Understand the Applicable Legal Standards Reasonable suspicion is the lowest standard and must be satisfied in order for police to extend a traffic stop into a DUI investigation. Reasonable grounds and probable cause are very similar and require more proof than reasonable suspicion. Reasonable grounds is the legal standard that is a prerequisite for police to request a breath test. Probable cause is the legal standard that is a prerequisite for police to arrest a suspect. If these standards are not met, subsequent evidence obtained by the police may not be used to support a license suspension or a criminal conviction. Was there Reasonable Suspicion to make a Traffic Stop? A traffic stop is considered a seizure for purposes of the Fourth Amendment to the United States Constitution. Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, in order to perform a traffic stop, K.S.A. 22-2402(1) requires that police have reasonable suspicion that the driver is committing, has committed, or is about to commit a crime. A traffic infraction is a sufficient basis for police to make a traffic stop. City of Norton v. Wonderly, 38 Kan. App. 2d 797 (2007). The Kansas Supreme Court has defined reasonable suspicion as a particularized and objective basis for suspecting the person stopped is involved in criminal activity. State v. Edgar, 296 Kan. 513, 522, 294 P.3d 251 (2013). Courts determine reasonable suspicion by looking at the totality of circumstances, but it is a less demanding standard than probable cause and requires considerably less than a preponderance of the evidence. Was there Reasonable Suspicion to extend a Traffic Stop to continue a DUI Investigation? Reasonable suspicion that a suspect has committed a DUI should exist in order for police to extend a traffic stop into a DUI investigation. Kansas case law suggests that if in the course of a traffic stop the only evidence of DUI is odor of alcohol and admission to drinking, reasonable suspicion may not be present. Chambers v. Kan. Dep't of Revenue, 2017 Kan. App. 391 P.3d 60 (2017) (Unpub.) However, odor of alcohol, admission to drinking and the driver’s refusal to follow commands (which could indicate impaired judgment) can amount to reasonable suspicion of DUI. State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008). Was there Probable Cause to make an Arrest for DUI Evidence obtained following an arrest without probable cause may not be admissible in court to support a conviction of DUI. In Kansas, for a warrantless arrest to be a lawful arrest, it must be supported by probable cause. See K.S.A. 22-2401(c); State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 (2006). Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Probable cause is determined by evaluating the totality of the circumstances. Shepack v. Kan. Dep't of Revenue, 2018 Kan. App. Unpub. LEXIS 396, *1-29, 419 P.3d 101, 2018. A person is considered under arrest by a law enforcement officer when the person is physically restrained or otherwise deprived of his freedom of action in any significant way or when he submits to the officer’s custody for the purpose of answering for the commission of a crime. State v. Hill, 281 Kan. 136, 143 (2006).
Evidence from a breath test occurs while a suspect is in police custody and under arrest. Thus, in order for the breath test results to be admissible as evidence at trial, the police must have had probable cause at the time of the arrest. Accordingly, it is important to understand when one is “under arrest” and then evaluate whether the evidence at the time of arrest supported probable cause. Evidence relevant to probable cause for DUI includes driving behavior, bloodshot eyes, odor of alcohol, admission to drinking, fumbling of driver license, balance, coordination, compliance with orders and performance on field sobriety tests.
In the case of City of Norton v. Wonderly, 38 Kan. App. 2d 797 (2007), the driver disobeyed an order to return to his vehicle, had bloodshot eyes, had the smell of alcohol on his breath, and admitted to drinking earlier in the evening. Also, the police officer had received a report from another motorist that the driver had been driving in a reckless manner earlier. However, there was also evidence negating probable cause including that the officer followed the driver for 3 minutes without observing any traffic infractions, the driver pulled his vehicle over in a normal manner in response to emergency lights, did not fumble for his license, did not have any problems exiting his vehicle and walking to the police vehicle and had fair speech without slurring words. The officer transported the driver to the police station in handcuffs to submit to a breath test. The Kansas Court of Appeals found that the driver was effectively under arrest at the time he was transported to the police station and that the evidence at the time he was placed under arrest did not amount to probable cause for DUI. As a result, the breath test was inadmissible as evidence. Only the evidence obtained prior to the time of arrest was admissible. Because the evidence was insufficient to support a finding of probable cause, the evidence was also insufficient to support a conviction of DUI.
In State v. Crisp, 309 P.3d 974 (Kan. App. 2013) (Unpub.) the police stopped the Was there Reasonable Grounds of DUI to Support a Request for a Breath Test? Under the Kansas implied consent law, any person who operates or attempts to operate a vehicle within the state is considered to have given consent to submit to one or more tests of the blood, breath, urine, or other bodily substances of that person to determine the presence of alcohol or drugs. See K.S.A. 8-1001(a). K.S.A. 8-1001(b) provides that a law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If, at the time of the request, the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution or city ordinance; or (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury. The reasonable grounds test for purposes of administering a breath test essentially uses the same standard for determining probable cause for an arrest. State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013).