Meehan v. Kansas Dept. of Revenue, 77311

• Decision Date: 29 May 1998
• Docket Number: No. 77311,77311
• Parties: Benjamin E. MEEHAN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Court of Appeals

Page 940

959 P.2d 940

25 Kan.App.2d 183

Benjamin E. MEEHAN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 77311.

Court of Appeals of Kansas.

May 29, 1998.

Syllabus by the Court

1. The testing procedures provided by Kansas statutes and regulations concerning suspension of a driver's license for failure to pass a breath test comport with constitutional due process.

2. In an administrative hearing concerning driving privileges, under K.S.A. 8-1001 et seq., expert opinion that a different test or protocol for the test would be more reliable, is not relevant to the issues involved.

Michael S. Holland, Russell, for the appellant.

Brian Cox, of Kansas Department of Revenue, for the appellee.

Before BRAZIL, C.J., PIERRON, J., and MERLIN G. WHEELER, District Judge, Assigned.

PIERRON, Judge:

Benjamin E. Meehan appeals from a partial summary judgment ruling in favor of the Kansas Department of Revenue (KDR) regarding the suspension of his driver's license after a result of .08 on a breath test. We affirm.

Meehan's driver's license was suspended by the Kansas Department of Revenue (KDR) after he failed a breath test as provided in K.S.A.1997 Supp. 8-1001. Meehan appealed. The district court granted partial summary judgment in favor of the KDR on evidentiary questions regarding the reliability of breath test procedures approved by the State and used by the police officer. Thereafter, the district court entered an order upholding the suspension of Meehan's driver's license for failing a breath test under K.S.A.1997 Supp. 8-1002. The issue on appeal is whether the district court erred in granting partial summary judgment--i.e., whether there was a genuine issue of material fact.

It should be emphasized that Meehan's primary arguments before the district court were that the breath test results were not reliable and, therefore, should not be admitted into evidence. Meehan also attempted to submit an expert's testimony at trial, apparently to argue that the district court should discredit or give little weight to the results because of questions of reliability. On appeal, Meehan continues to argue that the single test procedure approved by KDHE is not scientifically reliable. Again, the attack appears to focus more on the admissibility of the test results, not the weight the trier of fact should give to those results.

The starting point in the analysis is the language of the pertinent statutes. Kansas law states that "[a]ny person who operates or attempts to operate a vehicle within this state is deemed to have given consent ... 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." K.S.A.1997 Supp. 8-1001(a). The legislature gave the law enforcement officer the right to select which type of test is used, but requires the officer to advise the licensee of his or her right to refuse the test and the consequences which may arise if the test is not taken or refused. K.S.A.1997 Supp. 8-1001(f)(1). The licensee also is advised he or she has the right to secure additional alcohol testing on his or her own. K.S.A.1997 Supp. 8-1001(f)(1).

After a licensee fails an alcohol breath test (scoring an alcohol concentration of .08 or more) and the KDR is so advised, KDR serves a notice of suspension on the licensee. K.S.A.1997 Supp. 8-1002(a)(2) and (c). If a timely request for a hearing is received from the licensee, a hearing is scheduled before KDR. The scope of the administrative hearing is set forth in K.S.A.1997 Supp. 8-1002(h)(2). This statute limits the issues that can be raised in such a hearing. Those issues can include whether "(D) the testing equipment used was reliable; (E) the person who operated the testing equipment was qualified; (F) the testing procedures used were reliable; (G) the test result determined that the person had an alcohol concentration of .08 or greater in such person's blood or breath." K.S.A.1997 Supp. 8-1002(h)(2).

In such hearings, or in de novo hearings before the district court, an affidavit from KDHE stating the equipment and officer were certified on the date the licensee was tested is admissible and "shall be admitted to prove such reliability without further foundation requirement." K.S.A.1997 Supp. 8-1002(i). Moreover, a "certified operator of a breath testing device shall be competent to testify regarding the proper procedures to be used in conducting the test." K.S.A.1997 Supp. 8-1002(i).

The legislature has delegated to the Kansas Department of Health and Environment (KDHE) the task of developing regulations establishing procedures, qualifications, and standards of performing testing of human breath for law enforcement purposes. K.S.A. 65-1,107(b). To that end, KDHE has adopted regulations which establish criteria to apply when approving devices for breath testing and the procedures to use when performing such tests. K.A.R. 28-32-1 et seq.

In interpreting these provisions, the Kansas appellate courts have repeatedly held that the legislature has expressly found that results from breath tests are sufficiently reliable to be admitted into evidence if the foundation establishes that the testing machine was operated according to the manufacturer's operational manual and any regulations set forth by KDHE and if the equipment and operator are certified. See State v. Bishop, 264 Kan. 717, 957 P.2d 369 (1998); State v. Rohr, 19 Kan.App.2d 869, 870, 878 P.2d 221 (1994); State v. Lieurance, 14 Kan.App.2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990).

According to this clear line of cases, the legislature has deemed alcohol breath tests admissible if the certification requirements are met and if the machine was operated in the manner provided by KDHE. A licensee can challenge, factually, whether the certifications were proper and whether the machine was operated in the manner required by the operations manual. Thus, a licensee can raise inconsistencies in the certification records or whether the testing officer actually followed all operational protocols. However, it is legislatively established that the results are admissible as a matter of law when the requisite foundation is laid under K.S.A.1997 Supp. 8-1002(i). For these reasons, the district court correctly concluded that under the statutes, Meehan's expert's testimony was irrelevant to determine the admissibility of the breathalyzer test results.

Moreover, the trial court concluded that the expert's testimony was irrelevant for all purposes because Kansas law permits the licensee to obtain an independent breath test and is advised of that right at the time the law enforcement officer gives the breath test. The expert conceded that if there was a meaningful opportunity to obtain the independent test, then his requirement of a two-test procedure would be satisfied. As a result, the trial court reaffirmed its prior ruling that the evidence was not relevant.

No Kansas cases have addressed the extent to which a person can challenge the reliability of the test because of inadequate procedures approved by KDHE. Assuming that KDHE's regulations and procedures statutorily preclude scientific challenges to the admissibility for properly supported breathalyzer results, the question becomes whether there is any constitutional basis to challenge these rules.

The legislature has the power to establish rules defining the admissibility of evidence in criminal, civil, and administrative proceedings. Those rules, however, must give way if constitutional rights would be impaired. Chambers v. Mississippi, 410 U.S. 284, 302-03, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (Mississippi evidentiary rules regulating impeachment and hearsay cannot impair criminal defendant's right to cross-examine witnesses and present witnesses in his defense.). See State v. Brickhouse, 20 Kan.App.2d 495, 500-02, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995) (hearsay rules and district court discretion cannot be applied unfairly to deprive criminal defendant of the right to present his defense).

Accordingly, the court must ascertain whether the statute and regulations establishing the reliability of breath testing in administrative revocation hearings are contrary to due process.

A person's entitlement to due process in driver's license suspension cases is well settled. In Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the United States Supreme Court reviewed the constitutionality of an Illinois statute providing for the suspension of a driver's license based upon official records establishing that the driver has been repeatedly convicted of serious traffic offenses. The Dixon court said:

" 'Suspension of issued licenses ... involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.' [Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) ]." 431 U.S. at 112, 97 S.Ct. 1723.

Once it is determined that due process applies to a specific governmental action, however, the court must still determine "what process is due to protect against an erroneous deprivation of that interest." Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). The procedural safeguards of the Due Process Clause are designed to prevent erroneous deprivation of important interests by the government. To achieve this end, however, the Due Process Clause does not require perfect procedures.

"[T]he Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible 'property' or 'liberty' interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decision-making comply with standards that assure perfect, error-free determinations. [Citation...