marshall saw Pruitt get out of his vehicle and walk
towards the house in an unsteady manner. The officer got out of his patrol vehicle and
twice ordered Pruitt to stop. Once again, Pruitt ignored Officer Marshall and continued to
walk towards the house.

Pruitt finally stopped after Officer Marshall drew his service pistol. As the officer
approached, he noticed that Pruitt appeared to be unsteady on his feet and his eyes were
bloodshot. In addition, Officer Marshall smelled the strong odor of alcohol on Pruitt's
breath. The officer then placed Pruitt under arrest for fleeing and eluding and driving
under the influence, and the officer placed him in handcuffs. According to Officer
Marshall's testimony, he gave Pruitt his Miranda warnings at 11:40 p.m. Officer Marshall
also noted that Pruitt's speech was occasionally incoherent and slurred during the arrest
and while Pruitt was in the officer's patrol vehicle.

As Officer Marshall took Pruitt to his vehicle, Pruitt told him that he would bust
the officer's nose if he were not in handcuffs. Officer Marshall placed Pruitt in the back
of his patrol vehicle. After doing so, the officer found two unopened beer containers in
Pruitt's vehicle. Officer Marshall did not administer any field sobriety tests or request that
Pruitt take a preliminary breath test.

The parties do not dispute that after his arrest, Pruitt refused to submit to testing to
determine the alcohol content in his system. Officer Marshall completed—and personally
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served on Pruitt—an Officer's Certification and Notice of Suspension form (DC-27
form). The DC-27 form noted that Pruitt "refused to submit to or complete testing as
requested by a law enforcement officer." The officer also noted on the DC-27 form that
Pruitt received oral and written notice as required by K.S.A. 2013 Supp. 8-1001(k).
Regarding the "[r]easonable grounds for [his] belief that [Pruitt] was under the influence
of alcohol and/or drugs," Officer Marshall checked the boxes for odor of alcohol,
alcoholic beverage containers found in vehicle, slurred speech, and bloodshot eyes.

As Pruitt had a prior test refusal, the Kansas Department of Revenue (KDOR) was
to suspend his license for one year, and his driving privileges were to be restricted for
three years. However, Pruitt filed a timely request for an administrative hearing. At his
hearing, Pruitt argued that Officer Marshall did not have reasonable grounds for
requesting that he submit to a breath test following his arrest. Moreover, Pruitt argued
that Officer Marshall had no basis for arresting him in the first place. Ultimately, the
administrative hearing officer disagreed and upheld Pruitt's administrative suspension.

On July 25, 2014, Pruitt filed a petition seeking judicial review in the Johnson
County District Court. More than a year later, on August 31, 2015, Pruitt filed a motion
to amend his petition for review. In his motion, Pruitt argued that he should be able to
add a challenge to the constitutionality of K.S.A. 2013 Supp. 8-1025 in this case. In
response, the KDOR argued that only supplements to the original petition—not
amendments—are authorized in judicial review actions. The KDOR further argued that
even if the code of civil procedure applied, justice did not require the proposed
amendment, that the motion to amend was untimely, and that it would be prejudiced if
the district court allowed the amendment at such a late date in the proceedings.

On November 4, 2015, the district court held a hearing on Pruitt's motion to amend
as well as on a motion for judgment on the pleadings filed by the KDOR. After hearing
arguments, the district court denied Pruitt's motion to amend, finding that the motion to
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amend was untimely, futile, and potentially inappropriate in a judicial review action.
Although the record is unclear, it appears that the district court either denied or continued
KDOR's motion for judgment on the pleadings.

On March 4, 2016, the district court held a trial de novo. As the party challenging
the administrative suspension, Pruitt had the burden of proof and presented his evidence
first at the bench trial. Pruitt offered a portion of the video of the incident on the night of
December 24, 2013, recorded by the camera in Officer Marshall's patrol vehicle. In
addition, Pruitt called Officer Marshall to testify. Upon the conclusion of Officer
Marshall's testimony, Pruitt rested and the KDOR moved for a judgment on partial
findings pursuant to K.S.A. 60-252(c).

The district court granted the KDOR's motion for judgment on partial findings,
concluding that Pruitt failed to meet his burden of proof. Specifically, the district court
found that based on the numerous traffic violations committed by Pruitt, his refusal to
stop when required to do so, and the indicators of intoxication noted by Officer Marshall
were sufficient to show reasonable grounds to suspect that Pruitt had operated his vehicle
under the influence of alcohol. Accordingly, the district court affirmed the KDOR's
administrative suspension of Pruitt's driver's license.

ANALYSIS

Substantial Competent Evidence

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, 517,
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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 Pruitt. 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); Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 118,
200 P.3d 496 (2009). Notwithstanding KDOR's invitation to do so, we find it
unnecessary in this case to delve into the murky waters 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
(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).

Here, Pruitt contends that the district court erred in affirming the administrative
suspension of his driver's license. Specifically, Pruitt argues that the evidence presented
at the trial was not sufficient for a reasonable person to conclude that Officer Marshall
had reasonable grounds to believe he was operating a vehicle while under the influence of
alcohol. In response, KDOR argues that there is substantial competent evidence in the
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record to support the district court's conclusion that Officer Marshall had reasonable
grounds to believe that Pruitt had operated a motor vehicle under the influence of alcohol.

The current version of K.S.A. 2016 Supp. 8-1001(b)—which is applicable in this
case—states:

"A law enforcement officer shall request a person to submit to a test . . . [i]f, 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 . . . [t]he person has been arrested or otherwise taken into custody for
any violation of any state statute, county resolution or 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."

Accordingly, the plain language of the statute authorizes a law enforcement officer
to request blood alcohol testing if—at the time of the request—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 for any state, county, or city
offense.

"Reasonable grounds" under the Implied Consent Law is analogous to "probable
cause." State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013); see Sloop v. Kansas
Dept. of Revenue, 296 Kan. 13, 17, 20, 290 P.3d 555 (2012). Probable cause is the
reasonable belief—drawn from the totality of the circumstances and reasonable
inferences known to the law enforcement officer—that the defendant has committed or is
committing a specific act. See Sloop, 296 Kan. at 20. Accordingly, we must review the
record to determine whether the district court erred as a matter of law or abused its
discretion in weighing the evidence regarding whether Officer Marshall had reasonable
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grounds to believe that Pruitt had operated his vehicle under the influence of alcohol. See
State v. Dupree, 304 Kan. 377, 389, 373 P.3d 811 (2016).

Sloop continues to provide guidance regarding the meaning of the term
"reasonable grounds" as used in K.S.A. 2016 Supp. 8-1001(b). It is important to note,
however, that the version of K.S.A. 8-1001(b) in effect currently—and which is
applicable to Pruitt—is not the same as the version in effect at the time Sloop was
decided. In particular, the 2013 Legislature amended K.S.A. 8-1001(b) to clarify that a
law enforcement officer must have reasonable grounds—"at the time of the request" for
testing—to believe that the driver was operating a motor vehicle under the influence of
alcohol or drugs. (Emphasis added.) K.S.A. 2016 Supp. 8-1001(b)(1). In addition, the
2013 amendment also clarified that the arrest does not have to be for driving under the
influence but simply that the driver must have "been arrested or otherwise taken into
custody for any violation of any state statute, county resolution or city ordinance."
(Emphasis added.) K.S.A. 2016 Supp. 8-1001(b)(1)(A).

Here, we find substantial competent evidence in the record to support the district
court's decision. The testimony of Officer Marshall and the information on the DC-27
form are sufficient evidence upon which a reasonable person could conclude that Officer
Marshall observed numerous traffic infractions committed by Pruitt. Initially, Officer
Marshall witnessed Pruitt fail to signal a turn. Next, the officer saw Pruitt make a
"wide"—or unsafe—turn. In fact, there is evidence in the record showing that Pruitt
nearly collided with the officer's patrol vehicle.

Furthermore, Pruitt failed to stop when Officer Marshall activated his lights and
siren. Pruitt also failed to stop when Officer Marshall used his PA system to direct him to
do so. While in pursuit of Pruitt, Officer Marshall witnessed him drive nearly 20 miles
below the speed limit at times and nearly hit another vehicle at one point. Thus, unlike
the Sloop case—where the officer observed no traffic violations and stopped the driver
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for a tag light violation—we find that Officer Marshall had probable cause to suspect a
number of traffic violations as well as probable cause to believe that Pruitt was fleeing or
eluding a police officer in violation of K.S.A. 2016 Supp. 8-1568.

Moreover, we find that substantial competent evidence supported the district
court's conclusion that Officer Marshall had reasonable grounds or probable cause—
drawn from the totality of the circumstances and inferences known to him—to believe
that Pruitt had been operating a motor vehicle under the influence of alcohol.
Specifically, a review of the record reveals that Officer Marshall observed Pruitt: (1)
committing numerous traffic violations, (2) refusing to stop his vehicle in response to
repeated demands and signals to do so, (3) continuing to ignore commands to stop after
arriving at his residence, (4) walking in an unsteady manner, (5) presenting bloodshot
eyes, (6) smelling of alcohol, (7) speaking with slurred speech and at times incoherently,
(8) telling him that he would smash his nose if he were not cuffed, and (9) having two
unopened containers of beer in his car.

Although Pruitt has offered a number of excuses for his actions on the night of
December 24, 2013, it is important to note that he had the burden of proof at trial—and
continues to have the burden—to show that the KDOR's decision to suspend his driver's
license should be set aside. See K.S.A. 2016 Supp. 8-1020(q). A review of the record
reveals that the district court considered all of the evidence presented at trial before
concluding based on "the totality of the evidence . . . that the law enforcement officer had
reasonable grounds to believe that Mr. Pruitt was operating his vehicle under the
influence of alcohol or drugs or both and had reasonable grounds to request the testing."

As indicated above, it is not the role of this court to reweigh the evidence
presented at trial or to determine the credibility of witnesses. Thus, because we find
substantial competent evidence to support this conclusion, we will not replace our
judgment for that of the district court.
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Prior DUI or Test Refusal

Next, Pruitt challenges the length of his suspension and restriction. He argues that
the district court erred in finding that he had previously refused a blood-alcohol test or
had a previous DUI. In response, the State argues that Pruitt failed to preserve this issue
for appeal. Furthermore, the State argues that the district court had substantial competent
evidence of a prior test refusal.

Although there was a discussion at the end of the trial de novo regarding when
Pruitt's administrative suspension should begin, we do not find anything in the record to
suggest that he preserved this issue for appeal. Under the KJRA, a party is limited to
raising issues on appeal that were raised below. K.S.A. 2016 Supp. 77-617; see Kingsley
v. Kansas Dept. of Revenue, 288 Kan. 390, 411, 204 P.3d 562 (2009). Hence, we
conclude that this issue is not properly before us.

Even if we assume that Pruitt did appropriately preserve this issue for appeal, we
find that he has not met his burden to prove the invalidity of the KDOR's actions. We
note that the existence of a prior test refusal or prior DUI is only pertinent to the
administrative suspension and restrictions to be imposed under K.S.A. 2016 Supp. 8-
1014. Under that statute, the administrative suspension and restrictions increase for each
additional failed test or test refusal. Here, the district court upheld a one-year
administrative suspension and a three-year ignition interlock restriction.

Although the KDOR was not required to prove the validity of its actions, the
record on appeal contains Pruitt's driving record as an attachment to its answer. The
driving record indicates that Pruitt had an administrative suspension as a result of a test
refusal. On the other hand, Pruitt has cited nothing in the record that would challenge the
validity of the KDOR's determination that he had a prior test refusal.

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Motion to Amend

Pruitt also contends that the district court abused its discretion by denying his
motion to amend his petition seeking judicial review of the administrative action taken by
the KDOR. Specifically, Pruitt argues that the district court should have allowed him to
challenge the constitutionality of K.S.A. 2013 Supp. 8-1025 in this administrative action.
We take judicial notice of the fact that the Kansas Supreme Court has declared K.S.A.
2016 Supp. 8-1025—which made it a crime to withdraw the implied consent for testing
that arises under K.S.A. 8-1001 by expressly refusing to take the test—unconstitutional in
State v. Ryce, 303 Kan. 899, 902-03, 368 P.3d 342 (2016), aff'd on rehearing 306 Kan.
682, 396 P.3d 711 (2017). However, this does not resolve the issue of whether the district
court erred in denying Pruitt's motion to amend his petition for judicial review in the
present action.

When reviewing a district court's decision on a motion to amend pleadings, we use
an abuse of discretion standard of review. Thompson v. State, 293 Kan. 704, 709, 270
P.3d 1089 (2011); Kinell v. N.W. Dible Co., 240 Kan. 439, 444, 731 P.2d 245 (1987). As
indicated above, judicial discretion is only abused if (1) no reasonable person would take
the view adopted by the district court; (2) the decision is based on a legal error; or (3) the
decision is based on a factual error. Wiles v. American Family Life Assurance Co., 302
Kan. 66, 74, 350 P.3d 1071 (2015). The party claiming an abuse of discretion—in this
case Pruitt—bears the burden of proving it. Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).

The denial of a motion to amend is not reversible error "unless it affirmatively
appears that the [denied] amendment . . . is so material it affects the substantial rights of
the adverse party." Hajda v. University of Kansas Hosp. Auth., 51 Kan. App. 2d 761, 774,
356 P.3d 1 (2015), rev. denied 303 Kan. 1077 (2016). A request to amend pleadings may
also be denied if the amendment sought would be futile. See Johnson v. Board of Pratt
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County Comm'rs, 259 Kan. 305, 327-28, 913 P.2d 119 (1996). Based on our review of
the record, we do not find that the district court abused its discretion in denying Pruitt's
motion to amend.

In denying the motion to amend, the district court concluded that justice did not
require an amendment under the circumstances presented in this action. In particular, the
district court noted that it was questionable whether K.S.A. 2013 Supp. 77-614—which
speaks to "supplements" and not to "amendments" to petitions filed pursuant to the
KJRA—authorized a motion to amend a petition for judicial review to add new claims.
Moreover, the district court found that even if K.S.A. 2013 Supp. 60-215 is applicable in
a KJRA action, Pruitt filed the request more than a year after he filed the petition seeking
judicial review and after discovery had closed. The district court further found that it
would prejudice the KDOR by adding a new issue at such a late date. We find each of the
reasons stated by the district court for denying Pruitt's motion to amend to be reasonable
and not based on legal or factual error.

We also 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), overruled on other grounds by City of Atwood v. Pianalto, 301 Kan.
1008, 350 P.3d 1048 (2015); 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." As such, Pruitt's criminal
case is immaterial to this administrative action as is the constitutionality of K.S.A. 2013
Supp. 8-1025. Thus, we conclude that the district court did not abuse its discretion by
denying Pruitt's motion to amend.
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Validity of Judgment

Finally, Pruitt contends that the district court abused its discretion by ruling on the
State's motion for judgment on partial findings. We note that Pruitt has effectively
abandoned this claim because he has cited no authority in support of his argument nor
does he cite where in the record he may have preserved this issue for appeal. Failure to
support a point with pertinent authority or show why it is sound despite a lack of
supporting authority or in the face of contrary authority is akin to failing to brief the
issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015); University of Kan.
Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602
(2015).

Even if Pruitt preserved this issue for appeal and did not waive it due to his failure
to cite authority, we do not find that the district court abused its discretion based on our
review of the record. As the parties are aware, "[m]otions for directed verdict have been
replaced by motions for judgment as a matter of law in jury trials and by motions for
judgment on partial findings in nonjury trials." MFA Enterprises, Inc. v. Delange, 50
Kan. App. 2d 1049, Syl. ¶ 1, 336 P.3d 891 (2014); 4 Gard and Casad Kansas C. Civ.
Proc. 5th Annot. § 60-252 (2012). Because the present case involved a nonjury trial,
K.S.A. 2016 Supp. 60-252(c) is controlling.

K.S.A. 2016 Supp. 60-252(c) provides:

"If a party has been fully heard on an issue during a nonjury trial and the court
finds against the party on that issue, the court may enter judgment against the party on a
claim or defense that, under the controlling law, can be maintained or defeated only with
a favorable finding on that issue. The court may, however, decline to render any
judgment until the close of the evidence. A judgment on partial findings must be
supported by findings of fact and conclusions of law . . . . "

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In Lyons v. Holder, 38 Kan. App. 2d 131, 135, 163 P.3d 343 (2007), a panel of
this court found that in ruling on a judgment on partial findings, "the district judge has the
power to weigh and evaluate the evidence in the same manner as if he or she were
adjudicating the case on the merits and making findings of fact at the conclusion of the
entire case." Here, Pruitt had already presented his evidence at the de novo trial and
rested. At that point, the attorney for the KDOR then moved for a motion for judgment on
partial findings, arguing that Pruitt had not met his burden to prove the invalidity of the
agency action. The district court then allowed Pruitt's attorney to respond and for the
KDOR's attorney to reply. During the reply, the district court interrupted the attorney for
the KDOR—not Pruitt's attorney—and granted the motion for judgment on partial
findings. Thus, we do not find that the district court erred in using the procedure
authorized by K.S.A. 2016 Supp. 60-252(c).

Affirmed.