Popp v. Motor Vehicle Dept., 46674

• Decision Date: 07 April 1973
• Docket Number: No. 46674,46674
• Citation: 508 P.2d 991,211 Kan. 763
• Parties: Kenneth D. POPP, Appellant, v. MOTOR VEHICLE DEPARTMENT, Appellee.
• Court: Kansas Supreme Court

Page 991

508 P.2d 991

211 Kan. 763

Kenneth D. POPP, Appellant, v. MOTOR VEHICLE DEPARTMENT, Appellee.

No. 46674.

Supreme Court of Kansas.

April 7, 1973.

Syllabus by the Court

1. It is an elementary rule of law that the right to operate a motor vehicle upon a public street or highway is not a natural or unrestrained right, but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare.

2. Under K.S.A.1972 Supp. 8-1001 any person who operates a motor vehicle upon a public highway in this state is deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood whenever he shall be arrested for any offense involving operating a motor vehicle under the influence of intoxicating liquor, and the arresting officer has reasonable grounds to believe that prior to his arrest the person was driving under the influence of intoxicating liquor. If the person so arrested refuses a request to submit to the chemical test as required by the statute, his refusal warrants the suspension of his driving privileges prior to an administrative hearing to determine the reasonableness of his refusal. On appeal the statute is held to be a valid exercise of the police power of the state designed as a method of controlling highway safety, and is not an infringement of constitutional due process.

Harlan L. Long, Shawnee Mission, argued the cause, and was on the brief for appellant.

Clinton C. Marker, Topeka, argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Justice:

Kenneth D. Popp (petitioner-appellant) was arrested on February 5, 1970, in Overland Park, Kansas, and was charged with driving a motor vehicle while under the influence of intoxicating liquor. After being taken into custody, the appellant was requested by the arresting officer to submit to a 'breathalizer' test. The appellant refused to submit to the 'breathalizer' test and on February 11, 1970, the appellant's privilege to operate a motor vehicle on the streets and highways of Kansas was suspended by an order of the motor vehicle department. (K.S.A.1972 Supp. 8-1001.) The order stated the length of suspension would be ninety (90) days from the date the motor vehicle department received the license. The order also indicated the appellant could request a hearing to determine whether he had reasonable grounds for refusing to take the test, and that after due consideration of the record of motor vehicle offenses committed by the motorist, the department could extend the suspension of the license for a period not to exceed one (1) year.

The appellant requested such hearing and on March 4, 1970, twenty-two days after the order of suspension was issued, an examiner of the motor vehicle department heard the matter and upheld the suspension, finding the arresting officer's request was reasonable. On March 9, 1970, the appellant filed his petition seeking relief in the district court of Johnson County, Kansas. The court thereupon stayed the suspension pending final judgment and ordered the motor vehicle department to return the appellant's license to him. (K.S.A. 8-259.) His license was returned to him on March 12, 1970, pending final judgment in the matter.

The trial court, after hearing the matter, sustained the motor vehicle department's motion for a directed verdict and found the petitioner had refused and failed to submit to a chemical test upon the reasonable request of the arresting officer. The petitioner has duly perfected an appeal.

The facts are not in dispute.

The appellant contends his right to due process of law as established by the Fifth and Fourteenth Amendments to the United States Constitution was violated by the appellee when it suspended his license prior to affording him an administrative hearing in regard to the suspension. As was noted earlier, twenty-two days elapsed between the time the motor vehicle department suspended the appellant's license and the date he was afforded an administrative hearing. The appellant also contends no emergency existed which would warrant the extraordinary action suspending his license prior to an administrative hearing. A review of the Kansas law reveals no prior case directly in point, however, Lee v. State, 187 Kan. 566, 358 P.2d 765, on similar facts considered the due process question.

Here we are concerned only with the legality of the motor vehicle department's suspension of the appellant's license prior to affording him an administrative hearing.

The appellant relies on Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, which held that due process of law required the State of Georgia to provide a hearing on the question of liability prior to suspending a motor vehicle operator's license under Georgia's Motor Vehicle Safety Responsibility Act. The court in Bell v. Burson, supra, discussed the nature of due process and said:

'. . . In cases where there is no reasonable possibility of a judgment being rendered against a licensee, Georgia's interest in protecting a claimant from the possibility of an unrecoverable judgment is not, within the context of the State's fault-oriented scheme, a justification for denying the process due its citizens. Nor is additional expense occasioned by the expanded hearing sufficient to withstand the constitutional requirement.' (p. 540, 91 S.Ct. p. 1590.)

As to Georgia's argument that the administrative hearing need not be made prior to the suspension of the license, the court stated:

'. . . (I)t is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective. Ibid. Opp Cotton Mills v. Administrator, 312 U.S. (126) at 152-156, 61 S.Ct. (524) at 536-538 (85 L.Ed. 624); Sniadach v. Family Finance Corp., (395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969)); Goldberg v. Kelly, (397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).' (p. 542, 91 S.Ct. p. 1591.)

In Burson, the petitioner, an uninsured motorist, was involved in an accident when a young girl rode her bicycle into the side of his automobile. The petitioner failed to post security for the damages alleged to have been suffered by the girl and at an administrative hearing the petitioner's offer to prove that he was not liable for the accident was rejected and he was allowed thirty days in which to post security or have his license and registration suspended. The administrative decision was upheld by the Georgia Court of Appeals and the Georgia Supreme Court denied review. After granting certiorari, the United States Supreme Court reversed and remanded the case.

We do not think Burson has application here. A suspension under the Safety Responsibility Act is different than a suspension under K.S.A. 8-1001. Logically, to suspend a person's license who has been involved in a motor vehicle accident for failure to post security to cover the amount of damages claimed by another party involved in the accident. Prior to affording the opportunity for an administrative...