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No. 103,028 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. BRUNO EDGAR, Appellant.

SYLLABUS BY THE COURT 1. On a motion to suppress evidence, an appellate court reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The appellate court does not reweigh the evidence. When the facts material to the district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.

2. Kansas law provides that a law enforcement officer may request a person who is operating or attempting to operate a vehicle to submit to a preliminary screening 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.

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3. 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's findings, while the legal conclusion is reviewed de novo.

4. Whether a law enforcement officer has reasonable suspicion to request a driver to submit to a preliminary breath test is determined by examining the totality of the circumstances. The driver's performance on field sobriety tests may be considered along with all the other evidence available to the officer. However, the fact that a driver passes one or more field sobriety tests does not dispel reasonable suspicion, as a matter of law, if other evidence justifies the officer's request for the preliminary breath test.

5. Kansas law provides that any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath provided that a law enforcement 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.

6. Kansas law provides that at the time a preliminary breath test is requested, a law enforcement officer shall give oral notice that (1) there is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test. However, the officer's failure to provide the notice shall not be an issue or defense in any action.

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7. The test results under K.S.A. 2010 Supp. 8-1001 are admissible in court as direct evidence of the defendant's blood alcohol content in a driver's license suspension proceeding as well as a criminal prosecution for driving under the influence of alcohol or drugs. The test results under K.S.A. 2010 Supp. 8-1012 are preliminary in nature and are used only to assist a law enforcement officer to determine probable cause for arrest. Such results are inadmissible in any civil or criminal action concerning the operation or attempted operation of a vehicle except to aid the court in determining a challenge to the validity of the arrest.

8. A person's implied consent to submit to a preliminary breath test under K.S.A. 2010 Supp. 8-1012 is not subject to that person receiving the oral notice a law enforcement officer must provide at the time the test is requested.

9. Before assessing Board of Indigents' Defense Services attorney fees under K.S.A. 22-4513, a sentencing court shall consider the financial resources of the defendant and the nature of the burden that payment will impose. A sentencing court cannot adequately evaluate the amount of attorney fees the defendant is able to pay without knowing the specific amount of attorney fees being requested.

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed February 11, 2011. Affirmed in part, reversed in part, and remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

James R. Spring, deputy county attorney, and Steve Six, attorney general, for appellee.

Before MALONE, P.J., BUSER, J., and BRAZIL, S.J. 3

MALONE, J.: Bruno Edgar appeals his felony conviction of driving under the influence of alcohol (DUI). Edgar claims the district court erred by denying his motion to suppress the evidence. Specifically, Edgar claims the investigating law enforcement officer lacked reasonable suspicion to request Edgar to take a preliminary breath test (PBT) because he already had passed two field sobriety tests. Edgar also argues that his consent to the PBT was involuntary because the officer informed him that he did not have a right to refuse the test. Finally, Edgar claims the district court erred by ordering him to reimburse the State Board of Indigents' Defense Services (BIDS) for attorney fees in an amount "to be determined."

On July 29, 2007, Udall Police Department Officer Perry Lambert was on duty at a driver's license check lane on K-15 in Cowley County. Edgar came through the check lane at approximately 12:45 a.m. When Lambert asked Edgar if he had his driver's license, he initially seemed confused and said no. Lambert then waved him over to the shoulder of the road to allow other traffic to pass. Lambert asked Edgar again whether he had a driver's license, and Edgar handed him an identification card. Lambert then asked Edgar a third time whether he had a regular driver's license, and Edgar replied yes and provided Lambert with a driver's license. Lambert took down the information on the driver's license and checked it with the dispatcher, who advised Lambert that Edgar's license was suspended.

During his conversation with Edgar, Lambert noticed a "light smell of alcoholic beverage." When Lambert asked Edgar if he had consumed any alcohol, Edgar stated he had consumed "just beer," but Edgar did not state how many beers he had consumed. Lambert then asked Edgar to step out of his truck to perform field sobriety tests. Lambert first tested Edgar with the horizontal gaze nystagmus (HGN) test. Lambert then asked Edgar to perform the walk-and-turn test. Lambert gave the instructions twice because Edgar "seemed a little confused" about the test. Edgar "did fine" on the test except he did

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not touch heel-to-toe as instructed one time. Lambert then asked Edgar to perform the one-legged stand test, and Edgar passed that test.

Lambert then asked Edgar to submit to a PBT. Lambert informed Edgar "that he didn't have a right to refuse" the test. Lambert also notified Edgar that he did not have a right to consult with an attorney regarding whether to take the PBT and that he may be subject to further testing. Edgar submitted to the PBT, which registered an alcohol level of .122. Lambert then arrested Edgar for DUI. He read Edgar the implied consent advisory and asked him to submit to a blood test, to which Edgar agreed. Lambert took Edgar to William Newton Memorial Hospital where his blood was drawn. Testing by the Kansas Bureau of Investigation (KBI) revealed a blood alcohol content of .10 grams per 100 milliliters of blood.

Edgar was charged with one count of DUI, fourth or subsequent offense, a nonperson felony, and one count of driving while suspended (DWS), third or subsequent offense, a class A nonperson misdemeanor. Edgar filed a motion to suppress the evidence. He argued, among other issues, that the results of the PBT and the subsequent blood test should be suppressed because Lambert did not have reasonable suspicion to request the PBT and his consent to the PBT was involuntary. After a hearing, the district court denied Edgar's motion to suppress.

The State subsequently dismissed the DWS charge, and the case proceeded to a bench trial on stipulated facts on the DUI charge. The district court found Edgar guilty of DUI. At sentencing, Edgar was ordered to pay KBI fees, and he was ordered to reimburse BIDS for his court-appointed attorney. The district court inquired into Edgar's income, marital status, and number of dependents prior to assessing the BIDS fee. At the time of sentencing, the amount of the BIDS fee was unknown, and the journal entry of judgment listed the fee as "TBD." The district court later approved attorney fees in the amount of $1,128. Edgar timely appealed. 5

On appeal, Edgar claims the district court erred by denying his motion to suppress the evidence. Specifically, Edgar argues that Lambert lacked reasonable suspicion to request Edgar to submit to a PBT because he already had passed the field sobriety tests. Edgar also argues that his consent to the PBT was involuntary because Lambert informed him that he did not have a right to refuse the test. Finally, Edgar claims the district court erred by assessing BIDS attorney fees in an amount to be determined.

REASONABLE SUSPICION TO REQUEST PBT Edgar first argues that Lambert lacked reasonable suspicion to request Edgar to submit to a PBT. Edgar concedes that Lambert was justified in initiating the DUI investigation based on the odor of alcohol and his admission to drinking. However, Edgar argues that Lambert's subsequent investigation dispelled his initial suspicion that Edgar was operating a vehicle while under the influence of alcohol. According to Edgar, when he passed the field sobriety tests, Lambert no longer possessed reasonable suspicion to request the PBT.

On a motion to suppress evidence, an appellate court reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The appellate court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). When the facts material to the district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).

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

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"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."

Thus, Lambert was authorized to request Edgar to submit to a PBT provided Lambert had reasonable suspicion to believe Edgar had been operating or attempting to operate his vehicle while under the influence of alcohol or drugs. "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's findings, while the legal conclusion is reviewed de novo." State v. Thomas, 291 Kan. ___, Syl.

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