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Nickelson v. Kansas Dep't of Revenue12/17/2004
Affirmed.
Allen J. Nickelson appeals the district court's judgment affirming the Kansas Department of Revenue's (KDR) suspension of his driver's license resulting from Nickelson's blood alcohol breath test failure. Nickelson claims that the arresting officer had no lawful grounds to approach Nickelson's vehicle which had pulled off the highway. Nickelson further claims that even if the initial encounter was justified for public safety, the arresting officer improperly expanded the scope and length of the detention. We affirm.
Factual and Procedural Background
On November 10, 2002, at approximately 1 a.m., Kansas Highway Patrol (KHP) Trooper Andrew Schippers was on patrol on Highway 24 in Thomas County. Schippers was finishing a traffic stop of another vehicle when he saw Nickelson's vehicle approximately 1/4 mile away. Schippers observed Nickelson's vehicle driving east on Highway 24 and observed the vehicle turn south into a "farm plug" or driveway. The vehicle then made a circle and stopped, facing north toward Highway 24. There were no farm buildings, outbuildings, businesses, or residences in the area where Nickelson parked his vehicle. After turning into the driveway from Highway 24, Nickelson turned off the vehicle's lights. The weather was cold but clear.
Schippers noticed no traffic violations, driving irregularities, or deviations. However, Schippers was concerned that Nickelson might be in distress because Nickelson had turned into the "middle of nowhere" and turned off his vehicle's lights. Schippers testified that it was KHP policy to check on the welfare of any stranded motorist and that his supervisors had given him instructions to stop and assist people on the highways. Schippers testified that if somebody has pulled off the side of the road, he always checks on them, as he did the night in question. Schippers claimed that the purpose of approaching Nickelson's vehicle was to check on his welfare, "but also in the back of my mind, too, I--I mean I--I felt that activity was suspicious."
Schippers stopped his patrol vehicle next to Nickelson's which blocked Nickelson's vehicle from the highway. Schippers turned on his spotlight and observed that Nickelson's vehicle was occupied by Nickelson and a passenger. Schippers approached the vehicle and asked Nickelson if he was okay. Nickelson responded affirmatively. Schippers testified that when Nickelson rolled down the window in order to respond, Schippers immediately smelled alcohol. Schippers testified "[the alcohol odor] was pretty strong . . . and when he rolled down the window, it just--it just all hit me." That prompted Schippers to ask Nickelson if he had been drinking. Nickelson responded that he had not been drinking; his speech was not slurred. Schippers did not know whether the alcohol odor was coming from Nickelson or the passenger, so Schippers asked Nickelson to step out of the vehicle. Schippers distinctly smelled alcohol on Nickelson, and Schippers informed Nickelson that he was going to conduct field sobriety tests.
Nickelson was ultimately arrested for driving under the influence of alcohol (DUI). Nickelson was transported to the Colby Law Enforcement Center and submitted to testing on the Intoxilyzer 5000. The test result was .147, exceeding the legal limit of .08. The test failure was certified to the KDR, and Nickelson received notice of his driver's license suspension. Nickelson requested a hearing, and the administrative hearing officer upheld the suspension. Nickelson timely filed a petition for review in the Thomas County District Court. After a trial, the district court denied Nickelson's petition for review and upheld the driver's license suspension. Nic
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