1 NOT DESIGNATED FOR PUBLICATION
No. 125,390

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

T AMER C HRISTO , Appellant ,

v.

K

ANSAS D EPARTMENT OF R EVENUE , Appellee

.

MEMORANDUM OPINION

Appeal from Johnson District Court; D AVID W. H AUBER , judge. S ubmitted without oral argument. Opinion filed April 12 , 2024. Affirmed.

Robb Edmonds , of Bath & Edmonds, P.A., of Leawood, for appellant.

Donald J. Cooper , of Legal Services Bureau, Kansas Department of R evenue, for appellee.

Before G ARDNER , P.J., M ALONE , J., and T IMOTHY G. L AHEY , S.J.

P ER C URIAM : Tamer Christo appeals the district court's decision affirming the Kansas Department of Revenue's (KDOR) suspension of his driver's license . He argues
that the arresting officer lacked probable cause to believe he was driving under the
influence , so t he officer could not require him to submit to a breath test. But we find that, under the totality of the circumstances, the arresting officer had probable cause to believe Christo was driving under the influence. We thus affirm the district court ' s upholding of the KDOR's administrative suspension order.2 F

actual and P rocedural B ackgroun d

On the evening of December 20, 2020, Tamer Christo was involved in a relatively minor, one
- car accident in Overland Park when he crashed into a curb

. Christo's son
Alexander Christo , and Alexander's two friends Sultan Bayazid and Luke Pell ic cia, were
also in the car at the time of the accident. Someone left the scene, went to the Christos '

n earby home , and returned to the scene of the accident in Alexander ' s truck before Officer Bailey Kennedy of the Overland Park Police Department arrived . The officer
foun d five people at the scene of the accident : Christo, Alexander, Pelliccia , Bayazid,
and Bayazid 's father.

Upon approaching Christo, Kennedy immediately smelled the odor of alcohol coming from Christo's breath and saw Christo's bloodshot eyes

. Christo admitted to Kennedy that he had consumed one beer that night. Kennedy asked Christo if he would be comfortable reciting the alphabet, and Christo became agitated and asked the officer if
he was serious. Kennedy then observed Christo walking and concluded that Christ o was "'walking around okay.'"

Kennedy then asked Christo to complete a series of field

- sobriety tests. First, Kennedy instructed Christo to recit e the alphabet from C to Q without singing, skipping,

or repeating

. But Christo tried to begin the test before Kennedy finished providing instructions and asked if he needed to recite the entire alphabet. After Kennedy repeated
the instructions , Christo then performed the test as instructed.

Second, Kennedy asked Christo to count backwards from 99 to 79 without skipping or repeating

. Christo became agitated and asked Kennedy if he was serious.
Christo then counted backwards from 99 to 91 before restarting . He then counted from 99
to 98 , jumped to 89 , and counted down from 89 to 84 before he stopped and asked if he
needed to continue

. Kennedy directed Christo to count to the number to which he had3 been instructed to count. Christo then counted backwards from 84 to 75. Kennedy concluded that Christo failed the counting test. During th at test, Christo told Kennedy that the accident had occurred over two hours ago. Christo also said that he had walked
home after the accident , consumed a couple more alcoholic drinks , then return ed to the
scene of the accident in his son ' s truck

.

Third, Kennedy asked Christo to perform a finger

- dexterity test. Kennedy
instructed Christo to touch the tip of his fingers to the tip of his thumb while counting out
loud and to do so twice

. Yet Christo touched the tip of his thumb to the bottom of his fingers and performed the action only one
- and

- a
- half times. Kennedy concluded that Christo failed the finger

- dexterity test.

Fourth, Kennedy asked Christo to perform the horizontal gaze nystagmus ( HGN ) test, the results of which are not in the record on appeal.

Fifth, Kennedy asked Christo to perform a walk

- and

- turn test. Christo told Kennedy that he had a torn ligament which impaired his walking. But Kennedy saw that
Christo did not limp or otherwise show that his knee was bothering him wh en he walked to the testing area. Still, once the walk

- and

- turn test began, Christo indicat ed to Kennedy that he had a limp. Kennedy observed these indications of impairment during Christo's performance of the walk

- and

- turn test: (1) started too soon (and twice) ; (2) made the

w rong number of steps; (3) made an improper turn; (4) stepped off the line; (5) could not maintain his balance; and (6) raised his arms

. Kennedy concluded that Christo failed the
walk

- and

- turn test.

Finally, Kennedy asked Christo to perform a one
- leg standing test. Christo told
K ennedy that he could not perform the test because of the torn ligament in his knee. Kennedy responded that Christo could stand on his other leg . Christo then took out his phone and began recording Kennedy and asked him to repeat the instructions for the test,4 which Kennedy did. Christo again stated that he could not raise his leg due to the injury,
and he th us did not attempt the one

- leg standing test.

Kennedy then walked over to Alexander, Pelliccia , Bayazid, and Bayazid 's father. Kennedy asked the group how many people were in the car at the time of the accident,
and one of the teenagers responded that three people had been in the car. The group then
told Kennedy that the accident had occurred 45 minutes to an hour ago. The group also
told Kennedy that everyone had remained at the scene of the accident , except for Bayazid
who had gone to get his father. Bayazid 's father told Kennedy that he did not know Christo and that Christo had not gone to the Bayazid ' s house to drink. Kennedy asked
Al exander how long ago the accident had occurred, and Alexander responded that it had
occurred about 45 minutes ago. Kennedy also asked Alexander , "'Your father didn't leave to go drink for an hour and come back here?'" And Alexander responded, "'No.'"

Kennedy then returned to Christo and asked him to submit to a preliminary breath

test , which Christo refused. Kennedy then arrested Christo for driving under the
influence

. After escorting Christo to his patrol car, Kennedy personally served Christo
with a copy of the o fficer's c ertification and n otice of d river's l icense s uspension and read him the testing notices out loud. Kennedy 's c ertification and n otice of d river's l icense

s uspension identified the se reasonable grounds for his belief that Christo was under the influence of alcohol: (1) odor of alcohol; (2) sobriety tests showed impairment; (3) slurred speech; (4) bloodshot eyes; (5) difficulty communicating; (6) poor balance or coordination; (7) state ment that he consumed alcohol; and (8) refus al of a preliminary
breath test. Kennedy then asked Christo to submit to a blood alcohol content test , to which Christo repeatedly responded that he wanted to speak with an attorney. Kennedy considered Christo's repeated request to speak to an attorney as a refusal to submit to the requested blood alcohol content test. Kennedy recorded his encounter with Christo and others on his body camera.5 Christo later requested an administrative hearing with the KDOR at which he argued, among other things, that Kennedy lacked probable cause to believe that he was driving under the influence and th us could not require him to submit to a test. The administrative hearing officer disagreed. The hearing officer affirmed the suspension of
Christo's driver's license after concluding that Kennedy did have probable cause to
believe that Christo was driving under the influence

. Christo then p etition ed for review of the KDOR's suspension order in Johnson County District Court und er K.S.A. 8

- 259(a)

. His petition for review a sserted , among other grounds for relief, that "there was no reasonable grounds/probable cause that Mr. Christo was operating the vehicle under the influence of alcohol or drugs."

The district court held a de novo bench trial

. At trial, Kennedy reiterated that he
had relied on the factors he listed in his c ertification and n otice of driver's license suspension in concluding that Christo was driving under the influence. Kennedy testified
that

• Christo's argumentative demeanor was another indication of impairment ;

• he did not observe that Christo ha d any problem walking before the field sobriety tests ;

• he did not find Christo's claim that he went home to drink before returning
to his crashed car credible because people involved in accidents t ypically stay at the scene of the accident rather than going home to drink and then returning ; and

• he took the results of the HGN test into account when deciding whether to
arrest Christo for driving under the influence , but he would have arrested
Christo even without the results of that test.

Bayazid testified that after Alexander returned to the scene of the accident in his truck, he drove Christo to Christo's home in the truck. Bayazid further testified that he and Christo were at Christo's home for approximately an hour

- and

- a
- half and, while6 there, he saw Christo consume two glasses of alcohol and some pain medication.
Pelliccia likewise testified that Bayazid and Christo left the scene of the accident in Alexander's truck and returned approximately an hour

- and

- a
- half later. Alexander similarly testified that Bayazid had driven Christo back to their home before later returning to the scene of the accident. Christo likewise testified that Bayazid drove him in
Alexander's truck to his home where he consumed two double shots of tequila and two Percocet pills before returning to the scene of the accident at least an hour

- and

- a
- half
later. Christo's wife, Lisa Christo , also testified that she had seen Bayazid and Christo return to their home where Christo consumed tequila and pain medication.

Kennedy 's bodycam footage was admitted into evidence and t he district court
viewed and relied on it in reaching its decision. But the footage was not included in the
record on appeal, so it is unav ailable to us in reviewing the district court's judgment.

The district court u pheld the KDOR's administrative suspension of Christo's
driver's license

. Its order summarized the indicators of impairment on which Kennedy relied in concluding that Christo was driving under the influence:

" Office r Kennedy testified that he had reasonable grounds to believe that Mr. Christo had operated a vehicle while under the influence of alcohol under the totality of the circumstances, which included (but not limited to): (1) the odor of alcohol coming from his breath; (2) his blood shot eyes; (3) his admission to drinking beer before driving; (4) being involved in a motor vehicle accident; (5) the failure to complete the alphabet, finger dexterity and walk and turn tests; (6) his agitated attitude during the investigati on; and (7) his unsubstantiated claim that he could not perform tests due to his knee, although he was observed walking normally; (8) his refusal to take a preliminary breath test; (9) various statements from passengers involved in the car accident; (10) h is difficulty in communicating; (11) his poor balance and coordination during standardized field sobriety testing; (12) his false statements; and (13) his failure to follow instructions."7 The district court concluded that Kennedy had probable cause to believe Christo was driving under the influence , so he could require him to submit to a test. In reaching this conclusion, the district court emphasized some credibility issues with the witnesses' testimony that Christo had left the scene of the accident , consume d alcohol and
medication , then returned to the scene before encountering Kennedy :

"There are significant credibility issues in this case in the way the accident happened, the explanations for how long before it had happened, whether petitioner left the scene to go home to drink (and take a drug) and whether his false statements included his statement that he had one beer before driving. Because of the credibility issues, the officer reasonable [ sic ] could have concluded that petitioner was driving and impaired at the time of the accident and not as the result of any subsequent claim to h ave gone home before the police arrived. . .

. [A] reasonably prudent officer under the totality of the circumstances in this case would have believed that the driver's guilt was more than a mere possibility to justify a request for testing. "Accordingly, because the police officer had sufficient reasonable grounds and probable cause to request that petitioner take a breath test, which he refused, his refusal is sufficient to affirm the agency's suspension of petitioner's driver's license. [Ci tations omitted.]"

Christo timely appe als

.

Did Kennedy Have Probable Cause to Believe Christo W as Driving Under the Influence?

Standard of Review

Appeals from the administrative suspension of driver's licenses are subject to
review under the Kansas Judicial Review Act. K.S.A. 8

- 259(a) ; K.S.A. 77

- 601 et seq.; Rosendahl v. Kansas Dept. of Revenue , 310 Kan. 474, 480, 447 P.3d 347 (2019)

. On appeal, the burden of proving the invalidity of the agency action rests on Christo as the party asserting the invalidity. See K.S.A. 77

- 621(a)(1) ; K.S.A. 8

- 1020(q)

.8 The KJRA permits judicial relief only for eight statutorily enumerate d reasons.
K.S.A. 77

- 621(c) ; Johnson v. Kansas Dept. of Revenue , 58 Kan. App. 2d 431, 442, 472 P.3d 92 (2020)

. But Christo cites none of the m. This is problematic because "specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought." Pittsburg State University v. Kansas Bd. of Regents , 30 Kan. App. 2d 37, 45, 36 P.3d 853 (2001) ; see also Frick Farm Properties v. Kansas Dept. of Agric ulture , 289 Kan. 690, 697, 216 P.3d 170 (2009) ("Such specification is important because a court reviewing an administrative agenc y's action may grant relief only if it determines one or more of those provisions is violated.").

Christo exclusively argues that the KDOR's administrative suspension order is invalid because it erred in determining that Kennedy had probable cause to believe that
Christo had been driving under the influence. We thus liberally construe Christo's brief as challenging the validity of the KDOR's decision under K.S.A. 77

- 621(c)(4)

— "the agency has erroneously interpreted or applied the law "

— or under K.S.A. 77

- 621(c)( 7 )

— "the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial ." See EagleMed v. Travelers Ins urance , 315 Kan. 411, 419, 509 P.3d 471 (2022) (inferring statutorily enumerated basis for judicial relief when appellant failed to specify one ).

We review a district court's factual findings in a license suspension matter for substantial competent evidence and review the district court's legal conclusions derived from those factual findings d e novo. Creecy v. Kansas Dept. of Revenue , 310 Kan. 454, 469, 447 P.3d 959 (2019) ; Casper v. Kansas Dept. of Revenue , 309 Kan. 1211, 1213, 442 P.3d 1038 (2019)

. "The determination of whether an officer has reasonable grounds for a particular action involves a mixed question of law and fact, and appellate courts review
the ultimate legal conclusion

— whether reasonable grounds existed

— independently, while deferring to the district court's factual findings." 309 Kan. at 1213

. Substantial9 competent evidence is evidence that possesses both relevance and substance and furnishes a substantial basis of fact from which the issues can reasonably be resolved. Creecy , 310 Kan. at 469

.

Governing Law

K.S.A. 2020 Supp. 8

- 1001(b)(1) provides:

"One or more tests may be required of a person when, at the time of the request, a law enforcement officer has probable cause to believe the person has committed a
violation of K.S.A. 8

- 1567(a) [DUI], and amendments thereto,

. . . or to believe the person is under the age of 21 years and was operating or attempting to operate a vehicle while having alcohol or drugs in such person's system; 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 motor vehicle accident or collision resulting in property damage,

persona l injury or death."

Prior versions of the statute required law enforcement officers to possess "reasonable grounds" rather than "probable cause," but the Kansas Supreme Court has long equated those standards for purposes of requiring licensees to submit to a test under
K.S.A. 8

- 1001 . See, e.g., K.S.A. 2017 Supp. 8

- 1001(b) (1) (requiring a law enforcement officer to possess "reasonable grounds" that the licensee was driving under the influence);
Rosendahl , 310 Kan. 474, Syl. ¶ 3 ("Kansas courts evaluate reasonable grounds by looking to probable cause standards."); Smith v. Kansas Dept. of Revenue , 291 Kan. 510, 514, 242 P.3d 1179 (2010) ("This court has found the term 'reasonable grounds' synonymous in meaning with 'probable cause

. ' " )

.

"Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant10 has committed or is committing a specific crime." Rosendahl , 310 Kan. 474, Syl. ¶ 3. The existence of probable cause is determined by evaluating the totality of the circumstances , the information , and the fair inferences from it known to the officer at the time. Sloop v. Kansas Dept. of Revenue , 296 Kan. 13, 20, 290 P.3d 555 (2012).

Analysis

The only issue on appeal is whether Kennedy had probable cause to believe Christo was driving under the influence, as K.S.A. 2020 Supp. 8

- 1001(b)(1) requires, before Kennedy could require Christo to submit to a test

. Christo does not argue that Kennedy lacked probable cause to believe he was under the influence when they
encountered each other. Instead, Christo contends that he was not under the influence at
the time the accident occurred , and he left the scene of the accident and consume d alcohol and a painkiller medication before he return ed and met Kennedy. Christo generally makes two arguments on this point.

First, Christo argues that Kennedy

"did little to investigate the viability of intervening intoxication. Essentially, he talked to witnesses on the scene who gave conflicting information about whether Mr. Christo did
or did not leave the scene of the accident and then return sometime later. Beyond those conversations, Kennedy did nothing to investigate what Mr. Christo told him."

We agree that an officer cannot be willfully ignorant of a suspect's post

- driving alcohol consumption. The Kansas Supreme Court has held that "[e]vidence of a licensee's post

driving alcohol consumption may be considered in a driver's license suspension

pr oceeding's evaluation of whether a law enforcement officer had the reasonable grounds required under K.S.A. 8

- 1020(h)(2)(A) ." Swank v. Kansas Dept. of Revenue , 294 Kan. 871, Syl. ¶ 2, 281 P.3d 135 (2012) ; see also Martin v. Kansas Dept. of Revenue , 285 Kan.11 625, 631, 176 P.3d 938 (2008) ("'Reasonable grounds to believe' a driver is under the
influence

. . . demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel."), overruled on other grounds by City of Atwood v.
Pianalto , 301 Kan. 1008, 350 P.3d 1048 (2015) ; Katz v. Kansas Dept. of Revenue , 45 Kan. App. 2d 877, Syl. ¶ 8, 256 P.3d 876 (2011) ("Under K.S.A. 2009 Supp. 8

- 1020(h)(2)(A) , a person's consumption of alcohol after driving but before submitting to a breath alcohol test may be a relevant factor in the determination of whether the law enforcement officer had reasonable grounds to believe the driver was operating the
vehicle whi le under the influence of alcohol.").

Relatedly, the Kansas Supreme Court has held that it behooves an officer who has notice of post

- driving alcohol consumption to investigate it.

"An officer cannot insulate his or her assessment of the existence of reasonable grounds from review or criticism by a district or appellate court by maintaining a posture of willful ignorance on a suspect's post

- driving alcohol consumption. Reasonableness is key. If the situation is such that a reasonable law enforcement officer would investigate, it behooves an actual officer to do so. This is particularly true when an officer's personal observations of the scene or the suspect suggest the possibility of post

- driving alcohol consumption. Such consumption is a factor to be considered and evaluated. Reasonable grounds to believe a driver is under the influence demands thoughtful examination of the behavior of a driver before, during, and after he or she is b ehind the wheel." Rosendahl , 310 Kan. 474, Syl. ¶ 4

.

Here, the suspect told Kennedy at the scene of the accident that he had left the scene and consumed alcohol before returning . Thus , a reasonable law enforcement officer in Kennedy 's position would have investigated the possibility of intervening intoxication.

But the record shows that Kennedy sufficiently did so. He investigated whether
Christo left the scene of the accident , consume d alcohol , and returned

. After Christo told12 Kennedy that he had done so, Kennedy asked Christo's son, Alexander, whether Christo
had done that , and Alexander responded that he had not. And when Kennedy spoke to
Alexander ' s friends at the scene, they told Kennedy that everyone had remained at the scene of the accident except for Bayazid , who had gone to get his father. Th ose statements, although contradictory to Christo ' s statements at the scene, support a reasonable belief that Christo did not leave the scene of the accident to consume alcohol. Kennedy "did not ignore or maintain a posture of willful ignorance toward evidence suggesting the possibility of post

- driving alcohol consumption." Rosendahl , 310 Kan. 474, Syl. ¶ 5

.

Although Alexander and others testified at trial that Christo had left the scene of
the accident and consume d alcohol before encountering Kennedy, Kennedy had no such
evidence when he asked Christo to submit to a test. And t he district court, in its well

reasoned decision, explained why it found the on
- the

- scene statements and Kennedy ' s testimony more credible than the witnesses ' self

- contra dictory trial testimony. And in reviewing the district court's factual findings, this court "will not weigh conflictin g evidence, pass on the credibility of witnesses, or redetermine questions of fact ." Creecy , 310 Kan. at 469

.

Second, Christo argues that the video of the accident scene show s the truck that brought him back to the scene after he had left , corroborat ing his testimony

. But Kennedy 's reasonable belief that Christo never left the scene of the accident is not
inconsistent with the fact that Alexander's truck was also at the scene

. Th e truck ' s
presence at the scene does nothing to prove that Christo had left the scene and then
returned in t he truck. Many other scenarios could explain its presence there. Perhaps
Alexander ran home and got his truck from the ir nearby family home , while Christo stayed at the scene of the accident

. "'In dete rmining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the13 district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it.'" Casper , 309 Kan. at 1220 ( quoting Gannon v. State , 305 Kan. 850, 881, 390 P.3d 461 [2017] ). We do so here. We find substantial evidence supporting the district court ' s factual findings, and no error of law.

Under the totality of the circumstances known to Kennedy at the time he requested Christo to submit to a test, he had probable cause to believe that Christo was driving
under the influence. Christo has failed to carry his burden of proving the invalidity of the KDOR's administrative suspension order. The district court therefore did not err in upholding that order

.

Affirmed.