Kempke v. Kansas Dept. of Revenue, No. 94,013.

Decision Date05 May 2006
Docket NumberNo. 94,013.
Citation133 P.3d 104
PartiesBryan Eugene KEMPKE, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
CourtKansas Supreme Court

James G. Keller, of the Kansas Department of Revenue Legal Services Bureau, argued the cause and was on the briefs for appellant.

Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee.

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

The Kansas Department of Revenue sought to suspend the driver's license of Bryan Eugene Kempke under the Kansas implied consent law, K.S.A. 8-1001 et seq. The Ellsworth County District Court held that the statutory scheme of the Kansas implied consent law was unconstitutional as applied to Kempke in that the law denied Kempke of due process of law under the Fourteenth Amendment to the United States Constitution for the reason that he was not permitted to subpoena a relevant witness to testify at his administrative hearing. The Kansas Department of Revenue appealed. This appeal was transferred to this court on our own motion under K.S.A. 20-3018(c).


On November 23, 2003, Deputy James Tyree of the Ellsworth County Sheriff's Department stopped Bryan Kempke's vehicle for failing to have an illuminated license tag light. Before stopping the vehicle, Deputy Tyree observed no signs that Kempke's driving was impaired. After Kempke's vehicle was stopped, the deputy approached and saw that there were two occupants in the car. Both were under the age of 21.

According to Tyree, Kempke was lethargic and had slurred speech and watery, bloodshot eyes. The deputy thought Kempke appeared to be under the influence of alcohol and/or drugs. Deputy Tyree did not smell an odor of alcohol, but he saw what he thought was a bottle of alcohol under the passenger's leg. When the deputy returned to Kempke's vehicle after running driver's license checks, the bottle was hidden by a coat. When he asked about the bottle, the passenger initially denied its existence, but he subsequently produced the bottle. It was an open bottle of Lord Calvert whiskey. Deputy Tyree decided to investigate Kempke for driving under the influence (DUI) of alcohol.

Deputy Tyree requested assistance from Officer Lawrence of the Ellsworth Police Department, specifically asking him to bring a preliminary breath test machine to the scene. When Kempke and his passenger got out of the vehicle, Officer Lawrence performed a sweep of the two front seats and found a 12-ounce beer can in a blue "koozy." The can was still cold to the touch, and the beer was partially consumed. Upon exiting the vehicle, Kempke was unsteady, and he had to hold onto the vehicle to maintain his balance as he moved along the side of the vehicle. Deputy Tyree asked Kempke to perform four field sobriety tests—the "walk and turn," the "one-leg stand," the "horizontal gaze nystagmus" (HGN), and the preliminary breath test (PBT). Kempke agreed only to take the HGN test and the PBT.

Officer Lawrence administered the PBT to Kempke, but Deputy Tyree was present during the test. The PBT confirmed that there was alcohol in Kempke's system; however, his level of breath alcohol concentration registered.05, which fell below the legal limit of.08. Kempke was placed under arrest for DUI, minor in possession of alcohol, and transporting an open container. Tyree took Kempke to the Ellsworth County Sheriff's Office. Ultimately, Kempke refused to submit to an evidentiary test for alcohol and/or drugs, and Deputy Tyree completed an "Officer's Certification and Notice of Suspension" (DC-27 form), certifying that Kempke refused a test. For some unknown reason, Officer Lawrence neither initialed nor signed the form. On Kempke's form, Deputy Tyree marked the boxes indicating that he had reasonable grounds to believe Kempke was under the influence of alcohol and/or drugs because (1) alcoholic beverage containers were found in the vehicle; (2) Kempke had slurred speech, bloodshot eyes, difficulty in communicating, and poor balance or coordination; and (3) Kempke failed the PBT. The certification form was served on Kempke by Deputy Tyree on November 23, 2003.

On the certification form, Tyree marked the box indicating that Kempke had valid driving privileges for 30 days. The reverse side of the form stated that a timely hearing request would result in Kempke's driving privileges being "extended until a final determination is made." On December 3, 2003, Kempke requested an administrative hearing. On December 5, 2003, the Kansas Department of Revenue (KDR) sent a letter to Kempke confirming receipt of his request for an administrative hearing and stating that his driving privileges would remain valid until after the hearing was conducted.

At the April 9, 2004, administrative hearing in Salina, Deputy Tyree was present and was examined by Kempke's attorney. No transcript of the hearing, however, was included in the record on appeal. Kempke was represented by counsel at the administrative hearing, but he was not personally present. An administrative hearing order was issued on May 18, 2004, stating that Kempke's driving privileges would be suspended on the 30th day after the date of the hearing order "unless respondent files a timely petition for review with the district court and serves a copy of the petition upon the Secretary of Revenue."

Kempke filed a timely petition for review in the Ellsworth County District Court on May 24, 2004. He sought review of all issues raised before the administrative hearing officer, alleging that Deputy Tyree (1) lacked a reasonable suspicion to initiate the stop, (2) lacked probable cause to arrest him, and (3) lacked a reasonable suspicion to initiate a DUI investigation. In addition, Kempke alleged that K.S.A. 8-1001 et seq. denied him due process of law because the law denied him the right to subpoena other "relevant witnesses" to testify at his administrative hearing. Upon service of a copy of the petition for review, a letter was sent to Kempke, confirming that the Secretary of Revenue had received the petition for review and that Kempke's driving privileges had been "extended until the decision on your petition is final."

The district court held a trial de novo on October 21, 2004. Deputy Tyree was the only witness to testify at trial and was examined by both parties. Officer Lawrence was present and available for examination but was not called as a witness. After the examination of Tyree was complete, the KDR rested. The district court ruled against Kempke on all issues except one — the issue involving Kempke's due process rights. The court held: "[P]laintiff's due process rights were violated `as applied,' under the current version of the Kansas Implied Consent Law" and did not address Kempke's facial attack. The district court concluded:

"The legal issue here really is whether or not the statute which prohibits the subpoenaing of witnesses to a due process hearing denies the plaintiff due process. And [Kempke's] position is that if it's a due process hearing, then by golly, you ought to be able to have a witness testify that you think can present relevant testimony. It doesn't take a huge imagination to be able to believe that there are factual scenarios that can be manufactured that would provide the existence of a witness whose testimony might completely clear or exonerate the person who has been arrested, but that witness is not able to be called by subpoena. The State's response is that the State of Kansas does not suspend your driver's license until this multifaceted, many-stepped process is complete. And that the person is entitled to due process as an aggregate and not necessarily due process at each step or any particular step of the statutory procedure.... [I]t's pretty clear that the Department of Revenue and the Kansas legislature have attempted to chart a course of travel that was close to the constitutional limit of what constitutes due process. They want to sail as close to the edge of the world as they can without falling off.... I think that when you absolutely prohibit someone the right to call a witness that might completely exonerate them of the charges you have fallen off the edge."

The district court ordered that Kempke's suspension be vacated and his driving privileges be reinstated.

The KDR filed a motion to alter or amend, arguing that Kempke's rights were protected by the automatic extension of his driving privileges while he sought judicial review, which included the right to a full trial de novo without the limitations on witnesses or evidence imposed by K.S.A. 8-1020(g) and (l). The KDR pointed out that, at the administrative hearing stage, a plaintiff has not yet been deprived of any rights or privileges. The KDR contended that, before Kempke was ever deprived of driving privileges, he first had the opportunity to subpoena witnesses and introduce evidence in a de novo trial before the district court; therefore, Kempke's due process rights were not violated. The motion was denied.


Standard of Review

The determination of whether a statute is unconstitutional involves a question of law over which this court has unlimited review. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197, 62 P.3d 236 (2003).

"A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so.... This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. ¶ 2, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (199...

To continue reading

Request your trial
24 cases
  • Martin v. Kansas Dept. of Revenue, No. 94,033.
    • United States
    • Kansas Supreme Court
    • February 1, 2008
    ...that it is constitutional, if the same can be done within the apparent intent of the legislature in passing the statute. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, ¶ 1, 133 P.3d 104 (2006). However, we may not rewrite a clear and unambiguous statute to make it pass constitutional must......
  • Frick v. City of Salina
    • United States
    • Kansas Supreme Court
    • June 5, 2009
    ...provide a displaced person the due process typically associated with a trial, including a record. See Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 776, 133 P.3d 104 (2006); Windholz v. Willis, 1 Kan.App.2d 683, 685, 573 P.2d 1100 (1977); cf. K.S.A. 20-302b(c) (making necessary distincti......
  • Creecy v. Kan. Dep't of Revenue
    • United States
    • Kansas Supreme Court
    • August 23, 2019
    ...type of interest which is entitled to procedural due process protections before revocation or suspension. Kempke v. Kansas Dept. of Revenue , 281 Kan. 770, 776, 133 P.3d 104 (2006). This court has often characterized a driver's license as a "privilege, not a right." Martin v. Kansas Dept. o......
  • Johnson v. Kan. Dep't of Revenue
    • United States
    • Kansas Court of Appeals
    • July 17, 2020
    ...coerced in violation of the Fourth Amendment; (2) his procedural due process rights were violated based on Kempke v. Kansas Dept. of Revenue , 281 Kan. 770, 133 P.3d 104 (2006) ; and (3) his substantive due process rights were violated based on State v. Ryce , 303 Kan. 899, 368 P.3d 342 (20......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT