Poteet v. Kansas Dept. of Revenue

1
No. 101,986
1


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DORIS POTEET,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.

SYLLABUS BY THE COURT

1.
Whether a law-enforcement officer has reasonable grounds for a particular action
involves a mixed question of law and fact. In such cases, an appellate court must defer to
the district court's factual findings if substantial evidence supports them, but the appellate
court must independently review the ultimate legal conclusion regarding whether the
officer had reasonable grounds.

2.
When an issue involves a legal determination based upon undisputed facts, an
appellate court must consider those facts and decide the legal issue without deference to
the district court's decision.

3.
Under the facts of this case, the officer had reasonable grounds to believe that the
driver had been driving under the influence of alcohol after he observed that she had
driven through a field and a barbed-wire fence, had lost control of the car so that it rolled
onto its side, and had an odor of alcohol about her.

2

Appeal from Pottawatomie District Court; JEFF ELDER, judge. Opinion filed January 15, 2010.
Reversed and remanded with directions.

John D. Shultz, of the Legal Services Bureau, of the Kansas Department of Revenue, for
appellant.

Jacob R. Pugh, of Pugh & Pugh, of Wamego, for appellee.

Before MCANANY, P.J., ELLIOTT and LEBEN, JJ.

LEBEN, J.: Almost all appellate opinions include a section detailing the standard
of review that applies to the decision under review. Many readers just skip over that
discussion and move on to the substantive issue at hand. But the case now before us
illustrates the importance of the standard of review both in its effect on the outcome of
the case and its ability to keep our legal system one in which the rule of law prevails.

This case involves no factual disputes. Kansas Highway Patrol Trooper Jason Edie
arrived on the scene of an auto accident shortly after the car's driver, Doris Poteet, had
been put into a helicopter for transport to a hospital. Looking over the scene, Edie saw a
car lying on its passenger side that looked as if it had been driven through a field and a
barbed-wire fence before it rolled. Medical personnel told Edie that they smelled alcohol
on Poteet and that she had admitted to drinking a couple of glasses of wine, but Edie had
no direct contact with Poteet.

Edie had the Highway Patrol send another trooper to the hospital to obtain a blood
sample from Poteet once she arrived there. That trooper got Poteet's consent, and the
blood test showed her blood-alcohol concentration was 0.17, above the 0.08 legal limit
for drivers. Edie said that he decided to test Poteet's blood because the Highway Patrol

3
always takes a blood sample when a serious accident occurs. He testified that he
suspected that she was driving under the influence of alcohol based solely on the medical
personnel's statements. He also signed a certification that documented the grounds for
believing that Poteet was driving under the influence of alcohol as the "odor of alcoholic
beverages."

Two statutes are at issue here, and we apply them as they existed on the date of
Poteet's accident, August 9, 2007. The first statute, K.S.A. 2007 Supp. 8-1001(b),
provides that a law-enforcement officer shall request a blood, breath, or other test if the
officer has reasonable grounds to believe the person was driving under the influence of
alcohol and one of several other factors is also present. The factor relied upon by the
State in this case was that the person has been involved in a vehicle accident resulting in
personal injury or death.

The second statute, K.S.A. 2007 Supp. 8-1002, requires an officer to document
certain facts when a blood or breath test shows an alcohol concentration above legal
limits. Among other things, the officer must certify that reasonable grounds existed to
believe the person was driving under the influence of alcohol. The form issued for this
purpose by the Kansas Department of Revenue, called a DC-27 form, contains a spot
where the officer can identify the factual basis for this conclusion, which is where Edie
checked a box for "odor of alcoholic beverages."

Based on the blood-test result, the Kansas Department of Revenue suspended
Poteet's driver's license for a year. She lost an administrative hearing and appealed to the
district court, which ruled in her favor. Poteet raised only two issues before the district
court. She lost one of those issues there—whether the person who drew her blood was
properly authorized to do so—and that issue has not been presented to us on appeal. So

4
her only challenge to the license suspension is her claim that Edie didn't have reasonable
grounds to believe she was under the influence of alcohol; the district court accepted that
challenge.

The district court heard testimony from two troopers and Poteet. The court then
concluded that "Edie did not have reasonable grounds for believing that [Poteet] was
under the influence of alcohol." The district court noted that the officer's certification
referenced odor of alcohol as the only factual basis for believing Poteet was under the
influence of alcohol and that odor of alcohol by itself doesn't constitute reasonable
grounds. The Department of Revenue has appealed the district court's decision.

We turn then to the standard of review. When the district court has a trial on
appeal of an administrative suspension of a driver's license, we generally review the
district court's decision under a substantial-evidence standard. Under that standard, we
determine whether substantial evidence supports the district court's decision. If so, we
affirm it. See Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 5, 163 P.3d 313
(2006). Also, under that standard, we do not consider other evidence that might support a
different result as long as sufficient evidence supports the district court's decision. See In
re Estate of Antonopoulos, 268 Kan. 178, 193, 993 P.2d 637 (1999) (under substantial-
evidence review, appellate court disregards evidence that might have supported a
different conclusion than the district court made).

If we were to apply only the substantial-evidence standard of review here, it would
seem that we'd be called upon to affirm the district court's judgment. Edie testified that he
only relied upon the odor of alcohol when he requested the breath test, and our court held
in City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 1101, 54 P.3d 532 (2002),

5
that an odor of alcohol by itself didn't provide reasonable suspicion that a person was too
intoxicated to drive safely.

But there's more to Poteet's case than an odor of alcohol. Edie also observed that
her car had gone through a field and a barbed-wire fence before it rolled onto its side. In
addition, a helicopter took Poteet to a hospital based on her injuries.

We are not required to ignore those undisputed facts because of additional aspects
of the standard of review that apply in Poteet's case. When an issue involves a legal
determination based upon undisputed facts, our review must consider those facts and be
made without deference to the district court's conclusion. State v. Jones, 270 Kan. 526,
527, 17 P.3d 359 (2001); Prewett v. Kansas Dept. of Revenue, 2004 WL 1041355, at *1
(Kan. App. 2004) (unpublished opinion). Put another way, the determination of whether
an officer has reasonable grounds for a particular action involves a mixed question of law
and fact. In such cases, we must review the ultimate legal conclusion—whether
reasonable grounds existed—independently, even though we must defer to the district
court's factual findings. See Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
Here no facts are disputed so we move directly to the legal question.

The 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. Ornelas v. United States,
517 U.S. 690, 697, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996). Otherwise, one trial judge
might determine, as occurred here, that Edie didn't have reasonable grounds based solely
on the odor of alcohol. We would review only to see whether substantial evidence
supported that conclusion. Finding that there was, we'd affirm. But another trial judge
might determine that Edie had reasonable grounds based on both the odor of alcohol and

6
the facts of the accident. We'd then affirm the opposite conclusion because it too had
evidence supporting it. But neither the public nor law-enforcement officers would have
rules to guide their conduct, and such varied results would be inconsistent with the rule of
law. See Ornelas, 517 U.S. at 697.

We have independently considered whether Edie had the required "reasonable
grounds" to believe Poteet was under the influence of alcohol when she had her accident,
and we conclude that he did. In addition to the odor of alcohol, Poteet drove through a
field and a barbed-wire fence; she so lost control of the car that it rolled onto its side.
These facts certainly suggest an impaired driver.

Under K.S.A. 2007 Supp. 8-1001(b), Edie was required to seek a blood or breath
test if he had reasonable grounds to believe that Poteet was driving under the influence
and an accident causing personal injury or death occurred—only the reasonable grounds
to believe Poteet was under the influence of alcohol is at issue here. The determination of
reasonable grounds is similar to a determination of probable cause to make an arrest.
Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775, 148 P.3d 538 (2006). Probable
cause to arrest is reached when a reasonably prudent police officer would believe that
guilt is "more than a mere possibility." Campbell v. Kansas Dept. of Revenue, 25 Kan.
App. 2d 430, 431, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998). That standard was
met here.

Poteet argues in her brief that the facts of the accident may not be considered
because the officer didn't cite them on the DC-27 certification form. But our court
recognized in Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 768, 758 P.2d
226, rev. denied 243 Kan. 777 (1988), that the facts contained in the certificate may be
supplemented by testimony and that all of the factual information available to officers

7
when the test was requested may be considered when determining whether the officers
had a sufficient basis for the request. See also K.S.A. 2007 Supp. 8-1001(b) (collective
knowledge of all officers may be considered when requesting test for alcohol). Edie was
well aware of the facts we've noted when he requested the test—he'd observed them with
his own eyes. Poteet also argues that Edie never talked directly to Poteet and didn't even
know the names of the medical personnel who told him about the odor of alcohol. But
probable-cause determinations may be made based upon reliable hearsay information,
and information provided by on-the-scene emergency personnel is sufficiently reliable.
See State v. Landis, 37 Kan. App. 2d 409, 418-19, 156 P.3d 675, rev. denied 284 Kan.
949 (2007).

We also note that the legislature has indicated that an officer has probable cause to
believe a person is under the influence of alcohol whenever the person operates a vehicle
in such a manner as to cause serious injury to anyone, including the driver. K.S.A. 2007
Supp. 8-1001(k). Certainly the combination of the facts of Poteet's accident plus the
reported odor of alcohol about her was sufficient.

We note briefly one other aspect of Edie's testimony that may have led in part to
the district court's ruling. Edie maintained in his testimony that the only factor he had
relied upon to support reasonable grounds was the odor of alcohol; he never cited the
facts of the accident as a basis for his suspicion. The apparent reason for this appears to
be that the Highway Patrol has a policy to take a blood sample in any case involving a
serious accident, as Edie separately testified. We don't know whether that's an accurate
statement of Highway Patrol policy since the statute requires both a serious accident and
reasonable grounds to believe the person was operating the vehicle under the influence of
alcohol. See K.S.A. 2007 Supp. 8-1001(b). Given Edie's understanding of the policy,
however, it's not surprising on a practical level that Edie didn't think of the facts of the

8
accident as a reason for his suspicion that Poteet was under the influence of alcohol—the
policy essentially caused Edie to set those facts aside. But there's no question that Poteet
drove through a field and a barbed-wire fence before the car rolled on its side, and there's
also no doubt that Edie knew it. Edie's failure to cite the facts of the accident as a ground
for his suspicion, either on the DC-27 form or in his testimony, does not eliminate those
facts from proper consideration.

The judgment of the district court is reversed. The case is remanded with
directions to enter judgment affirming the administrative suspension of Poteet's license.

1
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion
to publish pursuant to Rule 7.04 (2009 Kan. Ct. R. Annot. 54). The published version was filed with the
Clerk of the Appellate Courts on April 6, 2010.