Nava v. Kan. Dep't of Revenue

• Decision Date: 27 July 2012
• Docket Number: No. 106,203.,106,203.
• Citation: 281 P.3d 597
• Parties: Demetrius NAVA, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Court of Appeals

281 P.3d 597

Demetrius NAVA, Appellee,
v.
KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 106,203.

Court of Appeals of Kansas.

July 27, 2012.

Appeal from Finney District Court; Robert J. Frederick, Judge.
John D. Shultz, of Legal Services Bureau, of Kansas Department of Revenue, for appellant.

J. Scott Koksal, of Lindner & Marquez, of Garden City, for appellee.

Before BRUNS, P.J., MARQUARDT and HILL, JJ.

MEMORANDUM OPINION
PER CURIAM.

Demetrius Nava convinced the district court that he was unable to physically provide an adequate breath sample due to his asthma when he was tested by a Highway Patrol trooper. Because of this, the court overturned Nava's driving license suspension imposed by the Kansas Department of Revenue. We affirm the district court because the Department is essentially asking us to reweigh the evidence, a task we will not perform on appeal.

Nava was stopped for traffic law violations.

Kansas Highway Patrol Trooper Reed Sperry stopped Nava after he saw Nava drive his vehicle 64 mph in a 55 mph zone; cross the fog line with a substantial portion of his vehicle; cross over the double yellow line into oncoming traffic; and drive in such a manner that he drifted within his traffic lane. When he approached the car, Trooper Sperry noticed “a strong odor of alcohol coming through the open window.” When asked if he had been drinking, Nava admitted that he had consumed “about two.” After asking Nava to step out of his vehicle, Trooper Sperry determined the odor of alcohol was coming from Nava's breath. Sperry also observed Nava's eyes were bloodshot and watery, and his speech had become increasingly slurred.

Trooper Sperry asked Nava to perform three field sobriety tests; the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. After Nava completed the field sobriety tests, Trooper Sperry decided to arrest Nava but first asked him if he would take a preliminary breath test (PBT). Nava told Trooper Sperry that he “had asthma and it may be difficult to take the test .” Nava had been diagnosed with asthma approximately 5 years earlier and was initially prescribed an Albuterol inhaler and Ambien. His doctor subsequently had him stop taking the Ambien. Nava continues to use his inhaler when he recognizes the need. This need typically occurs before he goes to sleep or awakes, unless sometime during the day he is congested or does other vigorous physical activities.

When Trooper Sperry asked Nava to take the PBT, Nava was nervous and his breathing did not feel normal so he asked to get his inhaler that he had left at home to use it before taking the PBT. When Trooper Sperry asked Nava why he did not have his inhaler, Nava replied that he did not carry it with him. Trooper Sperry did not allow Nava to get his inhaler. Nava provided a sufficient air sample to complete the PBT. The Department subsequently stipulated the PBT was invalid because Trooper Sperry administered the test too soon after first observing Nava.

Trooper Sperry arrested Nava and transported him to the Garden City police station. Once at the station, Trooper Sperry asked Nava to complete an Intoxilyzer 8000 breath alcohol test. Nava agreed to take the test and reminded Trooper Sperry that he had asthma. Trooper Sperry gave Nava the required notices of implied consent. Nava asked Trooper Sperry if the police station had any medication, or an inhaler, that could help him so he “wouldn't run short of breath” while taking the test. Trooper Sperry responded, “No.”

Trooper Sperry explained to Nava that if he failed to provide a breath sample in the 3–minute window the intoxilyzer allows to submit a sample, he would consider it a refusal. Nava submitted his first sample at 11:23 p.m. The analyzer indicated a deficient sample of 0.0. Trooper Sperry had Nava blow several more times into the intoxilyzer. Each time, Nava's sample came back with a deficient reading of 0.0. Trooper Sperry observed that Nava “didn't appear to have trouble blowing, he appeared to not put enough air through the intoxilyzer.” A couple of times while taking the test, Nava had to stop to cough and ask for his inhaler.

The...