Podrebarac v. Kansas Dept. of Revenue, 65454

• Decision Date: 22 March 1991
• Docket Number: No. 65454,65454
• Citation: 15 Kan.App.2d 383,807 P.2d 1327
• Parties: Damian PODREBARAC, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Court of Appeals

Page 1327

807 P.2d 1327

15 Kan.App.2d 383

Damian PODREBARAC, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 65454.

Court of Appeals of Kansas.

March 22, 1991.

Syllabus by the Court

1. Where a district court grants relief from an agency order on the basis that the agency "erroneously interpreted or applied the law," the appellate scope of review is de novo.

2. Administrative interpretation of a statute is entitled to great weight and consideration, but the final construction of a statute is a judicial function which rests with the court.

3. The two-hour limitation contained in K.S.A. 1990 Supp. 8-1567(a)(2) on the use of test results to establish a criminal charge of driving with a blood alcohol concentration in excess of .10 does not apply to administrative suspensions resulting from a test failure under the implied consent statute, K.S.A. 8-1001 et seq. The absence of such a limitation in the definition of test failure under K.S.A. 1990 Supp. 8-1013(h) does not render the statute unconstitutionally vague.

4. Rules of statutory construction are stated and applied.

5. A breath test for alcohol may be administered and the Kansas Department of Revenue may administratively suspend a person's driver's license due to a test failure under the implied consent statute, K.S.A. 8-1001 et seq., when the following conditions occur: (1) a law enforcement officer has reasonable grounds to believe the person was driving while intoxicated, (2) the person was arrested for DUI or was involved in an automobile accident, (3) the officer presented the person with the oral and written notices required by K.S.A. 8-1001(f)(1), and (4) the test was conducted pursuant to the proper procedures and the equipment and equipment operator were properly certified. K.S.A. 1990 Supp. 8-1002(c), (f); K.S.A. 1990 Supp. 8-1014(b).

6. Use of the terms "reasonable grounds" to believe a person operated a vehicle while intoxicated in the implied consent statute indicates the legislature's intent to allow administrative suspensions for driving while intoxicated on less strict standards of proof than a criminal conviction for driving with a blood alcohol concentration of .10 would require.

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

Steven L. Davis of Patton, Davis & Putnam, Emporia, for appellee.

Before BRISCOE, C.J., and BRAZIL and ELLIOTT, JJ.

BRAZIL, Judge:

The Kansas Department of Revenue (KDR) appeals from the district court's order reinstating the driving privileges of Damian Podrebarac after an administrative suspension. The district court determined that the breath test KDR relied on to suspend Podrebarac's license was invalid because the breath sample was collected more than two hours after Podrebarac operated a vehicle. We reverse and remand with directions.

The parties are familiar with the facts, and they will not be repeated except as necessary in our discussion of the issues.

KDR contends the district court erred in applying the two-hour limitation on test results found in K.S.A. 1990 Supp. 8-1567(a)(2) (the criminal DUI statute) to administrative suspension actions under the implied consent law, K.S.A. 8-1001 et seq. It argues that the definition of "test failure" under the implied consent statute contains no two-hour limitation, and such omission should be considered a reasoned decision by the legislature that no such limit was necessary regarding administrative suspensions.

The appellate scope of review in this case is de novo. Here, the district court granted Podrebarac relief from administrative action on the basis that the agency "erroneously interpreted or applied the law." K.S.A. 77-621(c)(4). The interpretation of a statute and its application to the facts of any particular case is a judicial function, and this court has specifically held that agency action resulting in a driver's license suspension is a judicial function. Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 763, 758 P.2d 226, rev. denied 243 Kan. 777 (1988). When the district court grants relief on the basis of an erroneous interpretation or application of law by the agency, an appellate court should make the same review of the agency's action as does the district court. 537721 Ontario, Inc. v. Mays, 14 Kan.App.2d 1, 2, 780 P.2d 1126 (1989). Administrative interpretation of a statute is entitled to great weight and consideration, but the final construction of a statute rests with the courts. National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989); Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, Syl. pp 4 and 5, 518 P.2d 453 (1974).

The effect of the district court's holding is to read the two-hour limitation in the criminal DUI statute into the definition of test failure under the implied consent statute, K.S.A. 1990 Supp. 8-1013(h). This holding disregards the plain language of the provisions of the implied consent statute, which imposes no such limitation. Podrebarac contends that the two-hour limitation must be read into the definition of test failure; otherwise the implied consent statute would be unconstitutionally vague.

When construing a statute, it is this court's duty to reconcile different statutory provisions to make them consistent, harmonious, and sensible, and to construe the statute to give effect to the legislative intent as determined from a general consideration of the entire act. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Furthermore, the constitutionality of a statute is presumed and all doubts must be resolved in favor of its validity. State v. Huffman, 228 Kan. 186, Syl. p 1, 612 P.2d 630 (1980). With these principles in mind, a general consideration of the implied consent act illustrates that no two-hour limitation applies to the admissibility of test results for administrative suspension purposes, and the definition of "test failure" contained in the act is not...