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Rosendahl v. Kansas Department of Revenue

Supreme Court of Kansas

August 23, 2019

Brenda L. Rosendahl, Appellee,
v.
Kansas Department of Revenue, Appellant.

         SYLLABUS BY THE COURT

         1. In a driver's license suspension case, when the only issue before the court is whether a law enforcement officer had reasonable grounds to request an evidentiary breath test and the facts are undisputed, an appellate court has de novo review.

         2. K.S.A. 2015 Supp. 8-1020(h)(2) sets forth an exclusive list of issues that may be addressed at an administrative hearing on a driver's license suspension when the officer certifies that a person has failed a breath test which includes whether a law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol.

         3. Kansas courts evaluate reasonable grounds by looking to probable cause standards. Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime.

         4. An officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect's post-driving alcohol consumption. Reasonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer's personal observations of the scene or the suspect suggest the possibility of post-driving alcohol consumption. Such consumption is a factor to be considered and evaluated. Reasonable grounds to believe a driver is under the influence demands thoughtful examination of the behavior of a driver before, during, and after he or she is behind the wheel.

         5. Under the facts and circumstances of this case, the district court erred in giving post-driving alcohol consumption evidence controlling weight on the issue of whether the officer had reasonable grounds to request a breath test. The officer did not ignore or maintain a posture of willful ignorance toward evidence suggesting the possibility of post-driving alcohol consumption.

         6. The imposition of a $50 administrative hearing fee under K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional as set forth in Creecy v. Kansas Dept. of Revenue, 310 Kan. ___, ___, P.3d ___ (2019) (No. 117, 035, this day decided).

          Appeal from Miami District Court; Steven C. Montgomery, judge. Affirmed in part and reversed in part.

          Joanna Labastida, of Legal Services Bureau, Kansas Department of Revenue, argued the cause, and Dwight R. Carswell, assistant solicitor general, was with her on the brief for appellant.

          Ronald P. Wood, of Clyde & Wood, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.

          OPINION

          Malone, J.

         The Kansas Department of Revenue (KDOR) appeals the district court's decision reversing the administrative suspension of Brenda Rosendahl's driving privileges and finding the statutorily required $50 fee for an administrative hearing to challenge the suspension of driving privileges is unconstitutional. We reverse the district court's reversal of Rosendahl's suspension and reinstate the suspension. We affirm the district court's finding that the $50 hearing fee is unconstitutional for the reasons stated in Creecy v. Kansas Dept. of Revenue, 310 Kan.,, P.3d (2019) (No. 117, 035, this day decided).

         Factual and Procedural Overview

         On December 12, 2015, at 5:35 p.m., Miami County Sheriff's Deputy Jacob Bell was dispatched to a possible noninjury accident. Dispatch advised that the driver might be intoxicated. Bell arrived at the scene at the same time as Sergeant Gray. Bell noticed a car just off the side of the roadway and a pickup near where he pulled onto the scene. Bell asked an unidentified man next to the pickup what happened, but the man just mumbled something and left.

         Bell turned his attention to Rosendahl, who was speaking with Sergeant Gray. According to Bell, Rosendahl said she drove off the road after missing her turn at a dark curve. Bell did not know what time the accident occurred, but he assumed it happened shortly before he was dispatched at 5:35 p.m. because it gets dark in December shortly after 5:00 p.m. Bell noticed Rosendahl had bloodshot eyes, slurred her words, and had the odor of alcohol coming from her breath.

         Bell asked Rosendahl what she had had to drink, and she admitted to having one beer several hours earlier. Bell described the area of the accident as an industrial-type with no visible restaurants, bars, or liquor stores nearby. Bell testified that he had no indication that Rosendahl had consumed alcohol post-driving; however, he did not explicitly ask Rosendahl about post-driving alcohol consumption.

         Bell conducted standardized field sobriety tests which indicated that Rosendahl was impaired, and she failed the preliminary breath test (PBT). Bell arrested Rosendahl for driving under the influence and transported her to the police station. Rosendahl submitted to an Intoxilyzer 8000 breath test which showed her breath alcohol concentration was 0.209. On the Officer's Certification and Notice of Suspension Form (DC-27), Bell certified that reasonable grounds existed to believe Rosendahl had been operating a vehicle while under the influence of alcohol and her test results showed an alcohol concentration of .08 or greater.

         Rosendahl requested an administrative hearing to challenge her license suspension and paid the $50 fee for the hearing. The administrative hearing officer affirmed the suspension, finding Bell had reasonable grounds to believe Rosendahl was operating a vehicle under the influence of alcohol.

         Rosendahl filed an amended petition for trial de novo and judicial review of her license suspension alleging inter alia that 1) she was arrested and tested without reasonable grounds; and 2) submission of the required $50 administrative hearing fee before the hearing was a denial of due process and equal protection.

         At trial de novo before the district court, Bell testified as summarized above. Rosendahl and an acquaintance, Alan Macek, testified that her intoxication was due to alcohol consumption after her car left the roadway and before law enforcement made contact with her.

         According to Rosendahl, she lived about two miles outside Osawatomie. Between 4 and 4:30 p.m., she was driving home from running errands in Osawatomie. She saw a deer out of the corner of her eye that caused her to jerk and drive into the ditch. She could not get her car out of the ditch and had left her phone at home, so she walked to a nearby auto body shop operated by Macek to call her husband Gary. Macek offered Rosendahl a drink which she accepted because she was shaken up from the accident and did not ...


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