Opinion
No. 106,893.
2012-11-16
Steven SPEAKMAN, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
Appeal from Ford District Court; Van Z. Hampton, Judge. John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellant. Derek W. Miller, of Miller Law Firm, LLC, of Liberal, for appellee.
Appeal from Ford District Court; Van Z. Hampton, Judge.
John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellant. Derek W. Miller, of Miller Law Firm, LLC, of Liberal, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Department of Revenue (KDR) appeals the reinstatement of Steven Speakman's driver's license. The KDR argues that reasonable grounds existed to believe Speakman was operating a vehicle while under the influence of alcohol or drugs (DUI). We affirm.
On February 24, 2010, Steven Speakman was visiting his family in Dodge City, Kansas. Speakman's brother, David, picked him up in David's sport utility vehicle (SUV), and the two went to H.D.'s Sports Bar. While at the bar, Speakman became disorderly and the staff had David escort him out of the bar. H.D.'s contacted the Dodge City Police Department and reported Speakman's disturbance. Ford County Communications informed the police that Speakman and David left the bar in a gray SUV.
A Dodge City police officer attempted to stop the SUV, but the vehicle fled from the officer and he lost sight of it. The SUV crashed at Avenue B and Elm, hitting a curb and then running over a stop sign. When Officer Russell Fleming arrived at the scene of the crash about a minute after the crash, the driver's door was the only door open on the vehicle. Speakman was the only person Fleming found at the scene of the accident. Fleming located Speakman urinating on the side of a house. The officers tried to find David but were unsuccessful.
Officer Knox contacted a witness, Ms. Rubalcava, who lived nearby. She told the officers she heard the crash and looked out to see the SUV sitting in her neighbor's yard. She then saw a male jump out of the driver's side of the car and begin running. She did not see any other people leave the vehicle. Rubalcava identified Speakman as the person she saw get out of the driver's side of the vehicle.
Fleming placed Speakman under arrest for DUI. Fleming asked Speakman to submit to testing, but Speakman refused. Based on these events, Fleming completed an Officer's Certification and Notice of Suspension. Fleming certified he had reasonable grounds to believe Speakman had been operating a vehicle while under the influence of alcohol and/or drugs.
The KDR affirmed the suspension of Speakman's driver's license. Notes from the administrative hearing indicated Speakman testified that his brother was driving.
Speakman filed a petition for review of the agency action. On August 3, 2011, the district court held a trial. At the trial, Speakman testified that he did not drive his brother's vehicle on the date in question. He testified that he was too drunk to be in H .D.'s bar, so his brother escorted him out of the bar and loaded him into the SUV. Speakman said he laid down and “passed out” for a little bit and was awakened by the car moving around swiftly. He then got out of the car and urinated on the house that was closest to him, at which time he was approached by the police.
After hearing the testimony of Speakman and Fleming, the district court noted that the testimony indicated that both brothers were in the vehicle, that Speakman testified under oath that he was not driving, and that the witness did not see the accident, which caused him to believe that the witness was mistaken regarding which of the brothers she saw running from the vehicle.
The district court reversed the suspension of Speakman's driver's license and reinstated his driving privileges. The KDR appeals that decision.
Reasonable Grounds
The sole issue in this case is whether Fleming had reasonable grounds to believe Speakman was operating the SUV. See Furthmyer v.. Kansas Dept. of Revenue, 256 Kan. 825, 836, 888 P.2d 832 (1995). At times, the KDR points to the overwhelming evidence supporting a finding of Speakman's impairment, but as Speakman points out, he does not contest his impairment; he only argues he was not driving. Therefore, the only question is whether Fleming had reasonable grounds to believe Speakman drove the SUV.
K.S.A.2009 Supp. 8–1001(b)(1) directs a law enforcement officer to request that a person submit to a blood or breath alcohol test if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle under the influence of alcohol. The question before this court is whether the facts known to Fleming gave him reasonable grounds to believe that Speakman had been driving under the influence of alcohol—which required that the officer have reasonable grounds to believe that Speakman had been driving the vehicle. See K.S.A.2009 Supp. 8–1001(b); K.S.A.2009 Supp. 8–1567(a).
In a driver's license suspension case, an appellate court reviews the district court's determination of facts under a substantial competent evidence standard. However, where the district court's ultimate decision involves a question of law, the administrative action is subject to de novo review. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008); Mitchell v. Kansas Dept. of Revenue, 41 Kan.App.2d 114, 118, 200 P.3d 496,rev. denied 289 Kan. 1279 (2009).
Whether an officer had reasonable grounds is a mixed question of fact and law. Poteet v. Kansas Dept. of Revenue, 43 Kan.App.2d 412, 415, 233 P.3d 286 (2010). First, the court must determine whether substantial evidence supports the district court's factual findings; if so, this court must accept them. Once the facts are clarified, this court must independently determine whether those facts provided reasonable grounds for the officer to believe that Speakman had been operating a vehicle under the influence of alcohol. See Poteet, 43 Kan.App.2d at 414–15. In Poteet, the panel discussed the importance of “review[ing] the ultimate legal conclusion—whether reasonable grounds existed—independently, even though we must defer to the district court's factual findings.” 43 Kan.App.2d at 415. The court noted that “independent review of the ultimate conclusion of whether reasonable suspicion, probable cause, or the like exists is ‘necessary if appellate courts are to maintain control of, and to clarify, the legal principles' at stake. [Citation omitted.]” 43 Kan.App.2d at 415. Contra Kent v. Kansas Dept. of Revenue, No. 104,554, 2011 WL 3276227, at *2 (Kan.App.2011) (unpublished opinion) (treating reasonable grounds as a question of fact and noting that the scope of review was limited to whether there is substantial competent evidence to support the district court's findings).
The first inquiry, therefore, is whether substantial competent evidence supports the district court's factual findings. “Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. [Citation omitted.]” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). When determining whether there is substantial competent evidence, this court does not weigh conflicting evidence, assess the credibility of the witnesses, or redetermine factual questions. Mitchell v. Kansas Dept. of Revenue, 32 Kan.App.2d 298, 301, 81 P.3d 1258 (2004).
The district judge found:
“Well, it would have been helpful to have additional accounts presented by witnesses. But, I'm going to make a finding that the determination of facts by the hearing officer were not—the facts were not supported by evidence that's substantial, because the driver was not—or, the purported driver was not available, was not the subject of any interview or testimony.
“And, the Petitioner here has testified under oath that he was not driving. The witness did not see the accident, but claims to have seen the Petitioner herein running from the area. But, at the same time, other evidence also indicates that both brothers were in the vehicle, so.
“Which, causes me to believe that the witness was mistaken in which brother was running from the vehicle. So, I'm going to find that it was an erroneous finding.”
The district court made two credibility determinations related to the ultimate conclusion that Fleming lacked reasonable grounds to believe that Speakman was operating the vehicle. See Ketchum v. Kansas Dept. of Revenue, No. 104, 184, 2011 WL 1878140, at *3 (Kan .App.2011) (unpublished opinion). First, the court believed Speakman's testimony that he was not driving the vehicle, and second, the court thought that the witness was mistaken regarding which brother she saw exiting the driver's side of the vehicle. The court also made a factual finding that both brothers were in the vehicle, which is supported by substantial competent evidence.
The next issue, therefore, is whether these credibility determinations and factual findings support the court's legal conclusion. The district court, however, did not explicitly make a finding regarding the ultimate legal issue in this case—whether Fleming had reasonable grounds to believe Speakman was driving. See Poteet, 43 Kan.App.2d at 415–16. However, on appeal, because this court must independently consider this issue, remand for additional findings is not required. See Poteet, 43 Kan.App.2d at 416; see also Johnson v. Kansas Dept. of Revenue, No. 105,052, 2011 WL 4717364, at *4 (Kan.App.2011) (unpublished opinion) (finding that although the district court did not specifically enter conclusions of law on the issue of whether the petitioner had reasonable grounds to refuse an alcohol test, because the district court ultimately upheld the suspension of Johnson's driving privileges, meaningful appellate review was not precluded). Therefore, this court should review the implicit conclusion of law necessary to support the district court's ultimate legal conclusion.
Our Supreme Court has generally considered “reasonable grounds” for requesting DUI breath tests to be substantially similar to the “probable cause” standard used to determine whether an arrest was proper. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656, 256 P.3d 845 (2011). But the court has also recognized that the reasonable-grounds test is somewhat easier to meet: an officer could have reasonable grounds to request a breath test while still not yet having the probable cause required to make an arrest. Allen, 292 Kan. at 656 (citing Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514–15, 242 P.3d 1179 [2010] ); see Landram v. Kansas Dept. of Revenue, No. 104,790, 2012 WL 924803 (Kan.App.2012) (unpublished opinion), petition for rev. filed March 29, 2012.
Regarding the specific question of whether the officer had reasonable grounds to request a breath test under K.S.A.2009 Supp. 8–1001(b), our appellate courts consider, whether, under all the circumstances, a reasonably prudent officer would have believed that the driver's guilt was more than a mere possibility. Shrader v. Kansas Dept. of Revenue, 45 Kan.App.2d 216, 220, 247 P.3d 681 (2011), rev. granted on other grounds 292 Kan. 965 (2011); Poteet, 43 Kan.App.2d at 416; see Allen, 292 Kan. at 660.
Turning to the facts of this case, it is undisputed that Speakman was escorted out of a bar by his brother David to David's vehicle, both facts which lead to an inference that David and not Speakman drove the vehicle. See Poteet, 43 Kan.App.2d at 415 (noting that this court is permitted to consider undisputed facts when reviewing a legal determination). Also, the district court found that the witness who said she saw Speakman exit the driver's side of the vehicle was mistaken. Therefore, the evidence supporting Fleming's reasonable belief was discredited by the district court.
The KDR argues it is irrelevant whether Speakman was actually operating the vehicle because the only issue is whether Fleming had reasonable grounds to believe he was operating the vehicle, citing Furthmyer. In Furthmyer, our Supreme Court held that in a test refusal case, the KDR must only prove that law enforcement had reasonable grounds to believe a person was operating or attempting to operate a motor vehicle while under the influence of alcohol and the KDR need not prove that the person actually operated or attempted to operate the vehicle. 256 Kan. at 836. A panel of this court, however, has noted that the district court's factual conclusion that a petitioner did not actually operate the vehicle only helped support the court's ultimate conclusion that the officer lacked reasonable grounds to believe the petitioner was operating the vehicle. See Ketchum, 2011 WL 1878140, at *4.
The district court's factual finding that Speakman did not drive, therefore, helped support its legal conclusion that the KDR failed to prove exactly what Furthmyer said it needs to prove—the KDR failed to prove that Fleming had reasonable grounds to believe Speakman was operating the vehicle. Giving deference to the district court's findings of fact and considering all the circumstances, a reasonable prudent officer would not have believed that Speakman's guilt was more than a mere possibility.
The KDR argues that courts in other jurisdictions have adopted its position but both cases the KDR cites are factually distinguishable. The KDR first points to Minnesota's decision in State v. Hughes, 355 N.W.2d 500, 501 (Minn.App.1984), which concluded that a person found unconscious and under the influence near a motorcycle accident could be convicted of DUI even though the defendant claimed he was just a passenger on the motorcycle. In Hughes, however, the wrecked motorcycle was registered to Hughes and there was nothing to confirm Hughes' statement that he was only a passenger. The KDR then points to a Missouri Court of Appeals driver's license suspension case where the court reversed the district court's decision restoring driving privileges. Cox v. Director of Revenue, State of Mo., 37 S.W.3d 304 (Mo.App.2000). Cox, however, was found in a rural area next to his own wrecked vehicle and no other people were present.
In this case, unlike Hughes and Cox, we know that the wrecked SUV belonged to Speakman's brother, David, and that David escorted Speakman out of the bar to the SUV. In Hughes, the trial court found that Hughes' theory that he was a passenger was “ ‘too speculative to create a reasonable doubt.’ “ 355 N.W.2d at 502. In contrast, here, Speakman's theory that David drove Speakman away from the bar Speakman had just been asked to leave is the most logical explanation of the events. And in Cox, the court noted that no other evidence existed to detract from the inference that Cox was the driver. 37 S.W.3d at 308. In this case, there was significant evidence detracting from the inference that Speakman was the driver.
In conclusion, the district court's findings of fact are supported by substantial competent evidence and support the legal conclusion that Fleming did not have reasonable grounds to believe Speakman drove the vehicle. The decision of the district court is affirmed.
Affirmed.