State of Kansas ex rel. Kansas Highway Patrol, Appellant, v. 2011 VIN 2G1FJ3D (2026)

MEMORANDUM OPINION

In this appeal, we are asked to consider the denial of a forfeiture petition filed by the Kansas Highway Patrol (KHP) under the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq. The KHP's forfeiture theory required that it prove by a preponderance of the evidence that the driver of a motor vehicle fled or eluded police officers while engaging in reckless driving, pursuant to K.S.A. 8-1568(b)(1)(C). After an evidentiary hearing, the district court found that while the vehicle was traveling at 140 miles per hour, under Kansas law, speed alone could not constitute reckless driving, citing Perry v. Schmitt, 184 Kan. 758, 763, 339 P.2d 36 (1959), and the remaining facts did not demonstrate reckless driving.

On appeal, we find that the district court erred as a matter of law in its application of Perry and similar cases to the facts of this case. Rather than considering the evidence under a gross and wanton negligence standard, which may be found in personal injury actions such as Perry, the district court was required to analyze the facts under a criminal statute—K.S.A. 8-1566—and determine whether the KHP had proven by a preponderance of the evidence that the driver of the vehicle had engaged in reckless driving. Accordingly, we reverse the district court's decision that the KHP has failed to meet its burden of proof and remand for further proceedings.

Factual and Procedural Background

This appeal arises from the denial of a petition for forfeiture under the Kansas Standard Asset Seizure and Forfeiture Act (the Act). The case originated when the KHP filed a Notice of Pending Forfeiture pursuant to 2023 Supp. K.S.A. 60-4109. The notice identified the defendant as One 2011 Chevrolet Camaro, VIN: 2G1FJ3DJ8B9192099 (“the Camaro”), which had been seized in 2023 in Saline County, Kansas.

Raul Garcia filed a claim to prevent the forfeiture of the Camaro, arguing that the property was exempted because it was obtained through lawful means, and was not used or intended to be used to commit a felony.

The KHP filed a denial against Garcia's claim. Soon after, the KHP filed a Petition for Forfeiture in Rem in district court pursuant to 2023 Supp. K.S.A. 60-4113 and Garcia filed an answer. Later, the parties jointly moved to stay the proceedings so that Garcia's companion criminal case could be resolved. Once resolved, the stay was lifted.

The district court held an evidentiary hearing on the KHP's petition. The evidence at that hearing was that one early Sunday morning, Kansas State Trooper Scott Walker was traveling west on Interstate I-70 in Dickinson County, Kansas. Trooper Walker was driving in very light traffic when he observed a vehicle traveling east. It quickly became obvious to Trooper Walker that the vehicle was traveling faster than the posted 75 miles per hour speed limit, and so he used a radar to check the vehicle's speed. The radar indicated that the vehicle was traveling 113 miles per hour.

Trooper Walker initiated a traffic stop of the vehicle, a Camaro that is the subject of this case, at mile marker 272, just west of Abilene, Kansas. The vehicle was slow to respond to Trooper Walker's lights and so Walker activated his sirens and spotlight. After driving another quarter mile, the vehicle pulled over.

Because the driver was slow to stop and continued to activate the brake lights, Trooper Walker felt something unusual was going on, and used a loudspeaker to try to communicate with the driver. Walked used the loudspeaker to ask the driver to exit the vehicle. The driver did not comply. Trooper Walker observed the driver's arms coming out of the window, and Walker asked the driver to put the keys on the roof of the car. Instead, the vehicle sped off to the east.

Trooper Walker pursued the Camaro in his own vehicle and noted that the Camaro's speed reached 140 miles per hour. Trooper Walker recalled that because the Camaro was faster than his patrol vehicle, the Camaro was able to create a gap of one-fourth to one-half mile between the vehicles. As the Camaro approached an exit on the interstate to Abilene, Kansas, Trooper Walker confirmed the Camaro was still traveling at 140 miles per hour. He witnessed the Camaro descending the exit ramp from the interstate but then lost sight of the ramp and intersection. A few seconds later, when he was able to see the ramp and intersection at the bottom of the ramp again, the Camaro was gone.

Trooper Walker testified that the downward exit ramp is approximately 100 to 125 yards long and descends to Highway K-15 going south. At the bottom of the ramp is a stop sign. Based on his training and experience, Trooper Walker did not believe, considering the speed of the vehicle and the length of the ramp, that it was possible for the Camaro to stop at the stop sign. Trooper Walker also noted that there is cross traffic in front of the stop sign—two lanes heading north and two lanes heading south, as well as turn lanes in the middle. Trooper Walker also testified that there were two businesses at the bottom of the ramp that were open at the time of the incident—the “24/7” and the “Quick Shop.”

At the conclusion of the evidentiary hearing, the district court took the matter under advisement and later issued its memorandum decision. The district court noted that the parties largely agreed on the facts, including the fact that Garcia had fled and eluded a law enforcement officer. The only issue before the district court was whether Garcia's actions constituted felony fleeing and eluding, which, as we explain in this opinion, would make the Camaro subject to forfeiture. The district court concluded:

“So here is the evidence the court has. The Camaro certainly fled and eluded a police officer. It did so by driving away at 140 mph. It drove away in the eastbound lanes, and the court does not recall there being another vehicle in the east bound lanes during the chase. There were a couple [of] westbound vehicles, but the interstate was basically empty. As far as this court can tell, the Camaro did not swerve or commit other traffic violations. The Trooper did not testify about other violations he personally observed.

“Therefore, the court believes that under current Kansas Law, the court cannot find felony flee and elude. The court denies the requested relief Plaintiff asks for in its petition and grants the claim in this case.”

Analysis

Did the District Court Err in Finding the KHP Failed to Prove the Camaro Was Used to Commit Felony Fleeing and Eluding?

The State argues that the district court erroneously denied the forfeiture petition by concluding the KHP failed to prove by a preponderance of the evidence that the Camaro was used to commit felony fleeing and eluding. Garcia contends that the district court properly denied the petition for forfeiture.

Standard of Review

“The standard of review for a forfeiture action where the trial court has made findings of fact and conclusions of law is to determine whether those findings are supported by substantial competent evidence and whether they support the trial court's conclusions of law. In reviewing the trial court's decision, this court does not reweigh the evidence or pass on the credibility of the witness. If the evidence and all reasonable inferences drawn from it, when viewed from the perspective most favorable to the prevailing party, support the trial court's decision, that decision will be affirmed. [Citations omitted.]” State v. 1990 Lincoln Town Car, 36 Kan. App. 2d 817, 823, 145 P.3d 921 (2006).

Additionally, when evaluating the district court's legal conclusions, we apply a de novo review standard. State v. Harris, 310 Kan. 1026, 1045, 453 P.3d 1172 (2019). This case also requires us to interpret the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq. as well as several Kansas criminal statutes. “[S]tatutory interpretation presents a question of law over which appellate courts have unlimited review.” Nicholson v. Mercer, 319 Kan. 712, 714, 559 P.3d 350 (2024).

Applicable law

The forfeiture of vehicles in Kansas is controlled by the Kansas Standard Asset Seizure and Forfeiture Act, K.S.A. 60-4101 et seq. The Act creates an in rem civil proceeding for the forfeiture of property. See State v. Yeoman, 24 Kan. App. 2d 639, 641, 951 P.2d 964 (1997).

The issue in this case involves whether the KHP met its initial burden of proof in showing the Camaro was subject to forfeiture. The law has recently changed on this point. In 2024, the Kansas Legislature heightened the initial burden of proof for a person or entity under the Act claiming a right to forfeiture. The 2024 amendments now require that the facts giving rise to forfeiture must be proven by clear and convincing evidence. K.S.A. 60-4113(h). But because this case predated the 2024 amendments, we consider this matter under K.S.A. 2023 Supp. 60-4113, applying a preponderance of the evidence standard:

“The issue shall be determined by the court alone. The plaintiff's attorney shall have the initial burden of proving the interest in the property is subject to forfeiture by a preponderance of the evidence. If the state proves the interest in the property is subject to forfeiture, the claimant has the burden of showing by a preponderance of the evidence that the claimant has an interest in the property which is not subject to forfeiture.” K.S.A. 2023 Supp. 60-4113(h).

Thus, under the applicable version of the statute, the KHP was required to first prove that the Camaro was subject to forfeiture by a preponderance of the evidence. If the KHP was successful, the burden would shift to Garcia to show by a preponderance of the evidence the vehicle is not subject to forfeiture.

KHP's forfeiture theory

The KHP premised its petition for forfeiture on the theory that Garcia drove the Camaro while committing a felony violation of fleeing or attempting to elude a police officer. K.S.A. 60-4104 provides that “[c]onduct and offenses giving rise to forfeiture under this act, whether or not there is a prosecution or conviction related to the offense, are: ․ felony violations of fleeing or attempting to elude a police officer.” K.S.A. 60-4104(z).

This forfeiture theory requires us to examine the actions that might constitute a felony fleeing or attempting to elude violation. While K.S.A. 8-1568 (b)(1) describes many different circumstances that elevate a misdemeanor fleeing or attempting to elude violation to a level 9 felony, subsection (b)(1)(C) is applicable here:

“(b) Any driver of a motor vehicle who knowingly fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop and who: (1) Commits any of the following during a police pursuit, shall be guilty as provided by subsection (c)(2):

․

(C) engages in reckless driving as defined by K.S.A. 8-1566.” K.S.A. 8-1568(b)(1)(C).

Thus, to meet its initial burden to prove its forfeiture petition, the KHP was required to establish two layers of proof by a preponderance of the evidence. First, the KHP had to show that Garcia was fleeing or attempting to elude a police officer. Garcia agrees that the KHP has satisfied that requirement. Additionally, the KHP was required to prove that Garcia engaged in reckless driving as defined in K.S.A. 8-1566. We turn then to K.S.A. 8-1566 to determine what the KHP was specifically required to prove.

Reckless driving is defined in K.S.A. 8-1566(a).

K.S.A. 8-1566(a) provides that “[a]ny person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” The interpretation of this statute as well as the consideration of Garcia's actions under the statute is at the heart of this dispute. We will begin with the district court's ruling on the issue.

The district court concluded that the KHP did not meet its burden to prove by a preponderance of the evidence that Garcia had engaged in reckless driving under K.S.A. 8-1566(a). It noted that the parties “agree that speed, by itself, is not sufficient for this court to find a ‘willful or wanton disregard for the safety of persons or property.’ See Perry v. Schmitt, 184 Kan. 758, 763 (1959).” The district court also noted that under Perry, “speed is to be considered with other facts and circumstances.”

The district court applied an incorrect legal standard.

Some clarification of Perry's application to this case is in order. The facts of that case are fairly simple: Perry sued Schmitt for negligence to recover damages for personal injuries he sustained while riding in an automobile driven by Schmitt. At trial, there was evidence that Schmitt had been drinking alcohol and at the time of accident was driving approximately 80 to 85 miles per hour. As part of its verdict, the jury was asked to consider special questions as to whether Schmitt's actions constituted gross and wanton negligence. It responded that the accident was caused by high speed, that Schmitt was traveling at 80-85 miles per hour, and that the defendant committed acts constituting gross and wanton negligence—specifically, that Schmitt was traveling at too high a speed. It also found that Schmitt was “indifferent and unconcerned with the possibility of injury to person or property․” and that Schmitt could “have realized the imminence of danger or injury resulting therefrom if he had exercised the degree of judgment ordinarily exercised by reasonably prudent persons.” 184 Kan. at 759.

On appeal, Schmitt argued “that a speed of 80 to 85 miles an hour, standing alone, does not constitute gross and wanton negligence.” 184 Kan. at 763. The Kansas Supreme Court agreed. “While speed alone is not sufficient to establish gross and wanton negligence, it is properly considered alon[g] with other facts and circumstances surrounding the occasion in determining whether defendant was guilty of wantonness.” 184 Kan. at 763. The court pointed out that in addition to speed, the jury found Schmitt's drinking contributed to the accident and that he had repeatedly been warned about his fast driving by the Sheriff and others. The court held that these facts “were sufficient to sustain the jury's finding of gross and wanton negligence on defendant's part and to support the general verdict.” 184 Kan. at 763.

While the district court correctly summarized the holding in Perry, its reliance on Perry in the present case is misplaced. The court in Perry considered whether speed alone could establish gross and wanton negligence within the context of a personal injury lawsuit. It did not consider whether a person driving at an excessive speed may be found to be driving “in willful or wanton disregard for the safety of persons or property” under K.S.A. 8-1566(a).

The district court also supported its analysis by citing Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974). In Vaughn, a passenger of an automobile sued the driver and the owner of a cow when the vehicle struck the cow in a roadway. After a summary judgment motion was filed, the district court concluded that the facts were not in dispute and that “it could not be reasonably determined that the defendant Murray was guilty of gross and wanton negligence.” 214 Kan. at 459. The Kansas Supreme Court reversed:

“Appellee Murray points to our previous decisions which hold that evidence of speed alone does not constitute gross and wanton negligence and we adhere to those holdings. However, we believe under the rationale of Mann v. Good, [202 Kan. 631, 451 P.2d 233 (1969)] and Pickens v. Maxwell, [203 Kan. 559, 456 P.2d 4 (1969)], sufficient additional causes may have contributed to the collision and were present from which a jury might reasonably have found gross and wanton negligence on the part of the driver. [Citations omitted.]” 214 Kan. at 460-61.

Again, in Vaughn, the Kansas Supreme Court was tasked with considering what acts might constitute gross and wanton negligence within the context of a personal injury lawsuit. It did not consider “willful or wanton disregard for the safety of persons or property” in the context of K.S.A. 8-1566(a).

The district court also relied upon State v. Krovvidi, 274 Kan. 1059, 58 P.3d 687 (2002), for its conclusion. The district court noted that in Krovvidi, “the Kansas Supreme Court found that the running of a red light, by itself, was not sufficient to meet the ‘material deviation’ element required for vehicular homicide.” While the district court correctly described the holding, it failed to explain the applicability of Krovvidi to the present case, and we note that the Kansas Supreme Court limited its analysis to the vehicular homicide statute.

We conclude that the district erred as a matter of law by applying an incorrect legal standard to the facts of this case. By the plain language of the statute, K.S.A. 8-1568(b)(1)(C) required the district court to examine whether Garcia engaged in reckless driving as defined by K.S.A. 8-1566. The district court should have considered whether, under K.S.A. 8-1566(a), Garcia drove the Camaro “in willful or wanton disregard for the safety of persons or property.”

The statute defining reckless driving, K.S.A. 8-1566, is a criminal statute. The definition of “reckless” is found in our Kansas criminal code:

“(j) A person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” K.S.A. 21-5202(j).

The district court's reliance on Perry is incorrect because of its specific applicability to gross and wanton negligence within the context of a personal injury lawsuit. The discussion of gross and wanton conduct in Perry does not consider the definition of “reckless” found at K.S.A. 21-5202(j). Similarly, there is no indication the district court considered this definition.

We also note that the district court's application of the rule in Perry was incorrect because the plain language of K.S.A. 8-1566(a) provides that reckless driving may be proven by willful or wanton disregard for the safety of persons or property. In State v. Ford, No. 112,877, 2016 WL 2610259, at *5 (2016) (unpublished opinion), a panel of our court clarified that “willful or wanton” is disjunctive, meaning that a defendant's actions do not need to be both willful and wanton to constitute reckless driving. The rule found in Perry cannot be dispositive of the issue in this case because the terms “willful” and “wanton” have different meanings. As the Ford panel noted, “willful” is “ ‘a term of art and is often used as meaning no more than a high degree of carelessness or recklessness. It is not necessarily limited in its use to intentional or deliberate wrong-doing.’ Thus, the word willful can denote a lesser degree of culpability than the word wanton.” 2016 WL 2610259, at *5.

Proof of gross and wanton conduct under Perry can be further distinguished from the proof required to demonstrate reckless driving because in a personal injury action for negligence, harm is a necessary element. Reardon v. King, 310 Kan. 897, 903, 452 P.3d 849 (2019) (holding elements of a negligence action are duty, breach, causation and damages). In comparison, reckless driving under K.S.A. 8-1566 does not require any physical harm or damage. State v. Walker, 199 Kan. 508, 511, 430 P.2d 246 (1967) (“There need be no accident in order for there to be reckless driving.”).

Both parties ask us to consider the applicability of State v. Remmers, 278 Kan. 598, 600, 102 P.3d 433 (2004), in this case. In Remmers, the Kansas Supreme Court considered the sufficiency of evidence supporting a reckless driving conviction under K.S.A. 8-1566(a). The court held that where the only evidence was inattentiveness—the defendant failed to stop at a stop sign—the evidence was insufficient to support the conviction. “There was no evidence of speeding, swerving, driving erratically, or leaving the scene of the accident. Defendant's statement to the investigating officer was that he was inattentive and failed to see the stop sign or the approaching Smith vehicle. Evidence of defendant's mental state or aggravating circumstances necessary for a conviction of reckless driving is absent.” 278 Kan. at 602. While not at issue in Remmers, it is important to note that in its holding, the court found that speeding might serve as evidence of reckless driving.

In State v. Wilson, No. 118,572, 2018 WL 4655893, at *5 (Kan. App. 2018), a KHP trooper saw the defendant drive over 100 miles per hour, fail to stop at a stop sign, and fail to use his turn signal. Wilson also exited the I-70 interstate at 100-plus miles per hour. The panel noted:

“The crime of reckless driving in Kansas is not complex: ‘Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.’ K.S.A. 8-1566. Our Supreme Court has stated, ‘Reckless driving means driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger.’ State v. Remmers, 278 Kan. 598, Syl. ¶ 2, 102 P.3d 433 (2004).

“We need not repeat all of the testimony. Needless to say, a 100-mile chase through several counties and five small towns where speeds exceeded 100 miles per hour is extremely dangerous. This was dangerous not only to the police officers, but to the fleeing driver and any pedestrians or other drivers unfortunate enough to be caught in their way. This is clearly sufficient to show by a preponderance of the evidence that Wilson committed reckless driving.” 2018 WL 4655893 at *4-5.

Contrary to the decision of the district court, no Kansas case has held that speed alone may not satisfy the burden of proof for a reckless driving conviction under K.S.A. 8-1566. There is simply no bright-line rule under K.S.A. 8-1566 that determines what specific conduct satisfies the definition of reckless driving.

“[T]o obtain a conviction for reckless driving under 8-1566 it is only necessary to establish that the vehicle was driven in willful or wanton disregard for the safety of others; in other words, under circumstances that show a realization of the imminence of danger and a reckless disregard or complete indifference for the probable consequences of such conduct.” State v. Brueninger, 238 Kan. 429, 435, 710 P.2d 1325 (1985).

We make no determination here whether Garcia's actions constitute reckless driving under K.S.A. 8-1566. “Generally, Kansas appellate courts do not make factual findings.” State v. Yazell, 311 Kan. 625, 627, 465 P.3d 1147 (2020).

Instead, we reverse the district court's denial of the KHP's petition and remand to the district court with directions to consider the facts of the case applying the correct legal standard. That is, the district court is directed to consider under K.S.A. 8-1566 whether Garcia recklessly drove the Camaro. On remand, the district court should consider Kansas caselaw interpreting K.S.A. 8-1566 consistent with this opinion. The district court should also consider the plain language of K.S.A. 8-1566(a) which states that either willful or wanton conduct may satisfy the definition of reckless driving, see Ford, 2016 WL 2610259, at *5, and the definition of “reckless” found at K.S.A. 21-5202(j).

Reversed and remanded with directions.

Per Curiam: