Schulz v. Kansas Dept. of Revenue, 68424

• Decision Date: 25 June 1993
• Docket Number: No. 68424,68424
• Citation: 877 P.2d 1,19 Kan.App.2d 665
• Parties: Stewart A. SCHULZ, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Court of Appeals

Page 1

877 P.2d 1

19 Kan.App.2d 665

Stewart A. SCHULZ, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 68424.

Court of Appeals of Kansas.

June 25, 1993.

Motion for Publication Granted Dec. 23, 1993.

Syllabus by the Court

1. K.S.A. 8-1002(h)(2) is construed and applied.

2. The five-day certification required by K.S.A. 8-1002(e) may not be challenged at the administrative hearing before the Kansas Department of Revenue and therefore cannot be raised on judicial review before the district court.

Brian Cox, of Kansas Dept. of Revenue, Topeka, for appellant.

Martin J. Keenan and Dennis J. Keenan, of Keenan and Boeckman, P.A., Great Bend, for appellee.

Before ELLIOTT, P.J., LEWIS, J., and TIMOTHY E. BRAZIL, District Judge, Assigned.

TIMOTHY E. BRAZIL, District Judge, Assigned:

Appellee Stewart Schulz was arrested by Stafford County Sheriff's Deputy Jim Garner for driving while under the influence of alcohol (DUI) on August 17, 1990. Appellee is severely impaired, possibly quadriplegic, as the result of a spinal cord injury suffered in a previous car accident. Deputy Garner transported appellee to the Stafford County Sheriff's Office, where he read the implied consent advisory to appellee. Appellee does not recall if he was given a copy of the implied consent advisory, but Deputy Garner testified that he did provide appellee with a copy of the advisory. Appellee then consented to submit to a breath test by blowing into the Intoxylizer 5000 breath testing machine.

At 2:58 a.m., an air blank was run through the machine; at 2:59 a.m., a calibration check against a known air sample was run through the machine; at 3:01 a.m., appellee was tested; and at 3:02 a.m., a final nonalcohol-containing air blank was run through the machine.

Both appellee and Deputy Garner testified that appellee blew as hard as he could into the machine. The machine was unable to record the alcohol content of appellee's breath and indicated that appellee had provided a deficient sample. Deputy Garner testified that although he made no further checks of the machine to determine if it was operating properly, he had no reason to believe it was not working properly. Appellee informed Deputy Garner that his lung capacity was limited due to his injury.

Deputy Garner then informed appellee that he had not provided a sufficient sample and requested that appellee submit to a blood test at the hospital. Appellee informed Deputy Garner that he felt he had completed the test pursuant to the implied consent advisory and that he wished to consult an attorney before taking the blood test. Deputy Garner told appellee that he was not entitled to an attorney until he had completed the testing and again requested that appellee provide a blood sample. Appellee testified that Deputy Garner informed him that if appellee did not take the blood test, Deputy Garner would issue appellee a DUI citation. Deputy Garner denied threatening appellee with a DUI citation but did inform him that if he did not submit to the blood test, it would be considered a refusal.

Appellee submitted to the blood test at the hospital. The test was administered at 3:20 a.m. Appellee had been arrested at 1:26 a.m.

Deputy Garner mailed the blood sample to the KBI laboratory the Monday following the Friday morning blood test. The sample was received by the KBI on August 20, 1990. The results of the blood alcohol examination were that appellee's blood contained 0.24 grams of alcohol per 100 milliliters of blood.

The laboratory report was mailed to the Stafford County Sheriff's Office on August 31, 1991. Deputy Garner testified he received the lab report on September 8, 1990, but later said he was not certain from independent recollection when the lab report arrived. Deputy Garner completed form "DC-27," the "Certification [of failure of blood test] and Notice of Suspension," on September 9, 1990, and mailed it to the Kansas Department of Revenue (KDR) the same day. Appellee was served with the certification on September 9, 1990, and requested an administrative hearing on September 11, 1990.

On November 8, 1990, KDR suspended appellee's driver's license at an administrative hearing due to a chemical test "failure" under the Kansas implied consent law, K.S.A. 8-1001. On November 16, 1990, appellee filed a petition in Barton County District Court appealing the administrative order. The matter came to trial on November 19, 1991. The State apparently made an oral motion to dismiss appellee's petition at trial.

On May 14, 1992, the court issued a memorandum decision denying the State's motion to dismiss, based on the State's noncompliance with the certification requirements of K.S.A. 8-1002(e). The court's June 3, 1992, journal entry of judgment reversed the administrative order and ordered that appellee's driver's license not be suspended.

KDR asserts that the certification requirements of K.S.A. 8-1002(e) could not be raised at the administrative hearing and therefore were not properly before the district court. We agree.

K.S.A. 8-1002(e) reads in relevant part: "Within five days after the date of certification of the test refusal or test failure, the officer who effected service shall forward the officer's certification and a copy of the notice of suspension, along with any licenses taken, to the division."

In the memorandum decision reversing the administrative order suspending appellee's driver's license, the trial court stated:

"The further issue that is involved in this case is the certification required in K.S.A. 8-1002(e) which states in part, '... within five days after the date of certification of the test refusal or test failure, the officer who effected service shall forward the officer's certification and a copy of the notice of suspension along with any license taken to the division.' This was done. From the evidence that is before the Court, the Court believes and finds that more than five days had lapsed before the officer did this. The report from the KBI is dated 8/20/90, received in St. John, Kansas, on August 31, 1990, and was not filed until September 8, 1990, from the evidence that is before the Court. With this in mind, the Defendant's Motion to Dismiss the Matter is overruled and the Court would find that the statute relative to the certification required under K.S.A. 8-1002(e) has not been complied with by the Defendant."

The scope of the district court's review of an administrative decision is set out in K.S.A. 77-621. Buchanan v. Kansas Dept. of Revenue, 14 Kan.App.2d 169, 170, 788 P.2d 285 (1989). The party seeking relief from an administrative order has the burden of proof. K.S.A. 77-621(a)(1). The district court shall grant relief to a party seeking the invalidity of an administrative order if the agency has failed to follow prescribed procedure. K.S.A. 77-621(c)(5).

K.S.A. 8-1002(h)(2), however, sets forth the only issues which may be considered by KDR at the administrative hearing on a failure of the test required by the Kansas implied consent law. See Woodhead v. Kansas Dept. of Revenue, 13 Kan.App.2d 145, 147, 765 P.2d 167 (1988).

K.S.A. 8-1002(h)(2) reads in relevant part:

"[T]he scope of the hearing shall be limited to whether: (A) A law enforcement officer had reasonable grounds to believe the person was operating a motor vehicle while under the influence of alcohol or drugs, or both ...; (B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a motor vehicle accident or collision resulting in property damage, personal injury or death; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; (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 .10 or greater in such person's blood or breath; and (H) the person was operating a motor vehicle." (Emphasis added.)

The statute clearly does not include the five-day certification requirement of K.S.A. 8-1002(e) in the issues that may be raised at the administrative hearing. K.S.A. 8- 1002(h)(2)(C) states that failure to provide the notice required by K.S.A. 8-1001(f)(1) is an issue that may be raised, but once again, this is not the five-day certification requirement of K.S.A. 8-1002(e).

The trial court could not consider the certification requirements of K.S.A. 8-1002(e) as an issue for review since it could not be raised before KDR at the administrative hearing. See Woodhead, 13 Kan.App.2d at 147, 765 P.2d 167. Unless an issue is first raised at the administrative hearing, it may not be raised during the district court's de novo review conducted pursuant to K.S.A. 8-259(a). Zurawski v. Kansas Dept. of Revenue, 18 Kan.App.2d 325, Syl. p 4, 851 P.2d 1385 (1993). The issue of the five-day certification requirement of K.S.A. 8-1002(e) was not properly before either the KDR at the administrative hearing or the district court on appeal from the administrative order.

Appellee contends that even if the trial court's ruling on K.S.A. 8-1002(e) was clearly erroneous, he is entitled to prevail on appeal because his statutory and Sixth Amendment rights to consult an attorney were violated. "The reasons given by a district court for its decision are immaterial so long as its ruling was correct for any reason." Dearborn Animal Clinic, P.A. v. Wilson, 248 Kan. 257, Syl. p 6, 806 P.2d 997 (1991).

The trial court ruled that the right to an attorney was an issue but made no findings of fact or law concerning this issue and based its decision on other grounds.

Under the implied consent statute, any person operating a motor vehicle within the state is deemed to have given consent to submit to one or more tests of bodily substances to determine the presence of alcohol or drugs. K.S.A. 8-1001(a)...