State v. Base

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NOT DESIGNATED FOR PUBLICATION

No. 111,581

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN LEE BASE,
Appellant.


MEMORANDUM OPINION

Appeal from McPherson District Court; JOHN B. KLENDA and WILLIAM F. LYLE JR., judges.
Opinion filed November 9, 2017. Affirmed in part, reversed in part, and vacated in part.

Roger D. Struble, of Blackwell & Struble, LLC, of Salina, for appellant.

Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., LEBEN, J., and KEVIN P. MORIARTY, District Judge, assigned.

PER CURIAM: Brian Lee Base appeals his convictions of driving under the
influence (DUI) and criminal refusal of a breath test. Base claims: (1) the district court
erred in denying his motion to suppress the evidence; (2) there was insufficient evidence
to support the DUI conviction; and (3) the district court erred in denying his motion to
dismiss the charge of criminal refusal of a breath test in violation of K.S.A. 2012 Supp. 8-
1025 on the ground that the statute is unconstitutional. We agree only with Base's third
claim. Thus, we reverse Base's conviction of criminal refusal of a breath test and vacate
his sentence for that count, but we affirm Base's conviction and sentence for the DUI.

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FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 2012, at around 12:30 a.m., Trooper Christopher Bauer of the Kansas
Highway Patrol noticed two vehicles driving erratically on a roadway in McPherson
County. One vehicle turned onto another road and Bauer kept following the other vehicle,
a truck driven by Base, because he believed the truck was being driven more erratically
than the other vehicle. According to Bauer, Base drove his truck left of the center line and
was weaving in his own lane. At that point, Bauer activated his in-car camera. Base then
crossed the fog line, traveling into the dirt on the passenger side of the road. Bauer then
activated his emergency lights to execute a stop.

Upon approaching Base's truck, Bauer smelled a strong odor of alcohol. Bauer
observed a passenger in the front passenger seat. Bauer then directed Base to exit his
truck. As Bauer was speaking with Base outside of his truck, Bauer determined that the
odor of alcohol was coming from Base. Bauer also noted that Base's speech was
somewhat slurred and that he had bloodshot, watery eyes. Base was argumentative with
Bauer during questioning, but he admitted to drinking "a couple beers" that evening.

Bauer asked Base to perform the horizontal gaze nystagmus (HGN) test, the walk-
and-turn test, and the one-leg-stand test. Base agreed to perform these tests, but he
expressed a concern that his back problems may hinder his performance. Bauer noted that
there were no adverse weather conditions that could potentially affect Base's performance
on the tests. Bauer's in-car camera captured Base's performance of these tests.

The first test Base performed was the HGN. According to Bauer, the results of this
test indicated that Base was impaired. Bauer next had Base perform the walk-and-turn
test. Bauer observed five out of eight clues during this test. Finally, Base performed the
one-leg-stand test. Bauer observed four out of four clues during this test. After the field
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sobriety tests, Bauer read Base the standard warning for the preliminary breath test
(PBT), but Base refused to take the PBT. Bauer then arrested Base for DUI.

After the arrest, Bauer performed an inventory search of Base's truck and found a
cooler full of beer in the cab of the truck. Bauer then transported Base to the McPherson
County Sheriff's Office. While riding to the sheriff's office, Base admitted that he had
been drinking beer at a bar earlier in the evening. At the sheriff's office, Bauer read Base
the implied consent advisory. Bauer then asked Base to take a breath test on the
Intoxilyzer 8000, but Base refused. Bauer then booked Base into jail.

On August 9, 2012, the State charged Base with DUI in violation of K.S.A. 2012
Supp. 8-1567(a)(3); criminal refusal of a breath test in violation of K.S.A. 2012 Supp. 8-
1025; refusal of a PBT in violation of K.S.A. 2012 Supp. 8-1012; and failure to maintain
a single lane in violation of K.S.A. 2012 Supp. 8-1522. Counsel entered an appearance to
represent Base in district court.

On June 26, 2013, Base filed a motion to suppress and/or dismiss. In the motion,
Base argued that the evidence should be suppressed because Bauer initiated a traffic stop
without reasonable suspicion and because Bauer arrested Base without probable cause.
He also argued that K.S.A. 2012 Supp. 8-1025 was unconstitutional because
criminalizing the refusal to consent to a search violates the Fourth Amendment to the
United States Constitution. The district court held a hearing on Base's motion on
September 3, 2013. Bauer testified at the hearing and related his account of the night of
the arrest. Over Base's objection, the district court allowed Bauer to testify as to the HGN
test.

On September 25, 2013, the district court filed a memorandum decision denying
Base's motion in its entirety. The district court first determined that Bauer had a
reasonable suspicion to stop Base under K.S.A. 2012 Supp. 8-1522(a) because Base's
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truck crossed the fog line into the dirt and there were no adverse weather conditions.
Next, the district court found that Bauer had a reasonable suspicion to detain Base after
the initial stop because he was driving erratically, had watery eyes, slurred speech,
admitted to consuming alcohol, and smelled of alcohol. The district court then ruled that
Bauer had probable cause to arrest Base for the above reasons and because he exhibited
multiple clues during the field sobriety tests and refused the PBT. With respect to the
constitutionality of K.S.A. 2012 Supp. 8-1025, the district ruled that the statute was
constitutional because there is no recognized right for a driver to refuse to take a blood-
alcohol test.

The district court held a jury trial on December 13, 2013. At the beginning of the
trial, Base pled guilty to the charge of refusal to submit to a PBT. Base also stipulated to
the fact that he had a prior conviction for criminal refusal of a breath test. The parties
agreed that the DUI and criminal refusal of a breath test charges would be decided by the
jury, while the charge of failure to maintain a single lane would be decided by the court.

At the trial, the State admitted into evidence and published to the jury the video
recording of Base's performance on the walk-and-turn test and the one-leg stand test.
Parts of the video regarding the PBT refusal and the HGN test were not shown to the
jury, and there was no mention of these tests at the trial. The State's only witness was
Bauer, who related his account of the night of the arrest. Prior to Bauer's testimony, Base
renewed his objections from his motion to suppress and/or dismiss. Base also asked for a
continuing objection, which the district court granted.

Base testified in his own defense. He acknowledged that he had consumed "some
beer" at the bar that evening, clarifying later that some beer meant two cans or bottles.
Base testified that some beer spilled on him at the bar, implying that this was why he
smelled so strongly of alcohol. Base also claimed that a dip in the road caused him to
swerve over the fog line into the dirt. He testified that his speech may have been slurred
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because he had chew in his mouth and his poor performance on the field sobriety tests
was because he had a bad back. Finally, Base testified that he refused to take the
evidentiary breath test because he did not understand the instructions and his friends had
told him never to take the test.

After hearing the evidence, the jury convicted Base of DUI and criminal refusal of
a breath test, and the district court acquitted Base of failure to maintain a single lane. At
the sentencing hearing on February 21, 2014, the district court imposed a term of one
year in the county jail for the DUI conviction, with Base to serve five days in jail and pay
a $1,250 fine. Likewise, the district court sentenced Base to one year for the criminal
refusal conviction, with Base to serve five days in jail and pay a $1,250 fine. The district
court ruled that these sentences were to run concurrently. Finally, the district court fined
Base $105 for his conviction of refusal to take the PBT. Base timely appealed.

MOTION TO SUPPRESS

Base first claims the district court erred in denying his motion to suppress the
evidence. Specifically, Base argues that Bauer lacked reasonable suspicion to initiate a
traffic stop for failure to maintain a single lane in violation of K.S.A. 2012 Supp. 8-
1522(a). Next, Base argues that the detention after the initial stop was improper, claiming
that the odor of alcohol and the admission of drinking did not establish reasonable
suspicion for Bauer to conduct a DUI investigation. Finally, Base contends that Bauer did
not have probable cause to arrest him. The State rebuts each of Base's arguments on this
issue.

When the district court has denied a motion to suppress, the moving party must
make a contemporaneous objection at trial to preserve the issue for appeal. K.S.A. 60-
404; State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014). Here, the district court
denied Base's motion to suppress the evidence of his stop and arrest. When this evidence
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was about to be admitted at trial, Base objected on the grounds set forth in his motion. He
also asked for a continuing objection, which the district court granted. Thus, Base has
preserved this issue for appeal.

The standard of review of a district court's decision on a motion to suppress
applies a bifurcated standard. The appellate court reviews the district court's factual
findings to determine whether they are supported by substantial competent evidence. The
ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016).

The Fourth Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures. State v. Sharp, 305 Kan. 1076, 1081, 390 P.3d 542
(2017). A traffic stop is considered a seizure of the driver of the vehicle. City of Atwood
v. Pianalto, 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). To legally perform a traffic
stop, a law enforcement officer must have a reasonable suspicion, requiring specific and
articulable facts, that the driver committed or is about to commit a crime. See K.S.A. 22-
2402(1).

Reasonable suspicion is a lower standard than probable cause, and what
constitutes reasonable suspicion is based on the totality of the circumstances. Sharp, 305
Kan. at 1081. A traffic infraction is an objectively valid reason to effectuate a traffic stop.
See State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014). Whether a stop is reasonable
is judged from the viewpoint of an objectively reasonable law enforcement officer. In
other words, an officer's subjective motives for a stop, even if pretextual, will not
invalidate an objectively reasonable stop. State v. Garza, 295 Kan. 326, 332, 286 P.3d
554 (2012).

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Here, Bauer stopped Base for failing to maintain a single lane in violation of
K.S.A. 2012 Supp. 8-1522(a). That statute provides that "[a] vehicle shall be driven as
nearly as practicable entirely within a single lane and shall not be moved from such lane
until the driver has first ascertained that such movement can be made with safety."

In State v. Marx, 289 Kan. 657, 675, 215 P.3d 601 (2009), our Supreme Court
determined that in order to support reasonable suspicion to stop a vehicle for a violation
of K.S.A. 8-1522(a), a law enforcement officer must articulate something more than an
observation of "one instance of a momentary lane breach." Here, Bauer activated his in-
car camera when he observed Base's truck cross the center line. Base's truck then returned
to the proper lane and weaved within the lane. About two minutes into the video, Base's
truck crossed the fog line and drove into the dirt. Thus, the video corroborates something
more than a momentary lane breach. Bauer testified that there was no reason for Base to
swerve as he did. While Base claims he crossed the fog line to avoid a dip in the road, the
video contradicts Base's claim and he provides no explanation for the remainder of his
driving errors. Considering Bauer's testimony and the video evidence, Bauer had a
reasonable suspicion that Base committed a traffic infraction under K.S.A. 2012 Supp. 8-
1522(a).

Generally, a traffic stop must not exceed the duration necessary to carry out the
purpose of the initial stop. State v. Thompson, 284 Kan. 763, 774, 166 P.3d 1015 (2007).
But if reasonable suspicion arises that the driver has committed an additional offense, the
officer may detain a suspect for a continued investigation. See 284 Kan. at 774.

Citing City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 1101, 54 P.3d 532
(2002), Base argues that the odor of alcohol alone does not give rise to a reasonable
suspicion that he was driving under the influence. Base's reliance on Davenport is
misplaced because in that case, this court held that the odor of alcohol alone does not
provide a reasonable suspicion to support a stop. 30 Kan. App. 2d at 1101. Here, Bauer
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relied in part on the odor of alcohol to justify his continued detention of Base after the
stop in order to conduct a DUI investigation. In Nickelson v. Kansas Dept. of Revenue, 33
Kan. App. 2d 359, 367, 102 P.3d 490 (2004), and City of Norton v. Stewart, 31 Kan. App.
2d 645, 649, 70 P.3d 707 (2003), this court held that after a valid traffic stop, the odor of
alcohol was sufficient to justify a continued investigation. In addition to the odor of
alcohol, Bauer immediately detected that Base had bloodshot, watery eyes and slurred
speech, and Base was argumentative with Bauer. Bauer testified that based on his training
and experience, these facts all indicated that Base was impaired. As a result, under the
totality of the circumstances, Bauer's detention of Base after the initial stop was valid as
it was based on reasonable suspicion. See, e.g., State v. Pollman, 286 Kan. 881, 897, 190
P.3d 234 (2008) (holding that criminal obstruction together with the smell and admission
of alcohol consumption created reasonable suspicion to pursue a DUI investigation).

Finally, Base argues that Bauer lacked probable cause to arrest him for DUI.
Probable cause is

"'a reasonable ground for belief of guilt; and this means less than evidence which would
justify condemnation of conviction; probable cause exists where the facts and
circumstances within the knowledge of the officer making the arrest or search, and of
which he had reasonably trustworthy information, are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has been or is being committed.
[Citation omitted.]'" State v. Keenan, 304 Kan. 986, 994, 377 P.3d 439 (2016) (quoting
State v. Fewell, 286 Kan. 370, 377, 184 P.3d 903 [2008]).

Here, in addition to the above facts giving rise to reasonable suspicion, Base failed
the field sobriety tests. Excluding the HGN test, Base exhibited five out of eight clues on
the walk-and-turn test, and he exhibited four out of four clues on the one-leg-stand test,
both of which indicated impairment. Base's explanation of having a bad back does not
negate the evidence of his poor performance on the field sobriety tests; rather, this
explanation is one factor to consider in the totality of the evidence. Finally, Base admitted
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to Bauer that he had been drinking that evening. Considering the totality of the
circumstances, we conclude that Bauer had probable cause to arrest Base for DUI.

One final point, any error regarding the admission of the HGN test at the hearing
on the motion to suppress was harmless. Even without considering the results of the HGN
test, Bauer still had probable cause to arrest Base for DUI. See City of Wichita v. Molitor,
301 Kan. 251, Syl. ¶ 2, 341 P.3d 1275 (2015). Accordingly, we conclude the district
court did not err in denying Base's motion to suppress the evidence.

SUFFICIENCY OF THE EVIDENCE

Next, Base claims there was insufficient evidence to support his DUI conviction.
Specifically, Base argues: "It is the contention of Mr. Base that the testimony regarding
his operation of his vehicle does not support the idea that his consumption of alcohol was
such that he was incapable of safely driving." The State asserts there was sufficient
evidence, viewed in the light most favorable to the State, to support the DUI conviction.

Base may challenge the sufficiency of the evidence for the first time on appeal.
See State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008). When the sufficiency of
evidence is challenged in a criminal case, an appellate court reviews the evidence in a
light most favorable to the State to determine whether a rational fact-finder could have
found the defendant guilty beyond a reasonable doubt. State v. Rosa, 304 Kan. 429, 432-
33, 371 P.3d 915 (2016). The appellate court does not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility. State v. Dunn,
304 Kan. 773, 822, 375 P.3d 332 (2016).

K.S.A. 2012 Supp. 8-1567(a)(3) states: "Driving under the influence is operating
or attempting to operate any vehicle within this state while: . . . under the influence of
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alcohol to a degree that renders the person incapable of safely driving a vehicle." Base
asserts the State did not sufficiently prove that he was incapable of driving safely.

Bauer testified that Base was driving erratically; the video evidence corroborates
the fact that Base's truck crossed the fog line. Bauer also testified that he smelled a strong
odor of alcohol coming from Base. Base had bloodshot, watery eyes, his speech was
slurred, and he was argumentative with Bauer. Base admitted to drinking, and Bauer
found a cooler full of beer in the cab of the truck. Base failed the walk-and-turn test and
the one-leg-stand test; again, the video evidence corroborates the failure of these tests.
While Base attempted to refute Bauer's testimony at trial, the jury chose to believe Bauer.
Appellate courts do not reweigh the evidence or determine the credibility of witnesses.
Dunn, 304 Kan. at 822. Viewing the evidence in the light most favorable to the State, a
rational fact-finder could conclude that Base was incapable of safely driving his truck.

Base argues that the odor of alcohol and an admission to drinking is insufficient
evidence to support a DUI conviction, citing State v. Arehart, 19 Kan. App. 2d 879, 878
P.2d 227 (1994). Base's attempt to rely on Arehart is misplaced. In that case, the district
court found the defendant guilty of DUI, finding that the defendant's admission to having
one drink of alcohol was sufficient to convict the defendant under K.S.A. 8-1567(a)(3).
This court reversed the defendant's DUI conviction, concluding that "proof of
consumption of alcohol, without more, is insufficient to support a drunk driving
conviction." 19 Kan. App. 2d at 882. Base's case is clearly distinguishable from Arehart,
as the State presented substantially more evidence than the odor of alcohol and an
admission to drinking to support the DUI charge against Base.

Finally, in one sentence of his brief, Base appears to argue that he would not have
been convicted of DUI if he had not also been charged with criminal refusal of a breath
test because, according to Base, the jury placed a greater emphasis on the refusal of
testing when determining whether he was guilty of DUI. Base cites no legal authority and
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makes no further argument to support this position. A point raised incidentally in a brief
and not argued therein is deemed abandoned. State v. Sprague, 303 Kan. 418, 425, 362
P.3d 828 (2015). The failure to support a point with pertinent authority or show why it is
sound despite a lack of supporting authority or in the face of contrary authority is akin to
failing to brief the issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015).
Moreover, the district court instructed the jury that each crime charged against Base was
a separate and distinct offense, and the jury must decide each charge separately on the
evidence and law applicable to it, uninfluenced by the jury's decision as to any other
charge. Appellate courts presume that jurors follow the jury instructions given to them by
the district court. State v. Mattox, 305 Kan. 1015, 1027, 390 P.3d 514 (2017).

CONVICTION FOR CRIMINAL REFUSAL OF A BREATH TEST

Finally, Base argues that the district court erred in denying his motion to dismiss
the charge of criminal refusal of a breath test in violation of K.S.A. 2012 Supp. 8-1025 on
the ground that the statute is unconstitutional. The question of whether a statute is
unconstitutional is a question of law over which an appellate court has unlimited review.
State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). Constitutional grounds for
reversal must be asserted in district court for the issue to be preserved for appellate
review. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Base filed a
motion to dismiss in district court and argued that K.S.A. 2012 Supp. 8-1025 is
unconstitutional, and he renewed that claim at trial. Thus, Base properly preserved this
issue for appellate review.

In State v. Ryce, 303 Kan. 899, 909, 368 P.3d 342 (2016) (Ryce I), our Supreme
Court explained that the Fourth Amendment of the United States Constitution and § 15 of
the Kansas Constitution Bill of Rights protect people from unreasonable searches. The
court found that the tests authorized by the Kansas implied consent law were searches
subject to Fourth Amendment protections. 303 Kan. at 912-13. The court noted that a
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search is unreasonable under the Fourth Amendment if it is conducted without a warrant,
subject only to a few "well-delineated exceptions" to the warrant requirement. 303 Kan.
at 913. While the court recognized that consent was a valid basis to perform a warrantless
search, the court also held that the Fourth Amendment protected an individual's right to
withdraw that consent. See 303 Kan. at 957. Thus, the court concluded that K.S.A. 2014
Supp. 8-1025, which punishes an individual for withdrawing consent, is facially
unconstitutional because it is not narrowly tailored to serve the interests that the Kansas
Legislature was trying to protect when it enacted the statute. 303 Kan. 899, Syl. ¶ 12.

After Ryce I, the United States Supreme Court issued an opinion in Birchfield v.
North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). Birchfield
involved statutes similar to K.S.A. 8-1025 from multiple states, which criminalized the
refusal of blood and breath-alcohol testing. The Birchfield Court held that the Fourth
Amendment permits warrantless breath tests incident to arrests for drunk driving but does
not permit warrantless blood tests. 136 S. Ct. at 2185. Birchfield also held that motorists
cannot be deemed to consent to a blood test on "pain of committing a criminal offense."
136 S. Ct. at 2186.

In light of the decision in Birchfield, the Kansas Supreme Court granted the State's
motion for a rehearing in Ryce I. However, our Supreme Court ultimately reaffirmed its
holding in Ryce I that K.S.A. 8-1025 is facially unconstitutional. See State v. Ryce, 306
Kan. 682, 699-700, 396 P.3d 711 (2017) (Ryce II). Our Supreme Court emphasized that
"the key to Ryce I and its sister cases is an issue of statutory interpretation . . . not, as in
Birchfield, [with] whether warrantless blood and breath tests were reasonable under the
Fourth Amendment." Ryce II, 306 Kan. at 699.

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent,
absent some indication the Supreme Court is departing from its previous position. State v.
Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We have no indication that
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our Supreme Court is departing from its position in Ryce I and Ryce II. Here, Base was
convicted of criminal refusal of a breath test in violation of K.S.A. Supp. 2012 Supp. 8-
1025. Because the statute has been declared facially unconstitutional by the Kansas
Supreme Court, Base's conviction for violation of the statute must be reversed and his
sentence for this conviction must be vacated.

Affirmed in part, reversed in part, and vacated in part.