Barnhart v. Kansas Dept. of Revenue

• Decision Date: 03 June 1988
• Docket Number: No. 60419,60419
• Citation: 243 Kan. 209,755 P.2d 1337
• Parties: Maurice G. BARNHART, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Supreme Court

Page 1337

755 P.2d 1337

243 Kan. 209

Maurice G. BARNHART, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 60419.

Supreme Court of Kansas.

June 3, 1988.

Syllabus by the Court

1. The notice provisions of K.S.A.1985 Supp. 8-1001(f), now K.S.A.1987 Supp. 8-1001(f), are held to be mandatory and not directory. The holding to the contrary in State v. Doeden, 12 Kan.App.2d 245, 738 P.2d 876 (1987), is overruled.

2. It is generally recognized that substantial compliance with statutory notice provisions will usually be sufficient. For a notice to substantially comply with the requirements of the statute, it must be sufficient to advise the party to whom it is directed of the essentials of the statute.

3. Based upon the facts of this case, K.S.A. 8-1001 et seq. and the procedures followed pursuant thereto in ordering suspension of appellant's driver's license did not constitute a denial of appellant's right to due process of law.

Michael V. Foust, Goodland, argued the cause and was on the briefs, for appellant.

James G. Keller, of the Kansas Dept. of Revenue, argued the cause and was on the briefs, for appellee.

HOLMES, Justice:

Maurice G. Barnhart appeals from a decision of the Thomas County District Court which upheld the suspension of his driver's license by the appellee Kansas Department of Revenue, Division of Vehicles (Department). Appellant's driver's license was suspended pursuant to K.S.A. 8-1001 et seq. for refusal to take a breath alcohol test. The Court of Appeals upheld the district court ruling in an unpublished opinion filed December 23, 1987. We granted appellant's petition for review.

The facts are not in dispute. On January 24, 1986, appellant was involved in a two-car collision. The other vehicle was driven by appellant's son. Following the collision appellant was located at a nearby hospital where he was interviewed by a deputy sheriff. The officer administered field sobriety tests to appellant and then arrested him for driving under the influence of alcohol (K.S.A.1985 Supp. 8-1567).

The officer transported appellant to the sheriff's office and asked him to undergo a breathalyzer test. Appellant refused, stating that he was under stress and that he believed such testing would violate his constitutional rights. The officer proceeded to give appellant oral and written notice in accordance with procedures adopted by the Department for compliance with K.S.A.1985 Supp. 8-1001(f)(1). Appellant again refused to submit to testing and, pursuant to K.S.A.1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant's driver's license. Appellant's plastic driver's license had been taken from him by the officer at the hospital. At the sheriff's office he was given a notice of suspension and a paper temporary license effective for 15 days, as provided by K.S.A.1985 Supp. 8-1002(b).

The deputy sheriff forwarded a copy of the notice of suspension to the Division of Vehicles. Appellant submitted a timely written request for an administrative hearing pursuant to K.S.A.1985 Supp. 8-1002(d) and his temporary license was extended for 45 days. At the administrative hearing, the examiner determined that the appellant's license should be suspended. Appellant sought and obtained de novo review by the district court as provided by K.S.A.1985 Supp. 8-259. The district court upheld the administrative determination and granted summary judgment to the Department.

The first issue is whether the suspension of appellant's driver's license for refusing to take a breath alcohol test (BAT) must be invalidated, due to an alleged deficiency in the oral and written notice given to appellant. K.S.A.1985 Supp. 8-1001(f)(1) provides:

"(f)(1) At the time a test or tests are requested under this section, the person shall be given oral and written notice that: (A) There is no right to consult with an attorney regarding whether to submit to testing; (B) refusal to submit to testing will result in six months' suspension of the person's driver's license; (C) refusal to submit to testing may be used against the person at any trial on a charge involving driving while under the influence of alcohol or drugs, or both; (D) the results of the testing may be used against the person at any trial on a charge involving driving while under the influence of alcohol or drugs, or both; and (E) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from hospitals, medical laboratories and physicians. After giving the foregoing information, a law enforcement officer shall again request the person to submit to the test or tests. The selection of the test or tests shall be made by the officer. If the person refuses to take and complete a test as requested, additional testing shall not be given and the person's driver's license shall be subject to suspension as provided in K.S.A. 8-1002 and amendments thereto. The person's refusal shall be admissible in evidence against the person at any trial arising out of the alleged operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both." (Emphasis added.)

It is undisputed that appellant was given oral and written notice as set forth on preprinted forms developed by the Department specifically for that purpose. Appellant contends, however, that the Department's form notice was deficient as to the information required by K.S.A.1985 Supp. 8-1001(f)(1)(E). The pertinent part of the notice relating to subsection (E) of the statute and given to appellant read:

"If you decide to submit to testing, after testing is completed you have the right to consult with an attorney and you may have additional testing done as soon as possible and as available."

The Court of Appeals in affirming the suspension relied upon its decision in State v. Doeden, 12 Kan.App.2d 245, 738 P.2d 876, rev. denied 242 Kan. ---- (October 6, 1987). In Doeden the court held that the notice provisions of K.S.A.1985 Supp. 8-1001(f) were merely directory and not mandatory. In the present case, the Court of Appeals, relying upon Doeden, summarily disposed of appellant's claim that the notice provisions were mandatory and we granted review in order to further consider the holding in Doeden. The Court of Appeals also found that, in any event, the notice given in the present case was in substantial compliance with the statute.

In Doeden the arresting officer failed to give the defendant the notices listed in K.S.A.1985 Supp. 8-1001(f)(1). A majority of the panel of the Court of Appeals, after discussing the intent of the legislature, found the notice provisions of the statute to be directory. Judge Meyer (now retired), in a dissenting opinion, reviewed the language and purpose of the statute, concluded the statute was mandatory, and then stated:

"But there is yet another reason why I differ, specifically, with the majority. In a careful study of K.S.A.1985 Supp. 8-1001, I can reach no conclusion but that that statute is ultimately clear and not ambiguous. The statute thus means what it says and must be interpreted according to the Legislature's language. The majority has undertaken to define and explain what they feel the Legislature means by this statute but, again the law is most clear that we do not have the prerogative of looking behind the legislative scenes to interpret what the Legislature meant in enacting a statute which is itself clear and unambiguous on its face. 'Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.' State v. Sleeth, 8 Kan.App.2d 652, 655, 664 P.2d 883 (1983) (quoting Arduser v. Daniel International Corp., 7 Kan.App.2d 225, Syl. p 1, 640 P.2d 329, rev. denied 231 Kan. 799 [1982]. We are not called upon to address the wisdom, or lack thereof, of enacting the statute before us." 12 Kan.App.2d at 254, 738 P.2d 876.

The clear language of the statute indicates that the legislature intended to ensure that a person arrested for driving under the influence was made aware, by the required notice procedure, of his statutory rights. Those rights include the right to obtain independent testing of his blood alcohol level following testing by or under the direction of a law enforcement officer. K.S.A.1985 Supp. 8-1004 both establishes this right to an independent test, and enforces compliance by law officers. It provides that if the law enforcement officer refuses to permit the person tested to obtain such additional testing, the results of the test administered under the direction of the officer are inadmissible in evidence.

K.S.A.1985 Supp. 8-1001(f)(3) states in part:

"It shall not be a defense to any prosecution [for driving under the influence] ... that the person did not understand the written or oral notice required by this section...." (Emphasis added.)

See also similar language in K.S.A.1985 Supp. 8-1002(c)(1)(B) and 8-1002(d)(3).

The statute in question clearly requires that certain procedures shall be followed and certain notices shall be given to a defendant arrested for driving under the influence. K.S.A.1985 Supp. 8-1001(f) was enacted as part of a comprehensive revision of the statutes pertaining to driving under the influence of alcohol or drugs. The language of the statute is clearly mandatory. For additional discussion of the distinction between mandatory and directory, as applied to statutes, see Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968); 2A Sutherland Statutory Construction §§ 57.01-57.26 (Sands 4th ed. 1984); 73 Am.Jur.2d Statutes §§ 14-27. We conclude the notice provisions of K.S.A.1985 Supp. 8-1001(f) are mandatory and not merely directory. The holding in Doeden to the contrary is overruled. The holding of the Court of Appeals in...