Millard v. Kansas Dept. of Revenue ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,390
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ESTEN MILLARD,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
MEMORANDUM OPINION
Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed January 28, 2022.
Affirmed.
Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Topeka, for appellant.
Ted E. Smith, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before SCHROEDER, P.J., BRUNS and WARNER, JJ.
PER CURIAM: Esten Millard challenges the district court's decision affirming the
administrative suspension of his driving privileges by the Kansas Department of Revenue
(KDOR) after his arrest for driving under the influence of alcohol. On appeal, Millard
contends that the arresting officer exceeded the scope of the initial public safety
encounter and improperly expanded the scope and length of the detention to conduct an
investigation for driving under the influence. After a review of the record, we find no
error and affirm the district court's decision to uphold the administrative suspension of
Millard's driver's license.
1
FACTS
On November 14, 2018, shortly after midnight, officers from the Great Bend
Police Department were dispatched to Millard's residence due to a report that there was a
vehicle running, the engine revving up, and the driver was slumped over in the vehicle.
When Officer Shane Becker arrived on the scene, he saw a black Ford pickup truck
parked in the driveway, and he could hear the engine "rapidly accelerating." Officer
Becker found the driver—later identified as Millard—slumped over in the driver's seat of
the pickup.
Officer Becker approached the truck on the passenger side while another officer
walked up to the driver's side and began pounding on the window. Although the officers
did not see Millard attempt to put the pickup into gear, they did observe that his foot was
on the accelerator with the engine running. During Officer Becker's contact with Millard,
the officer observed an odor of alcoholic beverages, slurred speech, bloodshot eyes, poor
balance, and poor coordination. Millard also admitted to consuming alcoholic beverages
that night.
The officers attempted to get Millard to perform standard field sobriety tests after
they were finally able to get him out of the pickup. Officer Becker testified that he
requested the field sobriety tests "[d]ue to the odor of alcohol . . . , the bloodshot, watery
eyes, the initial call, him slumped over in his vehicle, [and] the vehicle running." The
officer also testified Millard did not cooperate during field sobriety testing. Ultimately,
based on his observations, Officer Becker arrested Millard for suspicion of driving under
the influence. It is undisputed that Millard refused to take a chemical evidentiary breath
test when requested to do so following his arrest. As a result, Officer Becker informed
Millard that his driving privileges would be suspended based on his test refusal.
2
Officer Becker completed and served on Millard a revised DC-27 form. On the
form, the officer indicated that there were reasonable grounds/probable cause to believe
that Millard had been attempting to operate a vehicle while under the influence of
alcohol. Officer Becker wrote that Millard "was sitting in the driver's seat, passed
(slumped over) out, vehicle running, no others inside." At the evidentiary hearing before
the district court, Officer Becker testified that he suspected Millard had attempted to
operate a vehicle because the vehicle was running, his foot was on the accelerator, the
keys were in the ignition, and Millard was passed out.
Millard initially sought an administrative hearing under K.S.A. 2018 Supp. 8-
1020(a)(1) to challenge the suspension of his driver's license. The administrative law
judge upheld the suspension, and Millard sought judicial review in the district court. On
November 19, 2019, the district court held an evidentiary hearing at which Officer
Becker was the only witness. At the conclusion of the hearing, the district court gave the
parties the opportunity to file written closing arguments.
In a written memorandum decision filed on December 13, 2019, the district court
denied Millard's request to set aside the suspension of his driver's license. Specifically,
the district court found that the officers had reasonable suspicion to believe that Millard
"had been operating or was attempting to operate a motor vehicle." Thereafter, Millard
filed a timely notice of appeal.
ANALYSIS
Standard of Review
Our review of an agency decision is governed by the Kansas Judicial Review Act
(KJRA), K.S.A. 77-601 et seq. See K.S.A. 2018 Supp. 8-259(a); Rosendahl v. Kansas
Dept. of Revenue, 310 Kan. 474, 480, 447 P.3d 347 (2019). In reviewing a district court's
3
decision after a trial de novo, we must first determine whether the district court's factual
findings are supported by substantial competent evidence. In doing so, we give deference
to the district court's credibility findings and do not reweigh conflicting evidence. We
then determine whether the factual findings support the district court's ultimate legal
conclusion. Our review of conclusions of law is unlimited. Casper v. Kansas Dept. of
Revenue, 309 Kan. 1211, 1213-14, 442 P.3d 1038 (2019); Swank v. Kansas Dept. of
Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). The petitioner—in this case Millard—
has the burden to establish that the district court erred. See K.S.A. 2018 Supp. 8-1020(q).
Reasonable Suspicion to Extend Public Safety Encounter
On appeal, Millard challenges whether the officers had a reasonable and
articulable suspicion of criminal activity to justify the extension of what started as a
public safety encounter to a driving under the influence investigation. The Fourth
Amendment to the United States Constitution provides that "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures shall not be violated." Section 15 of the Kansas Constitution Bill of Rights
contains similar language, providing "the same protection from unlawful government
searches and seizures as the Fourth Amendment." State v. Neighbors, 299 Kan. 234, 239,
328 P.3d 1081 (2014). Whenever an officer interacts with a person in a public place, the
person's Fourth Amendment rights are implicated.
Kansas has recognized four types of interactions between law enforcement officers
and members of the public: (1) voluntary encounters; (2) investigatory detentions; (3)
welfare checks or public safety encounters; and (4) arrests. State v. Cleverly, 305 Kan.
598, 605, 385 P.3d 512 (2016). In this judicial review action, the parties agree that the
officers approached Millard for a public safety encounter, in which an officer may
approach a person to check on his or her welfare. See State v. Manwarren, 56 Kan. App.
2d 939, 946, 440 P.3d 606 (2019); Nickelson v. Kansas Dept. of Revenue, 33 Kan. App.
42d 359, 363-64, 102 P.3d 490 (2004). Public safety encounters—which fall under law
enforcement's community caretaking function—allows for officers to check on a person's
welfare for safety as well as to provide assistance. See State v. Ellis, 311 Kan. 925, 930,
469 P.3d 65 (2020).
Once the officer is assured that a person is not in peril or is no longer in need of
assistance, any extension of the encounter must be justified under the Fourth Amendment
protections. Manwarren, 56 Kan. App. 2d at 947. In other words, a public safety
encounter must be narrowly tailored to the reason for the stop or encounter and must not
last any longer than necessary to fulfill the original purpose. State v. Gonzales, 36 Kan.
App. 2d 446, 455, 141 P.3d 501 (2006). In addition, a public safety encounter is not
intended for investigative purposes and should be "divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal statute."
State v. Messner, 55 Kan. App. 2d 630, Syl. ¶ 2, 419 P.3d 642 (2018).
Nevertheless, the nature of a police-citizen encounter can change, and what may
begin as a welfare check can transform into an investigative detention if the police officer
makes additional observations of potential criminal conduct. Once law enforcement has
completed the purpose of the initial detention, the detained person must be free to go
unless the officer has a reasonable suspicion of criminal conduct. Ellis, 311 Kan. at 931;
State v. Chapman, 305 Kan. 365, 370, 381 P.3d 458 (2016). Reasonable suspicion is
defined as a "'minimum of objective justification' which is 'considerably less than proof
of wrongdoing by a preponderance of the evidence.'" State v. Doelz, 309 Kan. 133, 139,
442 P.3d 669 (2019).
Reasonable suspicion requires more than just a hunch; the officer must be able to
state a particularized and objective basis for believing the person is engaged in criminal
activity. State v. Lowery, 308 Kan. 359, 366, 420 P.3d 456 (2018). The United States
Supreme Court has recognized that reasonable suspicion is a lower standard than
5
probable cause, and officers should be permitted to make "'commonsense judgments and
inferences about human behavior.' [Citations omitted.]" Kansas v. Glover, 589 U.S. ___,
140 S. Ct. 1183, 1188, 206 L. Ed. 2d 412 (2020). Whether reasonable suspicion exists is
a question of law. State v. Thomas, 291 Kan. 676, 688, 246 P.3d 678 (2011).
An officer is justified in investigating an individual for driving under the influence
when there is a reasonable and articulable suspicion that the person operated or attempted
to operate a vehicle while impaired by alcohol. See K.S.A. 2018 Supp. 8-1567(a);
Strickert v. Kansas Dept. of Revenue, 58 Kan. App. 2d 1, 11, 462 P.3d 649 (2020), rev
denied 312 Kan. 902 (2020). The Kansas Implied Consent Act, K.S.A. 8-1001 et seq.,
similarly states that an officer may request a person to submit to various forms of testing
for drugs or alcohol if at the time of the request the officer has reasonable grounds to
believe the individual was operating or attempting to operate a vehicle while under the
influence of alcohol. K.S.A. 2018 Supp. 8-l00l(b)(l).
Here, there is no dispute that the officers initially contacted Millard for legitimate
safety and welfare reasons based on a report that there was a vehicle running, the engine
revving up, and a person slumped over in the driver's seat. Based on the information
developed during this encounter, Officer Becker testified that he suspected Millard was
attempting to operate the vehicle when he arrived on the scene because he was in the
driver's seat and the vehicle was running with the keys in the ignition. Moreover, the
officer found it significant that Millard's foot was pressing down the accelerator.
After hearing the testimony and considering the evidence, the district court noted:
"[W]hen the officer arrived, he observed a vehicle with the keys in the ignition, the
engine running and a person was slumped over the steering wheel, either asleep or passed
out. The person's foot was on the accelerator causing the engine to rev up. There was
difficulty in awakening the person in the driver's seat. Once awakened, there was
evidence of intoxication."
6
Each of these findings are supported by substantial competent evidence in the
record. Likewise, we find that it is reasonable to infer based on the evidence in the record
that Millard was attempting to operate the pickup truck. The evidence also supports a
reasonable and articulable suspicion to justify the extension of the public safety encounter
to investigate criminal activity.
Millard points to evidence in the record that suggests that he had not operated or
attempted to operate a vehicle. In particular, Millard points out that the pickup truck was
in the driveway of his own residence at the time of the public safety encounter. Certainly,
it is possible that Millard was not attempting to operate his pickup. However, we must
focus on whether there is substantial competent evidence to support the officers'
suspicion that Millard was engaged in criminal activity.
The parties cite a series of cases focusing on the issue of attempt or attempting to
operate a vehicle in which Kansas courts analyzed whether evidence supported a criminal
conviction under K.S.A. 8-1567 beyond a reasonable doubt. As we review these cases,
we note that in Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 836, 888 P.2d 832(1995), our Supreme Court recognized that in a driver's license suspension case in which
the driver refused an evidentiary breath test, the State need only prove that the officer had
reasonable grounds to believe the person was operating or attempting to operate a vehicle
while under the influence of alcohol or drugs rather than proof beyond a reasonable
doubt. In that case, the officer saw a running vehicle stopped at a stop sign. The vehicle
was in gear, the headlights on, and the driver was passed out with his foot on the brake.
In State v. Fish, 228 Kan. 204, 210, 612 P.2d 180 (1980), the Kansas Supreme
Court initially construed the phrases "to operate" similar to "to drive" as requiring
evidence, direct or circumstantial, that a criminal defendant drove a vehicle while
impaired. The defendant in Fish was found in a vehicle parked off the roadway with the
engine on and the vehicle in park. Our Supreme Court rejected the State's argument that
7
the phrase "to operate" should be construed more broadly than "to drive," finding the
terms should be used interchangeably. 228 Kan. at 209-10. The court concluded that there
must be some evidence, either direct or circumstantial, that the defendant drove the
vehicle while intoxicated in order for the defendant to be convicted under K.S.A. 1979
Supp. 8-1567. 228 Kan. at 210.
After the narrow holding in Fish, the Legislature amended K.S.A. 8-1567 to
encompass a broader range of conduct. In State v. Kendall, 274 Kan. 1003, 58 P.3d 660(2002), the Kansas Supreme Court recognized that the Legislature amended K.S.A. 8-
1567—most likely in response to the holding in Fish—to prohibit "the operation or
attempt to operate any vehicle by a person under the influence of alcohol." L.1985, ch.
48, § 9. The defendant in Kendall was observed to be asleep and slumped over his
steering wheel in the middle of a public street. The vehicle was running, the gear in
neutral, and the defendant's foot was on the brake pedal. Even though no one observed
the vehicle move, the court concluded that the jury's finding that Kendall attempted to
operate the vehicle was supported by sufficient evidence. 274 Kan. at 1012.
Relevant here, the Kendall court noted the Legislature's amendment to the DUI
statute appeared to encompass those who merely tried but failed to drive the vehicle. 274
Kan. at 1009. Likewise, the Legislature made similar changes to the Implied Consent
laws. L.1985, ch. 48, § 3. In State v. Ahrens, 296 Kan. 151, 157, 290 P.3d 629 (2012), our
Supreme Court concluded that this change was the Legislature's "attempt to express its
intent that the term 'operate' should be broadly construed."
In State v. Darrow, 304 Kan. 710, 374 P.3d 673 (2016), the Kansas Supreme
Court affirmed the DUI conviction of a defendant who was observed to be passed out
behind the wheel of a vehicle with the vehicle ignition on. When law enforcement woke
the driver up, he fumbled with the gears, but the vehicle stayed in park. The Darrow
court found sufficient evidence to affirm his conviction for DUI, specifically noting that
8
Darrow attempted to manipulate the controls of the vehicle. 304 Kan. at 719. The Darrow
court recognized that the amendments to the DUI statute signaled a broader set of factual
circumstances, but it found that evidence of driving, moving the vehicle, or attempting to
drive still needed to be presented to support a conviction under K.S.A. 8-1567. 304 Kan.
at 714. In Darrow, the court found the defendant committed an overt act of driving by
attempting to manipulate the controls of the vehicle. 304 Kan. at 719.
In State v. Sprague, No. 105,827, 2012 WL 3822625 (Kan. App. 2012)
(unpublished opinion), an officer found the driver asleep and slumped over the steering
wheel in the driver's seat of a vehicle parked on the side of the road. The engine was
running, and the radio was playing. The driver claimed that his cousin had driven him
home from a local bar, and he "passed out" in the passenger seat on the way home. 2012
WL 3822625, at *1. The driver testified that he did not remember how he ended up in the
driver's seat. In finding sufficient evidence to support a conviction under K.S.A. 8-1567,
a panel of this court held that "[t]he jury could infer from the evidence that Sprague had
driven the truck home because he was found in the driver's seat with the engine still
running." 2012 WL 3822625, at *7. See State v. Adame, 45 Kan. App. 2d 1124, 1129,
257 P.3d 1266 (2011) (holding sufficient evidence supported a conviction for DUI when
evidence showed the driver sat on the driver's side of the vehicle with the key in the
ignition and attempted to start the vehicle); State v. Stottlemire, No. 105,284, 2011 WL
4357860, at *3 (Kan. App. 2011) (unpublished opinion) (finding sufficient evidence to
support the element of attempt to operate because the deputy saw the driver in the driver's
seat of a parked SUV with a key in the ignition, the motor running, and the driver
admitted that she started the vehicle); Kent v. Kansas Dept. of Revenue, No. 104,554,
2011 WL 3276227, at *5 (Kan. App. 2011) (unpublished opinion) (finding officer had
reasonable suspicion that driver had operated or attempted to operate a vehicle when
driver was found asleep at the wheel of his parked vehicle, the seat reclined, the engine
running, and the car radio blaring); Braun v. Kansas Dept. of Revenue, No. 88,869, 2003
WL 25756415, at *4 (Kan. App. 2003) (unpublished opinion) (reasonable suspicion
9
existed for officer to believe that driver had operated or attempted to operate his vehicle
while under the influence of alcohol when a deputy found Braun intoxicated, asleep in his
running vehicle which was parked on the shoulder of a rural road, and the hazard lights
were activated).
It is important to recognize that these criminal cases addressed the issue of
whether there was sufficient evidence to prove beyond a reasonable doubt that a crime
was committed under K.S.A. 8-1567. Here, in this appeal from the district court's review
of an administrative action, we are dealing with a substantial competent evidence
standard rather than the higher standard of beyond a reasonable doubt. As discussed
above, the record in this judicial review action shows that the officers observed Millard
slumped over in the driver's seat, the vehicle was running, and Millard was pushing the
gas pedal to the floor, which resulted in the engine repeatedly revving. The officers also
observed signs consistent with intoxication, such as the odor of alcohol, Millard's
bloodshot and watery eyes, and the fact that he was observed slumped over in his vehicle
while the vehicle was running, and the engine was revving.
As our Supreme Court has held:
"'An officer is not required to disregard information which may lead him or her to suspect
independent criminal activity during a traffic stop. When "the responses of the detainee
and the circumstances give rise to suspicions unrelated to the traffic offense, an officer
may broaden his inquiry and satisfy those suspicions."'" State v. Schooler, 308 Kan. 333,
346, 419 P.3d 1164 (2018) (quoting State v. Morlock, 289 Kan. 980, 996, 218 P.3d 801[2009]).
In this action, there is substantial evidence in the record to support the extension of
the public safety encounter based on a reasonable and articulable suspicion that Millard
had operated or attempted to operate the pickup while intoxicated. As such, we find
evidence in the record to support the officer's reasonable suspicion that Millard had
10
committed or was committing a crime and further detain him for a DUI investigation. See
K.S.A. 2018 Supp. 8-1567. This evidence supported the officer's decision to extend the
public safety encounter into an investigatory detention and subsequent arrest. Thus, the
decision by the officers to further detain Millard for an investigation for driving under the
influence was justified.
Accordingly, we affirm the district court's decision to uphold the KDOR's
suspension of Millard's driver's license.
Affirmed.
11