Bixenman v. Kansas Department of Revenue

307 P.3d 217, 49 Kan. App. 2d 1, 2013 WL 3695970, 2013 Kan. App. LEXIS 63
CourtCourt of Appeals of Kansas
DecidedMarch 15, 2013
DocketNo. 107,661
StatusPublished
Cited by3 cases

This text of 307 P.3d 217 (Bixenman v. Kansas Department of Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bixenman v. Kansas Department of Revenue, 307 P.3d 217, 49 Kan. App. 2d 1, 2013 WL 3695970, 2013 Kan. App. LEXIS 63 (kanctapp 2013).

Opinion

Knudson, J.:

The Kansas Department of Revenue (KDR) ap[2]*2peals from the decision of the district court to set aside an administrative order suspending Shane A. Bixenmaris driving privileges for 30 days and thereafter restricting his driving privileges for an additional 330 days. The district court concluded police officers lacked probable cause to arrest Bixenman for driving under the influence of alcohol (DUI) and therefore did. not have reasonable grounds to request an evidentiary breath test under K.S.A. 2009 Supp. 8-1001.

We reverse the decision of the district court and remand with directions that the administrative order of the KDR be reinstated.

The underlying facts are not in material dispute. On April 28, 2010, Officer Benjamin Kahle and Investigator Aaron Larson of die Hays Police Department lawfully stopped Bixenmaris truck for driving with one headlight. Twenty-year-old Bixenman did not exhibit any signs of intoxication or erratic behavior while driving or stopping his truck.

Kahle spoke to Bixenman and noticed that he had bloodshot eyes and there was an odor of alcohol emanating from Bixenman and his truck. Bixenman told Kahle he had been to a bonfire and consumed one beer.

Bixenman performed two field sobriety tests. Throughout the tests, Bixenman was cooperative and did not slur his speech. When speaking, however, Bixenman would turn away from Kahle. Kahle thought this behavior was unusual.

Of the two field sobriety tests, Bixenman first performed the walk-and-tum test. He demonstrated only one possible sign of intoxication—starting the test too soon—but otherwise successfully completed the test. Bixenman then took the one7leg-stand test. He demonstrated one of four possible signs of intoxication—he put his foot down 3 seconds after commencing the 30-second test—but otherwise successfully completed the test.

At Larson’s request, Bixenman then took a preliminary breath test, which yielded a blood-alcohol content greater than .02 but less than .08. Consequently, Kahle arrested Bixenman for DUI. Following his arrest, Bixenman took the evidentiary breath test, which again yielded a blood-alcohol content between .02 and .08. [3]*3Accordingly, the KDR suspended Bixenman’s driving privileges for 30 days to be followed by 330 days of restricted privileges.

Bixenman next took an administrative appeal. The administrative hearing officer affirmed the suspension, finding:

• Officers Kahle and Larson had reasonable grounds to believe that Bixenman was operating or attempting to operate a vehicle while under the influence of alcohol, drugs, or both, or was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system.
• Bixenman was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury, or death.
• Officer Kahle presented Bixenman with the oral and written notices required by K.S.A. 8-1001, and amendments thereto, and the notices required by K.S.A. 8-1567a(b), and amendments thereto.
• The testing equipment used was reliable.
• The person who operated the testing equipment was qualified.
• The testing procedures used were reliable.
• The test result determined that Bixenman had an alcohol concentration of .02 or greater, but less than .08, in his blood or breath.
• Bixenman was operating a vehicle.
• Bixenman was less than 21 years of age at the time a test was requested.

Bixenman filed a timely petition for judicial review of the administrative order pursuant to K.S.A. 2009 Supp. 8-259 and the Kansas Judicial Review Act pursuant to K.S.A. 2009 Supp. 77-601 et seq. Bixenman’s contention in his petition for review was that the arresting officers did not have reasonable grounds to believe he was operating a vehicle while under the influence of alcohol.

After an evidential hearing the district court ruled in Bixen-man’s favor and against the KDR. The court found that the required deprivation period of 15 minutes before the preliminaiy [4]*4breath test was to be administered had not been met. As a consequence the district court concluded the results of the preliminary breath test should not be considered. The district court judge then stated:

“What I have to consider is the totality of the circumstances and frankly, in looking at the video and the testimony of the officer, I don’t see where this young man was impaired under the law. He had some alcohol in his system for which he was properly charged apparently for consuming alcohol underage, but he certainly was not impaired by any stretch of the imagination.
“He passed all the tests. I listened to him qdk in tire video, the speech was appropriate to all the questions and there were many unrelated to this. I mean it was just general discussions about where he went to school and so forth and so on. I just don’t see it. In fact, I’m not sure I could have performed those tests as well as he did.” (Emphasis added.)

In its journal entry (filed October 11, 2011), die district court stated:

“[T]here was not sufficient evidence upon which to believe [Bixenman] operated a vehicle while under the influence of alcohol, no probable cause to arrest and no basis to proceed with further alcohol testing based on the results of the field sobriety tests and the improperly administered preliminary breath test.”

After trial, the KDR filed a motion requesting that the district court reconsider its ruling. The court denied the motion Januaiy 13, 2012.

On appeal, the KDR contends that the district court erred in deciding that the police officers lacked probable cause to arrest or take Bixenman into custody for DUI and as a result lacked reasonable grounds to request that he submit to a breath test pursuant to K.S.A. 8-1567a and K.S.A. 2009 Supp. 8-1001.

An appellate court generally reviews a district court’s decision in a driver’s license suspension case to determine whether the decision is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012).

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Cite This Page — Counsel Stack

Bluebook (online)
307 P.3d 217, 49 Kan. App. 2d 1, 2013 WL 3695970, 2013 Kan. App. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bixenman-v-kansas-department-of-revenue-kanctapp-2013.