NOT DESIGNATED FOR PUBLICATION
No. 122,527
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JAMES WARNER,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed April 9,
2021. Affirmed.
James C. Heathman, of Heathman Law Office PA, of Topeka, for appellant.
Donald J. Cooper, of Kansas Department of Revenue, for appellee.
Before ATCHESON, P.J., GARDNER and WARNER, JJ.
PER CURIAM: James Warner appeals the administrative suspension of his driver's
license. He argues the suspension was improper because the evidence did not show he
operated a vehicle while under the influence of alcohol. We conclude the district court's
findings were supported by substantial competent evidence and affirm the suspension of
Warner's driving privileges.
FACTUAL AND PROCEDURAL BACKGROUND
The facts giving rise to the suspension of Warner's license took place on Sunday,
December 23, 2018, when two Topeka police officers responded to a possible hit-and-run
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accident in the parking lot of a bar. An Uber driver reported to the officers that while he
was dropping off his passengers at the bar, a red truck backed into his van. The
passengers confirmed this sequence of events.
The Uber driver told the officers that he asked the driver of the truck—later
identified as Warner—to exchange insurance information because he did not want
Warner to get in trouble for driving under the influence of alcohol. According to the Uber
driver, Warner became angry and denied hitting the van; he told the Uber driver he did
not see any damage on either vehicle and did not want the incident reported to his
insurance company. The Uber driver then told Warner that he would call the police if
Warner did not cooperate. At that point, Warner got back in his truck and drove away.
The Uber driver took down Warner's license-plate number and then called the police.
Neither the Uber driver nor his passengers relayed any information to the officers
about Warner being visibly intoxicated—other than the Uber driver's statement that he
told Warner that he did not want him to get in trouble for driving under the influence of
alcohol. But each provided a physical description. The officers also interviewed the
bartender at the bar. She knew Warner because he was a regular customer and told them
that Warner had been in the bar and had a beer there.
The officers looked up the license-plate information provided by the Uber driver
and determined the truck was owned by Warner and his wife. They then headed to
Warner's house, arriving about 30 minutes after the accident was reported. The truck
parked in Warner's driveway matched the Uber driver's description; though the rear
bumper did not have any paint transfer or visible damage, it appeared to have been
recently wiped down. When the officers knocked on Warner's door, his wife answered
and told them that the truck belonged to her husband. She informed the officers that
Warner was not home and that she did not know if he had been driving.
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Eventually, Warner—who matched the physical description provided by the
witnesses—came out of the house. The officers told him they were investigating a hit-
and-run accident. Warner became angry and asked them "how [they] had got to his
house" and "how [they] knew it was his vehicle." The officers explained that the Uber
driver had taken down his license-plate number. The officers noticed that Warner smelled
strongly of alcohol, was slurring his words, and was struggling to stand upright. Warner
denied any involvement in an accident that evening. He claimed he had not been driving
near the bar and had just gotten off work.
As the officers asked him questions, Warner became more agitated. Because
Warner was uncooperative and refused to take his hands out of his pockets, the officers
placed him in handcuffs for their safety and performed a pat-down search. Warner then
asked the officers "what would [they] have done to him if when [they] arrived he started
shooting at [them]." Due to Warner's actions and overall condition, the officers placed
him in their patrol car and did not conduct any field sobriety tests. After Warner refused
to take a breath test, the officers arrested him for driving under the influence, leaving the
scene of an accident, and failing to provide information.
As a result of these events, the Kansas Department of Revenue suspended
Warner's driver's license. Warner requested an administrative hearing, during which he
raised several issues relating to the officers' findings and the nature of the evidence. The
hearing officer upheld the suspension, and Warner filed a petition for judicial review by
the district court.
During the subsequent trial, both investigating officers testified regarding this
sequence of events and their observations. Warner also testified, explaining that he was
coming home from work at the Topeka Housing Authority and briefly stopped at the bar
to bet with friends on a Kansas City Chiefs game. Warner claimed he had one beer at the
bar and then headed home. Although he conceded that he had an interaction with the
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Uber driver, he maintained that his truck never hit the van and said that the Uber driver
was trying to take advantage of him. Warner stated that he refused to exchange insurance
information and drove away from the bar, going first to his son's house and then home.
Warner said he started drinking and getting ready for the football game when he got
home, and then the officers arrived.
Warner's version of events revolved around the incident occurring after work on a
Thursday, but the evidence showed that it was in fact Sunday. When confronted with the
fact that he could not have been at work because it was Sunday, Warner stated that he
could not remember what he had been doing before the accident but insisted that he only
had one beer at the bar. Warner also acknowledged in his testimony that he had been
ordered by the Topeka Municipal Court to pay $1,700 to repair the damage to the Uber
driver's van.
The district court took the matter under advisement and later issued a written
decision affirming the suspension of Warner's license. The court noted that the smell of
alcohol, Warner's slurred speech and poor balance, his involvement in a hit-and-run, and
the statements of the Uber driver and his passengers all supported the officers' conclusion
that he had been driving while impaired. After considering the credibility of the witnesses
and weighing the evidence, the court found the officers had probable cause to believe that
Warner had operated a vehicle while under the influence of alcohol.
Warner appeals, challenging the evidentiary basis for the district court's findings.
While he acknowledges that he was intoxicated when the officers arrived at his home and
admits that he drove home from the bar, Warner argues that there is no credible evidence
to show he drove his truck while under the influence of alcohol.
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DISCUSSION
K.S.A. 2018 Supp. 8-1567 criminalizes driving a vehicle while under the influence
of alcohol or drugs. K.S.A. 2018 Supp. 8-1567(a)(3)-(5). A violation of this statute may
be followed by criminal charges, but it also has administrative consequences relating to a
person's driver's license. When Warner was arrested in December 2018, Kansas law
stated that if a person refused to submit to an evidentiary breath test—administered after
an officer had probable cause to believe that person had been driving under the influence
of alcohol or drugs—his or her driver's license would "be suspended for . . . up to one
year." K.S.A. 2018 Supp. 8-1001(c)(2). If a driver failed an evidentiary breath test, his or
her "driving privileges [would] be suspended for a period of at least 30 days and up to
one year." K.S.A. 2018 Supp. 8-1001(c)(2).
An appeal from the administrative suspension of a driver's license under these
provisions is a civil case brought under the Kansas Judicial Review Act. See Moser v.
Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009). Appellate courts
reviewing license suspensions employ a mixed standard of review, depending on the
questions presented. We review the district court's factual findings for substantial
competent evidence and its legal conclusions de novo. Creecy v. Kansas Dept. of
Revenue, 310 Kan. 454, 466, 447 P.3d 959 (2019). Substantial competent evidence is
relevant and substantive evidence that furnishes a sufficient basis of fact to reasonably
resolve the issues in the case. In evaluating whether such evidence existed before the
district court, we do not reevaluate the credibility of witnesses, redetermine questions of
fact, or reweigh conflicting evidence. 310 Kan. at 469. Instead, we "'must accept as true
the evidence and all the reasonable inferences drawn from the evidence which support the
district court's findings and must disregard any conflicting evidence or other inferences
that might be drawn from it.'" Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 1220,
442 P.3d 1038 (2019).
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Unlike a criminal case where the State must prove the elements of a crime beyond
a reasonable doubt, Warner bore the burden before the administrative hearing officer and
the district court—as he does before this court—to prove there was not probable cause to
believe that he had been driving while under the influence of alcohol. See K.S.A. 2018
Supp. 8-1020(k). Neither the hearing officer nor the district court found he had met this
burden. Instead, both found that numerous undisputed facts, and the inferences drawn
from the officers' observations and the witnesses' statements, supported the officers'
actions. We agree.
On appeal, Warner emphasizes that neither of the officers observed him driving,
and none of the witnesses—neither the Uber driver nor his passengers—offered any
opinion as to whether Warner seemed intoxicated when he drove away. Both statements
are true. But there is other evidence in the record to support the district court's findings.
For example, though the Uber driver did not specifically inform the officers that Warner
was intoxicated at the time of the accident, he nevertheless informed the officers that he
had offered to exchange insurance information because he did not want Warner to "get in
trouble for driving while intoxicated." The officers were aware that Warner had at least
one beer inside the bar, had hit a parked car in the parking lot, and had acted irrationally
(indeed, had driven off) when the Uber driver said he was going to call the police to
report the accident.
The officers' later encounters with Warner and his wife also undermine Warner's
claimed explanation. When the officers arrived at Warner's home, Warner's wife
attempted a diversion, telling them Warner was not at home and that she did not know
whether Warner had been driving. When Warner exposed her false statements by coming
out of the house, he showed several clues of impairment—he smelled of alcohol, slurred
his speech, had poor balance, and was belligerent with the officers. All of this occurred
within about 30 minutes of the accident.
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We acknowledge that Warner's explanations of the day's events varied from these
accounts. But contrary to his arguments on appeal, the fact that the district court did not
believe Warner's description of the events does not render that court's decision arbitrary
or capricious. Rather, our review of the record shows that the district court carefully
considered the witnesses' testimony and the facts before it. We note that Warner's
explanation changed over the course of these proceedings, from saying he had never even
driven past the bar (when the officers met him after the accident), to saying he had gone
to the bar and had one beer, to saying he left the bar and went to his son's house before
returning home. The district court also expressly found that the officers had provided
credible testimony. It is not the role of this court to second-guess credibility assessments
when we were not present to observe the witnesses' testimony or demeanor.
Based on its findings, which are supported by substantial competent evidence in
the record, the district court ruled that the officers reasonably concluded that they had
probable cause to believe Warner had driven his car under the influence of alcohol. See
Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012) (Probable cause
exists when an officer has a "'reasonable belief that a specific crime has been or is being
committed and that the defendant committed the crime.'"). After reviewing the totality of
the circumstances in light of the court's factual findings, we find no error in this analysis.
Like the district court, we affirm the suspension of Warner's driver's license.
Affirmed.
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