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IN RE HAMSTEAD12/4/1986
Petitioner, Debra K. Hamstead, appeals the district court's decision upholding the Department of Revenue's order suspending her driver's license for 120 days for refusing to submit to a chemical test for alcohol content of blood. K.S.A. 8-1001.
At approximately 2:30 a.m. on November 11, 1984, petitioner was driving towards Haysville, Kansas. As she entered the city limits, Officer Phil Gloshen of the Sedgwick County Sheriff's Department approached from the opposite direction. He flashed his headlights, signaling petitioner to dim her lights. Petitioner did not respond because, according to her testimony, she did not have her bright lights on "and for some reason, my headlights have a tendency to shoot up, even though the high beams aren't on." Officer Gloshen again flashed his headlights and passed.
Officer Gloshen stopped petitioner because she failed to dim her headlights. He smelled an odor of alcoholic beverage and asked if she had been drinking. Petitioner told him she had drunk two beers.
After conducting field sobriety tests, Officer Gloshen arrested petitioner for driving under the influence , read her Miranda warnings, and asked if she would like to talk. When she said
"No," he read the warnings suggested in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), and requested that she take a breathalyzer test. Petitioner did not exhibit any confusion or ask for clarification. Officer Gloshen described her response as follows:
"I sat there after I had read both the Miranda warning and the Standish warning, and looked at Debbie, and Debbie did not make any statement at all. I then sat there for a couple of minutes and I asked again if Debra would take the breathalyzer test. Debra again refused to talk to me. I sat there for another couple of minutes, then I turned around while I was filling out the Miranda warning paper and everything, which is right here. I again asked her, she stated `No,' there was no statement whatsoever that she would take a test or not. I made the statement to Officer Kinney in the back, `We'll have to accept that as a refusal and transport her in.'" Officer Gloshen stated that he gave petitioner approximately a minute to respond to his first request to take the test and approximately a half a minute to answer his second request. Petitioner, however, claimed that Officer Gloshen did not read the Standish warnings and that only five seconds passed before he turned to Officer Kinney and said, "Take that as a refusal."
The trial court found that Officer Gloshen had reasonable grounds to believe that petitioner had been driving under the influence and that he read her the Standish warnings. The court further found that by her silence petitioner refused to submit to the breathalyzer test and that her refusal was unreasonable.
Petitioner first claims that Officer Gloshen engaged in an unlawful act by flashing his headlights at her oncoming vehicle and that he stopped her because she refused to do the same. Petitioner argues that to reward the officer's unlawful conduct by concluding that he had reasonable cause to stop the defendant would be "bad public policy."
Petitioner did not raise this argument below, and the court need not consider it on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984). We, however, pause to emphasize that the argument is without merit. The officer's conduct on the evening in question was both lawful and reasonable.
Second, although petitioner concedes that in Kansas a driver can refuse to take a chemical test simply by remaining silent, she claims that Officer Gloshen did not give her a "
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