Sandate v. Kan. Dep't of Revenue

• Decision Date: 17 July 2020
• Docket Number: No. 119,514,119,514
• Citation: 58 Kan.App.2d 450,471 P.3d 700
• Parties: Enrique G. SANDATE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

58 Kan.App.2d 450

471 P.3d 700

Enrique G. SANDATE, Appellant,

v.KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 119,514

Court of Appeals of Kansas.

Opinion filed July 17, 2020.

Thomas J. Bath Jr., of Bath & Edmonds, P.A., of Overland Park, for appellant.

Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before Arnold-Burger, C.J., Warner, J., and Lahey, S.J.

Arnold-Burger, C.J.:

Enrique G. Sandate appeals the district court's decision affirming the administrative suspension of his driver's license. He makes two claims. First, he contends that the KDOR lacked subject matter jurisdiction to suspend his driver's license. Second, he asserts that the notice he received before refusing a breath test did not substantially comply with Kansas implied consent laws. After a review of Sandate's claims, we reject them and affirm the suspension of his driving privileges.

FACTUAL AND PROCEDURAL HISTORY

In the early morning hours on November 9, 2016, Officer Dane Jordan of the Overland Park Police Department witnessed a vehicle twice failing to maintain its lane and changing lanes without signaling. Officer Jordan initiated a traffic stop and ultimately arrested the driver, Sandate, because he admitted to consuming alcohol, showed signs of impairment, failed several field sobriety tests, and refused a preliminary breath test.

Sandate refused to provide a breath sample after Officer Jordan read and provided a copy of the revised DC-70, an implied consent advisory form revised in February 2016 (revised DC-70). Paragraph 1 of the revised DC-70 provided: "Kansas Law [ K.S.A. 2016 Supp. 8-1001 ] requires you to submit to and complete one or more tests of breath, blood, or urine to determine if you are under the influence of alcohol or drugs or both." Officer Jordan served Sandate with an "Officer's Certification and Notice of Suspension" (DC-27), which stated in paragraph 3 that "[t]he person was presented oral and written notice as required by [ K.S.A. 2016 Supp. 8-1001(k) ] and amendments thereto."

Sandate requested an administrative hearing to review the suspension of his driving privileges. He made two arguments. First, he asserted that his constitutional rights were violated "when he was advised [on the revised DC-70] that he was required to submit to a test of breath, blood, or urine." Second, he contends that the revised DC-70 did not substantially comply with the notice requirements of K.S.A. 2016 Supp. 8-1001 because one of the statutory advisories was omitted. The KDOR affirmed the suspension.

Next, Sandate petitioned for judicial review of the KDOR's decision, requesting a new hearing and reasserting the same arguments previously made at the administrative hearing. Sandate moved for summary judgment on these claims, also asserting that the revised DC-70's noncompliance with K.S.A. 2016 Supp. 8-1001 deprived the KDOR of jurisdiction to suspend his license.

In its rulings, the district court found the KDOR had jurisdiction because the revised DC-70 substantially complied with K.S.A. 2016 Supp. 8-1001(k)(4) and denied Sandate's petition. The court found that "the amended DC-70 and [ K.S.A. 2016 Supp. 8-1001(k) ] with the unconstitutional portions stricken make it clear that petitioner has choice whether or not to submit to testing, even with the ‘require’ language present in [ K.S.A. 2016 Supp. 8-1001(k)(1) ]."

Ultimately, the matter proceeded to a hearing on stipulated facts, after which the court conclusively denied Sandate's petition for review, thus affirming the suspension of his driving privileges.

Sandate timely appealed.

ANALYSIS

KDOR had subject matter jurisdiction to suspend Sandate's driver's license.

Sandate first argues the district court erred in concluding the KDOR had subject matter jurisdiction to suspend his license because Officer Jordan failed to provide all of the implied consent advisories in K.S.A. 2016 Supp. 8-1001(k). As a result, Sandate contends the DC-27 was not accurately certified and therefore the KDOR did not obtain subject matter jurisdiction to suspend his driving privileges.

Sandate raises the issue of jurisdiction for the first time on appeal. But subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. Jahnke v. Blue Cross & Blue Shield of Kansas , 51 Kan. App. 2d 678, 686, 353 P.3d 455 (2015). Whether jurisdiction exists is a question of law over which this court exercises unlimited review. Fuller v. State , 303 Kan. 478, 492, 363 P.3d 373 (2015). To the extent that the issue requires this court to interpret Kansas statutes, it raises a question of law subject to unlimited review. Pratt v. Kansas Dept. of Revenue , 48 Kan. App. 2d 586, 588, 296 P.3d 1128 (2013).

Sandate mainly relies on Wall v. Kansas Dept. of Revenue , 54 Kan. App. 2d 512, 513-14, 401 P.3d 670 (2017), in which a panel of this court determined K.S.A. 2016 Supp. 8-1002(f) imposes upon the KDOR an "independent duty to examine" a certifying officer's DC-27 form "upon receipt ," no matter if a driver requests an administrative hearing upon receiving a notice of suspension. This mandate implicates subject matter jurisdiction because " ‘[s]ubject matter jurisdiction is the power of the court to hear and decide a particular type of action.’ State v. Matzke , 236 Kan. 833, 835, 696 P.2d 396 (1985)." State v. Dunn , 304 Kan. 773, 784, 375 P.3d 332 (2016).

In Wall , the certifying officer indicated a breath test failure on the DC-27, but the attached test results showed no sample was taken. In other words, the DC-27 erroneously reflected the driver had failed a breath test, but he had actually refused the test. In addition, the officer failed to mark several check boxes required for the DC-27 to comply with K.S.A. 2016 Supp. 8-1002(a). As a result, the panel concluded subject matter jurisdiction was lacking and affirmed the district court's reversal of the suspension. 54 Kan. App. 2d at 515, 401 P.3d 670.

In another recent case, the DC-27 at issue lacked the certifying officer's initials, signature, and several check marks because the triplicate carbon copy form failed to transfer down to the copy given to the driver. Stutsman v. Kansas Dept. of Revenue , No. 119,528, 2019 WL 1303063, at *5 (Kan. App. 2019) (unpublished opinion). There, the panel determined the certification was not substantially compliant because the DC-27 given to the driver was missing that essential information, and thus the KDOR lacked jurisdiction to suspend his driving privileges. 2019 WL 1303063, at *4-5.

The determinations made by the panels in these cases suggest that the statute only requires the KDOR to review the DC-27 at this early stage for easily discernable errors, like missing signatures or checkmarks and factual discrepancies. If those items are missing, KDOR is required to dismiss the action. Wall and Stutsman both hold that because KDOR is required to dismiss the action, its failure to do so leaves it without jurisdiction to conduct a requested administrative hearing. We disagree.

Before addressing why we are holding contrary to two cases from this court, one published and one not, we begin by noting that one Kansas Court of Appeals panel is not bound by another panel's decision. See State v. Fleming , 308 Kan. 689, 706, 423 P.3d 506 (2018). Each panel conducts an independent analysis of the issues presented and comes to its own conclusions.

Subject matter jurisdiction is vested by statute and the Kansas Constitution and establishes the court's authority to decide a particular type of action. Dunn , 304 Kan. at 811, 375 P.3d 332 ; Pieren-Abbott v. Kansas Dept. of Revenue , 279 Kan. 83, 92, 106 P.3d 492 (2005). The KDOR has the authority to suspend driver's licenses and conduct administrative hearings regarding those suspensions. See K.S.A. 2019 Supp. 8-1002 ; K.S.A. 2019 Supp. 8-1020 ; K.S.A. 2019 Supp. 8-259.

There are two primary components to the DC-27 form: a notification aspect and a certification aspect. The notification aspect arises under K.S.A. 2019 Supp. 8-1001(k) and contains information an officer must advise the driver of before administering an alcohol test. The certification aspect arises under K.S.A. 2019 Supp. 8-1002(a) and concerns matters occurring after the test failure or test refusal has already taken place. See Pratt , 48 Kan. App. 2d at 588-89, 296 P.3d 1128.

The DC-27 is the functional equivalent of a charging document. It gets the ball rolling on the suspension of driving privileges that accompany a DUI arrest. Without the filing of the DC-27 with the KDOR, a driver's license suspension for an alcohol test refusal or failure does not happen. And just as the goal of a charging document is to inform the defendant of the alleged offense, so the DC-27 provides notice to the driver of the reasons for the suspension action and the evidence that supports it. See State v. Rasch , 243 Kan. 495, 497, 758 P.2d 214 (1988) (purpose of complaint is to fairly apprises the defendant of the crime charged). The driver may challenge the sufficiency of the certification at the administrative hearing. K.S.A. 2019 Supp. 8-1020(h).

The Kansas Supreme Court has held that charging documents do not bestow or confer subject matter jurisdiction. Dunn , 304 Kan. 773, Syl. ¶ 1, 375 P.3d 332. Likewise, defects in a complaint or indictment do not deprive a court of its power to adjudicate a case. See United State v. Cotton , 535 U.S. 625, 630, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). Even the failing to swear to or verify the complaint does not deprive the court of jurisdiction. State v. Graham , 247 Kan. 388, 394, 799 P.2d 1003 (1990).

Like a complaint, once the DC-27 is filed with the KDOR, the KDOR and subsequent reviewing courts have subject matter jurisdiction over the driver's license suspension subject matter; and that makes sense. The KDOR and the courts have to have jurisdiction to make the decision regarding the adequacy of the...