                         NOT DESIGNATED FOR PUBLICATION

                                           No. 120,470

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  CHRISTOPHER D. WALKER,
                                         Appellant,

                                                 v.

                             KANSAS DEPARTMENT OF REVENUE,
                                       Appellee.


                                 MEMORANDUM OPINION

       Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed May 1, 2020.
Affirmed.


       Kevin P. Shepherd, Law Office of Kevin P. Shepherd, of Topeka, for appellant.


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


Before HILL, P.J., BUSER and BRUNS, JJ.


       PER CURIAM: Christopher D. Walker appeals from the district court's decision
affirming the administrative suspension of his driver's license. A Shawnee County
Sheriff's Deputy arrested Walker for suspicion of driving under the influence of alcohol
following a traffic stop and he subsequently refused to take an evidentiary breath alcohol
test. As a result, the Kansas Department of Revenue (KDOR) suspended Walker's driver's
license. On appeal, Walker contends that substantial competent evidence does not support
his arrest. In addition, he contends that the statute under which his driver's license was
suspended is unconstitutional. For the reasons set forth in this opinion, we affirm the
district court's decision.

                                                 1
                                           FACTS

       In the early morning hours of August 31, 2017, Shawnee County Sheriff's
Deputies Dalton Atzenweiler and Tyler Vaughn—who were riding together in a patrol
vehicle—stopped a vehicle driven by Walker for making an improper left turn after
leaving a bar. After observing the traffic violation, the officers began recording the
subsequent events. It does not appear that Walker committed any additional traffic
offenses after the officers saw him making the improper left turn.


       After stopping in a nearby parking lot, Walker told Deputy Atzenweiler that he
had dropped off some friends at the bar and was heading home. Walker produced his
driver's license to the deputy and showed him a photograph of his automobile insurance
card on his cellphone. However, Walker failed to present the vehicle's registration to the
deputy. In speaking to Walker, Deputy Atzenweiler smelled the odor of an alcoholic
beverage and noticed that Walker had bloodshot eyes.


       Based on his observations, Deputy Atzenweiler requested that Walker perform
several field sobriety tests. In performing the field sobriety tests, the deputy observed that
Walker had poor balance and coordination. During the walk-and-turn test, Walker could
not hold his heel to toe position at the beginning of the test and he stepped off the line at
step seven. Moreover, Walker inappropriately turned around at the halfway point of the
test. Also, during the one-leg-stand test, Deputy Atzenweiler had to explain the test to
Walker twice before he began. Then, Walker dropped his foot after seven seconds and
briefly lost his balance after raising it back up. Walker told Deputy Atzenweiler that the
reason he struggled with the field sobriety tests was because he had broken his right leg
four times and had "bl[own] his knee out."


       Based on Walker's performance during the field sobriety tests, and after discussing
the matter with Deputy Vaughn, Deputy Atzenweiler read the preliminary breath test

                                              2
advisory to Walker. Even so, Walker refused to submit to a preliminary breath alcohol
test and the deputy placed him under arrest for suspicion of driving under the influence of
alcohol. After being taken to the law enforcement center, Walker also refused to take an
evidentiary breath alcohol test. It is undisputed that Deputy Atzenweiler completed a DC-
27 form that he read and served on Walker. The DC-27 advised Walker that his driver's
license would be suspended and gave him notice of his right to file an administrative
appeal.


       After KDOR upheld the administrative suspension of Walker's driver's license, he
filed a petition for judicial review with the district court. The district court did not
conduct a formal hearing. Instead, the parties agreed to submit the case on written briefs
filed with the district court. Prior to making its decision, the district court viewed the
video recording of the traffic stop and field sobriety testing. The district court also
reviewed the statements made by Atzenweiler in the DC-27 form.


       On November 6, 2018, the district court issued a written decision in which it
affirmed the administrative suspension of Walker's driver's license. In doing so, the
district court noted that it had "reviewed the evidence as stipulated by the parties, which
includes the agency record and a DVD of the traffic stop. The parties waived any
presentation of additional evidence at trial." Thereafter, Walker filed this appeal.


                                          ANALYSIS

       Walker raises two issues on appeal. First, Walker contends that there was
insufficient evidence presented to support a finding that Deputy Atzenweiler had
reasonable grounds to believe he operated a motor vehicle under the influence. In
particular, Walker suggests that the district court ignored evidence in the video recording
which, he believes, showed that he was not impaired. Second, Walker contends that
K.S.A. 2019 Supp. 8-1001(c)(2)—formerly K.S.A. 2017 Supp. 8-1001(k)(5)—is

                                               3
unconstitutional. Specifically, Walker argues that the statute requires a driver to give up
his Fourth and Fifth Amendment rights under the United States Constitution in order to
preserve the privilege to drive.


Substantial Competent Evidence

       Walker argues that "[v]ideo evidence presented to the district court showed that
[he] did not exhibit any indication of impairment in the operation of his vehicle. The
district court ignored this evidence in [its] analysis of the totality of the circumstances."
Although Walker phrases this issue in terms of insufficiency of the evidence, we review a
district court's decision in a driver's license suspension case under a substantial competent
evidence standard of review. See Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881,
281 P.3d 135 (2012). Substantial competent evidence is evidence that a reasonable person
could accept as adequate to support a conclusion. In determining whether the district
court's findings of fact are supported by substantial competent evidence, we do not
reweigh the evidence, assess the credibility of witnesses, or resolve evidentiary conflicts.
State v. Boggess, 308 Kan. 821, 825, 425 P.3d 324 (2018).


       In the DC-27 form prepared by Deputy Atzenweiler and served on Walker, the
reason for the traffic stop was articulated. Moreover, the DC-27 form indicated that
Walker had bloodshot eyes and an odor of alcohol on his breath. However, Walker
asserts the video recording of the traffic stop demonstrates that he was not impaired
because "his eyes were not visibly bloodshot," "his speech was clear," and his "physical
infirmities contributed to his inability to perform standardized field sobriety tests." In
addition, Walker claims that the district court failed to take into consideration his lack of
additional driving infractions after the initial improper turn and his denial of alcohol
consumption on the night of his arrest.




                                               4
       Kansas courts evaluate "reasonable grounds" to believe a driver operated a motor
vehicle under the influence of alcohol by looking to probable cause standards. "'Probable
cause is determined by evaluating the totality of the circumstances,' giving consideration
to 'the information and fair inferences therefrom, known to the officer at the time of
arrest,' with 'no rigid application of factors.'" Swank, 294 Kan. at 881. "Probable cause
exists where the officer's knowledge of the surrounding facts and circumstances creates a
reasonable belief that a defendant committed a specific crime. Probable cause does not
require an officer have evidence of every element of the crime." Smith v. Kansas Dept. of
Revenue, 291 Kan. 510, Syl. ¶ 1, 242 P.3d 1179 (2010).


       A review of the record reveals that the district court conducted a de novo review
of the evidence regarding Walker's license suspension. In so doing, the district court
properly noted that Walker had the burden—under K.S.A. 2017 Supp. 8-1020(q)—of
showing that the agency decision must be set aside. See Mitchell v. Kansas Dept. of
Revenue, 41 Kan. App. 2d 114, 121-22, 200 P.3d 496 (2009). The district court reviewed
the statements by Deputy Atzenweiler in the DC-27 form that he smelled alcohol on
Walker's breath, had bloodshot eyes, and exhibited poor balance. The district court also
noted Walker's performance on the field sobriety tests.


       Significantly, the district judge watched the video recording of the traffic stop and
could see for herself what had occurred. After doing so, the district judge rejected each of
Walker's evidentiary arguments regarding his alleged lack of impairment. As for those
arguments—which are identical to those that Walker now makes on appeal—the district
court made the following factual conclusions:


               "The recording device was activated after Deputy Atzenweiler observed Walker's
       improper turn out of the bar. The alleged improper turn is not depicted on the DVD, thus
       the DVD does not contradict [the] statement in the DC-27. The recording device does not
       record odors, thus the DVD does not contradict the statement in the DC-27 about odor of


                                                  5
       alcohol. Further, Deputy Atzenweiler states on the video that he smelled alcohol on
       Walker.
                 "Walker says the DVD does not show that he had bloodshot eyes. This cannot be
       discerned one way or the other from the DVD, thus it does not contradict the statement in
       the DC-27.
                 "Walker argues that he did not fail field sobriety tests and any lack of balance or
       coordination can be explained by his prior injuries, which he described to the deputies on
       the DVD. Walker stated on the video that he had broken his right leg four times in the
       past and 'blew his knee out.' He agreed, however, that he was able to stand on his legs.
       Walker claimed in his brief that the video shows him walking with a limp, but it does not.
       The video demonstrates that Walker did not stagger or stumble when he walked."


       Finally, after repeating its prior findings regarding the failed sobriety tests, the
district court determined that there were reasonable grounds to request a preliminary
breath test and to place Walker under arrest after he refused to take the test.


       On appeal, Walker seeks to have us reweigh the evidence presented to the district
court. Yet our review is limited to determining whether substantial competent evidence
supports the district court's conclusions. Boggess, 308 Kan. at 825; see also Casper v.
Kansas Dept. of Revenue, 309 Kan. 1211, 1220, 442 P.3d 1038 (2019) (appellate courts
should not reevaluate evidence of impairment but should apply the more deferential
substantial competent evidence review). "In determining whether substantial competent
evidence supports the district court's findings, appellate courts must accept as true the
evidence and all the reasonable inferences drawn from the evidence which support the
district court's findings and must disregard any conflicting evidence or other inferences
that might be drawn from it." Gannon v. State, 305 Kan. 850, 881, 390 P.3d 461 (2017).


       Based on our review of the record, we find that the district court carefully
considered all the evidence presented by the parties and made factual findings that are
supported by the record. We also find that the district court's findings are reasonable in
light of the video recording of the traffic stop. Although some may interpret the evidence
                                                      6
differently, we conclude that the district court's findings are based on substantial
competent evidence as well as on the reasonable inferences that may be drawn from that
evidence.


       Notably, the district court found that the traffic stop was valid; that Walker failed
to produce registration for the vehicle he was driving; and that Walker showed a lack of
balance during the field sobriety tests. Further, the district court found that Deputy
Atzenweiler smelled alcohol on Walker's breath and observed that his eyes were
bloodshot. In addition, the district court took into consideration the fact that Walker
refused to take a preliminary breath test and noted that a law enforcement officer "may
draw a negative inference from a driver's refusal to take a preliminary breath test." See
Forrest v. Kansas Dept. of Revenue, 56 Kan. App. 2d 121, 128, 425 P.3d 624 (2018).


       In summary, we find that the district court carefully analyzed the evidence
presented by the parties and reached a reasonable conclusion based on that evidence. We
also find that the district court's decision that there was reasonable grounds or probable
cause—based on the totality of the circumstances—for Deputy Atzenweiler to request
that Walker submit to a preliminary breath test. Accordingly, we conclude that the district
court did not err in determining that Deputy Atzenweiler had reasonable grounds to
request a preliminary breath alcohol test.


Constitutionality of K.S.A. 2019 Supp. 8-1001(c)(2)

       Next, Walker challenges the constitutionality of K.S.A. 2019 Supp. 8-
1001(c)(2)—formerly K.S.A. 2017 Supp. 8-1001(k)(5)—which provides that "[w]hen
requesting a test or tests of breath or other bodily substance other than blood or urine,
under this section, the person shall be given oral and written notice that . . . if the person
refuses to submit to and complete the test or tests, the person's driving privileges will be
suspended for a period of one year."

                                               7
       The constitutionality of a statute is a matter of law subject to unlimited review.
Hall v. Dillon Companies, Inc., 286 Kan. 777, 789, 189 P.3d 508 (2008). If possible, we
are to endeavor to find a reasonable way in which to construe a statute as constitutionally
valid. See KNEA v. State, 305 Kan. 739, 749-50, 387 P.3d 795 (2017). The burden is on
the party asserting unconstitutionality. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454,
462, 447 P.3d 959 (2019).


       In Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2186, 195 L. Ed. 2d
560 (2016), the United States Supreme Court held that the Fourth Amendment prohibits
warrantless blood tests pursuant to DUI arrests and that drivers cannot be deemed to have
consented to such a test based on a threat of criminal penalty. Even so, Birchfield also
held that the Fourth Amendment permits warrantless breath tests in some cases. 136 S.
Ct. at 2184. Significantly, in Birchfield, the United States Supreme Court noted that
"[o]ur prior opinions have referred approvingly to the general concept of implied-consent
laws that impose civil penalties and evidentiary consequences on motorists who refuse to
comply" and found that "nothing we say here should be read to cast doubt on them." 136
S. Ct. at 2185.


       Similarly, in State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II), the
Kansas Supreme Court declared K.S.A. 2016 Supp. 8-1025's criminalization of a driver's
refusal to submit to a blood alcohol content testing to be unconstitutional under the
Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution
Bill of Rights. Nevertheless, our Supreme Court has not invalidated the entire implied
consent statutory scheme. Moreover, we do not anticipate that it will do so.


       Instead, the court has held that "compulsory testing for alcohol or drugs through
drivers' implied . . . consent does not violate the Constitution, it is reasonable in light of
the State's compelling interest in safety on the public roads." Martin v. Kansas Dept. of
Revenue, 285 Kan. 625, 635, 176 P.3d 938 (2008), overruled on other grounds by City of
                                               8
Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048 (2015). See also State v. Arellano,
No. 116,448, 2018 WL 1352571, at *3-4 (Kan. App. 2018) (unpublished opinion)
(holding that evidence of a breath test does not implicate Fourth or Fifth Amendment
rights); Rome v. Kansas Dept. of Revenue, No. 117,606, 2018 WL 2994304, at *4 (Kan.
App. 2018) (unpublished opinion) (holding that the Fourth Amendment's exclusionary
rule does not apply in administrative driver's license suspension cases).


       Of course, we are "duty bound to follow Kansas Supreme Court precedent absent
some indication that the court is departing from its previous position." State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015); see McCullough v. Wilson, 308 Kan.
1025, 1032, 426 P.3d 494 (2018). Because we find no indication of such a departure,
Walker's argument fails. We, therefore, conclude that the KDOR's decision to suspend
Walker's driver's license for his failure to submit to a breath alcohol test was justified
under the constitutionally valid statutory provision in K.S.A. 2019 Supp. 8-1001(c)(2).


       Affirmed.




                                              9
