City of Overland Park v. Rice, 48499
| Decision Date | 11 July 1977 |
| Docket Number | No. 48499,48499 |
| Parties | CITY OF OVERLAND PARK, Kansas, Appellee, v. David Matthew RICE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A. 1972 Supp. 8-234(r ) which defines the term "Suspension of driver's license" is construed to require that a suspension of a person's driver's license or privilege to operate a motor vehicle may be made only by a final order of the division of vehicles in which the period of suspension is specifically designated with a beginning date and an ending date so that no reference is required to be made to the happening of some future event or to some outside document.
2. A properly authenticated copy of the order of suspension, unappealed from and final, is sufficient to show a period of suspension in a prosecution for driving on a suspended license. Other documentary materials in the files of the division of vehicles, which furnished to the division its justification for the suspension, are ordinarily immaterial and irrelevant and should not be admitted into evidence in the absence of unusual circumstances.
David R. Gilman, Overland Park, argued the cause, and was on the brief for appellant.
Helen Mountford, Asst. City Atty., argued the cause, and Sheldon M. Crossette, Asst. City Atty., was with her on the brief for appellee.
This is a direct appeal in a criminal action in which the defendant-appellant, David Matthew Rice, was convicted of a violation of Ordinance TC-610, Sec. 151, of the City of Overland Park which reads as follows:
(Emphasis supplied.)
This city ordinance is closely patterned after K.S.A. 1972 Supp. 8-262. The facts in the case are not in dispute and are essentially as follows: On July 27, 1972, Officer Curtis of the Overland Park Police observed the defendant Rice asleep in his car in a restaurant parking lot. He told defendant to go home. Defendant stated that he did not have a driver's license. Arrangements were made for a third person to drive defendant home. A short while later, Curtis saw the third person get out of the car and at this point defendant began to drive. Curtis stopped him and asked for his license, which he did not have. Defendant was arrested and charged with driving without a license. This charge was later amended to driving at a time when his license was suspended. The defendant was found guilty in municipal court of the amended charge and appealed to the district court. There a jury found him guilty and this appeal followed.
On this appeal the defendant challenges the validity of his conviction, contending in substance that the period of suspension of his license to drive had already expired on July 27, 1972, when he drove his motor vehicle and therefore he could not be guilty of a violation of the city ordinance. In order to determine this issue we must first examine the order of suspension which was issued by the Kansas division of vehicles and mailed to and received by the defendant Rice. It provided in pertinent part as follows:
It should be noted that the order of suspension states that it is effective as of October 4, 1971, and that the length of suspension is 60 days. The order then goes on to state that "the period of suspension runs from the date the department receives your license." We must first determine the construction to be given to the order of suspension as required by the pertinent Kansas statutes as they existed on July 27, 1972, when the offense charged allegedly occurred. At that time the revocation and suspension of motor vehicle driver's licenses were governed by the motor vehicle driver's license act. (K.S.A. 1972 Supp. 8-234 thru K.S.A. 8-271.) Some of these statutes have since been amended in 1974, 1975, and 1976. The division of vehicles is given authority by statute to revoke an operator's license (K.S.A. 1972 Supp. 8-254) and also to suspend an operator's license for certain actions or violations (K.S.A. 1972 Supp. 8-255). In this case the order of suspension was issued for the reason that the defendant was found by the division to be a habitual violator of the traffic laws, having been convicted of three moving traffic violations within the calendar year 1971. The phrase "suspension of driver's license" is defined in the following language in K.S.A. 1972 Supp. 8-234(r ):
One issue to be determined is whether or not the order of suspension dated October 4, 1971, complied with the requirement of 8-234(r ) that the temporary withdrawal of the privilege to operate a motor vehicle shall be "for a period specifically designated by the (division of vehicles)." We have concluded that the order of suspension of October 4, 1971, must be construed as a suspension of license only for the period between the date of the order, October 4, 1971, and December 3, 1971, when the 60 days of suspension would expire. The term "designate" is defined in Black's Law Dictionary, 4th ed., as meaning "to indicate or set apart for a purpose or duty . . . ." (p. 533.) "Specifically" is defined in the same volume to mean "in a specific manner; explicitly, particularly, definitely. . . ." (p. 1571.) The legislature, by requiring the period of suspension to be "specifically designated," in our judgment intended that the formal order of suspension state with particularity the beginning date and the ending date of the period of suspension. If an original order of suspension is later modified either at an administrative hearing of the division under the provisions of K.S.A. 1972 Supp. 8-255(b ) or after an appeal has been perfected and determined in the district court under the provisions of K.S.A. 8-259, a supplemental order should be issued by the division setting forth the new period of suspension as modified. It is not in compliance with the statute for the order to provide that the period of suspension shall run from the date the division receives the person's operator's license. Such an indefinite period of suspension in our judgment does not comply with the legislative mandate that the suspension shall be for "a period specifically designated by the (division of vehicles)."
8-234 should be...
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