Nordhus v. Kansas Dept. of Revenue

1
NOT DESIGNATED FOR PUBLICATION

No. 113,539

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRIAN NORDHUS,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; PAUL J. HICKMAN, judge. Opinion filed February 26, 2016.
Affirmed.

Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant.

Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before MALONE, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: Brian Nordhus appeals from the district court's decision affirming
the action of the Kansas Department of Revenue in suspending his driver's license.
Finding no error, we affirm the suspension.

FACTS

Around 8 a.m. on July 4, 2011, Deputies Jacob Scoville and Jeremy Trostle came
upon Nordhus asleep in his vehicle on an unpaved country road in Saline County.
According to Trostle, when they arrived on the scene Nordhus' car was illegally parked in
2
the northbound lane of the road, blocking traffic in that direction. Trostle testified that the
car's engine had been running and that he had approached the passenger side of the car
while Scoville approached the driver's side. Trostle stated that Nordhus had been asleep
in the driver's seat, not wearing a seatbelt. The passenger in the car was also asleep but
was wearing her seatbelt, and there was an open beer can on the passenger side of the
dashboard.

Trostle testified that Scoville had knocked on the driver's side window, awakening
Nordhus, and asked him to turn the engine off; Nordhus complied. According to Trostle,
Scoville then asked Nordhus if he had been drinking, and Nordhus said, "[N]o." Trostle
testified that Nordhus' "no" had sounded slurred. Trostle testified that he had then
directed his attention toward the passenger, asking her if she had consumed any alcohol
and to step out of the vehicle. Trostle stated that when he had opened the car door, an
"almost overwhelming" smell of alcohol came from inside the car. While Scoville was
performing field sobriety tests on Nordhus, Trostle was involved with the passenger and
was too far away to hear anything that happened during Nordhus' tests. Scoville did not
testify at the district court hearing, but his certification on the DC-27 form concerning his
actions and findings was admitted into evidence by the court.

According to Nordhus, he had been fishing and camping nearby and had driven his
car to the location of the traffic stop. He said he had parked the car there around 1 a.m.
because it was foggy and had then fallen asleep. Nordhus testified that at the time of the
traffic stop, contrary to what Trostle said, his engine had not been running. He stated that
he had had "more than one" beer the day before but had stopped drinking around
midnight. He said he had not been drinking in his car.

Nordhus also testified about the field sobriety tests, although he had some
difficulty recalling the specifics. He said that first he had done a "straight line test" in
which Scoville spray painted a line on the unpaved road and asked Nordhus to take seven
3
or nine steps on the line, turn around, and walk back. Scoville also asked Nordhus to
stand on one leg for 30 seconds, and Nordhus stated that he had swayed a bit and took
some small hops while doing so. He claimed that he had been unable to easily stand on
one leg because of a back injury, but he was not able to provide any evidence of that
injury other than his testimony. On direct examination, Nordhus stated that Scoville had
also given him an "ABC" test; but on cross-examination, he said he had not had that test
after all. Nordhus stated that he had refused to take a preliminary breath test. Scoville
arrested Nordhus and took him to the police station.

Nordhus testified that he had taken a breathalyzer test shortly after arriving at the
station. He stated that he had been with Scoville for at least the 20 minutes before the
breathalyzer test and had not had any alcohol in those 20 minutes. Nordhus failed the
breathalyzer test.

Based on the test failure, Scoville completed a certification and notice of
suspension, known by its form number, the DC-27. The district court admitted the DC-27
as evidence over Nordhus' objection. Nordhus does not challenge the admission of this
evidence on appeal. The DC-27 stated that a traffic violation—being parked in the road—
was the reason for the initial stop. The DC-27 then listed the following facts to support
Scoville's reasonable grounds to believe that Nordhus had been operating a vehicle while
under the influence of alcohol: odor of alcoholic beverages, alcoholic beverage containers
found in the vehicle, failed sobriety tests, slurred speech, bloodshot eyes, difficulty in
communicating, and poor balance or coordination. The DC-27 also confirmed that the
officer provided Nordhus with the required oral and written notices, followed the correct
testing procedures, and served the DC-27 on Nordhus.

The district court affirmed the suspension of Nordhus' license, finding that
Scoville had reasonable grounds to believe Nordhus had been operating a motor vehicle
under the influence of alcohol, that Scoville followed the required procedures for the
4
breath-alcohol test, that Scoville provided and read the required implied consent notices
to Nordhus, and that Nordhus was properly served with the DC-27.

Nordhus has appealed to this court.

ANALYSIS

Nordhus' sole argument on appeal is that the evidence presented at the district
court was not sufficient to support the court's conclusion that Scoville had reasonable
grounds to believe that Nordhus was operating a vehicle while under the influence of
alcohol.

Any person who operates or attempts to operate a vehicle in Kansas is "deemed to
have given consent . . . 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." K.S.A. 2015
Supp. 8-1001(a). A law enforcement officer shall request one of these tests if the officer
has reasonable grounds to believe the person was operating a vehicle while under the
influence and the officer has arrested or otherwise taken the person into custody for any
offense involving driving under the influence. K.S.A. 2015 Supp. 8-1001(b)(1)(A). The
Kansas Supreme Court has held that "reasonable grounds" is strongly related to and
synonymous with "probable cause." Smith v. Kansas Dept. of Revenue, 291 Kan. 510,
513-14, 242 P.3d 1179 (2010). "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." State v.
Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). Probable cause is "a higher standard
than reasonable suspicion but a lower standard than necessary to establish guilt beyond a
reasonable doubt." Bixenman v. Kansas Dept. of Revenue, 49 Kan. App. 2d 1, 6, 307 P.3d
217 (2013).

5
Before giving someone an evidentiary test for alcohol, a police officer must give
oral and written notice of the information listed in K.S.A. 2015 Supp. 8-1001(k). When
giving the test, the officer must follow certain procedures to ensure that it is accurate. See
K.A.R. 28-32-9(b)(4). If a person fails the evidentiary test for alcohol, the police officer
must complete a certification and notice of suspension, a form called the DC-27. K.S.A.
2015 Supp. 8-1002(a). The officer certifies on the DC-27 that, among other things, the
officer had reasonable grounds to believe that the person was operating a vehicle while
under the influence of alcohol, the officer presented the person with the required oral and
written notices, the officer followed the required testing procedures, and the officer gave
the person a copy of the DC-27 form itself. K.S.A. 2015 Supp. 8-1002(a)(2), (c). The
DC-27 is admissible as evidence in any trial that may follow the arrest and license
suspension. K.S.A. 2015 Supp. 8-1002(b).

At the district court, the burden was on Nordhus to show that the officer lacked
reasonable grounds to believe he was operating a vehicle while under the influence of
alcohol. See K.S.A. 2015 Supp. 8-1020(q) ("Upon review [by the district court], the
licensee shall have the burden to show that the decision of the agency should be set
aside."). On review, this court asks whether a district court's decision in a license
suspension case was supported by substantial evidence. Drake v. Kansas Dept. of
Revenue, 272 Kan. 231, 234, 32 P.3d 705 (2001); see also K.S.A. 77-623 ("Decisions on
petitions for judicial review of agency action are reviewable by the appellate courts as in
other civil cases."). Evidence is substantial when a reasonable person would accept it as
adequate to support a conclusion. State v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015).
When reviewing factual findings, appellate courts do not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility. State v. Hall,
292 Kan. 841, 859, 257 P.3d 272 (2011).

Because the officer who performed the evidentiary breath test did not testify, the
district court relied on the DC-27 certification form. By statute, the DC-27 is admissible
6
evidence even without testimony from the officer who completed the form. K.S.A. 2015
Supp. 8-1002(b); State v. Baker, 269 Kan. 383, 387, 2 P.3d 786 (2000) ("Once the
certification requirements are completed, the DC-27 form is admissible as evidence to
prove the statements contained therein."). The DC-27 in this case provided the following
evidence regarding reasonable grounds: odor of alcoholic beverages, alcoholic beverage
containers found in the vehicle, failed field sobriety tests, slurred speech, bloodshot eyes,
difficulty in communicating, and poor balance or coordination. Deputy Trostle's
testimony confirmed the odor of alcohol coming from Nordhus' vehicle and the open beer
can on the dashboard. Trostle also testified that Nordhus had slurred his speech when
answering Deputy Scoville's question about whether he had been drinking. Nordhus
testified about the sobriety tests, and he admitted that he had had difficulty standing on
one leg. He attributed that difficulty to a back injury, but he did not provide any evidence
to support that assertion. Trostle could not confirm the other facts—failed sobriety tests,
difficulty communicating, and poor balance or coordination—because he was not
involved in the sobriety tests, but Nordhus' testimony did not strongly refute them.

Nordhus testified that while he had had more than one beer the night before, he
had stopped drinking around midnight. According to Nordhus, he had driven his car to
the location of the traffic stop, parking there around 1 a.m. because it was foggy. But the
district court was entitled to make its own credibility determinations. See Hall, 292 Kan.
at 859. The evidence provided in the DC-27 and supported by Trostle's testimony was
sufficient to support the district court's conclusion that Scoville had reasonable grounds
to believe Nordhus was operating a vehicle while under the influence of alcohol.

Nordhus also suggests that the evidence was not sufficient to prove that he was
operating or attempting to operate his car. But Nordhus testified that he had driven his car
to the location of the traffic stop. Trostle testified that at the time of the stop the engine
had been running. Nordhus testified that his engine had not been running, but the district
court was entitled to accept whichever testimony it found more credible, and we will not
7
second guess credibility determinations. See Hall, 292 Kan. at 859. Substantial evidence
supported the conclusion that Nordhus was operating a vehicle.

While arguing that Scoville lacked reasonable grounds, Nordhus also alleges in
passing that Scoville did not provide the oral and written notices required by statute,
failed to follow the testing procedures, and failed to serve Nordhus with the DC-27 form.
These three issues are unrelated to reasonable grounds, as they deal with what happened
after the officer has arrested someone. Under Supreme Court Rule 6.02(a)(5) (2015 Kan.
Ct. R. Annot. 41), "[a]n appellant's brief shall contain the arguments and authorities relied
upon, subdivided as to the separate issues in the appeal if more than one." (Emphasis
added.) State v. Seck, 274 Kan. 961, Syl. ¶ 2, 58 P.3d 730 (2002). The issues stated in the
appellant's brief are binding (as opposed to the issues stated in the docketing statement,
which are not binding). Bryson v. Wichita State University, 19 Kan. App. 2d 1104, 1106,
880 P.2d 800, rev. denied 256 Kan. 994 (1994). Despite the fact that Nordhus incorrectly
and incompletely briefed these three issues, we will address why none of them succeed.

Before giving someone an evidentiary test for alcohol, a police officer must give
oral and written notices of the information listed in K.S.A. 2015 Supp. 8-1001(k). Here,
the DC-27 states that Scoville provided Nordhus with the required oral and written
notices. Nordhus testified that he did not remember receiving the notices. Trostle could
not testify on this subject because he was not the officer who tested Nordhus. Despite the
conflict in the evidence, the district court's finding that Scoville provided Nordhus with
the required notices was supported by substantial evidence, namely, the DC-27.

When giving an evidentiary breath test, an officer must follow certain procedures
to ensure the test is accurate. See K.A.R. 28-32-9(b)(4). Officers do not need to follow
these procedures strictly but must substantially comply with them. See K.S.A. 2015
Supp. 8-1020(h)(2)(F); Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 117-
18, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009). One of these procedures is a 20-
8
minute deprivation period to ensure that the test results are accurate and not the result of
drinking alcohol, vomiting, or belching immediately before taking the test. See Mitchell,
41 Kan. App. 2d at 119. Here, the DC-27 states that the officer followed the required
testing procedures. Nordhus testified that he did not remember the officer looking in his
mouth or asking if he had belched or vomited, but he later stated that he did not know
which, if any, procedures were not correctly followed. Nordhus did testify that he did not
have any alcohol and was with Scoville during the 20 minutes before the test. The district
court's conclusion that the testing procedures were followed was supported by substantial
evidence.

The DC-27 must be served on the person who was tested. K.S.A. 2015 Supp. 8-
1002(c). Officers must substantially comply with this requirement. Snyder v. Kansas
Dept. of Revenue, No. 103,767, 2011 WL 1196917, at *3 (Kan. App.) (unpublished
opinion), rev. denied 293 Kan. 1108 (2011). The purpose of this requirement is to notify
a person whose license will be suspended of his or her right to an administrative hearing.
2011 WL 1196917, at *3. Here, the DC-27 form states that it was served on Nordhus.
Nordhus first testified that he had received the DC-27, he later stated that the officer had
not directly given him any forms or paperwork after the breath test, and then he admitted
that he had received paperwork when he was released from jail. Nordhus obviously
pursued an administrative hearing on his license suspension, so he was adequately
informed of his rights. The district court's finding that Nordhus was served with the DC-
27 was supported by substantial evidence.

Substantial evidence supports each of the district court's conclusions.

Affirmed.