Sloop v. Kan. Dep't of Revenue, 103,334.

• Decision Date: 14 December 2012
• Docket Number: No. 103,334.,103,334.
• Citation: 290 P.3d 555
• Parties: Kenneth W. SLOOP, Jr., Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Supreme Court

290 P.3d 555

Kenneth W. SLOOP, Jr., Appellant,

v.KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 103,334.

Supreme Court of Kansas.

Dec. 14, 2012.

Syllabus by the Court

1. Statutory interpretation is a question of law, and the appellate court's review is unlimited.

2. In interpreting a statute, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The intent of the legislature is to be derived in the first place from the words used.

3. An arrest must be lawful before an arresting officer is authorized to request a test under K.S.A.2008 Supp. 8–1001(b)(1)(A) to determine the presence of alcohol or drugs.

4. Some prior appellate decisions have used the following language in their calculus to determine whether probable cause exists to arrest: “It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility” or “more than a mere possibility.” Such language defining probable cause in terms of “possibilities” is unnecessary and confusing, and is disapproved.

5. Under the facts of this case, the evidence was insufficient to establish probable cause for the defendant's arrest.

6. Because the evidence in this case was insufficient to establish probable cause for the defendant's arrest, his arrest was unlawful. The arresting officer therefore had no authority under K.S.A.2008 Supp. 8–1001(b) to request the defendant to take an evidentiary breath test. The defendant's refusal to take an unauthorized test cannot be the basis for suspending his driving privileges under K.S.A.2008 Supp. 8–1014(a)(1). They are therefore reinstated.

Kenneth B. Miller, of Rork Law Office, Topeka, argued the cause and was on the brief for appellant.

James G. Keller, of Legal Services Bureau, Kansas Department of Revenue, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by NUSS, C.J.:

Kenneth W. Sloop, Jr., appeals from an administrative action by the Kansas Department of Revenue (KDOR) suspending his driving privileges for 1 year under K.S.A.2008 Supp. 8–1014(a)(1). Per this statute, privileges can be suspended for refusing to take a breath test the arresting officer is authorized to request under K.S.A.2008 Supp. 8–1001(b). The district court and Court of Appeals affirmed the administrative suspension.

We conclude the officer's statutory authority to request Sloop to take the breath test depends upon a valid arrest. We additionally conclude the arrest was invalid because the officer had no probable cause to support it. And we further conclude Sloop's refusal to take a breath test the officer had no statutory authority to request cannot be the basis for suspending his driving privileges under K.S.A.2008 Supp. 8–1014(a)(1). So we reverse the lower courts' decisions and reinstate his driving privileges.

FACTS

The essential facts are straightforward. Around midnight on October 24, 2008, Topeka police officer Cris Bergerhofer noticed Kenneth Sloop make a left-hand turn from the southbound lane of Gage Boulevard. While Sloop committed no traffic violations in making his turn, Officer Bergerhofer followed Sloop because he was “sitting unusually close to his steering wheel” and because he had been somewhat hesitant going into his turn (started turning, stopped, and started turning again). Bergerhofer followed Sloop for about 8 to 10 blocks. During that time, Sloop did not commit a traffic infraction. But because Sloop's tag light was out, Bergerhofer activated his emergency lights and stopped Sloop.

Bergerhofer requested Sloop's driver's license, and Sloop handed it over without fumbling it. According to Bergerhofer, both Sloop and his unnamed passenger smelled of alcohol, and Sloop's eyes were watery and bloodshot. When Bergerhofer asked if he had been drinking, Sloop replied, “Nothing really,” and then, according to Bergerhofer, said that he had “like one beer at a friend's house.” Bergerhofer did not ask Sloop when he had consumed the beer.

Bergerhofer testified that Sloop's speech was “impaired” but not “slurred.” According to Bergerhofer, “impaired” meant “not as clear as it could be but [ ] not inherently slurred either.”

Bergerhofer then ordered Sloop out of the car. Sloop did not stumble upon exiting and was steady when walking to the back of the car. Bergerhofer had him complete the horizontal gaze nystagmus test, whose results were not offered at the later hearing. Sloop also performed a preliminary breath test, the results of which also were not offered at the hearing because Bergerhofer later realized at the police station the test had been administered improperly. After the preliminary breath test, Bergerhofer arrested Sloop and took him to the station in handcuffs for further testing. Bergerhofer stated that he took Sloop to the station because he wanted to film the field sobriety tests and his squad car lacked video equipment.

At the station, Bergerhofer performed two field sobriety tests. On the walk-and-turn test, Sloop was expected to take nine heel to toe steps on a straight line, make a turn, and then take the same nine steps back to the starting position. Bergerhofer testified that Sloop failed to touch heel to toe on three of his first nine steps, i.e., Sloop missed by “[a]bout an inch, inch-and-a-half.” Sloop also made an incorrect turn because he pivoted instead of taking a series of small steps. The failure to execute a correct turn combined with the failure to touch heel-to-toe meant that Sloop exhibited two clues which, according to Bergerhofer, indicate a possibility of impairment.

On the one-leg stand test, Sloop was expected to stand on one leg with his arms to his side and count for about 30 seconds. Bergerhofer stated that Sloop swayed during this test, which presented one clue of impairment. When asked about how much swaying a person is allowed, Bergerhofer responded, “It's to a degree subjective. Usually if they are swaying, they are swaying.” Bergerhofer testified that only one clue meant Sloop passed this test. After performing the two field sobriety tests, Sloop refused to take the evidentiary breath test Bergerhofer requested: the Intoxilyzer 8000.

The district court relied upon the following prearrest evidence: Sloop's breath smelled of alcohol; he had bloodshot and watery eyes; he admitted to having one beer earlier in the evening; and he was stopped in the early morning hours. The court also relied upon the following postarrest evidence: Sloop's failure to step properly on three occasions, his failure to turn as instructed during the walk-and-turn test, and his swaying on the one-leg stand test. Combining this evidence, and relying upon Sullivan v. Kansas Dept. of Revenue, 15 Kan.App.2d 705, Syl. ¶ 2, 815 P.2d 566 (1991), the court concluded that a reasonable officer could have believed that it was “more than a possibility” that Sloop operated his vehicle while under the influence of alcohol. Although affirming the suspension, the court admitted “[t]he evidence of intoxication ... is much weaker than the evidence presented in the vast majority of the driver's license suspension actions that come before this Court.”

The Court of Appeals affirmed. Sloop v. Kansas Dept. of Revenue, No. 103,334, ––– Kan.App.2d ––––, 2010 WL 5140016 (Kan.App.2010) (unpublished opinion). Among other things, it held substantial evidence supported the district court's conclusion that Bergerhofer had reasonable grounds to believe Sloop was operating a vehicle while under the influence, in violation of K.S.A.2008 Supp. 8–1001(b). It basically repeated the “more than a possibility” language from Sullivan but with a modifier: “A law enforcement officer has such reasonable grounds if, under all the circumstances, a reasonably prudent police officer would believe the person's guilt is ‘more than a mere possibility. [Citations omitted.]’ ” (Emphasis added.) 2010 WL 5140016, at *4.

We granted Sloop's petition for review. Our jurisdiction is under K.S.A. 60–2101(b) and K.S.A. 20–3018(b).

ANALYSIS

Issue 1: Sloop's arrest was unlawful, which means there was no authority to request he take the breath test under K.S.A.2008 Supp. 8–1001(b).

Standard of review

Our analysis requires us to interpret K.S.A.2008 Supp. 8–1001(b). Statutory interpretation is a question of law, and this court's review is unlimited. Accordingly, we are not bound by the lower courts' interpretations. State v. Hopkins, 295 Kan. 579, 285 P.3d 1021, 1023 (2012).

Discussion

By Kansas statute, any person who operates or attempts to operate a vehicle in this state is deemed to have given consent to submit to one or more tests of the person's blood, breath, urine, or other bodily substance to determine the presence of alcohol or drugs. K.S.A.2008 Supp. 8–1001(a). Subsection (b) of that statute establishes the conditions, some in the alternative, that a law enforcement officer must meet to obtain authority for requesting such tests. Because Officer Bergerhofer arrested Sloop and believed he had reasonable grounds to request the later breath test, two of the statute's conditions apply to this case:

“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) if [First] the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both ... and [Second] one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, ... in violation of a state statute or a city ordinance.” (Emphasis added.) K.S.A.2008 Supp. 8–1001(b).

Sloop challenges the existence of both of these italicized conditions, which is within the scope of the matters allowed at the administrative hearing and thus...