Lincoln v. Kansas Dept. of Revenue, Div. of Vehicles

Decision Date06 August 1993
Docket NumberNo. 68462,68462
Citation18 Kan.App.2d 635,856 P.2d 1357
PartiesJ.F. LINCOLN, Appellee, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF VEHICLES, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. K.S.A. 8-1002(a)(3) is interpreted and applied.

2. The legislature has expressly found that, for breath test results to be reliable, the testing equipment, the testing procedures, and the operator of the equipment must all be certified. The legislature has not included certification of the standard solution used to calibrate the equipment in its list of items that must be certified. To lay a foundation for the admissibility of breath test results, the Department of Revenue is not required to also establish certification of the standard solution used to calibrate breath testing equipment.

James G. Keller, Kansas Dept. of Revenue, Topeka, for appellant.

William K. Rork, Topeka, for appellee.

Before BRISCOE, C.J., and LEWIS and PIERRON, JJ.

BRISCOE, Chief Judge.

The Department of Revenue appeals the district court's decision reversing the Department's suspension of J.F. Lincoln's driver's license.

On June 2, 1991, Lincoln's car was stopped by a Kansas Highway Patrol trooper for failure to maintain a single lane of traffic. Lincoln was arrested after failing field sobriety tests. The trooper advised Lincoln of the implied consent laws, K.S.A. 8-1001 et seq., through both oral and written notices. After Lincoln was duly informed of the implied consent laws, he consented to a breath test. The test indicated he had a breath alcohol concentration in excess of .10. The trooper certified these test results to the Kansas Department of Health and Environment (KDHE). He also certified that he and the testing equipment were certified by the KDHE and that the testing procedures used were in accordance with the requirements of the KDHE. See K.S.A. 8-1002(a)(3).

Lincoln's test results triggered the suspension of his license by the Department, but he "appealed" the suspension by requesting an administrative hearing. See K.S.A. 8-1001(f) and 8-1002(g). A timely request for such a hearing temporarily extends a licensee's driving privileges. K.S.A. 8-1002(g). Lincoln also requested that the trooper be subpoenaed to testify at the hearing.

There is no record of the administrative hearing. According to the parties, at the administrative hearing Lincoln's counsel requested that the trooper produce the certification for the .10 known solution used to calibrate the breath testing equipment. The trooper did not know prior to the hearing that Lincoln wanted this certification and did not have the certification with him. The administrative hearing officer apparently found the testing procedures were reliable and that Lincoln failed the test, and suspended Lincoln's license for a year. Lincoln then appealed to the district court, contending among other things that, because there was no evidence presented by the Department of certification of the "standard solution" or ampoule used to test the breath testing equipment, which in this case was an Intoxilyzer 5000, the test results were unreliable. On appeal to the district court, the Department offered evidence of certification of the standard solution, but Lincoln argued failure to produce evidence at the administrative level prevented introduction of evidence at the district court level. The district court found in favor of Lincoln.

Both before the district court and on appeal, Lincoln limits the focus of his argument to whether the equipment used in testing was reliable. He challenges neither the trooper's certification to operate the equipment, nor the trooper's compliance with the required testing procedures.

The trooper testified he followed the proper procedures in performing the test, that he used the known standard solution to calibrate the testing equipment, and that the solution is attached to the equipment itself. Information is posted on the equipment and on the bottle of solution to indicate what standard solution is being used. The trooper was taught during his training that the known solution is a .10 solution of alcohol and water. He testified that the solution he used to calibrate the testing device had been certified by the KDHE to be a .10 solution. During the test sequence for Lincoln, the known .10 solution tested as .098 in the calibration check. The known solution is required by the testing procedures to calibrate within a range of .090 to .109. The trooper was instructed that no more than eight tests should be run from a particular standard solution and that a record is maintained of the number of tests done using a particular sample. He testified that, if eight or more tests had been recorded, he would have changed the solution. If a calibration check had been outside the required limits, he would have performed another check and, if that check was outside the limits, he would have changed the solution. If a check using a new solution was outside the limits, he would use a different type of test. During the testing sequence for Lincoln, use of the solution to calibrate the testing device indicated the device was working properly.

On appeal, the Department contends the district court erred by effectively requiring that it prove the standard solution used to test the breath testing equipment was certified. In addition, the Department argues its proffer of the evidence at the district court level should have sufficed, especially in light of Lincoln's failure to provide notice to the Department prior to the administrative hearing that he intended to challenge the certification. Finally, the Department argues the implied consent law is not to be construed strictly against the Department. We need address only the first issue presented to resolve this appeal.

"The district court's standard of review in driver's license suspension cases is governed by K.S.A. 8-259(a), which provides for de novo review." Zurawski v. Kansas Dept. of Revenue, 18 Kan.App.2d 325, Syl. p 1, 851 P.2d 1385 (1993). In Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 763, 758 P.2d 226, rev. denied 243 Kan. 777 (1988), we determined that, because the Department is performing a judicial function in a driver's license suspension case, the district court may make independent findings of fact and law. This court then applies a substantial competent evidence standard of review when reviewing a district court's ruling in a driver's license suspension case. See K.S.A. 77-623; Zurawski, 18 Kan.App.2d at 328, 851 P.2d 1385.

When the licensee seeks judicial review of an administrative order, the...

To continue reading

Request your trial
7 cases
  • State v. Dukes
    • United States
    • Kansas Court of Appeals
    • January 18, 2008
    ...range of the value of the known solution, it is considered properly calibrated and may be used. See Lincoln v. Kansas Dept. of Revenue, 18 Kan. App.2d 635, 636-37, 856 P.2d 1357, rev. denied 253 Kan. 859 The State presented the testimony of Deputy Jeff Bartkoski, the custodian for Intoxilyz......
  • LaRue v. Kan. Dep't of Revenue
    • United States
    • Kansas Court of Appeals
    • September 28, 2012
    ...291 Kan. at 514;Schoen v. Kansas Dept. of Revenue, 31 Kan.App.2d 820, 822, 74 P.3d 588 (2003); Lincoln v. Kansas Dept. of Revenue, 18 Kan.App.2d 635, 637, 856 P.2d 1357,rev. denied 253 Kan. 859 (1993). Substantial competent evidence refers to testimony, documents, stipulations, or other inf......
  • Drake v. Kansas Dept. of Revenue, 85,705.
    • United States
    • Kansas Supreme Court
    • October 19, 2001
    ...in a motor vehicle license suspension case, a substantial competent evidence standard of review is proper. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App.2d 635, 637, 856 P.2d 1357,rev. denied 253 Kan. 859 (1993). Accord Zurawski v. Kansas Dept. of Revenue, 18 Kan. App.2d 325, 328, 851 P.2......
  • Soza v. Kansas Dept. of Revenue
    • United States
    • Kansas Court of Appeals
    • November 12, 2004
    ...in a motor vehicle license suspension case, we apply a substantial competent evidence standard of review. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 637, 856 P.2d 1357, rev. denied 253 Kan. 859 (1993); Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 328, 851 P.2d 138......
  • Request a trial to view additional results
1 books & journal articles
  • Challenging and Defending Agency Actions in Kansas
    • United States
    • Kansas Bar Association KBA Bar Journal No. 64-06, June 1995
    • Invalid date
    ...Kan. App. 2d 756, 758 P.2d 226, rev. denied, 243 Kan. 777, 758 P.2d 226 (1988). [FN88]. E.g., Lincoln v. Kansas Department of Revenue, 18 Kan. App. 2d 635, 638, 856 P.2d 1357, 1359 (1993). [FN89]. In an unpublished decision, the Kansas Court of Appeals approved the presentation of "explanat......

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