Hazlett v. Motor Vehicle Dept., State Highway Commission

• Decision Date: 06 November 1965
• Docket Number: No. 44178,44178
• Citation: 195 Kan. 439,407 P.2d 551
• Parties: Jerry R. HAZLETT, Appellee, v. MOTOR VEHICLE DEPARTMENT, STATE HIGHWAY COMMISSION of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 551

407 P.2d 551

195 Kan. 439

Jerry R. HAZLETT, Appellee, v. MOTOR VEHICLE DEPARTMENT, STATE HIGHWAY COMMISSION of

Kansas, Appellant.

No. 44178.

Supreme Court of Kansas.

Nov. 6, 1965.

Syllabus by the Court

1. Under the provisions of K.S.A. 8-1001 and related statutes, there is no duty placed on an arresting officer, making an arrest for the offense of driving while under the influence of intoxicating liquor, to explain the consequences of a refusal to submit to a blood alcohol chemical test.

2. A proceeding to determine the reasonableness of a refusal to submit to a blood alcohol test by a person arrested for driving while under the influence of intoxicating liquor is a separate and distinct action from a prosecution for such offense and the question of whether or not the results of a test would have served a useful purpose in the prosectuion of the driving while under the influence charge is not an issue to be determined in a proceeding under K.S.A. 8-259.

Ralph G. Ball, Manhattan, argued the cause, and Robert C. Londerholm, C. N. Henson, Jr., and William L. Stevenson, Topeka, were with him on the brief for appellant.

Robert S. Wunsch, Kingman, argued the cause and Paul R. Wunsch and David D. Gaumer, Kingman, were with him on the brief, for appellee.

KAUL, Justice.

The Motor Vehicle Department of the State Highway Commission of Kansas, referred to hereinafter as the Department, has perfected this appeal from a judgment of the District Court of Kingman County setting aside an order of the Department revoking the motor vehicle operator's license of Jerry R. Hazlett, appellee.

The parties agree, in substance, that the question involved is: Did the appellee, Jerry R. Hazlett, have reasonable grounds for his refusal, if there was a refusal, to submit to a chemical test of his blood as provided for in K.S.A. 8-1001 which reads as follows:

'Consent to submit to chemical test deemed given, when; administration of test; procedure upon refusal to submit to test. Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood whenever he shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to his arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer. If the person so arrested refuses a request to submit to the test, it shall not be given and the arresting officer shall make to the vehicle department of the state highway commission a sworn report of the refusal, stating that prior to the arrest he had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. Upon receipt of the report, the vehicle department of the state highway commission shall suspend for a period not exceeding ninety (90) days the person's license or permit to drive or nonresident operating privilege and, after granting the person an opportunity to be heard on the issue of the reasonableness of his failure to submit to the test, the vehicle department of the state highway commission may revoke the person's license or permit to drive or nonresident operating privilege.'

Jerry R. Hazlett was arrested by Trooper Glen R. Clopton of the Kansas Highway Patrol on December 14, 1963, at a point about one and one-half miles west of Cunningham, Kansas, on U. S. Highway 54, and charged with driving a vehicle while under the influence of intoxicating liquor. While enroute to the sheriff's office in Kingman, Trooper Clopton requested appellee to submit to a blood test. The request was refused and no reason for the refusal was given. Trooper Clopton did not advise appellee as to the consequences of his refusal.

When Trooper Clopton and the appellee arrived at the sheriff's office they were met by Trooper Richard Roberts of the Kansas Highway Patrol. Trooper Roberts testified that when he met Trooper Clopton and appellee at the sheriff's office that appellee was staggering, had an odor of alcohol on his breath and was loud and boisterous. Trooper Roberts testified on direct examination that he asked appellee two or three times to submit to the test but that he would not assent to the request and he did not submit to the test.

Trooper Roberts further testified that he advised appellee of the consequences of his refusal. The testimony of Trooper Roberts on this point on cross-examination is as follows:

'Q. Do you remember everything that you say to everybody every time you pick them up?

'A. No, sir.

'Q. Is it possible that you might be mistaken as to advising him of the consequences of his refusal?

'A. I suppose it's possible but not probable.'

Trooper Clopton subsequently submitted a sworn report of refusal to the department and appellee's license was suspended for a period not exceeding 90 days in accordance with the provisions of the statute.

At the request of appellee a hearing was had in Kingman by an examining agent of the Department. The examiner found that appellee did not have reasonable grounds to refuse to submit to a blood alcohol test and that his driver's license should be revoked for a period of one year.

Thereafter appellee filed his petition in the District Court of Kingman County, Kansas, as provided for in K.S.A. 8-259. In his petition, appellee relates the facts as stated herein and alleges that his refusal to submit to the chemical blood test was reasonable. The prayer of the petition asks that the order of the Department be set aside and that judgment be entered directing that petitioner is entitled to a license to drive vehicles in Kansas.

Issues were joined, a trial was had to the court and judgment entered for the petitioner. Thereupon the Department perfected this appeal.

In the memorandum opinion filed herein, the trial court stated that it based its findings and decision on two general grounds:

'First, it seems to me that before a licensee should be charged with the statutory consequences of refusal to submit to a test to determine the alcoholic content of his blood, it should be clearly established that he did knowingly and understandingly so refuse. In view of the evidence adduced it seems doubtful if he really understood what he was doing; secondly, in a case like this one where the subject was so apparently drunk, rather than just in the 'under the influence' stage, G.S., 1961 Supp., 8-1001, really serves no useful purpose. The officers here didn't need a positive result to bolster their evidence and considering the testimony of the officers as to the condition of the subject, I doubt if the receipt of a negative result would or should have had any real influence on the matter of prosecution or verdict of a jury or decision of the Court as a result of prosecution.

'Thus the reasoning of the Supreme Court in Lee v. State, 187 Kan. 566, 358 P.2d 765, to the...