                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,232

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                   DYLAN MITCHELL HUSTON,
                                         Appellant.


                                  MEMORANDUM OPINION

       Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed July 24, 2020.
Affirmed.


       Michael S. Holland II, of Holland and Holland, of Russell, for appellant.


       Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before GARDNER, P.J., WARNER, J., and ROBERT J. WONNELL, District Judge, assigned.

       PER CURIAM: After determining that Dylan Mitchell Huston had violated various
traffic laws including the operation of a vehicle under the influence of alcohol, Deputy
Eric Fisher arrested him on January 14, 2018. Huston was charged with one count each of
operating a motor vehicle while under the influence of alcohol, reckless driving,
speeding, improper driving on a laned roadway, and driving left of the center lane. At a
hearing on a motion to suppress, Huston argued that Fisher lacked probable cause to
place him under arrest. The district court ultimately found that Fisher had probable cause
to arrest Huston. Subsequently, Huston agreed to a bench trial on stipulated facts and the
district court found Huston guilty of all five charges. Huston timely appealed.

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Factual Background


       On January 14, 2018, local law enforcement responded to a request for assistance
at Cattlemen’s in Dodge City. A witness told police that she had taken keys from an
individual, later identified as Huston, to keep him from driving his vehicle home, and he
became upset. Upon arrival, Huston was still upset and Fisher intervened in the
conversation between him and the witness. At that point, Fisher noticed an odor of
alcohol and observed Huston struggling to maintain his balance. Fisher also stated that
Huston was lethargic and had slurred speech. No arrests were made and the officers left
the establishment.


       Suspecting that Huston may ultimately ignore the advice of the witness, Fisher
proceeded to park his patrol vehicle in the parking lot across the street. After staying at
the establishment a little while longer, Huston left the establishment and drove his vehicle
onto public roads. Fisher was able to confirm that Huston was the driver after seeing his
face in the streetlight.


       Huston operated his vehicle through town and ended up on Butter and Egg Road
just outside of the city. At this point, Huston began traveling at approximately 80 miles
per hour in a 55 mile per hour zone. Butter and Egg Road is a predominately unmarked,
blacktop county road southeast of downtown Dodge City. Fisher observed Huston driving
from one side of the road to the other. At one point, Huston went into the ditch and came
back onto the road causing snow to fly from his tires. At this point, Fisher pulled Huston
over just before Spur on Lariat Road.


       Approximately 10 minutes had passed between the time Fisher left the parking lot
and the time he pulled over Huston. Still detecting an odor of alcohol, Fisher asked
Huston if he would perform field sobriety tests and Huston stated "yeah, you're good".
After exiting the vehicle, Huston refused to cooperate. Fisher tried initiating the field

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sobriety tests but Huston would not attempt them. Huston also continued to display
difficulty standing up, was slow and lethargic. At this point, Huston was placed under
arrest and taken into custody.


       Although Fisher had the necessary equipment, he never performed a PBT before
placing Huston under arrest. At the jail, Huston refused to submit to a breath test after
being given the implied consent advisories in the DC-70 form as required by the Kansas
Implied Consent Law. Fisher subsequently applied for a search warrant for a blood draw.
Within three hours, a district judge granted the search warrant and an EMS with the Ford
County Fire Department performed the blood draw. The lab report of 0.21 grams of
alcohol per 100 milliliters of blood confirmed Fisher's reasonable suspicion that Huston
had operated his vehicle under the influence of alcohol.


       Huston was charged with one count each of operating a motor vehicle while under
the influence of alcohol, reckless driving, speeding, improper driving on a laned roadway,
and driving left of the center lane. On March 19, 2018, Huston filed a motion to suppress.
At the hearing on the motion, Huston argued that Fisher lacked probable cause to place
him under arrest. Fisher was the only witness to testify at the hearing. After hearing
Fisher's testimony and the parties' arguments, the district court ultimately found that
Fisher had probable cause to arrest Huston. Subsequently, Huston agreed to a bench trial
on stipulated facts and the district court found Huston guilty of all five charges.


       Huston timely appeals.


Did the District Court Err in Denying the Motion to Suppress?


       The standard of review for a district court's decision on a motion to suppress has
two components. The appellate court reviews the district court's factual findings to
determine whether they are supported by substantial competent evidence. In reviewing

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the factual findings, the appellate court does not reweigh the evidence or assess the
credibility of witnesses. The ultimate legal conclusions, however, are reviewed using a de
novo standard. State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). The trial in
this case was to the court on stipulated facts. Accordingly, our analysis is predominately
focused on the legal conclusions applied to the facts.


       The district judge found that Fisher identified a strong odor of alcohol on Huston
during the first encounter. Fisher also recognized that Huston's movements were lethargic
and Huston had "faulty thought processes," which were consistent with Fisher's concerns.


       The district judge found that Fisher had "much DUI investigation experience", that
he identified a strong odor of alcohol at the bar and after stopping the vehicle, that
Huston was lethargic and exhibited a faulty thought process. The court specifically found
that Fisher had reasonable suspicion once he observed Huston drive his vehicle. Fisher's
concerns were reinforced after observing Huston's erratic driving patterns on the country
road. After pulling Huston over, Fisher observed again that Huston was "uncooperative,
not following directions, and [had a] strong odor of alcohol." The district judge
concluded that these facts supported probable cause that Huston was driving under the
influence.


       On appeal, Huston argues that the State did not meet its burden to prove Fisher
had probable cause to place him under arrest. Huston contends that even though Fisher
may have originally had reasonable suspicion to believe he was driving under the
influence, Fisher's failure to complete field sobriety testing and perform a PBT was fatal
to this issue of probable cause.


       Huston relies on Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555
(2012), and a number of other cases, to argue that the Kansas Supreme Court has clarified


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the probable cause standard and what constitutes probable cause in a DUI case. In Sloop,
the Kansas Supreme Court explained:


               "'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 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.


       The court went on to add that in previous cases it held that when attempting to
establish probable cause: "'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.'" 296 Kan. at 20. However, the court held the "use of this
additional, italicized factor is no longer approved" because it "crept into our caselaw
apparently without explanation," and "has received undue emphasis in the probable cause
calculus, sometimes to the exclusion of other considerations." 296 Kan. at 21.


       Huston also cites City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015),
and claims the court found "preliminary breath test results inadmissible where the officer
lacked the requisite reasonable suspicion after field sobriety testing indicated a lack of
impairment." But that is a mischaracterization of the case.


       In Molitor, the defendant was stopped after he failed to use his turn signal when he
made a turn. The officer smelled alcohol coming from the vehicle and observed that
Molitor had watery, bloodshot eyes. Molitor told the officer he had consumed two or
three beers, but "Molitor's speech was not slurred; he had no difficulty producing his
driver's license, insurance information, and vehicle registration; and he did not lose his

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balance while exiting his vehicle or walking thereafter." 301 Kan. at 253. The officer
proceeded to administer field sobriety tests, including the Horizontal Gaze Nystagmus
(HGN), the walk-and-turn, and the one-leg stand. The officer determined Molitor passed
the walk-and-turn and one-leg stand tests but failed the HGN test. The officer then asked
Molitor to take a PBT, which Molitor failed.


       In its analysis, the Kansas Supreme Court stated that reasonable suspicion is
determined by examining the totality of the circumstances and explained that "[t]he
determination that reasonable suspicion existed obtains only after the interaction of all
factors is assessed." 301 Kan. at 266. The court distinguished the weight accorded to a
driver's admission to drinking "two or three beers," based on the existing statutory
language that required the officer to reasonably believe a driver's blood alcohol
concentration had reached .08 or more compared to a previous version of the same statute
that required an officer to believe a driver has alcohol in their body. The court concluded:


       "Under the old statute, it would be compelling evidence that the driver had alcohol in his
       or her body, whereas, under the current statute, it would be evidence that tends to refute
       the notion that the driver was operating the vehicle with an illegal level of alcohol in his
       or her body, i.e., it is questionable whether two or three beers would raise the alcohol
       concentration in the breath or blood of a normal size man to .08 or more." 301 Kan. at
       267.


       The court also noted that "in Pollman, this court set a low bar for the observable
indicia of intoxication that can support reasonable suspicion, noting only the smell of
alcohol and the driver's admission to having drunk alcohol, in addition to the acts leading
to the criminal obstruction of official duty charges." 301 Kan. at 268 (citing State v.
Pollman, 286 Kan. 881, Syl. ¶ 7, 190 P.3d 234 [2008]). Furthermore, the court explained
that "evidence of unsafe driving can suggest intoxication." 301 Kan. at 268. Thus, the
court was primarily reinforcing precedent, not dissociating itself from it.


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       Huston cites Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 442 P.3d 1038
(2019), to support his contention that Fisher's failure to complete field sobriety testing
and perform a PBT was fatal to the issue of probable cause. But his reliance is misguided.


       In its analysis of Casper, the Kansas Supreme Court cited Sloop as support for the
fact that warrantless arrests must be supported by probable cause, which is examined
under the totality of the circumstances. 309 Kan. at 1214 (citing Sloop, 296 Kan. at 23).
The court also discussed how it was technically incorrect for the district court to treat
reasonable suspicion and probable cause as equivalent concepts but noted that the "court
has implied the terms are essentially the same, with at most only subtle differences. 309
Kan. at 1215 (citing State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 [2013]).


       The Casper court delineated between the objective and subjective aspects of field
sobriety testing when it stated that "although field sobriety tests may have objective
grading criteria that officers must follow, it is an officer's subjective opinion that
determines whether a suspect has passed the objective field sobriety tests." 309 Kan. at
1219 (citing Molitor, 301 Kan. at 267). The court also noted that "field sobriety tests rely
on common knowledge, not scientific foundation, for their reliability. It follows that a
district court judge could rely on common knowledge to evaluate an arresting officer's
grading of field sobriety tests" 309 Kan. at 1219. While Huston emphasizes the lack of
the administration of a PBT in his case, the Kansas Supreme Court explained in Casper
that


       "the district judge made it clear that he was considering the lack of a PBT alongside other
       evidence to determine whether 'the totality of the circumstances' showed that the officer
       had reasonable grounds to believe Casper was driving under the influence.


               ". . . The district court stated that the absence of a PBT was significant in this
       case because the evidence of driving under the influence was 'certainly not strong'" 309
       Kan. at 1218.

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       The cases cited by Huston are distinguishable from the case at bar. The defendant
in Casper did not execute a traffic violation and Huston did. The defendant in Molitor
cooperated with field sobriety tests and Huston did not. None of the cases cited by
Huston stand for the proposition that failure to administer a PBT alone is fatal to a
finding of probable cause. Still, the line of cases that Huston cites reinforce the fact that a
district court should analyze the totality of the circumstances, including the lack of a
PBT, when it determines whether an officer had probable cause.


       The State cites State v. Chavez-Majors, 310 Kan. 1048, 454 P.3d 600 (2019), to
support its contention that Fisher had probable cause. In Chavez-Majors, an officer
directed EMS personnel to draw Chavez-Majors' blood after Chavez-Majors crashed his
motorcycle and the officer smelled alcohol on Chavez-Majors' breath. The officer did not
obtain a warrant and Chavez-Majors was unconscious when the officer read him the
implied consent forms. Chavez-Majors moved to suppress the blood draw evidence
arguing that it was an unreasonable search.


       In analyzing whether probable cause existed, the Kansas Supreme Court noted
"the State had to establish that [the officer] had probable cause to believe Chavez-Majors
had been driving his vehicle while the alcohol concentration in his blood was .08 or
more." Chavez-Majors, 310 Kan. at 1055. The court reinforced the fact that both "'unsafe
driving'" and the "smell of alcohol" can suggest intoxication. 310 Kan. at 1056-57 (citing
Molitor, 301 Kan. at 251; Johnson, 297 Kan. at 222). The court also reiterated that
"[w]hether an officer had probable cause depends on '"the facts and circumstances within
the arresting officers' knowledge."'" 310 Kan. at 1057 (quoting State v. Ramirez, 278
Kan. 402, 406, 100 P.3d. 94 [2004]).


       The requirement in this case is no different. This court must look at the totality of
circumstances known to Fisher at the time of arrest. After hearing the evidence, the
district court determined that probable cause existed based on all of the specific factual

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findings listed above under the required totality of circumstances analysis, including the
fact that Huston would not cooperate with the field sobriety tests. Substantial competent
evidence supported the district court's factual finding and correct legal conclusion was
reached. The district court is affirmed.


       Affirmed.




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