Review of the judgment of the Court of Appeals in 46 Kan.App.2d 958, 268 P.3d 498 (2012) . Appeal from Sedgwick District Court; GREGORY L. WALLER, judge.
BY THE COURT
1. Pursuant to K.S.A. 2010 Supp. 8-1012(b), an investigating officer must possess reasonable suspicion that a driver has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs before requesting that the driver submit to a preliminary breath test.
2. The horizontal gaze nystagmus (HGN) test is based on scientific principles and before the results from an HGN test may be considered by a Kansas court for any purpose, the State must establish the reliability of such a test in a district court within this state.
3. To determine whether a law enforcement officer had the statutorily required reasonable suspicion to request a preliminary breath test of the driver of a motor vehicle, an appellate court must examine the totality of the circumstances existing at the time of the request, including the officer's testimony that the driver passed standardized field sobriety tests administered prior to the request.
4. An appellate court should not deviate from the criteria and scoring of the National Highway Traffic Safety Administration's standardized testing model to glean reasonable suspicion of driving under the influence from the driver's successful completion of the standardized field sobriety tests.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and E. Jay Greeno and Kristen B. Patty, of Wichita, were with him on the briefs for appellant.
Sharon L. Dickgrafe, chief deputy city attorney, argued the cause, and Michael J. Hoelscher, assistant city attorney, and Gary E. Rebenstorf, city attorney, were on the brief for appellee.
JOHNSON, J. MICHAEL J. MALONE, Senior Judge, assigned. BILES, J., concurring in part and dissenting in part.
[301 Kan. 252] Johnson, J.:
A law enforcement officer participating in a saturation patrol near a Wichita bar stopped a vehicle driven by William J. Molitor and subsequently conducted a driving under the influence (DUI) investigation. After Molitor failed the horizontal gaze nystagmus (HGN) test but passed the walk-and-turn and one-leg-stand tests, the officer requested a preliminary breath test (PBT), the results of which ultimately led to Molitor's arrest and conviction for DUI.
At a subsequent suppression hearing conducted on appeal to the district court, the court ruled that the HGN results could be admitted at that hearing to establish the officer's reasonable suspicion of DUI, even though the results were inadmissible at trial. The Court of Appeals affirmed that the HGN test could be used to establish the statutorily required reasonable suspicion of DUI that would permit a request for a PBT.
City of Wichita v. Molitor, 46 Kan.App.2d 958, 959, 268 P.3d 498 (2012). Additionally, the panel held that, even if the HGN test results were excluded, the officer had enough other evidence to form a reasonable suspicion of DUI. We granted review and reverse both the panel and the district court.
Factual and Procedural Overview
On the evening of February 28, 2009, Officer Jeremy Diaz, while working with other officers on a traffic and DUI saturation patrol in Wichita, observed Molitor make a right turn at a stop sign without using the turn signal, albeit the officer noted that Molitor had made a complete stop at the sign, had turned appropriately into the correct traffic lane, and had driven straight down the street. The officer effected a vehicle stop based on the turn signal infraction, and, according to the officer, as Molitor pulled over, his vehicle struck the curb and came to a stop with the tire halfway up the curb. Molitor claimed that he did not drive up on the curb but [301 Kan. 253] rather bumped into the curb because it was located on the edge of the road. The stop was not videotaped.
Diaz approached the vehicle and observed that Molitor's eyes were watery and bloodshot and that a strong odor of alcohol was emanating from the vehicle. Diaz asked Molitor if he had been drinking, and Molitor responded that he had consumed two or three beers. Molitor's speech was not slurred; he had no difficulty producing his driver's license, insurance information, and vehicle registration; and he did not lose his balance while exiting his vehicle or walking thereafter. The officer continued to smell a strong odor of alcohol as Molitor exited the vehicle.
First, Officer Diaz administered the HGN test, recording that Molitor displayed six out of the six possible clues of intoxication. Next, Molitor scored one out of eight possible clues on the walk-and-turn test and one out of four possible clues on the one-leg stand test. Both tests require two clues before the results are indicative of unlawful intoxication. Notwithstanding the passing scores on two of the standardized field sobriety tests (SFSTs), Diaz requested that Molitor submit to a PBT. Molitor agreed to take the test and registered a breath alcohol content (BAC) of .090. After obtaining the PBT result, Diaz asked Molitor to take a trial-quality breath alcohol test, utilizing an Intoxilyzer 8000. This test was conducted about an hour after the initial stop and recorded a BAC of .091.
Molitor was charged and convicted in Wichita Municipal Court of DUI and failing to signal a turn. He appealed to the Sedgwick County District Court, and, prior to trial, moved to suppress the PBT and breath test results. Molitor argued that he had passed the only two " admissible NHTSA [National Highway Traffic Safety Administration] tests." Therefore, he argued, the evidence did not support that the officer had the requisite reasonable suspicion to request the PBT.
At the suppression hearing, Officer Diaz testified that he had successfully completed training on administering the HGN test. Molitor's attorney objected, claiming that Kansas caselaw holds that HGN test results are inadmissible in court for any reason. The district court overruled the objection, finding that although an [301 Kan. 254] HGN test result was inadmissible at trial, it could be used to support " probable cause." At the conclusion of the hearing, the district court judge denied the motion to suppress, finding that under the totality of circumstances, there was reasonable suspicion to request the PBT.
Molitor filed a motion to reconsider, arguing that HGN testing is not admissible in Kansas pursuant to State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998), and State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992). The district court denied the motion to reconsider and held that even though HGN test results were not admissible " in a court of law, it's admissible for probable cause, it's admissible for reasonable suspicion." The district court also concluded that based on " all the circumstances, the driving, the breath, and the officer's observation of the defendant in the preliminary tests, that it was proper to request a preliminary breath test."
Subsequently, Molitor agreed to a bench trial on stipulated facts, with the understanding that he could appeal the denial of his motion to suppress the PBT and breath test. Based on the stipulated facts, the district court found that Molitor was guilty of DUI and failure to signal a turn. Molitor filed a timely appeal.
On appeal, Molitor argued that the district court abused its discretion by failing to follow binding Kansas Supreme Court precedent holding that evidence of HGN testing is inadmissible for any purpose. He also asserted that the district court abused its discretion by failing to properly analyze the arresting officer's opinion testimony pursuant to the provisions of K.S.A. 60-456. As a consequence, Molitor claimed the erroneous admission of the HGN evidence was prejudicial by depriving him of his due process right to a fair and impartial hearing on his motion to suppress.
The Court of Appeals panel first determined that no binding Kansas Supreme Court cases " directly address the issue of whether HGN evidence may be considered prior to trial as part of the totality of the circumstances in determining if a law enforcement officer had reasonable suspicion to request a PBT." Molitor, 46 Kan.App.2d at 963. The panel found that while there was still considerable debate throughout other jurisdictions as to whether HGN test results could be admissible at trial, it was unable to find [301 Kan. 255] any authority from other jurisdictions holding that HGN test results could not be considered for the purposes of determining probable cause in a DUI case. 46 Kan.App.2d at 965. The panel concluded that because reasonable suspicion is a less demanding standard than probable cause, " HGN test results may, under appropriate circumstances, be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to request a PBT." 46 Kan.App.2d at 965.
Interestingly, the panel then essentially rendered its HGN discussion superfluous dictum by proceeding to find that there was " sufficient evidence in the record to support the district court's conclusion that Officer Diaz had reasonable suspicion" to request the PBT, even without the HGN test results. 46 Kan.App.2d at 966. Finally, the panel concluded that in light of Diaz' testimony regarding his successful completion of HGN test training and Molitor's failure to challenge Diaz' qualifications below, the district court did not abuse its discretion in admitting the officer's HGN testimony pursuant to K.S.A. 60-456, the provision governing the admission of opinion testimony. 46 Kan.App.2d at 968.
Molitor filed a timely petition for review, arguing that the Court of Appeals erred in holding that HGN test results are admissible at a suppression hearing. He claims that the test for reliability set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ( Frye test) had to be met before HGN test results could be considered for any purpose, including a determination of whether reasonable suspicion existed to request a PBT. Molitor also sought review of the Court of Appeals' determination that the requisite reasonable suspicion existed without considering the HGN test results. This court granted Molitor's petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Admissibility of Horizontal Gaze Nystagmus Test Results
The first question we address is whether evidence of the HGN test results was erroneously considered by the district court at the pretrial suppression hearing to make the determination that the [301 Kan. 256] arresting officer possessed reasonable suspicion to believe that Molitor had been operating a vehicle while under the influence of alcohol, which was a statutory prerequisite for the officer to request the PBT. See K.S.A. 2010 Supp. 8-1012(b) (law enforcement officer may request PBT if officer has reasonable suspicion to believe person guilty of DUI). In his petition for review, Molitor argued that both the district court and Court of Appeals violated the duty for lower courts to follow the precedent of the Kansas Supreme Court.
In a supplemental brief to this court, a subsequently appointed attorney for Molitor
took the tack that it was procedural error for the district court to admit the HGN results, because K.S.A. 60-402 makes the same rules of evidence applicable to the pretrial suppression motion hearing as are applicable at the trial. Therefore, under that argument, given that the HGN results are inadmissible at trial, they must also be ...