Schoen v. Kansas Dept. of Revenue, 89,380

• Citation: 31 Kan.App.2d 820,74 P.3d 588
• Decision Date: 15 August 2003
• Docket Number: No. 89,380,89,380
• Parties: DENTON JAMES SCHOEN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Court of Appeals of Kansas

31 Kan.App.2d 820

74 P.3d 588

DENTON JAMES SCHOEN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 89,380

Court of Appeals of Kansas

Opinion filed August 15, 2003.

Michael S. Holland II, and Michael S. Holland, of Holland and Holland, of Russell, for appellant.

Ted E. Smith, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before ELLIOTT, P.J., MARQUARDT and MALONE, JJ.

MALONE, J.:

Denton James Schoen appeals the district court's judgment upholding his driver's license suspension by the Kansas Department of Revenue (KDR). The issue is whether the district court's finding that the sheriff's deputy complied with Kansas Department of Health and Environment (KDHE) protocol for the Intoxilyzer 5000 breath testing is supported by substantial competent evidence. We affirm.

On July 26, 2001, Osborne County Sheriff's Deputy Aaron Enyeart stopped Schoen's vehicle for speeding. After Enyeart conducted field sobriety tests, Schoen was taken to the county law enforcement center for additional testing. After providing Schoen with the required oral and written notices pursuant to K.S.A. 8-1001(f), Enyeart administered a breath test using the Intoxilyzer 5000. The test revealed Schoen had a blood alcohol level in excess of .08.

Following an administrative hearing February 20, 2002, the KDR suspended Schoen's driving privileges based upon the test failure. Schoen filed a petition for review in Osborne County District Court, and a bench trial was held July 22, 2002. At the bench trial, Enyeart testified that he failed to visually check the tubing running from the simulator solution to the Intoxilyzer 5000 to make sure it was properly attached. Schoen argued to the court that this violated KDHE protocol and, accordingly, the Intoxilyzer results should be inadmissible at trial. The district court rejected the argument, finding that Enyeart had "substantially complied" with KDHE protocol. The district court admitted the evidence and upheld the driver's license suspension.

Schoen was also prosecuted in Osborne County District Court for driving under the influence of alcohol arising from the same incident. In the criminal case, the same district judge sustained Schoen's motion to suppress the Intoxilyzer results, finding that the State failed to meet its burden that the evidence was admissible.

Schoen timely appeals from the district court's judgment upholding his driver's license suspension.

This court applies a substantial competent evidence standard of review when reviewing a district court's ruling in a driver's license suspension case. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 637, 856 P.2d 1357, rev. denied 253 Kan. 859 (1993). "Substantial evidence" is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).

Schoen contends the district court erred in upholding the suspension. Specifically, he argues the court "ignored" Enyeart's testimony regarding the Intoxilyzer testing. Under the Kansas implied consent statutes, with regard to the failure of a breath test, an officer must certify that the testing procedures used were in accordance with the requirements set out by the KDHE. K.S.A. 8-1002(a)(3)(B). The KDHE Intoxilyzer 5000 testing protocol requires the officer to "check to determine that the power switch of the instrument has been activated, the simulator tubing is properly connected, and the simulator is on."

At the bench trial, Enyeart admitted that he failed to visually check the tubing running from the simulator solution to the Intoxilyzer 5000 to make sure it was properly attached. Schoen contends this constituted an admission that the deputy failed to comply with KDHE protocol. Schoen argues that if following KDHE...