Lee v. State
| Decision Date | 21 January 1961 |
| Docket Number | No. 42013,42013 |
| Citation | 358 P.2d 765,187 Kan. 566 |
| Parties | Thomas Francis LEE, Appellant, v. STATE of Kansas, State Highway Commission, Motor Vehicle Department, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. It is an elementary rule of law that the right to operate a motor vehicle upon a public street or highway is not a natural or unrestrained right, but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare.
2. Plaintiff was arrested on a charge of driving a motor vehicle while under the influence of intoxicating liquor. Under the provisions and authority of G.S.1959 Supp. 8-1001, he was requested by the arresting officer to submit to a blood test for the purpose of determining the alcoholic content thereof. Plaintiff refused and the test was not made. Pursuant to the provisions of the mentioned statute the vehicle department of the state highway commission, upon receiving a sworn report of the matter from the arresting officer, suspended plaintiff's driver's license for a period not exceeding ninety days. Upon the request of plaintiff a hearing was had on the question of the reasonableness of his failure to submit to the test. Plaintiff offered no evidence at the hearing. The suspension of his driver's license was sustained and later, after reviewing the proceedings at the hearing, the vehicle department issued an order revoking his license to drive. Plaintiff then, under the provisions and authority of G.S.1959 Supp. 8-259, brought an action in the district court of the county of his residence to compel defendant vehicle department to reinstate his driver's license. Issues were joined and the case was tried by the court on a stipulation of facts. The court refused to reinstate the license and plaintiff appealed.
John Berglund, Clay Center, argued the cause and was on the brief, for appellant.
Charles N. Henson, Jr., Asst. Atty. Gen., and Henry Daniels, Topeka, argued the cause, and John Anderson, Jr., Atty. Gen., was with them on the brief, for appellee.
The record is examined and, all as fully set forth in the opinion, it is held that the provisions of G.S.1959 Supp. 8-1001, and the proceedings had thereunder resulting in the suspension and subsequent revocation of plaintiff's driver's license are not invalid on any of the grounds urged, and no error has been shown.
Following his arrest on a charge of driving a motor vehicle while under the influence of intoxicating liquor, plaintiff was requested to submit to a blood test for the purpose of ascertaining the alcoholic content thereof. He refused. His driver's license was suspended and later revoked. He brought this action to compel reinstatement. He appeals from an adverse judgment.
A better understanding of the pertinent facts will be had if reference first is made to certain provisions of the motor vehicle code. Unless otherwise indicated, all references are to G.S.1959 Supp. 8-1001 reads:
8-1002 provides that upon the request of any person submitting to a chemical test under the act a report of the test shall be delivered to him.
8-1003 provides that only a physician or qualified medical technician acting at the request of the arresting officer can withdraw any blood of any person submitting to a chemical test under the act.
8-1004 provides that, without limiting or affecting the provisions of the above three sections, the person tested shall have a reasonable opportunity to have an additional chemical test by a physician of his own choosing, and if the officer refuses to permit such additional chemical test to be taken the original test shall not be competent in evidence.
8-1005 provides that in any criminal prosecution for the violation of the laws of the state relating to the driving of a motor vehicle while under the influence of intoxicating liquor, or the commission of negligent homicide or manslaughter while under the influence of intoxicating liquor, or in any prosecution for violation of a city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath or other bodily substance, may be admitted, and if there was at that time less than 0.15 percent by weight of alcohol in the defendant's blood it shall be presumed that the defendant was not under the influence of intoxiing liquor, but if there was at such time 0.15 percent or more by weight of alcohol in the defendant's blood it shall be presumed that the defendant was under the influence of intoxicating liquor.
8-1006 provides that the foregoing section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor.
8-259 reads:
'Any person denied a license or whose license has been canceled, suspended, or revoked by the department except where such revocation is mandatory under the provision of section 8-254 of the General Statutes of 1949 as amended shall have the right to file a petition within sixty (60) days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside, and such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon ten (10) days' written notice to the department, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entiteld to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this act: Provided, Such petitioner shall file in such court a bond in the amount of one hundred dollars ($100) conditioned that he will without unnecessary delay appear in such court at the time set by the court for hearing said matter and pay all costs in the event the court determines that said petitioner's license is subject to suspension, cancellation or revocation: Provided further, The trial on appeal as herein provided for shall be a trial de novo and the licensee shall have the right of trial by jury upon demand therefor: Provided further, The court having jurisdiction of said appeal, on proper application being made, may order a stay of any suspension or revocation pending final judgment, and if the license has been surrendered by the licensee said order shall direct the department to return such license to the licensee, and until such license is so...
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