Strickert v. Kan. Dep't of Revenue
| Decision Date | 13 March 2020 |
| Docket Number | No. 120,544,120,544 |
| Citation | 58 Kan.App.2d 1,462 P.3d 649 |
| Parties | Jerry STRICKERT, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee. |
| Court | Kansas Court of Appeals |
John M. Lindner, of Lindner, Marquez & Koksal, of Garden City, for appellant.
John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before Standridge, P.J., Leben and Bruns, JJ.
Following an administrative hearing, the Kansas Department of Revenue (KDR) suspended Jerry Strickert's driving privileges after finding that he refused to submit to a breath test on August 28, 2017. Strickert filed a petition with the district court seeking review of that administrative decision. After conducting a de novo bench trial, the district court upheld the administrative suspension. On appeal, Strickert challenges the district court's findings regarding the lawfulness of the initial stop, the extension of the initial stop, his arrest, and the request that he submit to an evidentiary breath test. Finding no error, we affirm the district court's decision.
On August 28, 2017, a little before 1 a.m., Strickert left Rosie's Bar in Garden City, Kansas. As he drove away, Strickert noticed that he was being followed by two Garden City Police officers. As he turned west, Strickert observed one of the officers pull over a different vehicle behind him. The second officer, who later was identified as Officer Joshua Meinzer, continued to follow Strickert. After signaling, Strickert turned right onto Walker Street. His intent was to continue traveling eastbound on Walker Street but ultimately was unable to because Walker Street dead-ends into Taylor Avenue. Strickert, who later said he was unfamiliar with the area, did not realize that he could not continue straight on Walker Street until he reached the T-intersection. Strickert stopped at the stop sign that controlled the intersection and decided to turn left (northbound) onto Taylor Avenue. He signaled his intent to do so while still stopped at the stop sign and then began to make the turn. At this point, Officer Meinzer initiated a traffic stop by activating his overhead emergency lights.
After Strickert pulled over, Officer Meinzer exited his patrol vehicle and made contact with him through the driver's side window. Officer Meinzer asked Strickert for his license, registration, and proof of insurance. Strickert, who recently had moved back to Kansas after living out of state for 10 years, produced a valid Texas driver's license but was unable to provide a physical copy of his current proof of insurance. There also was some confusion about what constituted a valid vehicle registration. Strickert indicated that the sticker on his windshield was sufficient proof of vehicle registration in Texas but Officer Meinzer insisted that the sticker was insufficient in Kansas. Throughout this interaction, Officer Meinzer noticed the odor of alcohol around Strickert and also observed that his eyes were bloodshot and his speech was slow. Based on those observations, Officer Meinzer asked Strickert if he had consumed any alcohol that night and Strickert admitted to drinking one beer.
At this point, Officer Meinzer instructed Strickert to get out of the vehicle and place his hands on top of his head to be patted down for officer safety. Strickert began to comply but, as he raised his hands, he realized that he was still holding his car keys. Wanting to "secure them" before doing anything else, Strickert dropped his hands and put his keys in his pocket. He then raised his hands again and began to place them on top of his vehicle before quickly correcting himself and placing them on top of his head. Once Strickert was cleared by the pat-down, Officer Meinzer moved him a short distance away from his vehicle and prepared him for a number of field sobriety tests. Strickert told Officer Meinzer—without being prompted or asked—that he was exposed to improvised explosive devices while deployed as a Marine in Afghanistan and, as a result, suffered from a loss of mobility in his lower right extremity as well as a loss of hearing. Both conditions, he later said, affected his performance on the field sobriety tests. He also later claimed that his performance was affected by the flip-flops that he was wearing because they "can play a part in the balance or hanging up on the asphalt."
The first test administered by Officer Meinzer was the walk-and-turn test. The test was conducted on a surface that was free from debris and relatively flat but did have a slight downhill slope towards the roadway. Officer Meinzer demonstrated the test and then gave Strickert instructions about how to complete it. As he was doing so, Strickert got into the starting position but came out of it when Officer Meinzer told him not to start yet. When Officer Meinzer finished giving his instructions, Strickert got back into the starting position and walked nine steps heel-to-toe. At this point, Strickert asked Officer Meinzer either when or in which direction he was supposed to turn. Officer Meinzer did not respond to the question so Strickert completed the turn and took nine steps back to his starting position. Officer Meinzer detected four clues of impairment during the walk-and-turn test: (1) failing to maintain balance in the instruction position; (2) stopping and asking for clarification of the instructions after taking the first nine steps instead of completing the test in one continuous motion; (3) making an improper turn by "lifting both feet off the ground, which was inconsistent with the demonstration that was provided"; and (4) failing to maintain the heel-to-toe style of walking during the second set of nine steps.
The second test administered by Officer Meinzer was the one-leg-stand test. For this test, Strickert was instructed to stand on one leg for a set period of time. Strickert chose to stand on his left leg and raise his injured/disabled right leg into the air until he was told to put it down. Officer Meinzer claimed to detect one clue of impairment during the one-leg-stand test but failed to specify what the clue was.
The third test administered by Officer Meinzer is known as the Rhomberg test. Officer Meinzer instructed Strickert to tip his head back, close his eyes, and count to 30 by thousands (as in one, one thousand; two, one thousand, etc.) for an estimated 30 seconds. Officer Meinzer told Strickert that when he was done, he should bring his head forward and say stop. Strickert completed the test, and Officer Meinzer detected two clues of impairment: (1) swaying from side-to-side during the test and (2) continuing the test for 45 seconds when told to stop after an estimated 30 seconds.
After completing the field sobriety tests, Officer Meinzer offered Strickert the opportunity to take a preliminary breath test (PBT), but Strickert refused. Strickert later said he refused the PBT because he felt like Officer Meinzer had determined from the moment the traffic stop was initiated that he was driving while under the influence (DUI) of alcohol. Strickert said he was not going to allow his rights to be further infringed by submitting to a PBT. Based on the clues of impairment during the interaction and the field sobriety tests, as well as Strickert's refusal to submit to a PBT, Officer Meinzer arrested Strickert. Officer Meinzer later asked Strickert to submit to an evidentiary breath test, but he refused. Officer Meinzer filled out a DC-27 form, citing the odor of alcoholic beverages, failed sobriety tests, bloodshot eyes, poor balance or coordination, and Strickert's admission that he had consumed alcohol as reasonable grounds for his belief that Strickert was driving under the influence. Officer Meinzer did not check the boxes for "slurred speech" and "difficulty in communication" on the DC-27 form.
Strickert was served with a Notice of Driver's License Suspension on August 28, 2017. He submitted a timely response through counsel and requested an in-person administrative hearing, which was held on October 27, 2017. After hearing witness testimony and watching the dash cam video, the hearing officer affirmed the administrative action to suspend and restrict Strickert's driving privileges. Strickert petitioned the district court for review, and a de novo bench trial was held on June 28, 2018. Like the hearing officer, the district court heard testimony from both Strickert and Officer Meinzer and watched the dash cam video. And like the hearing officer, the district court denied Strickert's petition and affirmed the administrative suspension of his license.
When reviewing a district court's order in an administrative driver's license suspension case, appellate courts generally "are tasked with ascertaining whether substantial competent evidence in the record supported the district court's findings and whether the conclusion derived from those findings is legally correct." Casper v. Kansas Dept. of Revenue , 309 Kan. 1211, 1213, 442 P.3d 1038 (2019) ; see also Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 881, 281 P.3d 135 (2012) (). Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Geer v. Eby , 309 Kan. 182, 190, 432 P.3d 1001 (2019). But in reviewing a district court's factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).
In its brief, the KDR suggests that the appropriate standard of review is not the substantial competent evidence standard but rather the negative finding standard. Specifically, the KDR submits that K.S.A. 77-621(c), the portion of the Kansas Judicial Review Act (KJ...
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