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Weinhold v. Kansas Dept. of Revenue10/1/2004
Brenda Weinhold appeals from the district court decision affirming the suspension of her driver's license for her refusal to submit to a breath alcohol test. We affirm.
Background Facts
Weinhold was involved in a two-vehicle accident at approximately 2 p.m. which resulted in property damage to both vehicles. Police Officer Paul VanderMeer arrived at the scene shortly after the accident and found an open beer bottle underneath Weinhold's car after being advised by a witness that Weinhold had kicked the bottle under the vehicle. The cap to the beer bottle was found inside Weinhold's car.
VanderMeer detected an odor of beer coming from inside Weinhold's vehicle. He detected a very strong odor of perfume on Weinhold. He also observed that Weinhold's eyes were watery. He requested that Weinhold submit to field sobriety testing and a preliminary breath test. Weinhold refused both, stating she had been drinking the night before and had taken pain medication earlier in the day, which she believed might affect the results of any breath test.
VanderMeer placed Weinhold under arrest for driving under the influence, transporting an open container of alcohol, and no proof of insurance. He transported her to the police station where he observed her for half an hour or more. He explained to Weinhold the consequences of refusing to take a breath test. Weinhold continued to refuse to take the test. She then asked VanderMeer additional questions about the test and whether she could call her attorney first. When told she could not, and about 15 to 20 minutes after Weinhold's initial refusal at the police station, she again declined the test. Following this repeated refusal, VanderMeer left the police station to return to his duties. He had no further contact with Weinhold that day. After VanderMeer left, Weinhold decided she wanted to take a breath test but was not permitted to do so.
The Kansas Department of Revenue suspended Weinhold's driver's license as a result of her refusal to submit to testing. Weinhold requested an administrative hearing, following which the hearing officer affirmed the agency action. She then sought judicial review of the administrative order by the district court, which affirmed the findings and conclusions of the administrative order. Weinhold appeals.
Probable Cause/Reasonable Grounds
Weinhold asserts that Officer VanderMeer lacked probable cause to arrest her or to request a breath test. K.S.A. 8-1001 provides, in part, as follows:
"(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol ... and one of the following conditions exist: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol ... or (2) the person has been involved in a vehicle accident or collision resulting in property damage...."
**2 In State v. Counseller, 22 Kan.App.2d 155, 158-59, 912 P.2d 757, rev denied. 260 Kan. 997 (1996), the court observed:
"While 'reasonable grounds' is synonymous in meaning with 'probable cause,' [citation omitted], one may have reasonable grounds to believe that a person was operating a vehicle under the influence but not have the probable cause required to arrest under K .S.A.1995 Supp. 8-1001(b)(1). An arresting officer may formulate reasonable grounds sufficient to request a test under the statute before or after arrest and, under K.S.A.1995 Supp. 8-1001(b)(2), without any arrest whatsoever."
Weinhold had been involved in a vehicle accident resulting in property damage. Thus, whether
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