Shepack v. Kansas Dept. of Revenue

1

NOT DESIGNATED FOR PUBLICATION

No. 117,508

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH R. SHEPACK,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.


MEMORANDUM OPINION


Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed May 25, 2018.
Affirmed.

Ted E. Smith and J. Brian Cox, deputy general counsel, of Legal Services Bureau, Kansas
Department of Revenue, for appellant.

Douglas E. Wells, of Topeka, for appellee.

Before BRUNS, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: The Kansas Department of Revenue appeals a district court's
reversal of the administrative suspension of Joseph R. Shepack's driving privileges
because the arresting officer did not have probable cause to make an arrest. The court's
reasoning was straightforward. With no probable cause, it was an unlawful arrest. With
no lawful arrest, then, according to Kansas Supreme Court precedent, the implied consent
law does not apply and the arresting officer could not ask for an evidentiary breath-
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alcohol test. Because we find the evidence supports the district court's holdings and its
legal reasoning is sound, we affirm.

A highway patrol dispatcher warns the trooper of erratic driving.

On September 20, 2014, after receiving a report from the dispatcher that a pickup
was driving erratically on the turnpike, a trooper spotted a truck matching the description
pass by him when he was on the side of the road dealing with another car stop. His patrol
car's emergency lights were activated while conducting this stop. The trooper noted that
the passing truck did not move all the way into the far lane as required by law—instead, it
straddled the line dividing the lanes. The trooper finished the stop and returned to his
patrol vehicle so he could catch up to the white truck.

The trooper followed the truck for three to four miles and confirmed that the
truck's tags matched those described by the dispatcher. The trooper noted the truck was
driving below the 75-mile-per-hour speed limit. He saw the truck pass over the center
line six times. Twice it straddled the center line for about 30 seconds. Finally, the trooper
activated his emergency lights so he could stop the pickup. The truck continued on for
about 30 seconds but eventually stopped near the South Topeka exit ramp.

We note two things. Shepack concedes that the trooper's initial stop was proper
and the trooper stated there was nothing improper about the way Shepack parked on the
shoulder. The trooper did later, however, state that parking near the exit ramp was a
traffic hazard because of cars trying to exit.

When the trooper approached the truck he noticed a box in the truck bed that held
six closed wine bottles and an empty box in the cab of the truck. When he reached the
driver's side door, the trooper detected the odor of alcohol coming from the truck. He
noticed that Shepack's eyes were bloodshot, watery, and glazed. When asked if he had
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been drinking, Shepack responded that he had not. The trooper did not recall seeing
Shepack fumble with his license and Shepack's speech was not slurred.

The trooper asked about Shepack's travel. Shepack responded that he was traveling
from Wichita. At trial, Shepack admitted that this was not true. Shepack had driven from
Ellsworth to Lawrence in the morning. He left Lawrence around 8 p.m. to drive to
Wichita. Around milepost 147, his tire pressure light had come on. He exited the
interstate to check his tire and then began to return to Topeka to fix the tire.

When the trooper asked Shepack to get out of his truck, he complied. When
Shepack got out he dropped his turnpike toll ticket on the ground. The trooper told
Shepack that he dropped the ticket and he might need it. Unassisted, Shepack picked up
the ticket. When the trooper asked if he could see it, Shepack said no and put it in his
pocket.

Next, the trooper told Shepack to move to the back of the truck. Shepack did not
move, but he put his hands into his pockets instead. The trooper told Shepack to take his
hands out of his pockets, and Shepack complied. The trooper told Shepack to move to the
back of the truck a second time. Shepack did not comply and instead just stared at the
trooper. The video recording of the encounter shows that Shepack asked the officer,
"What do you want me to do?" At this point, the trooper grabbed Shepack by his arm and
pulled him to the back of the truck while saying, "Come back here."

Shepack told the trooper to take his hands off him, and the trooper released him.
The trooper then said that Shepack could either follow directions or go to jail. Shepack
said that he would go to jail. At this point, the trooper handcuffed Shepack. Shepack did
not resist being arrested, but he did firmly grasp the tailgate, which required the trooper
to pull his hand back forcefully to handcuff him. The trooper did not ask Shepack to
submit to a preliminary breath test or field sobriety tests before handcuffing him.
4

When the trooper moved Shepack to his patrol car, he asked Shepack how much
of the wine he had drank that night. Shepack responded that he did not know what he was
talking about. The trooper returned to the truck and searched it. He found a package of
fish still cold to the touch from a Lawrence grocery store, thus showing that Shepack's
statement that he was driving from Wichita was false.

After searching the truck, the trooper returned to the patrol car and asked Shepack
to submit to a preliminary breath test and some field sobriety tests. Shepack said that he
was not going to do any tests. The trooper took Shepack to a nearby highway patrol
station where he read the implied consent advisory to him. Shepack stated that he would
refuse to take the evidentiary breath test under certain Kansas caselaw that in his view
invalidated the trooper's grounds for requesting the test. Shepack refused to initial the
form which showed that he refused to take the test. In due course, the Department
administratively suspended his driving privileges.

Shepack takes the matter to the district court.

After exhausting his administrative remedies, Shepack asked the district court to
review the matter. The district court held an evidentiary hearing, where the trooper and
Shepack both testified and the court watched the video recording of the encounter.

In its ruling, the district court addressed only one of Shepack's grounds for
reversing the Department's decision. The court held that Shepack was arrested when he
was first handcuffed at the back of the vehicle. The court ruled that to request a test under
the implied consent law, the trooper needed probable cause to make a lawful arrest. The
district court weighed all the facts available to the trooper at the time of the arrest and
found insufficient probable cause for an arrest:

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"Trooper Taylor witnessed Shepack fail to move entirely to the left lane when passing his
lighted patrol vehicle on the shoulder. Trooper Taylor, when following Shepack, saw him
drifting over the dotted line from the right to the left northbound lane several times.
Trooper Taylor testified that he smelled the odor of alcohol on Shepack (though this box
was not checked on the DC-27) and observed his bloodshot, watery, and glazed eyes.
However, Shepack denied drinking. Trooper Taylor saw a box of wine bottles, but they
were closed and in the back of the truck.
"Shepack parked his truck properly on the side of the road. He did not have
slurred speech. He did not have balance problems, he did not have difficulty walking, and
he did not lean on the truck for support. He dropped his toll ticket when getting out of the
truck, but he had no difficulty picking it up. The fact that he put it in his pocket and
would not show it to Trooper Taylor is no indication of being under the influence.
Shepack's demeanor was calm and appeared, according to the DVD, to be cooperative.
"Under the totality of the circumstances present at the time of Shepack's arrest,
the Court concludes that there was not probable cause to arrest him for driving under the
influence."

With that conclusion, the court granted Shepack relief and reversed the Department's
suspension of his license.

The Department brings this appeal, asking us to set reverse the court's ruling for at
least two reasons. First, the Department argues the district court erred in determining that
the trooper needed probable cause for DUI when he handcuffed Shepack. In its view, the
trooper needed only probable cause that a crime (not necessarily DUI) had been
committed by Shepack before his arrest. Since the evidence shows that Shepack had
either disobeyed a lawful police order under K.S.A. 8-1503 or obstructed an investigation
under K.S.A. 2017 Supp. 21-5904, the trooper had probable cause to arrest him. If
probable cause existed for an arrest for these offenses, then the request to submit to an
evidentiary breath-alcohol test was legally valid.

6

Contending that the district court incorrectly applied the evidence, the Department
also argues that when Shepack was handcuffed, the trooper did have probable cause to
arrest him for DUI.

We list the rules that guide our review.

Because the Department challenges the district court's factual conclusions as well
as its legal conclusions, we have mixed questions of law and fact. For such questions we
review the record to see if the factual conclusions are supported by substantial competent
evidence and then with an unlimited review, we examine the court's legal conclusions
drawn from those facts. See State v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30 (2017).

We turn now to the general topic of the law that applies to this case—the law of
driving privileges. In general, under the Kansas implied consent law, any person who
operates or attempts to operate a vehicle within the state is considered to have given
consent to submit to one or more tests of the blood, breath, urine, or other bodily
substances of that person to determine the presence of alcohol or drugs. See K.S.A. 2017
Supp. 8-1001(a).

Then, more specific to this appeal, K.S.A. 2017 Supp. 8-1001(b) speaks to
reasonable grounds to believe that a person is DUI and one of two conditions exists:

"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; or (B) the person
has been involved in a vehicle accident or collision resulting in property damage or
personal injury other than serious injury."
7

We note the two alternative conditions: either the person has been arrested or the person
has been involved in a motor vehicle accident.

Here, there is no evidence of any vehicle accident or collision. This means that for
the trooper to legally request the breath test he must:

 Have reasonable grounds to believe that Shepack was operating his vehicle
under the influence; and
 Shepack must have been arrested. K.S.A. 2017 Supp. 8-1001(b).

As for the arrest provision, the Kansas Supreme Court has interpreted a substantially
similar previous version of this statute to require that the arrest be lawful for a request
under the implied consent statute to be valid. Sloop v. Kansas Dept. of Revenue, 296 Kan.
13, 17-20, 290 P.3d 555 (2012).

For a warrantless arrest to be a lawful arrest, it must be supported by probable
cause. See K.S.A. 22-2401(c); State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 (2006).
Because the trooper here had no warrant for Shepack's arrest, the arrest must be
supported by probable cause. The test for probable cause has been restated often. In
Sloop, the Supreme Court settled on the following formulation:

"'Probable cause is the reasonable belief that a specific crime has been or is being
committed and that the defendant committed the crime. Existence 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. Probable cause is determined by evaluating the
totality of the circumstances. As in other totality of the circumstances tests, 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.]" 296 Kan. at 20.

8

The court recognized that caselaw had tried to clarify that probable cause is a
lower standard than the proof required for a criminal conviction or a civil judgment.
Sloop, 296 Kan. at 20. In doing so, the following wording was added to the probable
cause test:

"'It is not necessary that the evidence relied upon establish guilt beyond a reasonable
doubt. The evidence need not even prove that guilt is more probable than not. It is
sufficient if the information leads a reasonable officer to believe that guilt is more than a
possibility.' [Citations omitted.]" Sloop, 296 Kan. at 20 (quoting Bruch v. Kansas Dept. of
Revenue, 282 Kan. 764, 775-76, 148 P.3d 538 [2006]).

The Sloop court specifically disavowed the use of the language, "[i]t is sufficient if
the information leads a reasonable officer to believe that guilt is more than a mere
possibility." See 296 Kan. 13, Syl. ¶ 4. The court found that this language had crept into
our caselaw without explanation and had received undue consideration in the probable
cause analysis. 296 Kan. at 21. Instead of the mere possibility language, our Supreme
Court relied on United States Supreme Court precedent that stated: "'Probable cause
exists where" 'the facts and circumstances within their [the arresting officers'] knowledge
and of which they 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.'" Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 3 L. Ed. 2d 327
(1959) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543
[1925]). Sloop, 296 Kan. at 21.

Moving on in this line of reasoning, we note that whether an officer has probable
cause to arrest a person is viewed objectively. In other words, the subjective intent of the
officer does not affect the analysis. Devenpeck v. Alford, 543 U.S. 146, 152-55, 125 S. Ct.
588, 160 L. Ed. 2d 537 (2004).


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We review the circumstances of this arrest.

The trooper testified that when he handcuffed Shepack, he was arresting him for
DUI. To us, the Department shifts its position and argues instead that the trooper arrested
him for disobeying a lawful order or for obstruction. This argument was made to the
district court. The district court did not directly address this argument, but it focused
instead on whether there was probable cause to arrest Shepack for DUI before he was
handcuffed.

The United States Supreme Court has stated that the intentions of the arresting
officer are irrelevant to whether probable cause to arrest a person exists. Devenpeck, 543
U.S. at 154-55. This principle was adopted by this court in State v. Beltran, 48 Kan. App.
2d 857, 859, 300 P.3d 92 (2013). When we apply the principles of the ruling in
Devenpeck and Beltran to the current case, we must analyze whether the trooper had
probable cause to arrest Shepack for any crime when he was handcuffed.

The timing of the arrest is important to our analysis. For the arrest to be valid, the
officer must have probable cause based on the facts known at that time. Bruch, 282 Kan.
at 775-76. An arrest occurs when a person is either physically restrained or submits to the
custody of an officer to answer for the commission of a crime. Hill, 281 Kan. at 143; see
K.S.A. 22-2405(1). When the trooper handcuffed Shepack, Shepack was physically
restrained. This restraint means that Shepack was arrested at that time. Thus, when
Shepack was handcuffed, the trooper needed facts sufficient to support probable cause for
the arrest to be valid.

For its part, the Department contends that Shepack disobeyed a lawful order by not
moving to the rear of his vehicle when the trooper ordered him to move. According to the
Department, Shepack violated K.S.A. 8-1503 when he did not move. We are not
persuaded that this is true.
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Caselaw teaches us otherwise. Under the holding in State v. Greene, 5 Kan. App.
2d 698, 704-05, 623 P.2d 933 (1981), the purpose of K.S.A. 8-1503 is to ensure public
compliance with orders that come from an officer's authority to regulate traffic. Thus,
orders that do not concern the regulation of traffic are not criminalized under the statute.

When the trooper ordered Shepack to move to the back of his vehicle, he was not
regulating or directing traffic; instead, he ordered him to do so for the trooper's and
Shepack's safety. Shepack's failure to move to the back of the vehicle does not give
probable cause to arrest under this theory because no facts would support a conclusion
that Shepack disobeyed a lawful order related to the regulation or direction of traffic.

The Department vainly tries to transform the trooper's order into an order
regulating traffic by merely citing K.S.A. 8-1571. This statute makes it illegal for a
person to stand on the side of a controlled access highway, like the Kansas turnpike. See
K.S.A. 8-1571(a)(1)(ix). But when the trooper ordered Shepack to move to the back of
the vehicle, Shepack was only outside his vehicle because he complied with the trooper's
order to get out of his pickup. It is not clear how the fact that Shepack was standing on
the side of the road transforms the trooper's order into an order regulating traffic.

To the contrary, it seems that the Department is trying to establish probable cause
of a criminal violation because Shepack complied with the trooper's order to get out of
his vehicle. Under this theory, any time a driver complies with an officer's order to exit a
vehicle while parked on a controlled access highway, the officer would have probable
cause to arrest the driver. It means that if you comply with an officer's order, then the
officer can arrest you for complying with his order. This is tantamount to an officer
ordering a person to break the law. This result is not reasonable. Based on the evidence
here, there is not a sufficient basis to conclude that the trooper had probable cause to
believe that Shepack had violated K.S.A. 8-1503 or K.S.A. 8-1571.

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Next, the Department argues the trooper had probable cause to believe that
Shepack had violated K.S.A. 2017 Supp. 21-5904—interference with law enforcement—
in many ways. First, it argues that Shepack violated subsection K.S.A. 2017 Supp. 21-
5904 (a)(1)(C) when Shepack denied that he had been drinking. This subsection
criminalizes "[f]alsely reporting to a law enforcement officer . . . any information,
knowing that such information is false and intending to influence, impede or obstruct
such officer's or agency's duty." K.S.A. 2017 Supp. 21-5904(a)(1)(C).

This statute does not apply here simply because by lying about his consumption of
alcohol, Shepack is not "falsely reporting" information to the trooper.

We recognize that a panel of this court has held that lying to a police officer can
be grounds for a conviction under this subsection, but this case is distinguishable. In State
v. Miller, No. 113,595, 2016 WL 1079467 (Kan. App 2016) (unpublished opinion), the
panel reversed the district court's grant of a motion to dismiss a charge of falsely
reporting when the defendant falsely identified herself to the police trying to serve a
warrant for her arrest. 2016 WL 1079467, at *1-2. Here, the facts are different in that the
information the trooper requested was partially incriminating. K.S.A. 2017 Supp. 21-
5904(a)(1)(C) should not be construed to penalize the avoidance of providing self-
incriminating statements.

The Department goes on to argue that obstruction occurred in two ways—
Shepack's refusal to turn over the turnpike ticket to the trooper and not immediately
going to the rear of the vehicle. In its view, his actions violated subsection (a)(3) of the
statute: "knowingly obstructing, resisting or opposing any person authorized by law to
serve process in the service or execution or in the attempt to serve or execute any writ,
warrant, process or order of a court, or in the discharge of any official duty." K.S.A. 2017
Supp. 21-5904(a)(3).

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The Department's argument about the turnpike ticket is unpersuasive. Shepack
dropped his turnpike ticket and the trooper requested to see it. Shepack refused to let him
see the ticket. Basically, considering the Fourth Amendment to the United States
Constitution, what occurred here was the trooper requesting consent for a warrantless
search of Shepack's effects. A warrantless search under the Fourth Amendment is per se
unreasonable. State v. Baker, 306 Kan. 585, 589-90, 395 P.3d 422 (2017). The search
may be permitted if an exception exists, but the Department argues no exception to the
warrant requirement exists. See 306 Kan. at 589-90.

We do acknowledge that Kansas caselaw shows it may be obstruction, in some
circumstances, to interfere with a search that had been consented to or was subject to a
valid search warrant. State v. Ryce, 303 Kan. 899, 918, 368 P.3d 342 (2016), aff'd on
reh'g 306 Kan. 682, 396 P.3d 711 (2017). But there is no evidence here that Shepack
interfered with a search he consented to or a search authorized by a warrant. We find no
caselaw that supports a conclusion that a person commits obstruction by refusing to
consent to a warrantless search. Such a holding goes against the core principles of the
Fourth Amendment. Simply put, the trooper did not have probable cause to arrest
Shepack based on Shepack's refusal to allow him to see the toll ticket.

Next, the fact that Shepack did not move to the rear of the vehicle does not give
probable cause to believe that obstruction of an official duty had been committed. For
traffic stops, Kansas courts have found obstruction of an official duty has occurred when
a suspect provided a false identification to police officers. See State v. Latimer, 9 Kan.
App. 2d 728, 733, 687 P.2d 648 (1984). Even so, more recently this court has found that
even providing false identification does not violate the obstruction statute when the
providing of that information does not substantially hinder the investigation. For
example, in State v. Everest, 45 Kan. App. 2d 923, 929, 256 P.3d 890 (2011), there was
no criminal violation because the identity of the driver was quickly established by
discovering identification documents. In State v. Brown, 305 Kan. 674, 690, 387 P.3d 835
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(2017), our Supreme Court reaffirmed the requirement that for a violation of K.S.A. 2017
Supp. 21-5904(a)(3) to occur, the obstruction must cause a substantial hindrance or
increase the burden on the officer.

In our view, Shepack did not substantially hinder the trooper's investigation or
official duties. While not moving immediately did pose some safety risks, Shepack
moved when the officer took his arm and escorted him to the back of the vehicle. The
entire exchange from the trooper's initial request until Shepack had moved took about 30
seconds. The Department does not show how a reasonable officer would believe this was
a substantial hindrance and thus obstruction.

The potential non-DUI criminal violations that the Department argues establish
probable cause to arrest Shepack do not, in fact, establish a reasonable belief that he had
committed or was committing a crime. Thus, the only remaining source of a valid arrest
would be probable cause that Shepack was DUI.

We agree with the court—there was no probable cause to arrest for DUI.

In its thorough and well-written memorandum decision, the district court set out
27 paragraphs of facts. Both the transcript of the hearing and the video recording of the
police encounter provide substantial competent evidence for each of the district court's
findings.

The Department offers an argument that the court failed to give sufficient weight
to some evidence or ignored other evidence. The Department argues that the district court
erred by failing to consider fully:
 The extent of Shepack's erratic driving;
 Shepack stopped in a dangerous location near the exit of the turnpike;
 Shepack misrepresented his alcohol consumption;
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 the late hour of the stop; and
 Shepack misconstrued where he was going.

The Department also argues the court misconstrued the evidence relating to Shepack
dropping his toll ticket, his demeanor during the encounter, and his unimpaired balance.

When it focused on the extent of Shepack's erratic driving, the district court had to
make a credibility determination. The State presented a sworn statement from a witness
who allegedly observed Shepack driving erratically. To make its factual determination on
how Shepack was driving, the court also considered the trooper's and Shepack's
testimony and the video. In making the determination of fact, the district court seemingly
did not find the sworn statement of the witness to be credible. We cannot reweigh that
determination. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). The district
court's factual conclusion that the trooper received a call from dispatch about erratic
driving and the trooper's observation of Shepack's driving before the stop are supported
by substantial competent evidence. Thus, under our standard of review, it is not
appropriate to consider the qualitative information in the witness' statement when
deciding whether probable cause exists.

Similarly, the district court weighed evidence to reach the factual conclusion that
there was nothing improper about the way Shepack had parked on the shoulder. The
trooper provided conflicting testimony. First, he directly testified that there was nothing
improper about the way Shepack had parked. Later, he stated that parking near the
highway exit was dangerous. Based on the inconsistent testimony, the district court made
a factual determination that Shepack had parked close to the exit, but he did not park in
an otherwise deficient manner. Sufficient evidence supports this conclusion.

It is unclear how the Department concludes that there is a factual inconsistency
over Shepack's consumption of alcohol and the misrepresentation of him consuming
15

alcohol. The district court addressed the fact that Shepack at first stated he had not
consumed alcohol and then later testified that this was a misrepresentation of fact. The
court noted that Shepack said he had consumed between four and seven glasses of wine
on the day of the arrest. This factual conclusion is supported by the testimony from the
hearing.

The Department also argues the court erred by not considering the time of day.
Certainly driving at a late hour can be a factor a police officer relies on in determining
whether probable cause exists to arrest a person for DUI. But the Department fails to
show us how a stop at 9:27 p.m. qualifies as a late-hour stop. The caselaw the
Department cites for support all involved stops after 1 a.m. See, e.g., Kohn v. Kansas
Dept. of Revenue, No. 103,703, 2011 WL 768000, at *2 (Kan. App. 2011) (unpublished
opinion). The Department provides no caselaw that supports a conclusion that a stop at
9:27 p.m. should be considered a late-hour stop to consider whether probable cause to
arrest for DUI exists.

We turn now to Shepack misconstruing where he was going. The district court
determined that at first, Shepack misrepresented to the trooper where he had been, but he
later recanted these statements at trial—giving a complete itinerary of where he had been.
Basically, the district court did not make the inference that the Department wanted it to
draw from this information—that Shepack was confused about where he had been. The
evidence supports the district court's conclusion. This was a deliberate misrepresentation
and not the result of an alcohol-induced confusion. It was reasonable to reject the
Department's requested inference from this information. We will not, on appeal, reweigh
that evidence. See Hall, 292 Kan. at 859.

We next consider the Department's claim that the district court misconstrued the
evidence. First, in its view, Shepack did not just drop his ticket, but he dropped the ticket
because of a lack of manual dexterity. This was a result of alcohol consumption. This
16

position overstates the evidence available. The district court's conclusion that Shepack
simply dropped the ticket is the only conclusion that could be drawn from the evidence
presented. There was no testimony about where the ticket had been before being dropped.
It is not clear from the video whether the ticket was ever directly in Shepack's hands at
all. The only testimony relating to the ticket itself was that Shepack had dropped it. The
determination that dropping the ticket showed Shepack lacked manual dexterity or
concentration would not be supported by the evidence presented.

As for Shepack's demeanor, the district court held that Shepack was calm during
the encounter. The video evidence supports this conclusion. Seemingly, the only time that
Shepack raises his voice to the trooper is after he had begun escorting Shepack to the
back of the vehicle. And we note that on the arrest report and alcohol/drug influence
report, the trooper marked no boxes that showed Shepack was disorderly. The evidence
supports a conclusion that Shepack was calm during the encounter.

The final contention over facts involves the district court's holding that Shepack
did not have impaired balance. The video also shows that Shepack bent down to pick up
his turnpike ticket off the ground without trouble. The trooper testified that Shepack did
not lean up against any vehicle to maintain his balance during the encounter. The video
supports this testimony. The district court's conclusion that Shepack did not have
impaired balance is supported by the evidence.

All the factual conclusions the district court reached are supported by substantial
competent evidence. Having resolved any questions over the factual determinations, we
are left with a question of law—whether the facts known to the trooper at the time of the
arrest supported probable cause to arrest for DUI.

Kansas caselaw provides no rigid test for what constitutes probable cause for DUI.
Instead, each factual scenario must be considered on its own merits and be based on all
17

the facts and circumstances available to the officer. Sloop, 296 Kan. at 20-21. While there
is no specific test, various cases have listed factors to consider in assessing whether
probable cause to arrest for DUI exists.

We will consider only post-Sloop DUI cases. Sloop clarified the Kansas analytical
test for probable cause. The language that probable cause could be found where guilt was
more than a possibility was expressly disavowed as part of the Kansas probable cause
analysis. Thus, cases that relied on that test, while not necessarily directly overturned, are
of minimal precedential or persuasive value.

In Sloop, the court determined probable cause did not exist when an officer pulled
a vehicle over for an improper tag light. Before beginning the stop, the officer followed
the driver for 8 to 10 blocks without observing other driving concerns. After the stop, the
driver's speech was not slurred, he did not fumble while presenting his license, and he did
not stumble while exiting the vehicle or walking to the rear of the vehicle. 296 Kan. at
22-23.

Here, the facts are similar in some ways and different in others. Shepack did not
fumble with his license, have slurred speech, or stumble in his movements—facts that
support a conclusion that probable cause did not exist. But unlike Sloop, the trooper here
followed Shepack for a few miles before beginning the traffic stop and observed him
commit driving violations. Shepack's driving violations should be the focal point of the
rest of the analysis because without the driving violations, this case would be controlled
by Sloop and no probable cause would exist.

A more fitting case is City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275
(2015), because it provides a framework for assessing driving violations in a probable
cause analysis for DUI. "Obviously, evidence of unsafe driving can suggest intoxication.
But that alleged lapse of coordination must be viewed in conjunction with what
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followed." 301 Kan. at 268. In Molitor, the driver committed a traffic violation by turning
without signaling, ran into a curb while stopping his vehicle, and smelled of alcohol. The
court held that there was no reasonable suspicion to arrest the driver because he presented
his documents without trouble, did not have balance problems in moving around, and
passed two field sobriety tests. 301 Kan. at 268.

Shepack provided evidence of intoxication by weaving in his lane several times.
That evidence—along with the trooper noting the smell of alcohol and Shepack's
bloodshot, watery, and glazed eyes—must be considered with the evidence that he was
not having coordination problems after he exited the vehicle. See Molitor, 301 Kan. at
268. Shepack dropping his turnpike ticket provides little value about his state of
coordination because there is not enough evidence to support the Department's contention
that this showed a lack of manual dexterity. In contrast, Shepack bending over and
retrieving the ticket from the ground with no balance problem is highly indicative that he
was not intoxicated. Under the analysis in Molitor, the trooper did not have sufficient
probable cause to arrest Shepack for DUI because his actions following the stop for the
traffic infractions established that he was not intoxicated.

The two cases are not identical. In Molitor, the driver passed two field sobriety
tests before being arrested. The facts that the driver passed these tests were included in
the probable cause analysis. Here, there were no field sobriety tests conducted because
the trooper handcuffed Shepack before requesting the tests.

Finally, the Department relies on State v. Hamman, 273 Kan. 89, 41 P.3d 809
(2002), to show what it believes is a factually similar scenario where probable cause was
found to exist. In Hamman, a police officer observed a car driving 40 in a 55 mile-per-
hour zone. The car was driving on the far right side of the lane and veered toward the
centerline. The car continued to drift in the lane several times. Shortly thereafter, the car
turned onto a gravel road. The officer saw the car cross over to the left side of the gravel
19

road and struggle to return to the correct lane. The car then slowed down, nearly to a stop.
Next, the car continued driving slowly on the far right side of the lane. The car was not in
the ditch along the road, but was close. The officer stopped the car and smelled alcohol
after he approached the vehicle. The driving and the smell of alcohol provided probable
cause to arrest for DUI. 273 Kan. at 95.

This case is distinguishable in two ways. First, Molitor requires that we consider
the post-stop information about the lack of balance and slurred speech in our calculus of
probable cause. 301 Kan. at 268. Hamman was decided before Molitor, and Molitor
effectively altered the probable cause analysis from the analysis in Hamman. Second, the
information on the driver's conduct in Hamman is much more indicative of intoxicated
driving than Shepack's driving. Driving onto the wrong side of the road, struggling to
return the car to the correct side of the road, almost completely stopping, and then
continuing to drive slowly near the edge of the road is much more indicative of
intoxicated driving when compared to Shepack drifting in his lane six times.

Considering all the facts available to the trooper when he handcuffed Shepack, we
hold there was no probable cause to arrest him for DUI. While Shepack had shown some
indications of intoxication by crossing the centerline several times and smelling of
alcohol, those indications must be weighed against his lack of impaired balance and lack
of slurred speech. The facts presented to the district court are insufficient. We hold the
district court got it right.

Affirmed.