Smith v. Kan. Dept. of Revenue

• Decision Date: 19 November 2010
• Docket Number: No. 101,744.,101,744.
• Citation: 291 Kan. 510,242 P.3d 1179
• Parties: William P. SMITH, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Supreme Court

242 P.3d 1179

291 Kan. 510

William P. SMITH, Appellant,

v.KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 101,744.

Supreme Court of Kansas.

Nov. 19, 2010.

[242 P.3d 1180, 291 Kan. 510]

Syllabus by the Court

1. Probable cause exists where the officer's knowledge of the surrounding facts and circumstances creates a reasonable belief that a defendant committed a specific crime. Probable cause does not require an officer have evidence of every element of the crime.

2. The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prevent any person from being compelled to be a witness against himself or herself in a criminal case.

3. During a lawful traffic stop, a law enforcement officer is not required to Mirandize an individual before asking routine investigatory questions where the individual is not in legal custody or deprived of his or her freedom in any significant way. This is true even though the officer may suspect the individual has committed, is committing, or is about to commit a crime and even though the individual is not free to leave during the lawful detention.

4. Under the facts and circumstances of this case, a law enforcement officer who was writing a warning ticket for a taillight violation was not required to Mirandize the vehicle operator before asking him whether he had been drinking alcohol.

5. Appellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach constitutional challenges to statutes.

Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, argued the cause and was on the brief for appellant.

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

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

William P. Smith appeals from an administrative action by the Kansas Department of Revenue suspending his driving privileges for 1 year following his arrest for driving under the influence of alcohol (DUI). Smith later was convicted of DUI, and that conviction was affirmed on appeal. State v. Smith, No. 101,831, 2009 WL 5062492, unpublished Court of Appeals opinion filed December 18, 2009.

In this appeal from the agency's action suspending his license, Smith challenges whether there were reasonable grounds to support the administration of an evidentiary breath test. He also attacks the constitutionality of K.S.A. 2009 Supp. 8-1012, which authorizes a preliminary breath test based on reasonable suspicion, rather than the higher probable cause standard. We affirm the district court's order upholding the agency's action.

Factual and Procedural Background

At approximately 9 p.m. on July 24, 2007, Smith was driving a pickup truck, pulling a combine header trailer. The taillights on the trailer were not working. A Kansas Highway Patrol trooper observed the faulty lights and initiated a traffic stop. There was nothing out of the ordinary regarding Smith's reaction to the stop or the manner in which he pulled over his vehicle.

After stopping, but before the trooper made contact, Smith exited his vehicle and attempted to fix the trailer lights. The trooper simultaneously exited his patrol vehicle, but he stayed at the trailer's rear to see if Smith's efforts to fix the trailer lights worked. When those efforts failed, the trooper approached him. Nothing out of the ordinary occurred while Smith attempted to fix his trailer.

The trooper later testified that he detected a strong alcohol odor surrounding Smith. He also noted Smith's eyes were bloodshot and watery. The trooper obtained Smith's driver's license. He then asked Smith to sit in the patrol car while he issued a warning for the equipment violation. Once in the patrol car, the trooper asked Smith if he had been drinking alcohol that evening. Smith answered either a "few" or "three or four" and that he had quit drinking approximately 30 minutes before.

Both men exited the patrol car and walked to Smith's truck where the trooper again smelled alcohol. The trooper searched the truck. Smith does not challenge this search as illegal. During the search, the trooper found a beer bottle cap on the center console, an open beer bottle containing a small amount of liquid on the floor beside the right rear door, and a full can of beer in a rearseat cup holder. The record does not disclose whether the can was open or sealed.

After searching the truck, they returned to the patrol car. While in the vehicle, the trooper administered two prefield sobriety tests. He asked Smith to recite his ABC's from "D" to "S" and to count backwards from 63 to 47. Smith correctly recited the alphabet, but he missed one number, which he self-corrected.

The trooper asked Smith to perform two field sobriety tests. Smith agreed. The trooper first administered the walk-and-turn test. While performing this test, Smith exhibited two clues. He stepped off the line once, and he took an incorrect number of steps. Smith said he had a bad knee. The second test administered was the one-leg stand. Smith hopped during part of the test, which was one clue. Exhibiting one clue during the test is considered a pass.

The trooper next asked Smith to take a preliminary breath test (PBT). Smith agreed. The required protocol was followed. Smith failed the PBT with a result over .08, but the actual result was not recorded. At that time, the trooper arrested Smith, and he was transported to the Norton County Sheriff's Office, where Smith was tested on the Intoxilyzer 5000. The required protocol for administering the evidentiary breath test was followed. Smith's breath sample yielded a .099. At the conclusion of the test, the trooper read Smith the Miranda warnings, and Smith said he did not wish to answer any questions. The contact with Smith ended. The trooper completed a form certifying Smith's failure of the breath test. He indicated the following facts established his belief there were reasonable grounds to believe Smith was under the influence: (1) odor of alcoholic beverages surrounding Smith; (2) alcoholic beverage containers found in Smith's vehicle; (3) Smith failed the sobriety tests; (4) Smith had bloodshot eyes; (5) Smith stated hehad consumed alcohol; and (6) Smith failed the preliminary breath test.

After an administrative hearing, the Department of Revenue issued an administrative order suspending Smith's driving privileges for 1 year. Smith timely filed a petition for review with the district court. The parties agreed the four issues were: (1) Did the arresting officer lack probable cause to arrest Smith and lack reasonable grounds to believe Smith had been operating a motor vehicle while under the influence of alcohol, drugs, or both? (2) Is K.S.A. 2009 Supp. 8-1012 unconstitutional because it allows for seizure of deep lung air based on reasonable suspicion grounds as opposed to probable cause? (3) Were the results of Smith's breath-alcohol test inadmissible because he was subjected to custodial interrogation without benefit of Miranda warnings? and (4) Did the hearing officer erroneously apply the law to the facts?

Based on the transcript from the administrative hearing, the district court affirmed the agency's action on each issue and upheld the suspension. Smith filed a notice of appeal, essentially raising the same four issues. We transferred the case to this court. Our jurisdiction comes under K.S.A. 20-3018(c) (transfer on court's own motion).

Reasonable Grounds Supported the Evidentiary Breath Test

A law enforcement officer is required to request a person 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 if the officer has "reasonable grounds" to believe the person was operating or attempting to operate a vehicle while under the influence. K.S.A. 2009 Supp. 8-1001. The question we address in this case is whether there were reasonable grounds to believe Smith had been operating his vehicle under the influence to support the trooper's request to administer an evidentiary breath test. In this context, the issue as to whether an officer has reasonable grounds to believe someone is operating or attempting to operate a vehicle while DUI is strongly related to whether that officer had probable cause to arrest.Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775, 148 P.3d 538 (2006). This court has found the term "reasonable grounds" synonymous in meaning with "probable cause," but in doing so has noted an officer may have reasonable grounds to believe a person is operating avehicle under the influence sufficient to request a test under the statute—but not have the probable cause required to make an arrest under K.S.A. 8-1001. 282 Kan. at 776, 148 P.3d 538.

Smith incrementally challenges some of the evidence used to support the trooper's determination that reasonable grounds existed. First, Smith argues there were additional facts negating any determination of reasonable grounds. Second, Smith claims his admissions to the trooper that he had been drinking should have been excluded from this determination because he was not advised of his Miranda rights before he made the incriminating statements. Third, Smith claims the PBT evidence should have been excluded because K.S.A. 2009 Supp. 8-1012, which is the statute authorizing such tests, is unconstitutional because it requires only an officer's "reasonable suspicion" to believe the person sought to be tested has been operating a vehicle under the influence, instead of the higher probable cause standard. Finally, and predicated upon his presumed success on the first three contentions, Smith argues that without the admissions about drinking and the PBT, there were no reasonable grounds under K.S.A. 2009 Supp. 8-1001(b) to justify his arrest and evidentiary breath test.

Standard of Review

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