Russell v. Kan. Dep't of Revenue

• Docket Number: 123,380
• Decision Date: 11 February 2022
• Parties: Darrell E. Russell, Appellant, v. Kansas Department of Revenue, Appellee.
• Court: Kansas Court of Appeals

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Darrell E. Russell, Appellant, v. Kansas Department of Revenue, Appellee.

No. 123, 380

Court of Appeals of Kansas

February 11, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; Robert J. Wonnell, judge.

Bruce D. Mayfield, of Bruce D. Mayfield, Chartered, of Overland Park, for appellant.

Donald J. Cooper, of Kansas Department of Revenue, for appellee.

Before Arnold-Burger, C.J., Green and Buser, JJ.

MEMORANDUM OPINION

Buser J.

This is an appeal from the district court's order affirming the Kansas Department of Revenue's (KDOR) suspension of Darrell E. Russell's driving privileges. On appeal Russell contends the district court erred in suspending his driving privileges because his refusal to submit to an evidentiary breath test was reasonable under the circumstances. Upon our review we hold the district court did not err in finding that Russell refused the breath test, and the refusal was not reasonable. Accordingly, we affirm the KDOR's suspension of Russell's driving privileges.

Factual and Procedural Background

In the early morning hours of November 28, 2018, Sergeant Thomas Keary, a 21-year veteran of the Overland Park Police Department was on routine patrol when he noticed a vehicle ahead of him traveling in the same direction. Sergeant Keary observed that while his police vehicle was traveling at 50 miles per hour in a 45 mile per hour zone, the other vehicle was pulling away from him and was traveling "significantly quicker than me." The Sergeant activated his vehicle's emergency equipment to make a traffic stop. He had to exceed 75 miles per hour to catch up to the vehicle. The vehicle was slow to respond but finally stopped about two and a half minutes later.

Sergeant Keary identified the driver as Russell. Russell had bloodshot, glassy eyes with an odor of alcohol coming from his vehicle. He was also slow to answer the Sergeant's questions. In response to Sergeant Keary's question if Russell had anything to drink, he replied "'Probably more than I should.'"

Officer Lucas Neff, a four-year veteran of the Overland Park Police Department, arrived at the scene and took over the investigation. Regarding the standardized field sobriety tests, Russell performed the walk-and-turn test with four indicators of possible alcohol impairment. The one-leg stand test resulted in another four clues of possible impairment. Officer Neff asked Russell to take a preliminary breath test. Russell refused the breath test. Russell did admit to having consumed alcohol that evening. All things considered, Officer Neff arrested Russell for driving under the influence of alcohol (DUI) and transported him to the police station.

At the police station, Officer Neff advised Russell of his Miranda rights, including his right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 479 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After reading these rights aloud, Officer Neff asked Russell if he understood those rights and Russell indicated that he did. Officer Neff then stated that he was going to read aloud the implied consent advisories, which are listed on the DC-70 form, to Russell. When Russell replied that he did not want to, the officer laid the document on Russell's lap. Officer Neff then read aloud the DC-70 form.

Next, Officer Neff asked Russell if he would take an evidentiary breath test. Russell did not respond but maintained eye contact with the officer. Officer Neff then "prompted him to respond" but Russell remained silent. Officer Neff told Russell he was going to let him think about it and come back later. As part of the evidentiary breath test observation period, Officer Neff asked Russell some other questions which included asking him to open his mouth and stick out his tongue to make sure there were no foreign substances in his mouth. Russell complied with the request. Russell never consented to take the evidentiary breath test, and he never verbally declined it. He simply did not respond to the officer's request. On the DC-27 and DC-70 forms Officer Neff recorded that Russell refused the breath test.

Later, Officer Neff asked Russell if he remembered his Miranda warnings and Russell nodded in the affirmative. Officer Neff told Russell he needed "'a verbal yes'" and Russell orally responded with, "'Yes.'" The officer then asked Russell if he wanted to talk with him or answer any questions and Russell "nodded" negatively. Officer Neff informed him that he needed a verbal yes or no and Russell replied, "'No.'"

Based on his refusal to take the evidentiary breath test, Russell's driving privileges were ordered suspended. Russell made a timely request for a hearing before a KDOR administrative hearing officer. Following an evidentiary hearing, the hearing officer affirmed the administrative action to suspend and restrict Russell's driving privileges. The hearing officer found that Russell "refused to submit to and complete a test as requested by a law enforcement officer." After exhausting his administrative remedies, Russell petitioned the district court for judicial review of his driver's license suspension.

The district court held an evidentiary hearing and Sergeant Keary and Officer Neff testified as summarized earlier. Additionally, Russell testified on his own behalf. Russell stated that on the morning of the traffic stop he was not speeding. He also delayed stopping upon seeing the police officer's emergency lights because "I didn't think I was speeding or doing anything so I shouldn't be stopped." Additionally, Russell testified to icy street conditions, so he attempted to find a safe area to stop. Russell admitted that he told the officers that he had "'less than five more than three'" drinks before the traffic stop.

Russell testified that he had reviewed a video of his interaction at the station with Officer Neff and that it "captures the whole thing." Russell's attorney showed him a transcript of the video recording taken at the police station. Russell testified that he had compared the transcript with the video recording, and they matched. The transcript was admitted in evidence. The video recording was not offered in evidence.

Regarding the implied consent advisories, Russell testified that the second advisory, which stated that there were administrative penalties for refusing a breath test or failing a breath test confused him. He testified,

"It says, 'If you refuse to submit to and complete the test or tests or if you . . . fail, your driving privileges will be suspended for a period of at least 30 days and up to 1 year.' So it says if you do or you don't, it's the same penalty."

Russell explained, "It's somewhat common knowledge that, if you refuse, you've got more problems than if you don't. So to hear this saying if you do or you don't, it's the same penalty, it's like, 'Okay. He's an officer of the court. I'll take this . . .-as guidance.'"

According to Russell, when Officer Neff asked him if he was willing to take a breath test, Russell was "looking him dead in the eye." Then the officer said he needed a yes or no answer; Russell testified he did not answer because he "was trying to exercise my right to be silent." Russell never told Officer Neff that he would or would not take the breath test. He also never informed the officer that he was invoking his right to remain silent. Russell never took the evidentiary breath test.

Numerous exhibits were admitted at the hearing, including the transcript of the videotape recording memorializing the interactions and conversations between Officer Neff and Russell at the police station. None of these exhibits are contained in the record on appeal.

The district court ruled from the bench and affirmed the KDOR's suspension of Russell's driving privileges. Relevant to this appeal, the district court addressed two issues. First, the district court stated,

"In reviewing the DC-70, the Court must make a determination as to whether or not the DC-70 is in substantial compliance with the statute. Our Court has told us that substantial compliance doesn't mean exact, for word for word, but rather the necessary elements of the statutory framework are consistent within the notice. The Court finds that the DC-70, in this particular case, revised version of July 2018 is in substantial compliance with the statute. The plaintiff was advised that the refusal or failure could result in a range of penalties. The statutory framework is present in . . . this version of the DC-70. The Court finds that it is in substantial compliance with the statute."

Regarding the second issue relevant to this appeal, the district court stated,

"[T]he Court will also comment on the right to remain silent. Again, Miranda is an issue of Fifth Amendment. The Fifth Amendment issues are not applicable when it comes to the testing; therefore, the plaintiff, Mr. Russell, could have submitted to the testing and remained silent. Could have nodded his head. Could've extended his arm for whatever equipment was necessary. He could have exercised both-could've remained silent and submitted to the test."

As a result, the district court found that any claim of confusion was not justified, and Russell's refusal was not reasonable.

In conclusion, the district judge stated,

"For the purposes of the journal entry and so that there wouldn't be any confusion in the event that either of you appeal this to the Kansas Court of Appeals, my finding of fact is that the plaintiff refused to take the test and that my [conclusion] of law, based on the finding of fact, is that that was not a reasonable refusal."

Russell appeals.

Did the District Court Err in Finding that Russell Refused to Submit to an Evidentiary Breath Test and the Refusal Was Not Reasonable?

On...