                         NOT DESIGNATED FOR PUBLICATION

                                           No. 120,998

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     DYLAN M. STEINLAGE,
                                         Appellant,

                                                 v.

                             KANSAS DEPARTMENT OF REVENUE,
                                       Appellee.


                                 MEMORANDUM OPINION

       Appeal from Nemaha District Court; JAMES A. PATTON, judge. Opinion filed March 13, 2020.
Affirmed.


       William C. O'Keefe, of O'Keefe Law Office, of Seneca, for appellant.


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


Before HILL, P.J., GREEN and WARNER, JJ.


       PER CURIAM: Dylan Steinlage's driver's license was administratively suspended
after he failed a breath test. He now appeals, arguing the sheriff's deputy did not have
reasonable suspicion to believe he had operated a vehicle under the influence of alcohol
and thus did not have authority to request the test. Steinlage argues there are innocent
explanations for his slurred speech and imbalance—the evidence the deputy relied on to
demonstrate his intoxication. He also asserts that various other factors tending to show
intoxication were absent from the record here. This court's standard of review, combined
with the uncontroverted evidence, leads us to affirm the district court's decision.




                                                  1
                       FACTUAL AND PROCEDURAL BACKGROUND

       The weather in rural Nemaha County was inhospitable in the early morning hours
of April 15, 2018. The thermometer registered 25 degrees while winds blew at 20 to 30
miles per hour. At approximately 2:30 a.m., Deputy Douglas Dalinghaus of the Nemaha
County Sheriff's Department responded to a call from a farmer about a car accident.
Upon arriving, Dalinghaus found a vehicle overturned in a field, but the driver was not at
the scene. With the driver missing, the deputy helped the fire department search the
surrounding area; he later learned another deputy found alcohol containers surrounding
the vehicle. Dalinghaus later testified he could not remember whether the deputy told him
the containers were open.


       While investigating the scene, the sheriff's department learned Steinlage had been
the driver. The sheriff's department called Steinlage's parents and informed them of the
accident; at that time, they did not know where he was. But the parents later found him
and took him home, learning he had walked away from the accident toward their house.


       Deputy Dalinghaus and another deputy left the accident scene and went to
Steinlage's parents' house, where Dalinghaus met with Steinlage. Steinlage was dirty and
had blood on his jeans, so the deputy allowed him a few minutes to change and freshen
up. They then talked about the accident.


       Steinlage explained he had a "problem" driving, and the vehicle overturned.
Although Steinlage stated he had not been drinking, Dalinghaus noticed he was "a little
unsteady" on his feet and his speech was "a little slurred." These observations, coupled
with the knowledge of the accident, the alcohol containers surrounding the car, the time
of the accident (around 2 a.m.), and Steinlage's strange behavior of leaving the accident
and walking home in the freezing temperatures, led Dalinghaus to believe he had been
driving impaired.



                                             2
       Because Steinlage had been out walking in the cold, Dalinghaus did not request
him to undergo the standard field sobriety tests. Instead, he asked Steinlage to perform a
preliminary breath test. Steinlage did so. The breath test showed a blood alcohol
concentration over 0.08. Dalinghaus then took him to the sheriff's department for further
testing. A subsequent Intoxilyzer breath test showed an alcohol concentration of 0.207.
Dalinghaus certified these results using a DC-27 and provided Steinlage a notice that his
license would be suspended.


       Steinlage challenged his suspension through an administrative hearing. After
considering the evidence, the hearing officer determined Steinlage had not shown Deputy
Dalinghaus lacked reasonable suspicion Steinlage had been driving while under the
influence of alcohol. Steinlage then petitioned the district court to review the hearing
officer's decision, and the district court found the deputy had reasonable suspicion to
request the breath test and affirmed the suspension. Steinlage appeals.


                                         DISCUSSION

       Appellate courts considering license-suspension decisions employ a mixed
standard of review, depending on the nature of the questions presented. We review the
district court's factual findings for substantial competent evidence and its legal
conclusions de novo. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 466, 447 P.3d
959 (2019). Substantial competent evidence is relevant and substantive evidence that
furnishes a sufficient basis of fact to reasonably resolve the issues in the case. In
evaluating whether such evidence existed before the district court, we do not reevaluate
the credibility of witnesses, redetermine questions of fact, or reweigh evidence in
conflict. 310 Kan. at 469.




                                              3
       K.S.A. 2017 Supp. 8-1012(b), now codified at K.S.A. 2019 Supp. 8-1012(a),
permits an officer to request a preliminary breath test when the officer has reasonable
suspicion the driver has operated a vehicle while under the influence of alcohol.
Reasonable suspicion requires more than a mere hunch; an officer must articulate the
reasons justifying an action. State v. Jones, 47 Kan. App. 2d 866, Syl. ¶ 6, 280 P.3d 824
(2012), aff'd 300 Kan. 630, 333 P.3d 886 (2014). Whether reasonable suspicion exists is a
question of law and depends on the totality of the circumstances. 47 Kan. App. 2d 866,
Syl. ¶ 2. No one factor dominates the inquiry; the quantity of the evidence must be
weighed against its quality. 47 Kan. App. 2d 866, Syl. ¶ 6.


       Steinlage attempts to discredit the district court's conclusion by pointing to the
absence of various facts here that in other circumstances would indicate impairment. For
example, he emphasizes that the deputy did not smell alcohol on Steinlage before
requesting the preliminary breath test. And he notes that although alcoholic containers
were found around Steinlage's vehicle at the accident scene, the deputy testified he could
not recall whether those containers were open. Steinlage also argues that there are
innocent explanations for the factors the court found persuasive of impairment. He claims
that although he was unsteady and slurred his speech, these could have resulted from his
prolonged exposure to freezing temperatures, not from his alcohol consumption.


       Steinlage correctly notes the odor of alcohol can be an important factor when
developing reasonable suspicion. See State v. Pollman, 286 Kan. 881, 895-96, 190 P.3d
234 (2008) (collecting cases). But an officer may form reasonable suspicion absent the
odor of alcohol when other factors indicate intoxication. See Poteet v. Kansas Dept. of
Revenue, 43 Kan. App. 2d 412, 416, 233 P.3d 286 (2010) (independent of odor of
alcohol, facts of the car accident may suggest impairment, satisfying reasonable
grounds); Hanchett v. Kansas Dept. of Revenue, No. 115,579, 2016 WL 6822802, at *3
(Kan. App. 2016) (unpublished opinion) (collecting cases indicating lateness of hour may
create inference of intoxication); State v. Spoon, No. 91,013, 2004 WL 1176688, at *2


                                              4
(Kan. App. 2004) (unpublished opinion) (leaving scene of an accident and belief that
defendant's difficulty moving was a result of intoxication factors in establishing probable
cause).


       In essence, Steinlage asks this court to reweigh the evidence in this case and come
to a different conclusion than the district court based on the explanations he offers. But
that is not the standard we apply in our review. Instead, we must consider whether the
district court's factual findings are supported by substantial competent evidence and
whether these findings show the deputy had reasonable suspicion to believe Steinlage had
been driving under the influence of alcohol.


       The district court concluded Deputy Dalinghaus had reasonable suspicion
Steinlage drove while under the influence of alcohol and thus could request a preliminary
breath test. The evidence supports the district court's conclusion. Steinlage's slurred
speech and imbalance, the hour of the accident, and the nature of Steinlage's actions after
the accident (walking to his parents' house in the cold rather than calling for help) can all
lead to reasonable inferences of impairment. Though Deputy Dalinghaus could not recall
whether the alcohol containers found surrounding Steinlage's car were open, their
presence suggests alcohol may have been a factor. These are reasonable inferences from
the evidence presented. And they are sufficient to support the legal conclusion that
Deputy Dalinghaus had reasonable suspicion to believe Steinlage had been driving his
vehicle while intoxicated and articulable reasons to request a breath test.


       Affirmed.




                                               5
