Readdy v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 114,598

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LUIS D. READDY,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed September 1, 2017.
Affirmed.

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

No appearance by appellee.

Before BRUNS, P.J., MCANANY and BUSER, JJ.

BUSER, J.: The Kansas Department of Revenue (KDOR) appeals from the district
court's decision to set aside the administrative suspension of Luis D. Readdy's driving
privileges following a de novo trial. On appeal, KDOR contends that the district court
erred in concluding that the law enforcement officer who stopped Readdy for a traffic
violation lacked reasonable grounds to believe that he was operating a vehicle while
under the influence of alcohol. Although we may not have reached the same conclusion
as the district court, we find that there was sufficient evidence presented at trial to support
the district court's conclusion. Thus, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

A Kansas Highway Patrol Master Trooper filed an Officer's Certification and
Notice of Suspension—known as a DC-27 form—stating that he had reasonable grounds
to believe that Readdy operated a motor vehicle under the influence of alcohol on July
19, 2014. The Trooper indicated on the form that he stopped Readdy for speeding and for
an unsafe lane change. In addition, the Trooper indicated on the DC-27 that Readdy
refused to submit to testing. The form also reflected that the Trooper believed Readdy
was driving under the influence based on: (1) odor of alcoholic beverages, (2) failed
sobriety tests, (3) bloodshot eyes, (4) difficulty in communicating, (5) poor balance or
coordination, (6) admitted alcohol consumption, and (7) failed preliminary breath test
(PBT).

An administrative hearing officer upheld the suspension, and Readdy filed a
petition for judicial review in district court. The district court subsequently held a trial de
novo at which the Trooper and Readdy both testified. In addition, the district court
watched a video of the encounter between the Trooper and Readdy.

The Trooper testified that as he merged onto U.S. Highway 54 westbound in
Wichita, he saw a vehicle "in the inside lane [that] was obviously traveling well in excess
of the speed limit . . . ." Consequently, the Trooper activated his rear antenna radar,
which indicated the vehicle was traveling 99 to 100 miles per hour. According to the
Trooper, the speed limit at that location was 60 miles per hour.

The Trooper then observed the speeding vehicle "move from the far left lane all
the way to the exit lane to Grove Street in one continuous motion." In doing so, the
vehicle passed in front of two other cars on U.S. 54 behind the Trooper's vehicle. The
Trooper did not consider this maneuver to be a safe change of lanes, and he noted that the
vehicle did not use its turn signals. After the vehicle passed behind his patrol car and
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exited the highway, the Trooper drove through the grass and pulled up behind the
erratically driven vehicle.

As the Trooper followed the vehicle, he observed it stop at the end of the exit
ramp, signal, and make a left turn onto Grove Street. At that point, the Trooper initiated a
traffic stop. The Trooper testified that the driver—ultimately identified as Readdy—did
not react promptly to his emergency equipment. Once the vehicle stopped and the
Trooper made contact with Readdy, he noticed that Readdy's eyes were "watery and
bloodshot" and he detected the odor of alcohol coming from the vehicle. At some point
during the stop, the Trooper also smelled the odor of alcohol on Readdy's breath.

When asked if he had consumed any alcohol, Readdy responded that "it had been
one or two nights since his last drink." The Trooper then asked him why he could smell
alcohol on Readdy's breath. In response, Readdy stated that he had not consumed an
alcoholic beverage for "two nights." The Trooper suspected that Readdy was being
untruthful because he "could still smell the odor of alcohol on his breath . . . ."

On cross-examination, the Trooper acknowledged that he marked the box on the
DC-27 form that indicated the driver admitted to having consumed alcohol or drugs. He
explained that the DC-27 form does not contain any provision specifying any period
within which the alcohol must be previously consumed. "So if somebody tells me . . . I
had something to drink two days ago, that's still an admission." Even though he
recognized that drinking alcohol 2 days earlier would not have affected Readdy's ability
to drive at the time of the stop, the Trooper considered this admission when determining
whether he had reasonable grounds to arrest Readdy.

The Trooper described Readdy's attitude and demeanor as "fairly argumentative at
times." During cross-examination, however, the Trooper acknowledged that when he
filled out a report within a few days of the traffic stop, he completed the "attitudes and
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actions" section by marking the "cooperative" box. He did not indicate any abusive,
antagonistic, or combative behavior on Readdy's part.

According to the Trooper, Readdy also exhibited some difficulty in his ability to
communicate. Although he did not notice any slurred speech, the Trooper testified that
Readdy had transposed a couple of numbers in his zip code and had initially said he was
headed home even though he was going in the wrong direction. When confronted with
this fact, Readdy changed his story. Moreover, while Readdy was perusing a stack of
paperwork attempting to find his insurance information, the Trooper noticed that "his
fingers appeared clumsy" and he was not "precisely manipulating the paperwork."

Based on this encounter, the Trooper determined that it was appropriate to ask
Readdy to conduct field sobriety testing. The Trooper reported that Readdy showed four
out of the eight clues for possible intoxication on the walk-and-turn test. At trial, he
testified that Readdy actually exhibited five clues on the test. The Trooper also stated that
Readdy failed the one-leg stand by exhibiting three out of four clues of possible
intoxication.

When the Trooper asked Readdy to submit to a PBT, he agreed to do so. But the
Trooper testified that Readdy did not follow directions, making the otherwise easy
process "fairly difficult." In fact, the Trooper suggested that Readdy was "trying to
deceive [him]" because he acted in a manner similar to individuals that are "trying to give
the appearance that they're trying to comply with the test but not actually give a good
breath sample." Nevertheless, the Trooper testified that that Readdy eventually provided
a good breath sample.

The Trooper indicated that the PBT displayed error code "E-31" rather than
Readdy's breath alcohol content. Because he was unfamiliar with this error code, the
Trooper looked it up in his manual and read that "E-31" is an indication that the "result is
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over range, so it's above the range that the instrument can accurately measure." As such,
the Trooper believed that Readdy had a breath alcohol content of .44 or higher. The
Trooper admitted, however, that Readdy did not act like someone with such a high
alcohol content and agreed that a person with such at such a high level "should be either
comatose or dead."

In his testimony, Readdy admitted that he was speeding before being stopped by
the Trooper, but he claimed that he was only traveling at a speed between 70 to 72 miles
per hour. According to Readdy, he was not argumentative with the Trooper during the
stop. Instead, he testified that he was "just being himself" and only attempted to defend
his civil liberties. With respect his admission to his recent alcohol consumption, Readdy
believed that he told the Trooper that he had consumed three drinks, but that the Trooper
did not allow him to explain when he consumed the drinks. On cross-examination,
Readdy admitted that in response to the State's pretrial interrogatories that he responded
that he had consumed three beers in the 8 hours prior to the traffic stop; at the hearing,
however, Readdy only claimed that he only consumed a sip of the third beer.

With respect to the field sobriety testing, Readdy claimed that he was able to
complete the walk-and-turn test other than turning to the right—rather than to the left—
because the Trooper failed to properly instruct him. He also claimed that on the heel-to-
toe test that he was "pretty there" and was "walking erect." Likewise, when asked about
his performance on the one-leg stand, Readdy explained that he "had to just put [his] toe
[down] for a little bit, but after that I think I did okay, in my opinion.

After hearing the testimony, reviewing the video, and considering the arguments
of counsel, the district court set aside the administrative order of suspension. The district
court concluded that based on the totality of the circumstances, the Trooper did not have
reasonable grounds to arrest Readdy for DUI. In reaching this conclusion, the district
judge reasoned:
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"I want to make clear that nothing that I'm going to say . . . is in any way intended to be a
reflection on what I believe about the integrity or veracity of [the Trooper]. I did not
believe at any point that he was [attempting] to be in any way less than one hundred
percent honest in everything that he said and testified to.

. . . .

"And . . . I, when I watched the videos, made a note of what exactly was said by
the trooper when he finally, on the fifth attempt, got a sufficient or a valid sample with
the [PBT] device. And it was at about minute 30 and 13 seconds when he said to his
fellow master trooper, 'Let me look something up real quick.' It was nearly four minutes
later when he states on the video, 'The instrument showed me an error message. You're
over the range for the instrument.'

"There was no discussion of what that level would be, but we had testimony that
the range of the instrument was .44 and the officer testified that in his experience he
would, apparently, be disinclined to believe that [Readdy] was, in fact, anywhere near
that blood alcohol content. And I question whether, as a matter of law, a[n] error message
constitutes a failed preliminary breath test and I'm going to find that it does not.

"I also had paid careful attention to the conversation on the video, in light of the
testimony, about when Mr. Readdy said he had consumed alcohol. And it was—I believe
the sum total of the evidence is just what was on the video as confirmed by the master
trooper that Mr. Readdy initially said he had had something to drink one or two nights
ago.

. . . .

"And based on that recorded conversation . . . the trooper indicated the person
stated alcohol or drugs consumed. And those two together cause me to question the
reasonableness—not the veracity, but the reasonableness of his conclusion. I just—I
cannot find that based on what Mr. Readdy said that he, in fact, admitted having
consumed alcohol at any time that would have been relevant to this traffic stop.

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. . . .

"And I also don't think that it was reasonable for him to interpret an error
message as a failed [PBT]. So . . . I don't think that those apply as being—I think
[Readdy] has essentially disproven those as potential grounds for reasonable belief.

"That leaves me with odor of alcohol beverages, failed field sobriety tests,
bloodshot eyes, difficulty in communicating, poor balance or coordination. And out of
those, having watched the videos from Mr. Readdy's exit of the vehicle, to the FSTs and
his moving from the back of his vehicle up to the trooper's vehicle, I didn't see a single
thing that led me to believe that he had poor balance or coordination, but we did have
testimony that he had difficulty manipulating papers in his vehicle.

"And the frustrating thing for the Court here is that every single thing that I
would be interested in being able to confirm on the video, since I don't find the
reasonableness on the last two boxes, I can't confirm with the video. . . .

. . . .

"I listened to the video. I didn't understand—or I didn't see that there was any
difficulty in communicating, and, in fact, my observation about Mr. Readdy's speech was
that he was pretty much exactly the same person on the stand as—that he was on the
video, including being fairly abrasive and combative and argumentative.

. . . .

"And my question now is whether what's left is sufficient to find that it was
reasonable grounds . . . .

"But based on the—what, apparently, happened, we've got a guy who's going
extremely fast and probably driving recklessly, not just speeding but reckless driving at
that point, but—just based on the speed and, apparently, is able to maneuver . . . through
other cars without striking them and then exit the highway at which point the video starts.
So I almost question whether the rate of speed that he's supposed to be going doesn't go
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the other way, that he's able to maintain control of the vehicle without striking anything,
but . . . I don't know, I think it could go both ways.

"But where the video picks up all I have is what [Readdy]'s counsel urged is
driving smack down the middle of his lane, stopping on the stop line at the stop sign,
signaling his turn appropriate[ly], waiting for the car to go by. And then once the
trooper's lights come on, as he makes the turn, he makes another appropriate lane change
and pulls over to the side of the road.

. . . .

"So I—ultimately, I think I am going to find that [Readdy] has met his burden of
proving the lack of reasonableness for the arrest based on the totality of the
circumstances, including what I'm able to see on the video, the demeanor of—well, the
physical movements and demeanor and speech of Mr. Readdy from when he exits the
vehicle about two minutes into it, up until 20 minutes later, all of which time he's
standing in full view of the camera."

After the district court stated its decision, KDOR's attorney asked the court to also
find that Readdy "failed both field sobriety tests." Instead, the district court found that it
"disagree[d] that this trooper reasonably concluded that Mr. Readdy failed the
preliminary field sobriety [or] the preliminary PBT" and further "disagree[d] with [the
Trooper's conclusion] that Mr. Readdy had consumed alcohol and admitted it. . . ." In a
minute sheet prepared shortly after the trial, the district court found that Readdy had met
his burden to prove that there was "no reasonable grounds for arrest." The district court
subsequently entered a Journal Entry in which it incorporated its decision from the bench
and concluded "that the officer lacked reasonable grounds to request testing."

Thereafter, the State timely appealed.



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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. Kansas Bd. of Healing
Arts, 295 Kan. 452, 458, 284 P.3d 337 (2012). Appeals from administrative suspensions
of drivers' 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, 516-17, 213 P.3d 1061 (2009). On appeal, the burden of proving
the invalidity of the agency action rests on the party—in this case KDOR—asserting such
invalidity. K.S.A. 2016 Supp. 77-621(a)(1).

Here, we must determine whether the district court's findings are 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), (d); Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281
P.3d 135 (2012). 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 reevaluate the credibility of
witnesses. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).

On appeal, KDOR contends that the district court erred in reversing the suspension
of Readdy's driving privileges. KDOR asserts that the evidence presented at the trial
shows that the Trooper had reasonable grounds to believe Readdy was operating a
vehicle while under the influence of alcohol. According to KDOR, the district court
"flyspecked individual pieces of evidence, improperly required corroboration of the
Trooper's testimony, and failed to give due account to the uncontroverted evidence. . . ."
Specifically, KDOR points to evidence of reckless driving, odor of alcohol, bloodshot or
watery eyes, deception as to alcohol consumption, confusion, fine motor skill deficits, an
argumentative attitude, and a failing performance on field sobriety tests.
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K.S.A. 2016 Supp. 8-1001(b) authorizes law enforcement officers to request blood
alcohol testing if the officer has reasonable grounds to believe the driver was operating a
vehicle while under the influence of alcohol or drugs and the officer arrests or takes the
person into custody for any offense involving driving under the influence. "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
to arrest is 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." State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013).

Accordingly, we must determine whether the district court erred as a matter of law
or abused its discretion in weighing the evidence. See State v. Dupree, 304 Kan. 377,
389, 373 P.3d 811 (2016). Although the district court did not find the Trooper in this case
to lack credibility, it found several of his conclusions to be unreasonable based on the
testimony at the hearing and a review of the video of the traffic stop. In particular, the
district court focused on the Trooper's unreasonable conclusions that the error message
on the breath testing instrument meant that Readdy's alcohol content was .44 or over and
Readdy's statement that he had consumed alcohol one or two nights ago as being an
admission that he consumed alcohol at any time relevant to the traffic stop.

Based on the district court's review of the video, it could not see anything to lead it
to conclude that Readdy had poor balance or coordination. In fact, the district court noted
that it could not confirm any of the Trooper's conclusions regarding Readdy's failure to
properly perform field sobriety tests. The district court further determined that there was
nothing on the video—as compared to Readdy's in-court testimony—to support the
conclusion that he had difficulty in communicating. The district court also found no
evidence of red or bloodshot eyes.

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The district court found that it was possible—based on the Trooper's testimony—
that Readdy was travelling "extremely fast and probably driving recklessly" but that he
was nonetheless able to move through traffic without striking other vehicles and then exit
the highway. According to the district court, the video shows Readdy driving
appropriately after leaving the highway. The district court further concluded that "once
the trooper's lights come on, as he makes the turn, he makes another appropriate lane
change and pulls over to the side of the road." We note that although we may interpret the
video somewhat differently, the district court's observations are reasonable and, thus,
based on substantial evidence.

As a result, we do not find that the district court erred as a matter of law.
Moreover, we conclude that the district court's factual findings are supported by evidence
that is substantial when viewed in light of the record as a whole. In particular, the district
court carefully weighed the testimony presented at trial against the video of the traffic
stop. After doing so, the district court rendered factual findings that were based on
reasonable inferences drawn from the evidence. We, therefore, will not replace our
judgment for that of the district court, and we affirm its decision to set aside the
administrative suspension of Readdy's driving privileges.

Affirmed.