Mitchell v. Kansas Dept. of Revenue

• Decision Date: 09 January 2004
• Docket Number: No. 89,873.,89,873.
• Parties: ERNEST MITCHELL, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

32 Kan.App.2d 298

81 P.3d 1258

ERNEST MITCHELL, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 89,873.

Court of Appeals of Kansas.

Opinion filed January 9, 2004.

Leslie A. Hess and Laura Lewis, student intern, of Dodge City, for appellant.

James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before RULON, C.J., GREEN, J., and STEPHEN D. HILL, District Judge, assigned.

HILL, J.:

Dennis Mitchell appeals the trial court's order affirming the Driver Control Bureau's 1-year suspension of his commercial driver's license. He claims that the trial court erroneously determined that he was given a reasonable opportunity for an independent blood or breath alcohol concentration (BAC) test. He also argues that the trial court abused its discretion by admitting his breath test into evidence. We affirm.

The facts of this case are not in dispute. Mitchell was driving his commercial vehicle onto the scales of a port of entry when a motor carrier inspector noticed that his vehicle lacked a registration plate on the front. The inspector asked him to step into the weighing station. The inspector noticed an odor of alcohol on Mitchell's breath. She asked a coworker if she noticed the same odor, and the coworker answered yes. The inspector then notified the dispatcher who summoned a Kansas Highway Patrol trooper.

Trooper Michael Winner responded. Mitchell was still speaking to the inspector about his failure to have a log book with him when Winner approached. Winner immediately smelled alcohol on Mitchell's breath and asked him to perform some field sobriety tests and a preliminary breath test. Mitchell failed to adequately perform the tests. He was arrested by Winner and taken to the sheriff's department where he submitted to a BAC test.

After the test was administered, Mitchell requested that he be taken to a hospital for an independent BAC test. Winner took Mitchell to the laboratory office of Southwest Medical Center in Liberal. The trooper told hospital personnel that he wanted Mitchell to have a BAC test. The hospital personnel told Winner that the test could not be performed unless the highway patrol could be billed for it. Mitchell had previously informed Winner that he had money to pay for the test himself. Winner spent about 30 minutes trying to convince hospital personnel to give Mitchell the test and let Mitchell pay for it. Winner even suggested to hospital personnel that he and Mitchell go outside, that he would remove all restraints from Mitchell, that Mitchell would walk in on his own, and Mitchell would have the test done. Hospital personnel responded that they still could not perform the test because they knew Mitchell was in Winner's care. Winner then called his supervisor to see if there was any way the highway patrol could be billed for the test. He was told there was not. Winner decided that since he was unable to obtain an additional test for Mitchell at the hospital, he would take him back to the sheriff's department. Winner testified at the hearing that he knew Mitchell would be held for at least 8 hours and would not be able to leave on his own to get an additional BAC test. Winner also testified that Mitchell was aware that he had not received an additional test at the hospital. Both Winner and Mitchell concur that upon leaving the hospital, Mitchell did not request to be taken anywhere else for an independent test. Because Mitchell failed the BAC test, the Kansas Department of Revenue (KDR) suspended his commercial driver's license for 1 year. Mitchell's driving privileges were also suspended for 30 days with restrictions in place for the remainder of 1 year. In his appeal to the district court, KDR's rulings were affirmed.

Our standard of review for such an action is well established:

"In reviewing a district court's decision reviewing an agency action, the appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency's action as does the district court. [Citations omitted.]" Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert denied 534 U.S. 1081 (2002).

A trial court may not substitute its judgment for that of an administrative tribunal. The trial court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily, or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority. Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999).

Our focus becomes whether Mitchell had a reasonable opportunity to obtain an independent BAC test. Such a determination depends on the circumstances of each case. State v. George, 12 Kan. App. 2d 649, 653-54, 754 P.2d 460 (1988). When we review the trial court's determination of this question of fact, our function is to determine whether the trial court's findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). We will not weigh conflicting evidence or pass on the credibility of witnesses or redetermine questions of fact. State ex rel. Stovall v. Meneley, 271 Kan. 355, 387, 22 P.3d 124 (2001).

Mitchell contends that by not taking him to a site that would agree to perform the requested BAC test after personnel at the hospital had refused, the trooper failed in his affirmative duty to protect Mitchell's rights as determined by K.S.A. 8-1004.

That statute provides:

"Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence."

Mitchell argues that Winner presented no evidence that there were any time constraints which prevented him from taking Mitchell to another site to obtain the test. Mitchell also argues that there were probably other sites in Liberal which could have conducted the test.

Mitchell admits that he did not renew his request or make any attempts to secure an additional test after the failure to obtain the test at the hospital. Mitchell argues that Winner had an obligation to provide Mitchell with a reasonable opportunity to obtain an independent test as he requested and that this obligation was not waived by Mitchell's failure to renew that request. Mitchell also argues that Trooper Winner failed to protect his right to an independent test by not making arrangements for Mitchell to bond out soon enough to seek an additional test on his own.

In response, KDR claims that Winner did provide Mitchell with a reasonable opportunity for an independent test. It contends that the trooper did not unreasonably interfere or prevent an additional test. KDR argues that Winner transported Mitchell to the hospital to have an independent test performed. The trooper spent approximately 30 minutes attempting to persuade hospital personnel to conduct the test. He even...