This case returns to our court upon remand from the Supreme Court. See State v. Pollman,
Factual and Procedural Background
Leonard Pollman was convicted of DUI in violation of K.S.A. 2005 Supp. 8-1567(a)(2). On appeal, Pollman contended the district court erred in overruling his motion to suppress evidence obtained by Officer Michael Walline because the officer did not have reasonable suspicion to detain him or probable cause to arrest him for DUI. Pollman also contended that K.S.A. 2005 Supp. 8-1567(a)(2) was unconstitutionally overbroad and void for vagueness.
In State v. Pollman, No. 93,947, unpublished opinion filed April 27, 2007, we reversed tire conviction, stating: “Our review of the evidence in the present case convinces us that at the time Walline commenced his investigative detention of Pollman the totality of circumstances would not have provided an objective law enforcement officer with a reasonable suspicion that Pollman had committed a DUI.” Slip op. at 11. Given our ruling we declined to address the additional issues raised by Pollman on appeal. Slip op. at 12.
The Supreme Court granted the State’s petition for review and reversed our decision holding:
*22 “[W]e conclude die totality of the circumstances — including criminal obstruction of official duty, admission to drinking, and smell of alcohol — provided reasonable suspicion sufficient to justify an investigation into whether Pollman, who was observed driving, was operating his motorcycle while under the influence of alcohol. In other words, there existed a minimum level of objective justification sufficient for the investigative detention of Pollman.”286 Kan. at 897 .
Given its decision, the Supreme Court remanded the case to our court to “address the questions of whether K.S.A. 2005 Supp. 8-1567(a)(2) is unconstitutionally overbroad and void for vagueness and whether the arrest was supported by probable cause.”
Because the determination of whether probable cause existed to arrest Pollman for DUI turns on the totality of circumstances known to Officer Walline at the time of the arrest, we reprise the Supreme Court’s recitation of the facts:
“On the evening of June 26, 2004, Leonard Pollman (Pollman) and his wife Vida Pollman (Vida) were traveling together in McPherson, Kansas, each driving a motorcycle. Officer Michael Walline observed the couple for about 10 blocks. During that time, the only traffic violation the officer saw was Vida’s failure to use a turn signal on her motorcycle. As a result, Officer Walline stopped Vida. Pollman also pulled over. Although Walline informed Pollman that he was not being stopped and needed to ‘move along,’ Pollman lingered. At one point, Walline told Pollman that if he wanted to stay in the area, he should take his motorcycle to a nearby parking lot. Instead, Pollman stood next to his motorcycle after parking it about one car length ahead of Vida’s.
‘While asking Vida for her identification during the traffic stop, Officer Walline smelled an odor of alcohol on her breath, which prompted him to conduct a DUI investigation on Vida. A reserve officer was present with Officer Walline, and because Walline did not want Pollman to obstruct his wife’s traffic stop, Walline asked the reserve officer to have Pollman step away. After Pollman refused to leave the vicinity of the traffic stop, Officer Walline called for back-up assistance. Walline’s superior, Captain Allcock, arrived and stood with Pollman.
“According to Allcock’s testimony at the suppression hearing, he smelled alcohol on Pollman’s breath. When asked, Pollman admitted to Allcock that he had been drinking. Allcock did not know how much alcohol Pollman had consumed or how long ago the drinking had occurred, but he observed Pollman to be coherent and cooperative. Other tiran the odor of alcohol, Allcock saw no other typical indicators signaling that Pollman had been drinking.
“Meanwhile, Officer Walline was conducting Vida’s traffic stop. Although he smelled an odor of alcohol on Vida’s breath, Walline ultimately determined that*23 she did not qualify for a DUI arrest. After issuing a warning about the traffic infraction, Walfine told Vida she was free to go.
“After that, Officer Walfine walked with Vida to her motorcycle and made contact with Pollman, who was still standing with Captain Allcock. According to Walfine’s suppression hearing testimony, he spoke to Pollman because ‘I had already talked to him about getting away from my traffic stop and I wanted to speak with him about obstruction and future charges if he were ever in that situation again.’
“Officer Walfine asked Pollman for his driver’s license, and Pollman handed it over. Walfine was planning to talk to Pollman about his behavior as it related to his wife’s traffic stop when Captain Allcock told Walfine something like, ‘He’s been drinking, you need to check him.’ Then Allcock had to leave the scené on other police business. When Walfine asked Pollman if he had consumed any alcohol, Pollman replied that he had consumed ‘a few’ beers.
“Officer Walfine asked Pollman to get in the patrol car. At that point, for the first time, Walfine smelled an odor of alcohol on Pollman’s breath. After that, Walfine administered a preliminary breath test (PBT) which registered a breath alcohol concentration of .11. Walfine also conducted field sobriety tests, including the walk-and-tum test and the one-legged-stand test. He was dissatisfied with Pollman’s performance on both of these tests. Walfine arrested Pollman, gave him a copy of the implied consent advisory form, and read it to him. In addition, Pollman consented to a blood test which revealed a blood alcohol concentration (BAC) of .10.”286 Kan. at 882-84 .
Probable Cause to Arrest Pollman for DUI
Pollman contends the district court erred in overruling his motion to suppress evidence because Officer Walline did not have probable cause to arrest him for DUI. In particular, Pollman argues the State failed to establish a sufficient foundation for admission of the preliminary breath test (PBT) result which comprised part of the totality of circumstances estabhshing probable cause to arrest Pollman for DUI.
On review of a district court’s suppression of evidence, this court considers whether the factual findings are supported by substantial competent evidence. The ultimate legal conclusion, however, is reviewed de novo. State v. Ackward,
At the hearing on Pollman’s motion to suppress evidence, the State presented the testimony of Walline and Allcock regarding their encounter with Pollman prior to his arrest. In addition to this testimony, the State sought to offer the incriminating evidence of the .11 test result from the PBT administered by Walline to Poll-man.
Pollman’s counsel contemporaneously objected to admission of the PBT result:
“I’m going to object, Your Honor, based upon foundation. We don’t have any showing of what unit is being used here. We don’t have any showing as to whether a waiting period is in fact required and if there is, no foundation for the admission of this PBT. We don’t know how reliable it is and whether the instructions were followed.”
After a colloquy with defense counsel, the district judge advised the prosecutor, “You’re going to have to show me more foundation as to what was done on the prehminary breath test.”
The prosecutor then elicited the following testimony from Officer Walline:
“Q. Okay. Did you, what type of machine do you use for your prehminary breath test?
“A. It’s a digital prehminary breath test, PBT. I, I don’t know what else to say about it.
“Q. Do you know the manufacturer name?
“A. Not right offhand. I believe it’s possibly CMI is the company name I believe, but I’m not sure right offhand.”
Pollman’s counsel renewed his objection:
‘Well, I’m going to object again. Your Honor, because the Department, KAR 28, the KAR require that there are four types of prehminary breath tests which are admissible into evidence and there are others which can be if there is a showing of reliability. That has not been done here. We don’t know what type of testing we’re using.”
The prosecutor continued his examination, establishing that although Officer Walline had some on-the-job training on the PBT from the police department and had read the user’s manual, no
Pollman's counsel objected a third time to admission of the PBT test, result: “Again, Your Honor, I’m going to object. There is no foundation as to whether this machine in fact is approved by the Kansas Department of Health and Environment. Therefore, I think absent that, any results obtained from. it. are inadmissible.”
The trial judge overruled the objection:
“Well, I don’t agree with you, Mr. Kepfield. Bottom line is if he was being tried today for refusing preliminary breath test or along those lines you might have a good argument but we’re not trying him today. This is a motion to suppress and the issue is probable cause for doing what he was doing. I’m going to allow it.”
On appeal, Pollman argues the State failed to establish the requisite foundation for the admissibility of the PBT test. Additionally, Pollman contends that absent the admission of the PBT test result, which under K.S.A. 8-1001(b) resulted in the blood alcohol test that yielded incriminating evidence of Pollman’s intoxication, there was no probable cause to arrest him for DUI.
The State counters that “there is no case precedent or statute stating the elements of a proper foundation for the admission of the preliminary breath test results.” The State concedes, however, there are specific foundational requirements under K.S.A. 8-1001 that must be established prior to admission of an alcohol test result at trial. See Bishop,
“As opposed to a breath test given pursuant to K.S.A. 8-1001, which results are admissible at trial and weigh heavily on establishing the guilt of a defendant, results from a preliminary breath test do not impact on a defendant’s guilt or innocence, cannot be admissible at trial and when admissible during preliminary hearings, are for the very limited purpose of ’aiding the court or hearing officer’ in making a determination as to the validity of an arrest. It is the State’s position that any foundation required to admit such results, during a preliminary hearing and or a hearing on a motion to suppress, is entirely at the discretion of the judge or hearing officer and should not rise to the same level as that of a test pursuant to K.S.A. 8-1001.”
Our court provided the following analysis regarding what foundation must be established prior to admission of PBT results:
“K.S.A. 65-1,107(d) authorizes die Secretary of Health and Environment to adopt rules and regulations establishing tire criteria for prehminaiy breath testing devices for law enforcement purposes. In addition, K.S.A. 65-1,107(e) authorizes the Secretary of Health and Environment to adopt rules and regulations establishing a list of approved preliminary breath testing devices for law enforcement purposes ‘which law enforcement agencies may purchase and train officers to use as aids in determining probable cause to arrest and grounds for requiring testing’ under K.S.A. 8-1001.
“The KDHE has established the criteria for approval of preliminary breath testing devices in K.A.R. 28-32-6. Moreover, the KDHE has established the procedure for gaining approval of preliminary breath testing devices and a list of approved preliminary breath testing devices in K.A.R. 28-32-7(a) as follows:
“Preliminary breath test devices shall be submitted to the Kansas department of health and environment for evaluation and approval for law enforcement purposes. The devices shall be operated according to the manufacturers’ written directions and shall meet the criteria prescribed in K.A.R. 28-32-6. Devices are as follows:
“ ‘(1) Alcometer S-D2
“ ‘(2) Alco-sensor
“ ‘(3) Alco-sensor III
“ ‘(4) Alco-sensor, pass-wam-fail
“ ‘(5) Alcotest
and any other devices' that upon evaluation by the department of health and environment meet the stated criteria in KA.R. 28-32-6.’
Although the Alco-sensor and the Alco-sensor III are listed as preliminary breath testing devices under K.A.R. 28-32-7(a), the Alco-sensor IV is not specifically'*27 listed under this regulation. Moreover, there was no evidence presented to the trial court that the Aleo-sensor IV had been evaluated by the KDHE and had met the criteria of K.A.R. 28-32-6.
“It is clear under K.S.A. 65-1,107 that the legislature intended to provide the KDHE with the authority to adopt rules and regulations establishing the criteria for preliminary breath testing devices and to develop a list of approved preliminary breath testing devices. Leffel points to K.S.A. 65-1,109 in which the legislature made it a crime to test human breath for law enforcement purposes unless the testing device was approved by tire Secretary of Health and Environment. K.S.A. 65-1,109 states in relevant part:
“ ‘(a) It shall be unlawful for any person to make any test of the human breath for law enforcement purposes, unless:
(2) the apparatus, equipment or device used by such person in the testing of human breath for law enforcement purposes is of a type approved by the secretary of health and environment and otherwise complies with the rules and regulations of the secretary of health and environment adopted pursuant to K.S.A. 65-1,107 and amendments thereto to govern the periodic inspection of such apparatus, equipment and devices.
“ ‘(b) Any person who violates any provision of subsection (a) shall be guilty of a class C misdemeanor.
“ ‘(c) Nothing in this section shall be construed to prohibit the use of devices approved pursuant to K.S.A. 65-1,107 and amendments thereto for law enforcement purposes.’
This statute evidences the legislature’s intent that a preliminary breath testing device must be approved under K.S.A. 65-1,107 by the KDHE before it can be used for law enforcement purposes.
“Here, the State failed to show that Leffel’s preliminary breath test was conducted on a device approved by the KDHE. Because the Aleo-sensor IV was not listed as an approved device under K.A.R. 28-32-7(a), the State needed to present some evidence showing the Aleo-sensor IV had been evaluated by the KDHE and had met tire criteria in K.A.R. 28-32-6.” Leffel,36 Kan. App. 2d at 247-48 .
In the present case, the State established that the PBT device was digital and possibly manufactured by CMI — although Officer Walline conceded, “I’m not sure right offhand.” As described, this device was not listed in K.A.R. 28-32-7(a) as an approved device for law enforcement purposes at the time of its use in this case. But see K.A.R. 28-32-14, effective March 14, 2008, 27 Kan. Reg. 249-50 (2008), which now lists numerous PBT models, including the Aleo-Sensor IV Digital, as approved devices (the regulations have been substantially amended). Moreover, the State made no
We disagree with the State’s claim that any foundation for admission of PBT results should be simply a matter for the unfettered discretion of district courts. Officer Walline’s determination that probable cause existed to believe that Pollman was driving under the influence of alcohol led to his arrest for DUI and also may have' impacted his driving privileges in the state. The important consequences of a probable cause determination in courts and administrative hearings are undoubtedly why the legislature authorized the KDHE to adopt rules and regulations regarding PBT devices when used “for law enforcement purposes” under K.S.A. 65-1,107(d). See K.S.A. 2007 Supp. 65-1,107(e); 27 Kan. Reg. 247-50 (2008) (new breath testing regulations).
In overruling Pollman’s motion to suppress, the district court emphasized the importance of the PBT result. After summarizing the on-scene observations of Walline and Allcock and Pollman’sadmission to drinking, the district court concluded, “The request for preliminary breath test is made; he agreed to it, he took it, and tested point one one. That’s above the legal limit. It’s grounds for arrest for [DUI].”
As our court has observed, “[a] PBT is an important tool for law enforcement officers to determine whether an arrest should be made in order to protect the health and safety of citizens.” State v. Chacon-Bringuez,
Our holding that the district court erred in its admission of the PBT result, however, does not end our review. We next consider whether, setting aside the incriminating PBT result, there still existed probable cause to believe Pollman was driving under the influence.
Preliminarily, we note that although Officer Walline testified at trial that Pollman failed one of four field sobriety tests, inexplicably the State presented no evidence regarding these tests at the hearing on the motion to suppress. This failure was noticed by the trial judge:
“Well, I suspicion that there were sobriety tests administered at the scene before he was arrested and I guess evidence would have been presented to show me what those sobriety tests result were we wouldn’t be facing what we’re facing with the . . . [PBT] because then the [PBT] is just incidental with that.”
As a consequence, in our reassessment of the totality of circumstances which undergird the district court’s probable cause finding, we also will not consider what, if any, effect the field sobriety test results had in the district court’s finding of probable cause for arrest.
Review of the district court’s determination of whether an officer had probable cause to make a warrantless DUI arrest is a mixed question of law and fact. City of Dodge City v. Norton,
Probable cause is a quantum of evidence which leads a prudent person to believe an offense was committed. State v. Dunn,
While the probable cause standard is greater than reasonable suspicion, the following factors identified by our Supreme Court are very relevant to the probable cause analysis. First, Pollman’s refusal to follow lawful requests to leave the area of his wife’s traffic stop may have indicated “impaired judgment because of intoxication”; second, “Pollman admitted he had consumed a few beers”; third, “Officer Walline smelled the odor of alcohol on Pollman’s breath, which occurred after Walline had observed Pollman driving his motorcycle.”
These three factors, supported by evidence presented at the suppression hearing, comprised the totality of circumstances we may consider in our determination of whether the district court erred in finding that Officer Walline had probable cause to arrest Poll-man for DUI.
These three factors are similar to the circumstances our court considered in City of Norton v. Wonderly,
For reasons not relevant to the present case, the district court suppressed the incriminating result of the PBT administered to Wonderly. Our court, on appeal, also determined that Wonderly’s inconsistent performance on field sobriety tests should not be considered in the review of whether probable cause existed to arrest Wonderly for DUI. As summarized by our court,
“[t]hus, prior to Wonderly s arrest, the admissible evidence showed that Wonderly initially disobeyed an order to get back into his track, he had bloodshot eyes, the smell of alcohol was on his breath, and he admitted to drinking earlier that evening. Additionally, [Officer] Morel knew that a motorist had called law enforcement earlier that night and accused Wonderly of driving his track in a reckless manner.”38 Kan. App. 2d at 808 .
Our court concluded that Officer Morel had arrested Wonderly without probable cause and, as a result, suppressed the incriminating evidence and reversed Wonderly’s conviction.
In the present case, as in Wonderly, we consider the odor of alcohol on the driver’s breath and his admission to drinking a few beers as evidence relevant to the probable cause inquiry. Similar to Wonderly, Pollman’s unwillingness to follow the officer’s direc
In summary, we hold the totality of circumstances in the present case did not warrant a reasonably prudent police officer to believe that guilt was more than a mere possibility. See Norton,
Constitutionality of K.S.A. 2005 Supp. 8-1567(a)(2)
Pollman challenges K.S.A. 2005 Supp. 8-1567(a)(2) on constitutional grounds. K.S.A. 2005 Supp. 8-1567(a)(2) provides: “(a) No person shall operate or attempt to operate any vehicle within this state while: ... (2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more.”
According to Pollman:
“[T]he statute ... is unconstitutionally overbroad as it punishes non-criminal conduct, i.e., driving with [an alcohol concentration] below .08 at the time of actual operation. It is also void for vagueness, as it fails to give reasonable notice as to which conduct is prohibited — actually driving with [an alcohol concentration]*33 over .08, or having [an alcohol concentration] over .08 within two hours of driving? This fact encourages, or at die least, permits arbitrary enforcement, since testing done at the time of operation might well reveal [an alcohol concentration] below the legal limit of .08.”
The constitutionality of a statute is a question of law reviewed de novo. Tolen v. State,
“Driving under the influence of alcohol or drugs is an absolute liability offense. . . . The only proof required to convict ... is that the individual engaged in the prohibited conduct.” State v. Creamer,
In all likelihood a blood or breath alcohol concentration test would not be conducted while a defendant was driving. See City of Colby v. Cranston,
1. Overbreadth
Pollman does not claim his alcohol concentration was less than .08 while he was driving. He argues instead that K.S.A. 2005 Supp.
Considering these relaxed standing requirements and the “fact-poor records” produced by facial challenges generally, the over-breadth doctrine is applied in “relatively few settings” involving protected rights.
Pollman does not question the reasonableness of K.S.A. 2005 Supp. 8-1567(a)(2) as a regulation in tire public interest. A failure to brief an issue is generally deemed a waiver or abandonment of the issue. State v. Walker,
We also find unpersuasive the cases Pollman cites, State v. Baker,
“Courts use a two-part test to determine whether a statute is unconstitutionally vague. First, the court considers whether the statute conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice. Next, the court considers whether the statute adequately guards against arbitrary and discriminatory enforcement.” State v. Rupnick,280 Kan. 720 , Syl. ¶ 10,125 P.3d 541 (2005).
Pollman’s argument on the first part of the vagueness test—that K.S.A. 2005 Supp. 8-1567(a)(2) is unclear regarding the time during which the alcohol concentration may not meet or exceed .08— fails for reasons described above. Pollman also cites Baker and Barud, where the courts ruled the statutes in those jurisdictions were vague because a person could not know what his or her alcohol concentration might be after driving. See Baker,
As this court noted in Larson, if specific alcohol concentrations are vague because they are not personally verifiable, “speed limits would be too vague (or at least could not be enforced against anyone whose speedometer was broken), since no one can tell simply by use of their own senses the precise speed they are traveling.”
Arbitrary enforcement is possible where a statute fails to provide “minimal guidelines,” thereby risking a “ ‘standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ [Citation omitted.]” Kolender v. Lawson,
Finally, we are not presented here with a situation where a law enforcement officer detains and continues to test a suspect in the hope that a rising alcohol concentration might reach .08 before time expires. Even if we were, there would be no issue of vagueness. The statute is clear, and there is only one way to violate it. See State v. Pendleton,
Pollman’s conviction is reversed and his sentence is vacated.