Manley v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 118,474

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KENNETH MANLEY,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Marshall District Court; JOHN L. WEINGART, judge. Opinion filed September 7,
2018. Reversed and remanded with directions.

Jeremiah L. Platt, of Clark & Platt, Chtd., of Manhattan, for appellant.

Charles P. Bradley, Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before MCANANY, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: Kenneth Manley appeals the district court's decision affirming his
driver's license suspension for a blood test refusal. He argues that the district court erred
because (1) the officers lacked probable cause to arrest and reasonable grounds to believe
he was driving under the influence of alcohol or drugs and (2) the arresting officer
violated his due process rights when he improperly advised Manley that he could not later
rescind his test refusal. We find Manley's first claim persuasive and therefore reverse and
remand for reinstatement of his driving privileges.


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FACTS

At around 11 p.m. on June 21, 2016, Marysville Police Officer James Leis saw a
truck driving with a burnt-out driver's side headlamp. Leis turned his patrol vehicle
around and followed the truck for a short time but did not observe any erratic driving or
other traffic violations. After Leis initiated his emergency lights, the truck pulled over
without incident. Leis approached the driver's side of the truck, informed the driver,
identified as Manley, of the reason for the stop, and requested his information. Manley
informed Leis that he did not have the documentation but gave Leis his name and date of
birth.

Officer Leis observed that Manley's eyes were a little glazed and droopy. Leis did
not smell an alcohol odor, but he asked Manley if he had had anything to drink that night.
Manley informed Leis that he had not and that he did not drink alcohol. Leis stated that
he had no trouble communicating with Manley, and Manley did not slur his words. But
Leis testified he observed Manley quickly finish drinking a bottle of water while he spoke
with him in his truck. Leis requested back-up and asked Manley to exit the truck to
conduct field sobriety tests. Leis testified that Manley stumbled on exiting the truck. But
the traffic stop video showed that Manley walked to the rear of his truck without
stumbling and that Marysville Police Officer Tim Anderson arrived at that time.

Officer Leis testified that he had received training on the National Highway
Traffic Safety Administration's (NHTSA) "Detection of Impaired Drivers" course which
focused on detecting blood-alcohol impairment in drivers. Leis admitted that his NHTSA
training did not include detecting drug-impaired driving but stated he had experience in
identifying drug impairment in people. Officer Anderson testified that the field sobriety
tests may reveal whether a person is under the influence of alcohol and other forms of
impairment. Anderson testified that he received training in the Advanced Roadside Drug
Recognition Course, which he called ARIDE, and stated that it trained law enforcement
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officers to detect drug abuse and drug impairment while driving. Anderson stated that he
could also use the ARIDE matrix, which required the officer to put in observed
impairment clues, to see if the person fell within a particular category. Anderson testified
that he watched Manley's field sobriety tests.

Officer Leis instructed and showed Manley how to perform the walk-and-turn test.
Manley asked for the test to be moved to a more level surface, and Leis complied. Leis
stated that Manley had trouble following instructions, maintaining his balance before the
test, and that Manley showed four out of eight clues on the test. Despite this, Leis
explained to his supervising officer that Manley "did pretty good on" the walk-and-turn
test. But Officer Anderson testified that Manley performed the walk-and-turn test quickly
and that he curved to the right during the test. Anderson admitted that a person's quick or
hyperactive performance on the test did not mean the person failed. However, Anderson
stated that Manley's performance on the test could have suggested drug impairment.

Officer Leis testified that Manley also performed the one-leg-stand test and
showed four clues of impairment. Leis specifically stated that Manley raised his foot
higher than six inches off of the ground. Officer Anderson stated that Manley raised his
foot to knee level, used his arms for balance, put his foot down early, and stopped
counting a few times. Anderson described Manley's behavior on the one-leg-stand test as
odd.

Officer Anderson then had Manley perform the Romberg test, which required a
person to tilt his or her head back, count to 30, and lift his or her head up after 30
seconds. Anderson stated he examines the person's ability to count and maintain balance.
Anderson concluded that Manley performed the test correctly, but he also testified that
performing the Romberg test well did not always mean that a person was not under the
influence.

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Officer Anderson testified that, based on his observations during the stop, he
suggested Officer Leis conduct more testing on Manley. Anderson stated that he input
Manley's clues and that Manley fit within the categories in the ARIDE matrix. Anderson
did not specify what category Manley fell under or what clues he used in the ARIDE
matrix. Additionally, Anderson testified he reviewed the totality of the circumstances
with his ARIDE training and that he suggested more testing on Manley because of
Manley's behavior during the field sobriety tests and because Manley was talkative and
fidgety.

During the stop, Officer Leis asked Manley if he used any drugs that day, and
Manley stated that he took some over-the-counter pain medication but denied using any
illegal drugs. After questioning, Manley admitted that in the past he had gone to a
rehabilitation facility for methamphetamine addiction. Additionally, Manley stated that
he would submit to any test for alcohol including a blood test. Manley passed a
preliminary breath test with the result of .00.

Manley repeatedly asked for water and stated that he was tired during the traffic
stop. Officer Anderson testified that excessive thirst may reveal methamphetamine
impairment and a dry mouth may suggest marijuana impairment, but he could not recall
if Manley was excessively thirsty during the stop. Anderson admitted that Manley's
requests for water could also simply convey that he was thirsty. Officer Leis stated that
Manley may have requested water and admitted that Manley told him during the traffic
stop that he was tired from working that day. Manley also testified that he was
dehydrated and thirsty from work that day. Manley stated that he had driven three hours
after getting off of work in Nebraska and he believed—but was not sure—that he told the
officers he had Type II diabetes and he was on his way to get food when he was stopped.

After the preliminary breath test, Officer Leis placed Manley under arrest for
driving under the influence and transported him to the Marshall County Jail. At the jail,
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Manley requested and Leis gave Manley a glass of water which Leis testified that Manley
drank quickly. Leis provided Manley with a written copy of the Kansas Implied Consent
Form and then read it to him. Leis asked Manley if he would submit to a blood test, and
Manley refused. Leis asked Manley if his answer was "no," and Manley responded, "I
guess so. For now. Can I change my mind later?" after which Leis told him, "No." Leis
filled out an affidavit and application for a search warrant to obtain a blood test on
Manley but was unsuccessful in contacting a judge to present the warrant application.

When served with the notice of the suspension of his driver's license for his blood
test refusal, Manley requested an administrative hearing with the Kansas Department of
Revenue (KDOR). In the notice of suspension, Officer Leis stated that he had reasonable
grounds to believe Manley was driving under the influence of alcohol or drugs because of
failed sobriety tests, slurred speech, difficulty in communicating, poor balance or
coordination, and bizarre behavior. At the administrative level, Manley argued that Leis
lacked probable cause to arrest and had no reasonable grounds to believe that he was
driving under the influence of alcohol or drugs. He also contended the officer violated his
due process rights when the officer improperly informed him that he could not rescind a
test refusal.

A hearing officer affirmed the driver's license suspension, and Manley petitioned
for judicial review. At the de novo hearing, the parties presented the testimony described
above, and Manley testified that he was not under the influence of alcohol or drugs
during the traffic stop. After the hearing, the district court affirmed Manley's driver's
license suspension, holding Officer Leis did not violate Manley's due process rights and
that the officers had reasonable grounds to request a blood test based on the following
nonexclusive factors: the headlamp violation, the clues of impairment during the field
sobriety tests, balance issues, the Romberg test suggesting impairment, dry mouth, and
admission to past drug use.

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Manley has timely appealed the district court's decision.

ANALYSIS

Manley first asserts that the officers lacked probable cause to arrest him for
driving under the influence of alcohol or drugs and there were no reasonable grounds to
request a blood test under K.S.A. 2017 Supp. 8-1001(b).

The Kansas Judicial Review Act (KJRA) defines the scope of judicial review of
state agency actions. K.S.A. 2017 Supp. 77-603(a); see Ryser v. Kansas Bd. of Healing
Arts, 295 Kan. 452, 458, 284 P.3d 337 (2012). Appeals from administrative suspensions
of driver's licenses are subject to review under the KJRA, but any appeal to the district
court is de novo. K.S.A. 2017 Supp. 8-259(a); see Moser v. Kansas Dept. of Revenue,
289 Kan. 513, 516-17, 213 P.3d 1061 (2009). On appeal, the burden of proving the
invalidity of the agency action rests on the party asserting that the agency action is
invalid. K.S.A. 2017 Supp. 77-621(a)(1). The KJRA requires that an agency action must
be supported by evidence that is substantial when viewed in light of the record as a
whole. See K.S.A. 2017 Supp. 77-621(c)(7).

Our standard of review in a driver's license suspension case is twofold. This court
"reviews a district court's decision in a driver's license suspension case to determine
whether it is supported by substantial competent evidence. Only when there is no factual
dispute does an appellate court exercise de novo review. [Citations omitted.]" Swank v.
Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012).

"'Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion.' [An appellate] court normally gives great
deference to the factual findings of the district court. The appellate court does not
reweigh evidence, assess the credibility of witnesses, or resolve conflicts in evidence.
[Citations omitted.]" State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015).
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Under this standard, this court "[does] not consider other evidence that might support a
different result as long as sufficient evidence supports the district court's decision." Poteet
v. Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 414, 233 P.3d 286 (2010).

In Kansas, any person who operates or attempts to operate a vehicle "is deemed to
have given consent, subject to the provisions of this article, to submit to one or more tests
of the person's blood, breath, urine or other bodily substance to determine the presence of
alcohol or drugs." See K.S.A. 2017 Supp. 8-1001(a). But law enforcement officers may
conduct these tests only if certain statutory conditions apply. K.S.A. 2017 Supp. 8-
1001(b) provides:

"A law enforcement officer shall request a person to submit to a test or tests
deemed consented to under subsection (a): (1) If, at the time of the request, the officer
has reasonable grounds to believe the person was operating or attempting to operate a
vehicle while under the influence of alcohol or drugs, or both . . . and one of the
following conditions exists: (A) The person has been arrested or otherwise taken into
custody for any violation of any state statute, county resolution or city ordinance."

Any person who refuses to submit to a test requested under K.S.A. 2017 Supp. 8-1001(b)
will have his or her driving privileges suspended. K.S.A. 2017 Supp. 8-1014.

Thus, in the scenario involving Manley, in order to request a test under K.S.A.
2017 Supp. 8-1001(b), Officer Leis needed for two factors to be present: (1) reasonable
grounds to believe that Manley was operating or attempting to operate a vehicle while
under the influence of alcohol or drugs, or both and (2) probable cause to support an
arrest. "Kansas courts evaluate 'reasonable grounds' by looking to probable cause
standards. [Citation omitted.]" Swank, 294 Kan. at 881. Additionally, "[a]n arrest must be
lawful before an arresting officer is authorized to request a test under K.S.A. 2008 Supp.
8-1001(b)(1)(A) to determine the presence of alcohol or drugs." Sloop v. Kansas Dept. of
Revenue, 296 Kan. 13, Syl. ¶ 3, 290 P.3d 555 (2012).
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"'Probable cause is determined by evaluating the totality of the circumstances . . .
[meaning] there is no rigid application of factors and courts should not merely count the
facts or factors that support one side of the determination or the other.' [Citations
omitted.]" Sloop, 296 Kan. at 20. Moreover, courts must view the totality of the
circumstances "through the lens of an objectively reasonable police officer." State v.
Keenan, 304 Kan. 986, 994, 377 P.3d 439 (2016). The probable cause required to justify
a warrantless arrest is

"'"a reasonable ground for belief of guilt; and this means less than evidence which would
justify condemnation of conviction; probable cause exists where the facts and
circumstances within the knowledge of the officer making the arrest or search, and of
which he had reasonably trustworthy information, are sufficient in themselves to warrant
a man of reasonable caution in the belief that an offense has been or is being committed."'
[Citations omitted.]" 304 Kan. at 994.

Preliminarily, Manley claims that the KDOR improperly considered his walk-and-
turn test and the one-leg-stand test (field sobriety tests), arguing that the City of Wichita
v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015), decision limits the use of field sobriety
tests to providing evidence only that a driver's body has a specific blood-alcohol content.

In Molitor, the Supreme Court ultimately held that the Court of Appeals panel
erred in concluding that the officer had reasonable suspicion to request a preliminary
breath test (PBT) under K.S.A. 2010 Supp. 8-1012(b). The Supreme Court considered the
Court of Appeals panel's decision:

"The Court of Appeals listed 'the factors supporting reasonable suspicion' as
being 'striking the curb, very strong odor of alcohol, bloodshot and watery eyes,
admission to drinking beer, losing balance during instruction phase of walk-and-turn test,
and putting foot down on the one-leg-stand test.' The panel summarily dismissed the
exculpatory evidence, as follows:
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'We note that there is evidence in the record that Molitor was
able to speak without slurring his words, produced his identification
without difficulty, and had only one clue each on the walk-and-turn test
and the one-leg-stand test. But we do not find that these factors
substantially dissipated Officer Diaz' reasonable suspicion that Molitor
had operated a vehicle under the influence of alcohol.' [Citations
omitted.]" 301 Kan. at 265.

The Molitor court held when reviewing the totality of the circumstances, one
could not reasonably suspect that Molitor's balance suggested that "[he] was impaired by
alcohol to the point of being legally under the influence of alcohol." 301 Kan. at 268. The
holding is based on two evidentiary concerns. First, the Supreme Court found that the
reasonable suspicion standard under K.S.A. 2010 Supp. 8-1012(b) had changed: the old
statute required the officer to believe there was alcohol in the driver's body, while the
current statute requires the officer to believe the driver was driving while operating a
vehicle with an illegal level of alcohol in his or her body, i.e., with a .08 or more alcohol
concentration. See 301 Kan. at 266. Thus, the Supreme Court found an officer's
subjective observations such as the strength of an alcohol odor and the driver's watery
and bloodshot eyes are less compelling under the current statute because (1) it does not
necessarily show the driver was operating the vehicle with an illegal amount of alcohol in
his or her body and (2) subjective observations are open to imprecise personal opinions.
See 301 Kan. at 266-67.

Second, the Supreme Court regarded evidence obtained from the field sobriety
tests differently:

"[T]he [field sobriety tests] were developed by the NHTSA after both laboratory studies
and field studies, from which clues were identified and a scoring criteria developed that
would provide an objective assessment as to the probability that the driver's alcohol
concentration was at an unlawful level (.10). For instance, the arresting officer in the
[State v.] Shadden[, 290 Kan. 803, 235 P.3d 436 (2010),] case testified at trial that if a
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driver exhibits two clues, he or she fails the [field sobriety test], creating a 68%
probability that the driver's concentration of alcohol is .10 or more. In other words, [field
sobriety tests] are alleged to result in an objective assessment of the level of alcohol in a
driver's body, rather than just the presence of alcohol in the body. [Citations omitted.]"
(Emphasis added.) Molitor, 301 Kan. at 267.

In reviewing all the circumstances, the Molitor court held that although the officer
saw Molitor engage in unsafe driving—he ran his vehicle into the curb when he pulled
over—that fact must also be considered with his later actions and behavior: "[he] spoke
without slurring his words, produced his identifying documents without difficulty, exited
and proceeded from his vehicle without losing his balance, and, most importantly, passed
the two admissible [field sobriety tests]." 301 Kan. at 268. The Molitor court also found
that the Court of Appeals panel, whose decision they were reviewing, had erroneously

"padded its description of the intoxication indicia by referring to the one clue on each
[field sobriety test] to which the officer testified. But the officer admitted that Molitor
passed the tests, and we have nothing in the record which would tell us what one clue
reveals about a person's alcohol concentration level. Indeed, '[s]everal studies suggest that
cut-off scores are set too low on the psychomotor [field sobriety tests],' and one study
'found that over 50% of drivers at .00% BAC failed Walk and Turn.' The panel should
not have deviated from the criteria and scoring of the NHTSA's standardized testing
model to glean reasonable suspicion of DUI from a successful completion of the
admissible [field sobriety tests]. [Citation omitted.]" 301 Kan. at 268.

Citing to Molitor, Manley argues the KDOR erred in using his field sobriety tests
results because (1) Officer Leis did not suspect Manley of driving under the influence of
alcohol and (2) his field sobriety tests may be used only to determine the likelihood that
he had a specific blood-alcohol content and not that he was driving while under the
influence of drugs.

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We disagree with Manley's argument that the field sobriety tests are totally
without probative value in this case. When Officer Leis conducted the field sobriety tests,
Leis and Officer Anderson were investigating if Manley was driving under the influence
not just of alcohol, but also of drugs. Leis conducted the field sobriety tests after speaking
with Manley in his truck but before Manley submitted to the preliminary breath test with
the .00 result. Additionally, the Molitor decision does not limit the use of a driver's field
sobriety tests in a court or administrative proceeding to providing only an objective
assessment of whether a driver has a certain blood-alcohol level. The Molitor court held
the Court of Appeals panel erred in not considering all the circumstances and in failing to
recognize that the officers' subjective observations were offset by the objective
indications that Molitor was not illegally operating his vehicle while under the influence
of alcohol. See 301 Kan. at 265-69. In short, the field sobriety tests formed a part of the
totality of the circumstances in evaluating Manley's condition.

Also, it appears Manley may be arguing that the officers were not properly trained
or qualified to use field sobriety tests to determine whether he was under the influence of
drugs. This is essentially an objection to foundation for the officers' opinion testimony
regarding Manley's alleged impairment, but Manley did not challenge the officers'
testimony under K.S.A. 2017 Supp. 60-456 below or on appeal. Instead, Manley argues
only that Molitor prevents the officers from using his field sobriety tests to determine if
he was driving while impaired by drugs. As noted above, we disagree that the field
sobriety tests are totally immaterial on that issue. But Manley's failure to make a
contemporaneous objection to foundation or specifically appeal this point, and his failure
to provide any authority on this issue, means that we deem this argument waived and
abandoned. See State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015) (citing State v.
Tague, 296 Kan. 993, 1001, 298 P.3d 273 [2013]).

In passing, and although Manley did not challenge the admission of the officers'
testimony under K.S.A. 2017 Supp. 60-456, we note that the decision in State v. Shadden,
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290 Kan. 803, 235 P.3d 436 (2010), provides support for the idea that the officers could
testify how Manley's acts and behavior suggested drug impairment based on their training
and experience. Here, Officer Leis stated that he was trained to use the field sobriety tests
to detect alcohol impairment under the NHTSA and that he had some experience
identifying drug impairment in people. Officer Anderson testified his ARIDE training
helped him detect potential drug abuse and driving while impaired by drugs.

First, K.S.A. 2017 Supp. 60-456 defines opinion testimony in Kansas as:

"(a) If the witness is not testifying as an expert, the testimony in the form of
opinions or inferences is limited to such opinions or inferences as the judge finds: (1)
Are rationally based on the perception of the witness; (2) are helpful to a clearer
understanding of the testimony of the witness; and (3) are not based on scientific,
technical or other specialized knowledge within the scope of subsection (b).
"(b) If scientific, technical or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue, a witness who is qualified
as an expert by knowledge, skill, experience, training or education may testify thereto in
the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or
data; (2) the testimony is the product of reliable principles and methods; and (3) the
witness has reliably applied the principles and methods to the facts of the case."

The Shadden court applied the older standard under Frye v. United States, 293 F.
1013 (D.C. Cir.1923), to review the reliability and admissibility of expert testimony on
scientific evidence. Notably, Kansas courts now apply the standard under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993). See Smart v. BNSF Railway Co., 52 Kan. App. 2d 486, 495-97, 369 P.3d 966
(2016) (discussing legislative transition to Daubert). Nevertheless, the Shadden decision
supports the argument that the officers did not improperly testify regarding Manley's
possible drug impairment.

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In Shadden, our Supreme Court held that a police officer may not testify without
establishing a Frye foundation that a person's failure on the walk-and-turn test means
there is a 68% chance that his or her blood-alcohol content is greater than .10. 290 Kan.
at 813. The Shadden court explained that "there is a dividing line between admitting field
sobriety test results as circumstantial evidence of intoxication, which is admissible, and
the use of such results to assert or imply a specific level of intoxication, which is not
admissible unless an appropriate scientific opinion foundation has been laid." 290 Kan. at
823. Our Supreme Court held: "Opinion testimony based on objective observations
regarding an automobile driver's coordination, balance, and mental acuity is not scientific
evidence." 290 Kan. 803, Syl. ¶ 15. The Shadden court also held that "lay and expert
witnesses are permitted to testify as to their observations of an automobile driver's acts,
conduct, and appearance and also to give opinions on the driver's state of impairment
based on those observations." 290 Kan. 803, Syl. ¶ 14.

The bottom line is that we find the KDOR did not err in considering Manley's field
sobriety tests when deciding whether the officers lawfully requested a blood test under
K.S.A. 2017 Supp. 8-1001(b). The officers conducted the tests while investigating
whether Manley was impaired by alcohol or drugs. Also, Molitor does not limit the use of
a person's field sobriety tests to only providing an objective assessment whether the
person has a specific blood alcohol content. Finally, Manley did not contest whether the
officers' provided improper opinion testimony and, generally, Shadden supports that the
officers properly testified whether Manley showed signs of impairment based on their
training and experience.

The more difficult issue arises as a result of considering whether first, the officers
had reasonable grounds to believe Manley was driving under the influence of alcohol or
drugs, and second, whether they had probable cause to arrest Manley, as necessary
prerequisites to testing under K.S.A. 2017 Supp. 8-1001(b).

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As noted above, an officer has probable cause "'where the facts and circumstances
within the knowledge of the officer making the arrest or search, and of which he had
reasonably trustworthy information, are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being committed.'" Keenan,
304 Kan. at 994. In a probable cause determination, this court must review all the
circumstances at the time of the arrest and avoid merely counting the facts or factors that
support one side of the determination or the other. See Sloop, 296 Kan. at 20.

In examining the record, we note that the district court did not expressly conclude
that the officers had probable cause to arrest Manley for driving under the influence of
alcohol or drugs. But neither party objected to the district court's ruling. If no objection is
made to the district court's inadequate findings of fact or conclusions of law, an appellate
court may presume that the district court found all facts necessary to support its
judgment. State v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015).

The district court did find, and the parties do not contest, that Officer Leis arrested
Manley for driving under the influence of alcohol or drugs after Manley submitted to the
PBT. Accordingly, any factual circumstances considered after this point should not factor
into this court's probable cause for arrest analysis. See Sloop, 296 Kan. at 23 (declining to
consider postarrest conduct in probable cause to arrest calculus).

Manley first argues that the factual circumstances in this case are similar to the
Sloop decision, where our Supreme Court held that the officer lacked probable cause to
arrest Sloop for driving under the influence. See 296 Kan. at 23. Specifically, Manley
argues there is less evidence here than in Sloop to support that the officers had probable
cause to arrest him. Manley asserts that he was not pulled over for a moving violation, he
did not slur his words or have trouble communicating with Officer Leis. Also, though
Leis stated Manley's eyes were glazed and droopy, Leis did not state how that related to
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impairment. Finally, Manley told Leis he did not drink alcohol that night, and his
preliminary breath test was .00.

The above circumstances are, in fact, similar to the factual circumstances in Sloop.
In Sloop, our Supreme Court held that the officer lacked probable cause to arrest Sloop
for driving under the influence because "[his] speech was not slurred, he did not fumble
while producing his license, and he did not stumble when exiting his vehicle and was
steady when walking to the rear." 296 Kan. at 23. Also, Sloop was pulled over for an
unlit tag light after the officer stated that he followed Sloop's vehicle for 8 to 10 blocks
without observing a traffic infraction. 296 Kan. at 23.

The Sloop court held that the tag light violation did not indicate impairment and
distinguished the facts from the decision in Campbell v. Kansas Dept. of Revenue, 25
Kan. App. 2d 430, 296 P.2d 1150 (1998). Sloop, 296 Kan. at 22. In Campbell, the panel
held there was probable cause to arrest Campbell because the officer observed him
speeding at 1:10 a.m., the officer smelled alcohol on him, and Campbell admitted to
consuming a few alcoholic drinks before the stop. 25 Kan. App. 2d at 431-32. In Sloop,
the Supreme Court found "[t]he primary factual difference between Campbell and the
instant case is that Campbell was speeding, i.e., committing a moving violation, while
Sloop was driving legally before being stopped for an improper tag light." 296 Kan. at
22. Thus, the Sloop court explained that a tag light violation provides less indication that
a driver is driving while impaired than a moving or speeding violation. See 296 Kan. at
22. On related note, panels of this court have also refused to find that a tag light or a
nonworking headlight violation are indicative of impairment when the officers did not
testify at trial that it was a typical clue of intoxication. See Chambers v. Kansas Dept. of
Revenue, No. 115,141, 2017 WL 1035442, at *7 (Kan. App. 2017) (unpublished
opinion); Sjoberg v. Kansas Dept. of Revenue, No. 103,937, 2012 WL 3966511, at *7
(Kan. App. 2012) (unpublished opinion).

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As applied to this case, Officer Leis pulled over Manley's truck for a burnt-out
driver's side headlamp. Like the unlit tag light in Sloop, the headlamp violation provides
less indication that Manley was driving while intoxicated than a speeding or moving
violation. Leis also did not observe Manley driving erratically. Finally, Leis did not
testify that a headlamp violation was a typical clue of impairment; accordingly we will
not consider the headlamp violation in the probable cause for arrest and reasonable
grounds determinations. See Chambers, 2017 WL 1035442, at *7.

But the factual and legal similarities with Sloop end there. Two differences make
Sloop distinguishable from this case. Unlike Sloop, the officers here conducted the field
sobriety tests before Officer Leis arrested Manley. Based on a review of all the
circumstances, we find that Leis and Officer Anderson were investigating whether
Manley was impaired by alcohol, drugs, or both. In contrast, the officers in Sloop mainly
investigated Sloop for driving under the influence of alcohol. Although Sloop provides
some support, the case is distinguishable overall.

Here, the district court found the officers had reasonable grounds—in addition to
the headlamp violation—based on a nonexclusive list which included Manley's balance,
the clues on the field sobriety tests and the Romberg test, his dry mouth, and his
admission to prior drug use.

In reviewing the totality of the circumstances, Officer Leis testified that Manley
did not engage in erratic driving, i.e., Manley was pulled over for a nonworking
headlamp. Thus, we find the district court erred in considering Leis' reason for the stop
indicated impairment. See Sloop, 296 Kan. at 22. Manley also gave Leis his name and
date of birth after informing Leis that he did not have his documentation, and Leis stated
that he had no trouble communicating with Manley. Leis stated Manley stumbled when
he exited the car, but Manley also asked to perform the field sobriety tests on a more
level surface, which is indicative of Manley's alertness to his surroundings. Leis stated
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that Manley's eyes were glazed and droopy and were one factor that led him to suspect
either alcohol or drug impairment. After the field sobriety tests, Manley passed a PBT
with the result of .00.

Manley did not fail all the sobriety tests. Rather, he had mixed results: he did
poorly on the one-leg-stand test but the officers testified that he did well on the walk-and-
turn and performed the Romberg test correctly. Manley's performance on the one-leg-
stand test supported that he had some balance issues. Officer Anderson stated that
Manley's quick performance on the walk-and-turn test and one-leg-stand test may not
amount to a failure but it could suggest drug impairment. As applied to the Romberg test,
although Manley performed the test well, Anderson stated that certain drugs may cause a
person to perform the test well and that a passing score does not always indicate that the
person was not drug impaired. Anderson stated that Manley's impairment clues caused
Manley to fall within the categories on the ARIDE matrix, but he did not testify which
categories applied or how the matrix itself measured drug impairment.

Officer Anderson also testified he suggested Officer Leis request more testing
after observing Manley's behavior during the stop. Anderson testified that Manley was
talkative and fidgety, which were factors that led Anderson to suspect drug impairment.
Anderson stated he did not recall that Manley was excessively thirsty; but he stated that
excessive thirst could suggest methamphetamine and a dry mouth may indicate marijuana
impairment. Anderson admitted that a dry mouth may also indicate only thirst. According
to the ruling, the district court weighed the evidence and found Manley's dry mouth
indicated drug impairment. See Talkington, 301 Kan. at 461 (appellate court cannot
reweigh evidence under substantial evidence review).

After a careful review of the totality of the evidence, we are convinced that the
officers did not have probable cause to believe Manley was driving under the influence of
alcohol alone. Manley was pulled over for a nonworking headlamp, Officer Leis did not
18
observe him drive erratically, there was no alcohol odor, his speech was not slurred, he
had no trouble communicating with the officers, he denied consuming alcoholic
beverages, he had glazed and droopy eyes, he did not fail all the field sobriety tests, and
his PBT result was .00. Thus, we find that the officers did not have probable cause to
arrest or reasonable grounds to believe Manley was driving under the influence of alcohol
alone.

However, it is less clear that the officers had probable cause to believe Manley
was under the influence of a combination of alcohol or drugs, or just drugs alone. As the
KDOR acknowledges, there are few Kansas cases where officers have investigated a
driver for driving under the influence of drugs.

The decision in Leverenz v. Kansas Dept. of Revenue, No. 112,039, 2015 WL
5750535 (Kan. App. 2015) (unpublished opinion), does provide a useful comparison. In
Leverenz, an officer pulled over a vehicle for failing to signal a lane change and turn, but
the officer believed the driver was impaired based on confused driving, i.e., "various
driving errors such as stopping when there was no stop sign and slowing down as if to
make a turn and then accelerating again." 2015 WL 5750535, at *1. The officer was a
certified Advanced Roadside Impaired Driving Enforcement (ARIDE) officer. During the
stop, Leverenz admitted she took her antidepressant medication an hour before the stop
and that she knew there was a warning about mixing it with alcohol. The officer did not
have trouble communicating with Leverenz, and her speech was not slurred. After noting
other signs of alcohol impairment, the officer asked and the driver performed various
field sobriety tests which indicated impairment. Later, the driver passed a PBT (.063),
and, after her arrest, she passed an evidentiary breath test (.059). Suspecting that drugs
were contributing to her impairment, the officer requested that a Drug Recognition
Expert (DRE) evaluate her but the DRE could not make it to the station that night. The
officer requested and Leverenz refused to submit to a blood test, which resulted in the
suspension of her license.
19
The panel held the officer did not need additional reasonable grounds to request
multiple tests under K.S.A. 2011 Supp. 8-1001 and reasoned that the officer had
reasonable grounds to believe Leverenz was impaired by something other than alcohol:

"Deputy Ribble testified Leverenz exhibited signs of impairment—dilated eyes—that are
inconsistent with alcohol impairment. Leverenz also admitted to Deputy Ribble she had
taken her antidepressant 1 hour before the traffic stop and had taken a number of other
prescription medications. She also failed her field sobriety tests. Deputy Ribble believed
that her level of impairment was not consistent with the results of her breath test and,
therefore, felt the need to have her evaluated by a DRE. There is no requirement in our
law that a DRE evaluation be conducted as a prerequisite to a blood test request. Based
upon the testimony before the district court, we find that Deputy Ribble had reasonable
grounds to suspect drug impairment." 2015 WL 5750535, at *5.

In comparing the circumstances in Leverenz to this case, Manley did not engage in
unsafe or erratic driving, Manley communicated with the officers without difficulty, and
he did not slur his words. Additionally, Officer Leis testified that Manley had glazed and
droopy eyes that made him suspect alcohol or drug impairment. Manley did not admit to
taking any prescription medications which should not be mixed with alcohol. Rather,
Manley admitted he took some over-the-counter pain medication that day and denied
using any illegal drugs. Manley also passed the PBT.

Unlike Leverenz, Manley did not fail all the sobriety tests. Manley performed
poorly on the one-leg-stand test but performed well on the walk-and-turn test and
performed the Romberg test correctly. Because Officer Anderson testified that field
sobriety tests may provide evidence that a driver is impaired by something other than
alcohol, Manley's quick performance on the tests could suggest to a reasonable officer
that he was drug impaired. However, this is offset by the fact that the Romberg test did
not suggest drug impairment. Here, Anderson testified that Manley's passing performance
on the Romberg test does not necessarily indicate that the person is not drug impaired.
20
But taking the officer's testimony at face value indicates that Manley's performance on
the Romberg test is at very best a neutral factor which does not provide substantial—legal
and relevant—evidence to support that Manley either was or was not impaired by drugs.
In any event, we do not consider the Romberg test results as clearly contributing to either
reasonable suspicion that Manley was under the influence of drugs or probable cause to
justify an arrest.

Additionally, unlike in Leverenz, Officer Anderson testified how he applied his
ARIDE training, resulting in his suggestion to Officer Leis that there should be more
testing on Manley based upon the ARIDE matrix. Anderson also based his opinion, in
part, on Manley's fidgety and talkative behavior. Anderson may also have considered
Manley's quick performance on the sobriety tests. But while Anderson testified that
Manley's clues of impairment caused Manley to fall onto the ARIDE matrix, he did not
state what clues or what categories applied.

Finally, the district court found Manley's dry mouth was one factor supporting
reasonable grounds to request a blood test. It is undisputed that Manley repeatedly
requested water during the stop. The district court weighed the evidence and this
particular finding is supported with substantial evidence. The district court also found
Manley's admission—that he previously attended rehabilitation for methamphetamine
addiction—was one factor that contributed to the finding that Manley was impaired. But
we do not afford Manley's admission much weight because it does not provide legal and
relevant evidence for a reasonable officer to conclude that Manley was impaired during
the traffic stop.

Overall, after a thorough review of the totality of the circumstances, we do not
find that the officers had probable cause to support a lawful arrest and reasonable grounds
to believe Manley was driving under the influence of alcohol or drugs. An officer has
probable cause "'where the facts and circumstances within the knowledge of the officer
21
making the arrest or search, and of which he had reasonably trustworthy information, are
sufficient in themselves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed.'" Keenan, 304 Kan. at 994. Moreover, the
"'[e]xistence of probable cause must be determined by consideration of the information
and fair inferences therefrom, known to the officer at the time of the arrest.'" Sloop, 296
Kan. at 20.

Contrary to the district court's finding, Manley did not exhibit unsafe or erratic
driving. He communicated with the officers without difficulty. But the appearance of
Manley's eyes potentially indicated either alcohol or drug impairment. Manley did not
admit to taking prescription drugs or to using illegal drugs. Manley was talkative, fidgety,
and performed the sobriety tests quickly. Manley did not fail every sobriety test but had
balance issues and failed the one-leg-stand test.

Officer Anderson stated that thirst and dry mouth may show either marijuana or
methamphetamine impairment. Anderson also testified that Manley's impairment clues
placed him on the ARIDE matrix but he did not state what categories or what clues he
applied to reach that finding. Also contrary to the district court's finding, Anderson's
testimony does not establish whether the Romberg test indicated drug impairment.
Specifically, Anderson stated that Manley's correct performance on the test did not
necessarily indicate whether he was or was not drug impaired. Finally, Manley's
admission to attending rehabilitation for methamphetamine addiction does not provide
strong evidence to an objectively reasonable officer that he was impaired at the time of
the traffic stop.

Thus, based on a review of all the circumstances, information, and fair inferences
observed during the traffic stop, we find that the officers did not have probable cause to
support a lawful arrest of Manley for driving while impaired by alcohol or drugs. For this
22
reason, the decision of the district court upholding the determination of the hearing
officer must be set aside, and Manley's driving privileges reinstated.

For his second issue on appeal, Manley asserts that his due process rights were
violated when Officer Leis misstated the law and told Manley that he could not change
his mind and later consent to the blood test after he initially refused. In light of our
finding on Manley's first issue, this issue has become moot and we decline to address it in
this opinion.

Reversed and remanded with instructions to reinstate Manley's driving privileges.