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Pasek v. Kansas Dept. of Revenue11/24/2004
The Kansas Department of Revenue (KDR) appeals the district court's decision vacating the administrative suspension of Dustin M. Pasek's driver's license for driving under the influence.
The facts herein are undisputed. Kansas Highway Patrol Trooper Darren Hirsh was called to a one-vehicle accident southeast of Dorrance. The accident was also investigated by the Russell County Sheriff's Department. One of the victims could not be found at the scene of the accident. The officers had information that the missing victim might have been transported to the hospital in Russell in a red pickup truck. As Hirsh traveled toward Russell, a red pickup truck came upon him from behind and passed him at a high rate of speed. Hirsh testified he believed the truck was carrying the accident victim so he just followed it. As they approached Russell, Hirsh passed the truck, activated emergency lights, and escorted the truck through town to ensure it arrived at the hospital at a reasonable speed. The truck was driven by Pasek who carried the victim in his arms from the truck to the emergency room where he turned her over to the emergency room personnel.
Throughout the drive to Russell, Pasek did not drive erratically, but he did drive faster than the speed limit. Hirsh stated he had turned off his radar for the day but estimated they were driving between 70 and 80 miles per hour. Hirsh testified he did not intend to give Pasek a speeding ticket. When they arrived at the hospital, Pasek had no difficulty carrying the victim to the emergency room. Also, Hirsh testified that after he passed the truck and activated emergency lights, Pasek reduced his speed and followed the police escort to the hospital.
Hirsh testified that Pasek did not sway or stumble when he was walking, nor did he detect any slurring of speech when he had a conversation with Pasek outside the emergency room. Hirsh testified that he had questions concerning the victim and needed to speak with Pasek about where the victim had been since the accident. It was at this time that Hirsh detected the odor of alcohol on Pasek's breath and asked Pasek whether he had consumed alcohol. Pasek replied "a couple beers." Hirsh asked Pasek to go to the parking lot to conduct field sobriety tests and a preliminary breath test (PBT).
Pasek agreed to perform the field sobriety tests. Hirsh testified that Pasek used his hands to balance only once during the step and turn. During the one legged stand, Pasek swayed while balancing, he used his arms to balance, and he put his foot down during the test. Hirsh administered a PBT, but the results were not considered because Hirsh had not waited 15 minutes from the initial contact to conduct the test. After the PBT, Hirsh placed Pasek in custody and transported him to the sheriff's department for the evidentiary breath test. Pasek tested .114 breath alcohol concentration on the Intoxilyzer 5000.
The KDR suspended Pasek's driving privileges for 30 days and restricted his privileges for a year. Pasek appealed his suspension. The district court found:
*2 "An officer need only have a minimal level of objective justification to stop and question a person, however, alcohol on one's breath alone does not provide a reasonable suspicion that the person was committing, has committed, or was about to commit a crime. Especially, in light of the trooper's observation of [Pasek's] driving and his behavior at the hospital."
The district court vacated Pasek's license suspension finding that under the totality of the circumstances, it was unreasonable for Hirsh to ask Pasek to perform field sobriety tests.
The district court's standard of review in driver's license suspension cases is governed by K.S.A. 8-259(a), which provides in part:
"The action for review shall be
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