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Updated: January 17, 2012

No. 104,940 IN THE COURT OF APPEALS OF THE STATE OF KANSAS CITY OF WICHITA, Appellee, v. WILLIAM J. MOLITOR, Appellant.

SYLLABUS BY THE COURT

1. A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary test to determine the alcohol concentration of the person's breath if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs. K.S.A. 2010 Supp. 8-1012(b).

2. Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity.

3. The determination of a reasonable suspicion is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement.

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4. Reasonable suspicion represents a minimum level of objective justification. It is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.

5. Whether reasonable suspicion exists is a question of law. An appellate court uses a mixed question standard of review, determining whether substantial competent evidence supports the district court findings, while the legal conclusion is reviewed de novo.

6. Although horizontal gaze nystagmus (HGN) test results are not admissible at trial without meeting the foundation requirements for scientific evidence set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), testimony from a law enforcement officer trained in administering HGN tests may properly be considered at a pretrial hearing to assist the court in determining from the totality of circumstances whether a law enforcement officer had reasonable suspicion to request a preliminary breath test.

Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed January 13, 2012. Affirmed.

E. Jay Greeno and Kristen B. Patty, of Wichita, for appellant.

Michael J. Hoelscher, assistant city attorney, and Gary E. Rebenstorf, city attorney, for appellee.

Before BRUNS, P.J., LEBEN and STANDRIDGE, JJ.

BRUNS, J.: William J. Molitor appeals his misdemeanor conviction for driving under the influence (DUI). On appeal, he contends that the district court erred by denying his motion to suppress a preliminary breath test (PBT) and an Intoxilyzer breath test. 2

Specifically, Molitor argues that it was error for the district court to consider evidence of a horizontal gaze nystagmus (HGN) test in determining whether a police officer had reasonable suspicion to request that he submit to a PBT. We conclude that it was appropriate for the district court to consider the results of the HGN test administered to Molitor as part of its reasonable suspicion analysis under K.S.A 2010 Supp. 8-1012(b). We further conclude that even without the HGN evidence, there was reasonable suspicion for the police officer to believe that Molitor had been operating a vehicle under the influence of alcohol. Thus, we affirm.

FACTS Molitor left Jerry's Bar and Grill in Wichita, Kansas, shortly after 11 p.m. on February 28, 2009. A few minutes later, two police officers--Jeremy Diaz and Jeremy Vogel--saw Molitor making a right turn without using his turn signal. The two officers were in the same police unit working a DUI saturation in the area. When the police officers stopped Molitor's vehicle for the traffic infraction, they saw his front passengerside tire strike the curb and come to stop with the tire halfway on the curb.

After approaching the driver's side window, Officer Diaz requested Molitor's driver's license and proof of insurance. When speaking with Molitor, Officer Diaz noticed a strong odor of alcohol. He also saw that Molitor's eyes were watery and bloodshot. When asked if he had been drinking, Molitor responded that he had two or three beers. Officer Diaz then had Molitor exit the car so he could administer field sobriety tests.

The first test administered was the HGN, in which Officer Diaz held a pen approximately 12 to 15 inches in front of Molitor's face and asked him to follow the pen with his eyes--keeping his head straight--as it was moved from side to side. According

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to Officer Diaz, Molitor displayed six out of six possible clues of intoxication during the HGN test.

Next, Officer Diaz administered the walk-and-turn test. Although a score of two or more clues on the walk-and-turn test is indicative of intoxication, Molitor scored only one clue out of eight possible clues. Officer Diaz then administered the one-leg-stand test. Once again, although a score of two or more clues on the one-leg-stand test is indicative of intoxication, Molitor scored only one clue out of four possible clues.

After administering the field sobriety tests, Officer Diaz requested that Molitor submit to a PBT. Molitor agreed to take the test and registered a blood alcohol content (BAC) of .090--which is above the legal limit. After receiving the PBT result, Officer Diaz requested that Molitor take a breath alcohol test using an Intoxilyzer 8000 machine. The test was conducted about an hour after the initial stop and revealed a BAC of .091.

Molitor was charged and convicted in Wichita Municipal Court of driving under the influence of alcohol and failing to signal a turn. He then exercised his right to appeal de novo to Sedgwick County District Court. Prior to trial, Molitor filed a motion to suppress both breath tests, arguing that the officers did not have reasonable suspicion to request that he submit to a PBT.

At the suppression hearing, Officer Diaz testified about the events on the night of February 28, 2009. He also testified that he had received training at the Wichita Police Academy in performing HGN tests. Molitor objected to Officer Diaz' testimony regarding the results of the HGN test, asserting that the Kansas Supreme Court had found HGN evidence to be "inadmissible in court for any reason whatsoever." The district court overruled the objection, finding that even though such evidence would be inadmissible at trial, it could be considered at a suppression hearing in determining whether a law enforcement officer had reasonable suspicion to request a PBT. 4

After considering the evidence presented at the suppression hearing, the district court denied the motion to suppress, concluding that Officer Diaz had reasonable suspicion to ask Molitor to submit to a PBT. Subsequently, Molitor filed a motion to reconsider. Again, Molitor argued that HGN evidence is not admissible under any circumstances. In denying the motion to reconsider, the district court found that although HGN evidence is not admissible at trial, it is relevant to a motion to suppress "where the defendant says the officer had no reasonable suspicion to request and receive a preliminary breath test."

Ultimately, the parties entered into a stipulation regarding the facts and the case proceeded to a bench trial before a different district judge than the one who had heard the pretrial motions. At trial, Molitor preserved his right to appeal the denial of the motion to suppress. Based on the stipulation, Molitor was found guilty of operating a vehicle with a BAC greater than .08 and of failing to signal when making a turn. Thereafter, Molitor filed a timely appeal.

ISSUE PRESENTED AND ANALYSIS On appeal, Molitor contends that the district court abused its discretion by failing to follow binding Kansas Supreme Court precedent holding that evidence regarding HGN is inadmissible. Specifically, Molitor argues that State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992), and State v. Chastain, 265 Kan. 16, 22, 960 P.2d 756 (1998), prohibit the introduction of HGN evidence for all purposes--including the determination of reasonable suspicion--unless it meets the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), foundation requirements for scientific evidence. Thus, the issue presented is whether HGN evidence may be considered as part of the totality of the circumstances in determining if a law enforcement officer has reasonable suspicion to believe a person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs. 5

Reasonable Suspicion to Request a Preliminary Breath Test (PBT)

Administration of a PBT is governed by K.S.A. 2010 Supp. 8-1012(b), which states:

"A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath to determine the alcohol concentration of the person's breath if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs." (Emphasis added.)

"Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity." State v. Thomas, 291 Kan. 676, Syl.

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