Furthmyer v. Kansas Dept. of Revenue, 70093

• Decision Date: 27 January 1995
• Docket Number: No. 70093,70093
• Citation: 256 Kan. 825,888 P.2d 832
• Parties: Larry L. FURTHMYER, Appellant/Cross-Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellee/Cross-Appellant.
• Court: Kansas Supreme Court

Page 832

888 P.2d 832

256 Kan. 825

Larry L. FURTHMYER, Appellant/Cross-Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellee/Cross-Appellant.

No. 70093.

Supreme Court of Kansas.

Jan. 27, 1995.

Syllabus by the Court

1. The purpose of the implied consent law (K.S.A. 8-1001 et seq.) is to coerce submission to chemical testing through the threat of the statutory penalties of license revocation and the admission into evidence in a DUI proceeding of the fact of refusal.

2. The legislature intended that to effect a license suspension when a blood alcohol test requested under the implied consent law (K.S.A. 8-1001 et seq.) is refused, the Kansas Department of Revenue need only prove a law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs and not that the person had actually operated or attempted to operate the motor vehicle.

Michael S. Holland, of Russell, argued the cause and was on the briefs, for appellant/cross-appellee.

Brian Cox, of the Kansas Dept. of Revenue, argued the cause and was on the brief, for appellee/cross-appellant.

ABBOTT, Justice:

We granted the petition for review of the Kansas Department of Revenue primarily to determine the standard the Kansas implied consent law, K.S.A. 8-1001 et seq., requires before person's driver's license can be suspended for refusing to submit to a test requested by a law enforcement officer to determine the person's blood alcohol concentration. Does the implied consent law require that the person whose driver's license is subject to suspension was actually operating or attempting to operate a motor vehicle, or is reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs sufficient?

Rick Harter of the Russell Police Department observed Larry Furthmyer's vehicle stopped at a stop sign at the intersection of Ash and Highway 40 at approximately 1:15 a.m. on November 22, 1992. Harter did not know how long the vehicle had been sitting there, and he never saw the vehicle moving. After watching the vehicle for 4-5 minutes, Harter approached the vehicle to investigate. The car was running and in gear, and the headlights were on. Furthmyer was in the driver's seat with his hands in his lap and his foot on the brake. He was slumped over the steering wheel, either asleep or passed out. A passenger in the right front seat of the vehicle was also either asleep or passed out.

Harter attempted to rouse Furthmyer, who eventually rolled down his window. Harter reached into the vehicle, placed it in park, and shut the motor off. Harter detected a strong odor of alcohol coming from inside the vehicle, but he did not recall smelling it coming from Furthmyer. Furthmyer stepped out of the vehicle with Harter's help after some difficulty, and he retrieved his driver's license from his wallet with some difficulty after Harter pointed it out. Furthmyer's speech was slurred. Furthmyer told Harter that he was at home or in Salina and admitted that he had been drinking. Harter subsequently arrested Furthmyer for driving while under the influence.

After transporting Furthmyer to the sheriff's department, Harter videotaped dexterity tests and informed Furthmyer of the implied consent advisory. Furthmyer agreed to take a breath test and he placed the mouthpiece to his mouth, but he produced an insufficient breath sample despite Harter's urging to continue blowing. Harter construed this as a refusal. The refusal is not an issue on appeal.

Following an administrative hearing on March 3, 1993, Furthmyer's driver's license was suspended for one year for the refusal. Furthmyer then sought review by the district court pursuant to K.S.A. 8-259(a) (judicial review of agency suspension). Furthmyer argued to the trial court, among other points, that he was not operating or attempting to operate the vehicle and therefore was not subject to the implied consent law. The trial court held that an officer need only have reasonable grounds to believe a person was operating or attempting to operate a motor vehicle while under the influence of alcohol, coupled with an arrest, in order to request a breath test. The court held that Harter had reasonable grounds to believe Furthmyer was operating or attempting to operate his vehicle while under the influence of alcohol and therefore affirmed the suspension of Furthmyer's driver's license.

Furthmyer then appealed to the Court of Appeals, raising only the issue of whether the sanctions of the implied consent law apply to individuals who are not found to have been operating or attempting to operate a motor vehicle at the time of the offense which forms the basis for the suspension. The Kansas Department of Revenue (KDR) cross-appealed, asserting that Furthmyer failed to preserve that issue by raising it at the administrative hearing.

The Court of Appeals held that Furthmyer had properly preserved the issue for review by the district court and that the sanctions of the implied consent law apply only to individuals who are found to have been operating or attempting to operate a motor vehicle. The Court of Appeals remanded to the trial court for a factual finding whether Furthmyer was operating or attempting to operate a motor vehicle. Furthmyer v. Kansas Dept. of Revenue, 19 Kan.App.2d 591, 873 P.2d 1365 (1994).

This court granted KDR's petition for review.

I. PRESERVATION OF ISSUE

The Court of Appeals acknowledged that issues not raised before the hearing officer may not be raised on appeal. 19 Kan.App.2d at 592, 873 P.2d 1365. However, the court relied upon Furthmyer's claim that he told the hearing officer he wished to preserve all statutory issues for appeal, which is verified by the hearing officer's notes. The court also pointed out that the hearing officer's notes reflect that he heard evidence on whether the "[l]aw enforcement officer(s) had reasonable grounds to believe that the respondent was operating or attempting to operate a motor vehicle while under the influence of alcohol, drugs or both." The court concluded: "In cases such as these, where the record is produced by the agency, we presume that an indication in the record that all legal issues were raised should be believed. The issue is properly before us." 19 Kan.App.2d at 592-93, 873 P.2d 1365.

The record of the administrative hearing is sketchy. There is no transcript of the hearing; the only record is the hearing officer's notes which reflect that "all statutory issues" were raised but do not specifically show that the issue whether Furthmyer was in fact operating or attempting to operate a vehicle was raised. We are satisfied that on the record before us KDR has not demonstrated a failure to raise the issue.

In any event, fatal to KDR's cross-appeal is its failure to argue to the trial court that Furthmyer did not raise this issue at the administrative hearing. The rule KDR seeks to apply to Furthmyer, that issues not raised before the hearing officer may not be raised on appeal, is also binding on KDR. Because KDR did not argue to the trial court that Furthmyer had failed to properly preserve the issue by raising it at the administrative hearing, KDR waived any complaint that the issue was not properly preserved. KDR cannot now make an argument it failed to make in the trial court. See Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. p 3, 809 P.2d 1216 (1991); Ostmeyer v. Kansas Dept. of Revenue, 16 Kan.App.2d 639, 645, 827 P.2d 780, rev. denied, 250 Kan. 806 (1992).

II. STANDARD TO BE APPLIED

Furthmyer's sole argument on appeal is that the sanctions of the Kansas implied consent law, K.S.A. 8-1001 et seq., apply only to individuals who operate or attempt to operate motor vehicles. Because the trial court found only that Officer Harter had reasonable grounds to believe that Furthmyer was operating or attempting to operate a motor vehicle while under the influence of alcohol and made no finding whether Furthmyer was in fact operating or attempting to operate a motor vehicle, Furthmyer urges that the sanctions for refusing a chemical test cannot be applied. Furthmyer does not challenge the trial court's finding that Harter had reasonable grounds to believe he was operating or attempting to operate a motor vehicle while under the influence of alcohol, nor does Furthmyer contest that he was arrested, that the requisite notices were given, and that he refused the breath test by providing an inadequate breath sample.

KDR contends the refusal sanctions are applicable to any person a law enforcement officer has reasonable grounds to believe has operated or attempted to operate a motor vehicle while under the influence of alcohol.

The relevant portions of the Kansas implied consent law are as follows:

"(a) Any person who operates or attempts to operate a motor vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs....

"(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, ... and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both...." (Emphasis added.) K.S.A. 8-1001.

If a person refuses a test requested under K.S.A. 8-1001(b) and the refusal is certified, KDR shall suspend the person's driver's license for one year. K.S.A. 8-1014(a). The person may request an...