Vlcek v. Kansas Dept. of Revenue ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,592
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DUSTIN VLCEK,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
MEMORANDUM OPINION
Appeal from Russell District Court; LISA BERAN, judge. Opinion filed January 20, 2023.
Affirmed.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
Ted E. Smith, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before ISHERWOOD, P.J., ATCHESON, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: The Kansas Department of Revenue (KDOR) suspended Dustin
Vlcek's driver's license as provided in K.S.A 2019 Supp. 8-1002 after Vlcek failed a
breath test. Vlcek's sole claim on appeal is that the district court erred in finding law
enforcement had reasonable grounds to request testing. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 9, 2020, at around 1 a.m., the Chief of Police for the City of Wilson
initiated a traffic stop of Dustin Vlcek for speeding and committing a lane violation.
Although the stop originated within the city limits of Wilson, it ended outside of town.
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Because of the potential jurisdiction issue this might create, and because he suspected
Vlcek of being impaired by drugs or alcohol, the Chief of Police summoned Highway
Patrol Trooper Ryan Baxter to the scene. The Chief indicated his suspicion of impairment
to Baxter before he arrived.
Once at the scene, Trooper Baxter approached Vlcek's vehicle and noted that
Vlcek was the only occupant in the car. Baxter did not immediately observe any
indications of impairment by Vlcek. Baxter asked Vlcek whether he had been drinking
that night, and he admitted to drinking one beer and that he had alcohol in his car. Baxter
located a cooler containing the beer in Vlcek's backseat.
Vlcek agreed to submit to field sobriety testing, and once Vlcek was out of his
vehicle, Trooper Baxter noticed that Vlcek's speech was slurred, he appeared to have
difficulty comprehending and responding to Baxter's questions, and his eyes were watery.
These were all things that Baxter was trained to recognize as signs of possible
impairment. And based on his training, Baxter believed these were signs that Vlcek was
in violation of driving under the influence (DUI) of alcohol.
Vlcek agreed to perform a "toe-to-heel"—or "walk-and-turn"—test as a part of his
field sobriety testing. Based on his training, Trooper Baxter knew to look for eight clues
of impairment during this test. Baxter noted that Vlcek was unable to maintain a steady
starting position while receiving instructions on how to perform the test. Vlcek also failed
to maintain proper toe-to-heel steps. He also stepped to the side, swayed, and used his
arms for balance. Baxter scored Vlcek as exhibiting three of the eight possible
impairment clues.
Vlcek also performed a one-leg-stand test, during which Trooper Baxter observed
additional signs of impairment. Baxter noted that Vlcek lost his balance and put his
second foot down multiple times during the 20- to 30-second time frame that he was
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supposed to stand with one foot up. Vlcek exhibited one of four possible impairment
clues according to Baxter.
Vlcek submitted to a preliminary breath test (PBT), which showed a positive
reading for alcohol consumption based on a .220 blood alcohol content. Trooper Baxter
then arrested Vlcek for DUI.
After receiving a certification and notice of suspension of his driver's license,
known as a DC-27 form, Vlcek requested an administrative hearing. On July 27, 2020, an
administrative hearing officer considered the matter and affirmed Vlcek's license
suspension. Finding that Trooper Baxter had reasonable grounds to suspect Vlcek of DUI
and therefore to administer a breath test under K.S.A. 8-1001, the hearing officer
affirmed the suspension of Vlcek's driving privileges.
Vlcek timely petitioned for judicial review of the hearing officer's determination,
arguing Trooper Baxter lacked reasonable grounds to request testing. At the hearing
before the district court, Baxter was the only witness.
In his testimony, Trooper Baxter provided the details surrounding Vlcek's stop and
arrest as already outlined. Baxter testified that he knew that the Wilson Chief of Police
suspected Vlcek of DUI, but Baxter was not allowed to testify about the specific
information relayed to him by the Chief because the district court sustained Vlcek's
objection to such testimony as hearsay evidence.
Vlcek argued in closing that the results of the PBT were inadmissible and should
not be considered by the district court in determining whether reasonable grounds existed
to request a breath test under K.S.A. 8-1001(b)(1). Vlcek specifically claimed that
Trooper Baxter performed a "pre-arrest" search when he administered the breath test, so
the search incident to arrest exception generally authorizing breath tests did not apply.
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The district court agreed and granted Vlcek's motion to suppress the results of the
PBT, finding Vlcek did not voluntarily consent to the test. However, even without
considering the test results, the district court ultimately affirmed the suspension of
Vlcek's license. The district court found Trooper Baxter had reasonable grounds to
request the evidentiary breath test because Vlcek
• admitted to drinking and having alcohol in the car;
• slurred his speech and had slow responses to questions;
• had watery eyes; and
• performed field sobriety tests in a way which indicated "balance and coordination
issues."
Vlcek timely appeals. The KDOR does not cross-appeal the district court's
inadmissibility finding on the PBT.
ANALYSIS
The only issue that Vlcek raises on appeal is whether Trooper Baxter had
reasonable grounds to believe Vlcek drove under the influence of alcohol, thus allowing
Baxter to request testing pursuant to K.S.A. 2019 Supp. 8-1002(a)(2).
Standard of Review
When reviewing a district court's decision in a driver's license suspension case, we
review the district court's factual findings for substantial competent evidence. We then
decide 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). Substantial
competent evidence is evidence that has both relevance and substance and provides a
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substantial basis of fact from which the court can reasonably resolve the issues. Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071 (2015).
When determining whether substantial competent evidence supports the district
court's findings, "'appellate courts must accept as true the evidence and all the reasonable
inferences drawn from the evidence which support the district court's findings and must
disregard any conflicting evidence or other inferences that might be drawn from it.'"
Casper, 309 Kan. at 1220. This court will not reweigh evidence, resolve evidentiary
conflicts, or make witness credibility determinations. State v. Chandler, 307 Kan. 657,
668, 414 P.3d 713 (2018).
Discussion
K.S.A. 2019 Supp. 8-1001(b)(1) provides in relevant part that if an officer has
"probable cause" to believe a driver is DUI and the person has been arrested or taken into
custody, the officer shall request the person to submit to a breath or blood test. If the
driver fails the test, an officer must follow certain procedures, including preparing an
appropriate certification and providing the driver proper notice of suspension. See K.S.A.
2019 Supp. 8-1001(c); K.S.A 2019 Supp. 8-1002(a)(2) and (b)-(d). This was the
procedure followed in Vlcek's case.
Another panel of this court recently explained that regardless of the use of the
terms "probable cause" versus "reasonable grounds" in the applicable statues, this court's
analysis is the same:
"[U]ntil July 2018, the statutory standard to request a breath test was 'reasonable grounds
to believe' rather than the current 'probable cause.' See K.S.A. 2017 Supp. 8-1001(b)(1).
But the statutory provision requiring law enforcement certification of the results retains
the 'reasonable grounds' language. See K.S.A. 2018 Supp. 8-1002(a)(1)-(2). That said,
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because Kansas courts treat reasonable grounds as synonymous with probable cause,
there is no material difference between these two standards in this context and they
should be considered interchangeable throughout this opinion. See Swank[ v. Kansas
Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012)]." Burris v. Kansas Dept. of
Revenue, No. 122,914, 2021 WL 2766276, at *3 (Kan. App. 2021) (unpublished
opinion).
Also, "establishing probable cause to support a request for a breath test simultaneously
establishes probable cause for a lawful arrest. See Casper, 309 Kan. at 1215." Burris,
2021 WL 2766276, at *3. Probable cause exists when an officer has a "'reasonable belief
that a specific crime has been or is being committed and that the defendant committed the
crime.'" Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012).
Before the KDOR can suspend a person's driving privileges after a breath test
failure, a law enforcement officer must certify the officer had "reasonable grounds" to
believe that the person operated a vehicle while under the influence of alcohol. K.S.A.
2019 Supp. 8-1002(a)(2).
Vlcek, having successfully suppressed the results of the PBT, argues the only
evidence presented to establish reasonable grounds was Vlcek's performance on the
standardized field sobriety tests, "with nothing else presented to the court to support the
arrest." And he compares his field sobriety test results with the results of the field
sobriety tests in Casper, noting that there were more field sobriety test "clues" present in
Casper, which the court found to be insufficient to establish reasonable grounds. Vlcek
argues "probable cause requires actual evidence of impairment due to alcohol
consumption not just suspicion without factual support."
Under K.S.A. 2019 Supp. 8-1020(q), Vlcek carries the burden to show that the
agency decision to suspend his license should be set aside. Here, he contends only that
Trooper Baxter lacked probable cause to believe that Vlcek had committed a violation of
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K.S.A. 8-1567. Although Vlcek acknowledges "[p]robable cause determinations are
highly case and fact specific," other than the results of the field sobriety tests, he
disregards or dismisses factors testified to by Baxter and cited by the district court in its
ruling. Thus, Vlcek's admission of drinking, the presence of alcohol in the car, slurred
speech, watery eyes, slowness in responding to Baxter, and difficulty communicating, are
either not addressed or are summarily categorized as "signs of alcohol consumption, but
not impairment."
Casper does not establish a threshold score for any field sobriety test, and a field
sobriety test score is not the only evidence to be considered in a reasonable grounds or
probable cause inquiry. The analysis by the Supreme Court in Casper largely reflects the
nature of the standard of review—whether there is substantial competent evidence
supporting the decision made by the district court. As noted above, appellate courts do
not reweigh evidence or make credibility determinations. The district judge in Casper
articulated the facts and inferences upon which it based its decision, and the Supreme
Court concluded the evidence in the record supported the district court's conclusion in
that case. 309 Kan. at 1221.
Here, the district court issued a written, well-articulated analysis of the law and a
recitation of the facts supporting its ultimate conclusion. As the district court order notes,
the probable cause determination is based on the "totality of information and reasonable
inferences available to the arresting officer." Citing our court's unpublished decision in
Jackson v. Kansas Dept. of Revenue, No. 118,504, 2018 WL 3596022 (Kan. App. 2018)
(unpublished opinion), the district court properly recognized it was required to review the
totality of the circumstances to determine whether there were reasonable grounds to
request an evidentiary breath test. And the totality of the circumstances encompasses all
facts and inferences, not just a select few. State v. Jones, 300 Kan. 630, 645, 333 P.3d
886 (2014). The suppression of the PBT did not resolve the case, nor did the relatively
low number of clues of impairment from the field sobriety tests end the inquiry. Vlcek
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focuses entirely on scores from the field sobriety tests, and the fact Trooper Baxter did
not immediately see signs of impairment in his initial interaction with Vlcek. The district
court was required to, and did, analyze all of the information and evidence known to the
arresting officer.
Trooper Baxter's report of the incident shows that the Wilson Chief of Police
initiated a stop because Vlcek committed traffic violations, including speeding and a lane
violation. Baxter did—contrary to Vlcek's suggestion otherwise—consider Vlcek's
slurred speech, slowed responses, and watery eyes as indications of impairment. Baxter
unequivocally testified that he made each of those observations according to his training
and as a part of his investigation for alcohol impairment. To the extent that Vlcek claims
those observations were not indications of impairment, or that the district court
improperly considered those facts in its analysis, we plainly reject his argument as
unsupported.
The district court necessarily relied exclusively on the testimony of Trooper
Baxter in making its decision. Vlcek's admission to drinking and having alcohol with him
in the car, slurred speech, slow and confused responses, watery eyes, and indications of
impairment during his field sobriety testing altogether support the finding of reasonable
grounds to request testing under the Kansas implied consent statute. See K.S.A. 2019
Supp. 8-1002(a)(2). We find Baxter's testimony provides substantial competent evidence
upon which the district court based its findings and consequently affirm the district
court's order affirming the suspension of Vlcek's driving privileges.
Affirmed.
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