Bruch v. Kansas Dept. of Revenue, No. 95,029.

• Decision Date: 22 December 2006
• Docket Number: No. 95,029.
• Citation: 148 P.3d 538
• Parties: Jeremy L. BRUCH, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Supreme Court

148 P.3d 538

Jeremy L. BRUCH, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 95,029.

Supreme Court of Kansas.

December 22, 2006.

COPYRIGHT MATERIAL OMITTED

Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause, and Michael S. Holland, of the same firm, was with him on the brief for appellant.

John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, of Topeka, argued the cause, and was on the brief for appellee.

The opinion of the court was delivered by DAVIS, J.:

The question we must resolve in this appeal is related to an administrative appeal from a driver's license suspension to a district court under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). More specifically the question raised by this appeal is whether a petitioner must strictly comply with the statutory requirements of K.S.A. 77-614(b) in order to preserve his or her appellate rights. We answer this question yes and, for the reasons set forth in this opinion, we affirm the district court's dismissal for lack of jurisdiction.

Police officer Darrin Truan clocked Jeremy L. Bruch going 43 miles per hour in a 30-mile-per-hour zone and observed Bruch's vehicle twice cross the center line into the other lane before pulling him over. Bruch got out of the car to speak with the officer and did not have any difficulty communicating nor was there any slurring of his speech. Bruch was staring and appeared to be concentrating, which the officer had observed with impaired people before, and one of his passengers was admittedly intoxicated. Bruch at first denied that he had been drinking. During the field sobriety tests, the officer began to smell the odor of alcohol, and he asked Bruch again if he had been drinking. Bruch responded that he had drunk something about 5 hours earlier, but he should be fine to drive. Although he technically passed the field sobriety tests, Bruch exhibited some clues of impairment. While Bruch took more than one preliminary breath test (PBT), the test that he consented to take with Officer Truan yielded a .146 result. Bruch refused to take the Intoxilyzer breath test.

After being arrested for driving under the influence (DUI), Bruch's driving privileges were suspended following an administrative hearing. There was no transcript taken of the administrative hearing, but the handwritten notes of the hearing officer are included in the record on appeal:

"D. Truan — experience since 1992. R [Bruch] was clocked at 43 mph in a 30 mph. R stopped at 4th and Lorraine. R crossed the center line by a few inches one time. Vehicle stopped.

. . . .

"R exit vehicle walked toward officer asked if R had been drinking. At 1st R denied drinking. No odor of ETOH; R ID by KSDL.

. . . .

"PBT .146—done just prior to arrest; officer still had possession of DL; R not free to go. 2 PBT.

. . . .

"ABC—missed the letter W. Walk and Turn—stepped off line x2; 1 clue; 1 leg stand—put foot down x2. R. stopped at count 27. Test not completed. Done in parking lot.

. . . .

"P.C. [probable cause]—ABC; Walk and Turn, 1 Leg stand; R had a stared look on face, odor of ETOH; R drank 5 hours ago and should be fine.

. . . .

"R. was arrested at 2:36 a.m. Taken to LEC."

Additionally, under the section titled "Other issues raised," the notes stated:

"(1) Lack of R.S. [reasonable suspicion] to start DUI investigation

"(2) Lack of P.C. → PBT—improperly administer, and it is an illegal search.

"(3) Due Process Violation inability to subpoena other relevant witness, as applied to licensee, and statute is unconstitution[al] on its face." (Emphasis added.)

Bruch filed a petition for review with the district court which provided in relevant part:

"1. Plaintiff, Jeremy L. Bruch, is a resident of Hutchinson, Kansas; that plaintiff is of legal age.

"2. Defendant Kansas Department of Revenue may be served with service of process and summons by service upon the Kansas Attorney General, 120 SW 10th, Topeka, Kansas 66612, and by service upon the Secretary of Revenue, State Office Building, Topeka, Kansas 66612.

"3. Plaintiff on the 27th day of March, 2004, and on the 7th day of October, 2004, had a valid driver's license or operator's license duly and legally issued by the Motor Vehicle Department of the State of Kansas.

"4. Plaintiff seeks review of the Kansas Department of Revenue's order entered on October 7, 2004, as a result of plaintiff's administrative hearing, suspending plaintiff's driver's license and subsequent statutory restrictions imposed on plaintiff's driver's license pursuant to K.S.A. 8-259.

"5. That on October 7, 2004, the Kansas Department of Revenue, Division of Vehicles, Driver Control Division, issued an order based upon K.S.A. 8-1001 et seq., suspending and/or restricting plaintiff's driving privileges.

"6. That plaintiff seeks review of all issues raised by plaintiff in the October 7, 2004, hearing before the administrative hearing officer, in Hutchinson, Reno County, Kansas.

"7. That the order suspending plaintiff's driving privileges should be vacated by this Court because the officer lacked reasonable suspicion to begin a DUI investigation; the office[r] lacked probable cause to arrest plaintiff; that plaintiff's due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing; that plaintiff also seeks review of all issues raised before the administrative hearing officer at the October 7, 2004, hearing."

The Kansas Department of Revenue (Department) filed an answer alleging as an affirmative defense that the petition failed to state a claim on which relief could be granted because it failed to comply with K.S.A. 77-614(b). Subsequently, the Department filed a motion to dismiss specifying that the petition failed to set forth the mailing address of the petitioner, failed to identify the persons who were parties in the adjudicative proceeding that led to the agency action, failed to identify the agency action at issue or attach a copy of the order of the administrative action, and failed to allege any facts that demonstrate the petitioner is entitled to judicial review.

Bruch responded that he identified the Department in his petition; that the failure to include the address in the petition was a clerical error subject to amendment; that he identified the address of the Department in the summons; that he identified himself, the department's hearing officer, the order, the subject of the order, and why it was improperly issued; and that the only facts that were required for him to establish he is entitled to judicial review under K.S.A. 8-259 are that an administrative hearing order was issued suspending his driving privileges.

The trial de novo before the district court began with the court hearing oral argument concerning the motion to dismiss. The Department argued that the failure to strictly comply with K.S.A. 77-614(b) deprived the court of subject matter jurisdiction under Commissioner v. Bethlehem Steel Corp., 703 N.E.2d 680 (Ind.App.1998), and Pittsburg State University v. Kansas Bd. of Regents, 30 Kan.App.2d 37, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002). Bruch distinguished those cases because an appeal under the Kansas Implied Consent Law is subject to a de novo review, while the typical appeal under the KJRA considers the facts actually introduced into evidence below and questions whether there was substantial evidence to support the administrative agency's actions. The district court decided to withhold its ruling until the end of the hearing.

Officer Truan was the only witness who testified at the trial. Relevant to this appeal, the officer testified that the device he used for the PBT had been approved by the Kansas Department of Health and Environment (KDHE); that he believed that it was over 15 minutes from the time of the stop until the time of the test; and that Bruch was given the required advisories. Bruch's counsel objected to the officer's testimony, contending no foundation was laid that the instrument used to perform the PBT was an approved device in Kansas, that the officer waited 15 minutes to perform the test, or that Bruch gave his knowing, voluntary, intelligent consent to the PBT. Bruch argued that consent to a PBT cannot be implied under State v. Jones, 279 Kan., 71, 106 P.3d 1 (2005), which applies Fourth Amendment requirements regarding illegally obtained evidence to civil proceedings such as this one. The court responded:

"THE COURT: I guess the first problem I'm having, Mr. Holland, is my review of the file coming in, those are completely new issues that were not raised below. You raised your issues below on issues of probable cause and not the technical issues as to the breath test which might, the reason that is done to allow the Department of Revenue to have some idea whether they needed to have more technical experts and witnesses here to testify. So I'm trying to get over the first hurdle; this is an issue that we're here to determine today, whether we're restricted to the issue of probable cause.

"MR. HOLLAND: Your Honor, two responses to that. Number one, this was raised below, specifically raised below and it was specifically testified to below with the objection being noted. And because of that Miss Kelly did not even introduce into evidence the preliminary breath test results. She didn't introduce it into evidence because there was not any evidence that the 15-minute deprivation period had taken place so that's actually not true.

"Second of all, the Fourth Amendment and the Kansas Administrative Regulations must be satisfied in order to admit the evidence into trial here. Has nothing to do with whether the issue was specifically raised. The preliminary breath test in and of itself isn't even an issue that can be, even be raised under the Kansas Implied Consent Law as an independent issue. The only way it could be raised is as a...