Schowengerdt v. Kansas Dept. of Revenue, 63589

• Decision Date: 29 December 1989
• Docket Number: No. 63589,63589
• Citation: 14 Kan.App.2d 147,784 P.2d 387
• Parties: Paul W. SCHOWENGERDT, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

Page 387

784 P.2d 387

14 Kan.App.2d 147

Paul W. SCHOWENGERDT, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 63589.

Court of Appeals of Kansas.

Dec. 29, 1989.

Syllabus by the Court

1. A period of suspension on a validly suspended driver's license can be extended by the addition of a further period of suspension even though, when the last suspension was ordered, the driver technically no longer had a license to suspend.

2. A valid order of suspension of driving privileges survives beyond the original expiration date of the license suspended.

3. It is the privilege to drive which is subject to suspension. A driver's license merely represents that privilege.

John A. Reynolds, of Sweet & Boyer, Salina, for appellant.

Bill Cummings, legal intern, and Brian Cox, of Kansas Dept. of Revenue, for appellee.

Before ABBOTT, C.J., and DAVIS and GERNON, JJ.

GERNON, Judge:

Paul Schowengerdt appeals from the district court's affirmance of the suspension of his driver's license by the Department of Revenue. Schowengerdt contends on appeal that the driving privileges of a driver whose license has expired may not be suspended.

In October of 1988, Schowengerdt was arrested for speeding. At the time of his arrest, he was given an Intoxilyzer test, which he failed. The officer's notice of suspension indicated Schowengerdt's license to drive had expired. Schowengerdt requested a hearing concerning his suspension. The hearing officer of the Department of Revenue affirmed the suspension.

Schowengerdt timely filed a petition for review to the district court, which affirmed the holding of the hearing officer. Schowengerdt then appealed.

As a preliminary matter, the Department of Revenue argues that Schowengerdt lacks standing. The Department argues that Schowengerdt has no personal stake in the outcome of this case because he alleges he had no right to drive even before his license was suspended. We reject this argument. Schowengerdt's suspension obviously could affect him in many ways. He might be prevented from obtaining a driver's license, or, if apprehended while driving, his status of having a suspended license would constitute a Class B misdemeanor. Therefore, we conclude Schowengerdt has standing to raise the issue before this court.

Schowengerdt's license had expired when he was arrested for speeding and failed the Intoxilyzer test. He argues that the Department of Revenue cannot suspend his driver's license because he had no driver's license to suspend.

Schowengerdt notes that K.S.A.1988 Supp. 8-235(a) provides: "No person, except those hereinafter expressly exempted, shall drive any motor vehicle upon a highway in this state unless such a person has a valid driver's license."

Schowengerdt cites two Alaska cases, both criminal in nature, which hold that, because there is no "innate privilege to drive" and the defendant had no license, it was impossible for the State to have suspended his driving privileges. Roberts v. State, 700 P.2d 815 (Alaska App.1985).

The Department, however, asserts that the Kansas implied consent law is to be liberally construed to effectuate its obvious purpose of protecting the safety and welfare of the motoring public. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). The Department contends that the Alaska cases cited by Schowengerdt are distinguishable from the present case. For example, in Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska App.1982), the 15-year-old driver never had a license to drive and was charged with driving while his license was suspended. In Roberts, the appellant was never licensed by the State of Alaska and his California license had expired prior to his arrest in Alaska.

In Fielding v. State, 733 P.2d 271 (Alaska App.1987), the defendant was validly licensed to drive at the time his license was revoked for three years. Later he was convicted of driving while his license was revoked, which added one additional year to his revocation. Three years later he was convicted of driving under the influence and again of driving while his license was revoked, which added two more...