Schroeder v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 117,784

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSHUA SCHROEDER,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed March 30, 2018.
Affirmed.

John W. Thurston and Brandon J. Katt, of Addair Thurston, Chtd., of Manhattan, for appellant.

Ashley R. Iverson, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before ARNOLD-BURGER, C.J., MALONE and MCANANY, JJ.

PER CURIAM: Joshua Schroeder was arrested on suspicion of driving under the
influence of alcohol (DUI) after being stopped for a traffic infraction. Arresting Officer
Rachel Pate checked Schroeder's mouth for any foreign objects, handcuffed his hands
behind his back, placed him in the back seat of her patrol car, and took him to the local
police station for processing. The officer began the 20-minute deprivation period for the
purpose of administering a breath test for alcohol when she placed Schroeder in the patrol
car. The officer did not see or hear anything from Schroeder while driving him to the
police station to indicate that he had burped or belched, which would possibly
compromise the results of a breath test.
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On arrival at the police station, the officer parked her patrol car and left Schroeder
handcuffed in the back seat while she put her firearm in a locker. This took about 10
seconds. She then took Schroeder out of the patrol car for processing. The officer was
present during the time Schroeder was being processed.

After Schroeder was processed, the arresting officer took him to the Intoxilyzer
room. Because the 20-minute deprivation period had expired, she immediately proceeded
to administer the test. But before doing so, as was her standard practice, the officer asked
Schroeder if anything had come into his mouth during the deprivation period. Schroeder
said no. The Intoxilyzer test revealed that Schroeder's blood-alcohol content was above
the legal limit, requiring the suspension of his driver's license. The suspension was stayed
pending an administrative hearing. The administrative panel affirmed the suspension, and
Schroeder appealed to the district court where the court denied relief. This appeal
followed.

Schroeder asks us to remand this case to the district court with the instruction that
the arresting officer violated the "immediate presence" requirement of the KDHE
protocol. In support of this argument, Schroeder cites the language of the protocol which
calls for the arresting officer to be in the immediate presence of the arrestee for the
duration of the deprivation period. Schroeder asserts that Pate violated this protocol when
she left him in the patrol car while she was putting away her gun. Schroeder relies on
Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 200 P.3d 496, rev. denied 289
Kan. 1279 (2009), for support.

We review the district court's findings for substantial competent evidence. Swank
v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012); Mitchell, 41 Kan.
App. 2d at 118. Substantial competent evidence is "evidence possessing relevance and
substance that furnishes a basis of fact from which the issues can be reasonably
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resolved." 41 Kan. App. 2d at 118. Our review of the KDHE deprivation protocol is de
novo.

The KDHE protocol states: "Keep the subject in your immediate presence and
deprive the subject of alcohol for 20 minutes immediately preceding the breath test." The
purpose of the deprivation period is to allow any alcohol inside the mouth to dissipate in
order to prevent an incorrect reading in the breath test.

Substantial compliance is sufficient to satisfy this protocol requirement. K.S.A.
2017 Supp. 8-1020(h)(2)(F); Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820,
823, 74 P.3d 588 (2003). Substantial compliance is "'compliance in respect to the
essential matters necessary to assure every reasonable objective.'" Martin v. Kansas Dept.
of Revenue, 38 Kan. App. 2d 1, 9, 163 P.3d 313 (2006) (quoting Burkhart v. Kansas
Dept. of Revenue, No. 91,345, 2004 WL 2047556, at *1 [Kan. App. 2004] [unpublished
opinion]). "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." Mitchell, 41 Kan. App. 2d at 122-23.

Substantial compliance with the protocol was not found in Mitchell. But in that
case the officer left the defendant alone in the restroom for a couple of minutes, and the
defendant consumed a cup of water during the deprivation period. The defendant also
testified that he may have burped or belched during the deprivation period.

To the contrary, this court found substantial compliance with the deprivation
protocol in Martin. There, the defendant was left alone in a room several times, but each
time was only for a brief period. A video recording of the entire deprivation period
showed that the suspect never belched, burped, vomited, regurgitated, or otherwise
introduced any substance into his mouth during the deprivation period. This evidence
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satisfied the deprivation protocol because it showed that nothing came into the
defendant's mouth that would bring into question the breath test results.

In State v. Anderson, No. 94,364, 2006 WL 903168, at *3 (Kan. App. 2006)
(unpublished opinion), the defendant was accompanied by an officer while he used the
restroom. Approximately two minutes later, he returned to the officer who was
conducting the investigation and observing him during the deprivation period. Prior to
conducting the test, the investigating officer asked the defendant if he had belched,
burped, vomited, regurgitated, or otherwise introduced any substance into his mouth
during the deprivation period. The defendant responded that he had not. This court held
that because the defendant had admitted that nothing had entered his mouth to
contaminate the test results, there was substantial compliance with the protocol.

In our present case, the officer left the patrol car for only about 10 seconds.
Schroeder's hands were handcuffed behind his back during the entire period, making it
virtually impossible for him to introduce anything into his mouth. Moreover, he
confirmed to the officer before the test that nothing had come into his mouth during the
deprivation period. Under these circumstances we conclude that the officer substantially
complied with the protocol when she briefly left Schroeder in the vehicle while she was
returning her gun to the gun locker. There is nothing to indicate that this 10-second
interlude compromised the deprivation period. This was confirmed by Schroeder who
indicated that he had not belched, burped, vomited, regurgitated, or otherwise introduced
any substance into his mouth during the deprivation period.

The administrative panel did not err in determining that Schroeder's license should
be suspended, and the district court did not err in denying relief on Schroeder's appeal.

Affirmed.