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Mitchell v. Kansas Dep't of Revenue1/9/2004
Affirmed.
Dennis Mitchell appeals the trial court's order affirming the Driver Control Bureau's 1-year suspension of his commercial driver's license. He claims that the trial court erroneously determined that he was given a reasonable opportunity for an independent blood alcohol concentration (BAC) test. He also argues that the trial court abused its discretion by admitting his breath test into evidence. We affirm.
The facts of this case are not in dispute. Mitchell was driving his commercial vehicle onto the scales of a port of entry when a motor carrier inspector noticed that his vehicle lacked a registration plate on the front. The inspector asked him to step into the weighing station. The inspector noticed an odor of alcohol on Mitchell's breath. She asked a co-worker if she noticed the same odor, and the co-worker answered yes. The inspector then notified the dispatcher who summoned a Kansas Highway Patrol trooper.
Trooper Michael Winner responded. Mitchell was still speaking to the inspector about his failure to have a log book with him when Winner approached. Winner immediately smelled alcohol on Mitchell's breath and asked him to perform some field sobriety tests and a preliminary breath test. Mitchell failed to adequately perform the tests. He was arrested by Winner and taken to the sheriff's department where he submitted to a BAC test.
After the test was administered, Mitchell requested that he be taken to a hospital for an independent BAC test. Winner took Mitchell to the laboratory office of Southwest Medical Center in Liberal. The trooper told hospital personnel that he wanted Mitchell to have a BAC test. The hospital personnel told Winner that the test could not be performed unless the highway patrol could be billed for it. Mitchell had previously informed Winner that he had money to pay for the test himself. Winner spent about 30 minutes trying to convince hospital personnel to give Mitchell the test and let Mitchell pay for it. Winner even suggested to hospital personnel that he and Mitchell go outside, that he would remove all restraints from Mitchell, that Mitchell would walk in on his own, and Mitchell would have the test done. Hospital personnel responded that they still could not perform the test because they knew Mitchell was in Winner's care. Winner then called his supervisor to see if there was any way the highway patrol could be billed for the test. He was told there was not.
Winner decided that since he was unable to obtain an additional test for Mitchell at the hospital, he would take him back to the sheriff's department. Winner testified at the hearing that he knew Mitchell would be held for at least 8 hours and would not be able to leave on his own to get an additional BAC test. Winner also testified that Mitchell was aware that he had not received an additional test at the hospital. Both Winner and Mitchell concur that upon leaving the hospital, Mitchell did not request to be taken anywhere else for an independent test. Because Mitchell failed the BAC test, the Kansas Department of Revenue (KDR) suspended his commercial driver's license for 1 year. Mitchell's driving privileges were also suspended for 30 days with restrictions in place for the remainder of 1 year. In his appeal to the district court, KDR's rulings were affirmed.
Our standard of review for such an action is well established:
"In reviewing a district court's decision reviewing an agency action, the appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency's action as does the district court. [Citations omitte
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