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Forrest v. Kansas Department of Revenue

Court of Appeals of Kansas

July 6, 2018

James Forrest, 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. As for whether reasonable grounds existed for an officer to believe a person was driving under the influence, we review the district court's factual findings to determine whether the findings are supported by substantial competent evidence. Although we defer to the district court's factual findings if substantial evidence supports them, an appellate court must independently review the ultimate legal conclusion regarding whether an officer had reasonable grounds.

         2. Under Kansas law, any person who operates or attempts to operate a vehicle within the state is deemed to have given consent to submit to a test to determine the presence of alcohol or drugs.

         3. Under Kansas law, an officer shall request a person to submit to an evidentiary breath test if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle under the influence of alcohol or drugs, or both, and the person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution, or city ordinance.

         4. Reasonable grounds is the equivalent of probable cause. Probable cause is determined by evaluating the totality of the circumstances, giving consideration to the information and fair inferences therefrom, known to the officer at the time of arrest, with no rigid application of factors.

         5. A fact-finder cannot disregard undisputed evidence that is not improbable, unreasonable, or untrustworthy. Such evidence must be regarded as conclusive.

         6. In State v. Robinson, 55 Kan.App.2d 209, Syl. ¶ 2, 410 P.3d 923 (2017), this court held that K.S.A. 2016 Supp. 8-1012 is unconstitutional to the extent that the statute criminalizes a person's right to withdraw his or her consent to a warrantless search and it is not narrowly tailored to serve a compelling interest. But this holding does not mean that a court cannot consider a person's preliminary breath test (PBT) refusal as part of the reasonable grounds analysis. The PBT is still a valid tool for a law enforcement officer to use in investigating a person for driving under the influence, but the officer should no longer warn the person that refusal to submit to testing is a traffic infraction.

          Appeal from Russell District Court; Mike Keeley, judge.

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

          Michael S. Holland II, of Holland and Holland, of Russell, for appellee.

          Before Hill, P.J., Pierron and Malone, JJ.

          Malone, J.

         For the second time, the Kansas Department of Revenue (KDR) appeals the district court's decision to set aside the administrative suspension of James Forrest's driver's license based on a breath test failure. In the first appeal, this court reversed the district court because it incorrectly placed the burden on the KDR and it improperly disregarded Forrest's preliminary breath test (PBT) refusal. On remand, the district court corrected these errors but still found that the arresting officer lacked reasonable grounds to request that Forrest submit to testing. Although these errors were corrected, we once again reverse the district court's judgment because some of the district court's factual findings were unsupported by substantial ...


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