Brenda L. Rosendahl, Appellee,
Kansas Department of Revenue, Appellant.
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
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.
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
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.
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.
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).
from Miami District Court; Steven C. Montgomery, judge.
Affirmed in part and reversed in part.
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.
P. Wood, of Clyde & Wood, L.L.C., of Overland Park,
argued the cause and was on the brief for appellee.
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).
and Procedural Overview
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.
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.
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.
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.
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.
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.
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.
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 ...