Fraser v. Kan. Dep't of Revenue
| Decision Date | 12 December 2014 |
| Docket Number | 110,817. |
| Parties | Gary A. FRASER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee. |
| Court | Kansas Court of Appeals |
Michael S. Mogenson and Edward C. Gillette, of Gillette Law Firm, P.A., of Mission, for appellant.
James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S J.
Gary A. Fraser appeals the district court's order upholding the suspension of his driver's license by the Kansas Department of Revenue (KDOR) for his refusal to take a breath test. He argues the arresting officer did not have reasonable grounds to believe he was operating his vehicle while under the influence of alcohol before requesting he take the test. He also argues the officer did not properly serve him with the notice of his suspension as required by statute. We find the district court's rulings on both issues were proper, and we affirm.
In December 2010, Lisa Dressier was travelling east bound on Kansas Avenue in Leavenworth County. As she approached a narrow bridge over Interstate 70, she heard the screeching of brakes from a car behind her and saw a fast moving car approaching. The car then veered off the road and flipped over. Dressier testified the car would have hit her had it not left the road. Dressier immediately stopped and called 911. She remained at the scene until officers arrived and then provided a written statement to them.
Fraser was driving the wrecked car with his wife Rita as a passenger. They had a different story about how the accident occurred. They both claimed a westbound vehicle was in Fraser's eastbound lane without its lights on and Fraser swerved to avoid hitting it head on.
Deputy Chris Smith responded to the scene. He observed a vehicle on a field access road with significant damage to the front end roof and passenger side, consistent with a roll-over accident. He took Dressler's statement.
Fraser and his wife were walking around outside the vehicle when Deputy Smith arrived. Smith saw a laceration on Fraser's head, and Fraser indicated he also had injuries to his shoulder and leg. When an ambulance arrived, Fraser refused treatment. Fraser told the deputy he did not have insurance and did not want to incur the costs an ambulance ride. Fraser was not have any difficulty breathing. Deputy Smith observed Fraser had bloodshot eyes and a mild odor of alcohol coming from his breath. He asked Fraser if he had consumed any alcoholic beverage, and Fraser indicated he had had a beer early in the evening. Because Fraser's breath smelled of alcohol, Deputy Smith asked Fraser to complete standard field sobriety tests. Fraser refused.
Deputy Smith testified he had determined Fraser was under the influence to the extent that he was not able to safely operate a motor vehicle based on the following: (1) Dressler's statement; (2) the evidence at the accident scene; (3) Fraser admitting to having consumed a beer; (4) his bloodshot eyes; and (5) the odor of alcohol on his breath. The deputy took Fraser into custody for additional testing. Once at the jail, Deputy Smith provided Fraser with the implied consent advisory form (DC–70). Deputy Smith also read the form aloud. After a 20–minute deprivation period, Smith asked Fraser to submit to a breath test on an Intoxilyzer 8000. Fraser did not attempt to provide a sample. The Intoxilyzer cycled through its functions and generated a report indicating “No test given.” Deputy Smith completed the officer's certification and notice of suspension form (DC–27). On that form, the deputy certified that Fraser “refused to submit to or complete testing.”
Also, on the DC–27 form, Deputy Smith certified that a copy of the DC–27 “is being served on [Fraser] on 12–11–2010 by ... personal service.” On another report, Deputy Smith indicated that he “completed a DC–27 and placed a pink copy in [Fraser's] hands.” At the administrative hearing, Deputy Smith testified he had no independent recollection of personally serving Fraser with the DC–27. Fraser testified he received his copy of the DC–27 from the person who signed his bond within 10 minutes of Fraser being booked into the jail. He stated: the DC–27. Fraser timely requested an administrative hearing.
The administrative law judge (ALJ) reviewed the evidence presented at the administrative action and issue a suspension order based on the test refusal. KDOR then suspended Fraser's driver's license. Fraser filed a petition for judicial review, and the district court affirmed the decision after hearing testimony from Fraser and his wife and reviewing Deputy Smith's testimony from both the criminal case and the administrative the suspension hearing.
As we stated, Fraser argues in this appeal that Deputy Smith lacked reasonable grounds to believe he had been operating a vehicle while under the influence of alcohol and did not properly serve him with the DC–27 suspension notice.
On appeal, this court generally reviews a district court's decision in a driver's license suspension case to determine if it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial evidence is relevant if it provides substance and “furnishes a substantial basis of fact” for this court to resolve the issues. Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 362, 102 P.3d 490 (2004). Whether an officer had reasonable grounds is a mixed question of law and fact. We give deference to the district court's factual findings but review the ultimate legal conclusion—whether reasonable grounds existed—independently. Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 415, 233 P.3d 286 (2010), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). Under this standard, we “do not consider other evidence that might support a different result as long as sufficient evidence supports the district court's decision.” 43 Kan.App.2d at 414. Nor do we “weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact.” Mitchell v. Kansas Dept. of Revenue, 32 Kan.App.2d 298, 301, 81 P.3d 1258 (2004).
K.S.A.2013 Supp. 8–1002(a) provides that “[w]henever a test is requested pursuant to this act and results in either a test failure or test refusal a law enforcement officer's certification shall be prepared.” Following a driver's refusal to consent to a breath-alcohol test, the officer must certify that reasonable grounds existed to believe that the driver was “operating or attempting to operate a vehicle while under the influence of alcohol....” K.S.A.2013 Supp. 8–1002(a)(1)(A).
Here, Fraser argues that because Deputy Smith did not have the required reasonable grounds, he had no authority to request a breath test for alcohol. He specifically argues that (1) reasonable grounds did not exist based on the possible indicators of impairment commonly observed in DUI cases that were not observed by Deputy Smith here, and (2) the district court improperly relied on the definition of probable cause used in Poteet in determining that reasonable grounds existed.
As to what Deputy Smith actually did observe, the district court heard testimony from Fraser, his wife, and also reviewed Deputy Smith's testimony from the administrative hearing and the jury trial in Fraser's criminal case. Dressier and the Frasers provided differing factual accounts of what caused Fraser to swerve off of the road. The court found Dressler's version that Fraser nearly rear-ended her to be more persuasive than the Frasers' version that a car was driving on the wrong side of the road at night with no headlights on. The court concluded that (1) Fraser was speeding at night when he came upon Dressler's car; (2) Fraser had to swerve to avoid colliding with Dressier and in so doing lost control of the vehicle, left the roadway, went down an embankment, and rolled the car before it came to rest; (3) Fraser sustained substantial personal injuries; (4) the car was totaled; (5) Fraser had an odor of alcohol on his breath; (6) Fraser had bloodshot eyes, and (7) Fraser admitted he had consumed alcohol prior to driving.
Other appellate court decisions examining whether reasonable grounds existed in this context are helpful. In Fleming v. Kansas Dept. of Revenue, No. 97, 182, 2007 WL 2178261 (Kan.App.2007) (unpublished opinion), a nearly factually identical situation, an officer arrived at the scene of the accident where the driver had bloodshot eyes, smelled of alcohol, and admitted to consuming a minor amount of alcohol. The Fleming court found the officer had reasonable grounds to request the driver to submit to a breath test. The court specifically noted that “involvement in an accident or collision is one of the express criteria for testing.” 2007 WL 2178261, at *2 ; See K.S.A.2013 Supp. 8–1001(b)(1)(B) ; see also Kuhn v. Kansas Dept. of Revenue, No. 107,154, 2013 WL 195693, at *3 (Kan.App.2013) (unpublished opinion) (); Pfeifer v. Kansas Dept. of Revenue, No. 106,961, 2012 WL 4679695, *2–3 (Kan.App.2012) (unpublished decision) (). Notably, the Poteet court found reasonable grounds to believe a driver with alcohol on her breath was driving while intoxicated solely based on her...
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