Angle v. Kansas Dept. of Revenue

• Decision Date: 24 June 1988
• Docket Number: No. 60700,60700
• Citation: 12 Kan.App.2d 756,758 P.2d 226
• Parties: George ANGLE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

Page 226

758 P.2d 226

12 Kan.App.2d 756

George ANGLE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 60700.

Court of Appeals of Kansas.

June 24, 1988.

Review Denied Sept. 23, 1988.

Syllabus by the Court

1. Where a licensee seeks review of the administrative order suspending his license by filing a petition for review after July 1, 1985, the Act for Judicial Review and Civil Enforcement of Agency Actions (K.S.A. 77-601 et seq.) applies and the licensee carries the burden of proof at the de novo hearing before the district court.

2. The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively. There is an exception to this rule when the change is merely procedural or remedial in nature.

3. Where K.S.A. 77-618 was amended to provide de novo review in driver's license suspension cases after the filing of the petition for review but before the review was conducted, the amendment will be applied retrospectively as the Act for Judicial Review and Civil Enforcement of Agency Actions created only procedural rights and duties.

4. When the subject of the de novo review is a purely administrative agency function, the district court is restricted to a more limited form of de novo review than when the subject of the de novo review is a judicial function of the agency.

5. Under the tests set forth in Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975), the Department of Revenue is performing a judicial function in driver's license suspension cases.

6. In instances involving review of "judicial" agency actions where de novo review has been expressly recognized, i.e., Kansas Commission on Civil Rights and workers' compensation cases, the issues which can be raised and the evidence which can be presented are still limited.

7. Under the principles set forth in Nurge v. University of Kansas Med. Center, 234 Kan. 309, 674 P.2d 459 (1983), K.S.A.1985 Supp. 8-259(a) must be strictly construed. Further, even though the statute provides for de novo review, the proceeding is still predominantly appellate in nature.

8. After receipt of the notice of suspension, the licensee may request an administrative hearing (K.S.A.1985 Supp. 8-1002[d]. Unless an issue is first raised at the administrative hearing, it may not be raised for the first time during the district court's de novo review conducted pursuant to K.S.A.1985 Supp. 8-259(a).

9. Where one officer at an accident scene has reasonable grounds to believe an individual was driving under the influence, under the "collective information" provision of K.S.A. 8-1001(b) a second officer at the station can act upon the reasonable grounds of the first officer and administer the statutory notices prior to requesting a breath test. The information forming the basis for the first officer's reasonable grounds need not be communicated to the second officer.

Rex G. Beasley and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, Wichita, for appellant.

James G. Keller, of Dept. of Revenue, Topeka, for appellee.

Before BRISCOE, P.J., and BRAZIL and DAVIS, JJ.

BRISCOE, Judge:

Plaintiff, George Angle, appeals from the district court's order upholding suspension of his driver's license for refusing to submit to a breath alcohol test pursuant to K.S.A. 8-1001 et seq. Defendant, Kansas Department of Revenue (Department), cross-appeals.

On April 5, 1986, plaintiff was involved in an automobile accident in Wichita. Officer Riddle of the Wichita City Police Department responded to the scene. Riddle testified he noticed the smell of alcohol on plaintiff and that plaintiff's speech was slow and drawn out. Riddle asked plaintiff if he had been drinking, to which plaintiff responded negatively. Riddle requested that plaintiff perform field sobriety tests. Plaintiff told Riddle that he might have difficulty performing the tests because of an inner ear problem.

Riddle administered three tests to plaintiff, including the stand and count test, the walk and turn test, and the horizontal gaze nystagmus test. The subject is assessed one point for each instance of noticeable difficulty experienced with the walk and turn test and the horizontal gaze nystagmus test. A grid is then referred to which, based on the score results, indicates whether the officer should request a breath test.

Riddle testified plaintiff did not keep his foot off of the ground for the entire period of the stand and count test, and at one point during the walk and turn test plaintiff lost his balance. Plaintiff was assessed one point on the walk and turn test.

The horizontal gaze nystagmus test is at issue on appeal. In this test, the subject focuses on a moving object such as a pen while the officer looks for nystagmus, the involuntary quivering or jerking of the eye, which is considered a sign of intoxication. The test includes three phases: smooth pursuit, maximum deviation, and 45-degree onset. The smooth pursuit and maximum deviation phases may be conducted in a single pass in front of the eyes. The object is held directly in front of the eye at a distance of about 16 inches, then slowly moved to the outside while the officer looks for nystagmus. This is the "smooth pursuit" phase. When the eye has followed the object to the "maximum deviation" from center, with no white on the outside of the eye showing, the officer holds the object still for two or three seconds and observes for nystagmus.

Plaintiff contends Riddle incorrectly administered the 45-degree onset phase of the test. This phase begins as the other phases but, instead of taking the eye to maximum deviation, the officer stops and holds the object at a 45-degree angle and observes for nystagmus.

In his testimony before the district court, Riddle testified he could not recall whether he performed all three phases of the test with one pass for each of the eyes. Counsel for plaintiff confronted Riddle with statements made in the DUI trial and in a deposition that the test had been performed in one pass of the eye. Riddle responded he did not recall but, if that was what the deposition said, he said it. Riddle also testified that, at maximum deviation, a little of the white portion of plaintiff's eye could be seen.

Officer Franks, a training officer, testified that it was improper to perform all three phases of the test with one pass for each eye, and further that at maximum deviation none of the white of the eye should show. Franks further testified that, if the object is moved out to the side and back to the center in three to four seconds for each eye and when the object is at the far extreme some white is still showing in the eye, the test would be accurate for the "smooth pursuit" phase only.

A subject may be penalized up to six points on the test--nystagmus observed in all three phases for each eye. Riddle testified he observed nystagmus in all three phases for plaintiff's right eye and at 45-degree onset and maximum deviation for his left eye. Riddle used the scores from these tests and referred to the grid or decision sheet. He testified that he had no personal knowledge of the theory behind the grid.

Following the field sobriety tests, Riddle requested that plaintiff take a breath test. Plaintiff refused and asked to speak to his attorney. Riddle testified he did not give plaintiff the written notices required by statute, but did tell him he could not speak to an attorney. Plaintiff was then placed under arrest for DUI and taken to the police station. At the station, Riddle again requested that plaintiff take the breath test. No notices were given.

When Riddle and plaintiff arrived at the station, Officer Baker was called to the booking desk. Part of her job was to run the intoxilyzer machine. Officer Baker testified she could not recall talking to Riddle about plaintiff. She testified that she knew plaintiff was there to take the test and that, even before she saw him, she assumed he was under the influence of alcohol. Riddle testified that he spoke with Baker about the case so she could fill out her report.

Baker then went through the implied consent advisory procedure, including warnings, with plaintiff and requested that he take the test. Plaintiff responded that he would not take the test and requested to speak to his attorney. The officers then completed the "Law Enforcement Officer's Certification of Refusal to Submit to Testing." The certification contains a line in which the officer indicates the reasonable grounds for his belief that the person is under the influence of drugs or alcohol by placing a check mark by possible reasons listed on the form. Riddle checked the following reasons on the form: odor of alcoholic beverages, and failed sobriety tests. He did not check slurred speech, bloodshot eyes, difficulty in communicating, or poor balance or coordination. No other reason was added in the space provided for that purpose. A "Notice of Suspension and Temporary Driver's License" was also issued pursuant to K.S.A.1985 Supp. 8-1002.

Upon request by plaintiff, an administrative hearing was held pursuant to K.S.A.1985 Supp. 8-1002(d). The officers were not subpoenaed by plaintiff and, therefore, did not attend the hearing. The hearing officer found Riddle had reasonable grounds to believe plaintiff was operating or attempting to operate a vehicle while under the influence of alcohol or drugs; plaintiff was in custody or arrested for an alcohol-related offense at the time the test was requested; Baker presented the necessary notices; and plaintiff refused the test. In the "hearing notes," the hearing officer noted there was no issue as to the refusal to take the test. As to "reasonable grounds," the hearing officer noted that plaintiff said he would produce a witness who would testify there was no odor of alcohol about him, but that the witness did not attend the hearing. Under ...