Swank v. Kan. Dep't of Revenue

• Decision Date: 27 July 2012
• Docket Number: No. 102,223.,102,223.
• Citation: 294 Kan. 871,281 P.3d 135
• Parties: Kathryn SWANK, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Supreme Court

294 Kan. 871

281 P.3d 135

Kathryn SWANK, Appellee,

v.KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 102,223.

Supreme Court of Kansas.

July 27, 2012.

Syllabus by the Court

1. A petition for judicial review of an administrative driver's license suspension alleging (a) that the evidence presented at the administrative hearing through the testimony of the arresting officer showed the arresting officer did not see the licensee operate the motor vehicle on the date in question, (b) that the evidence did not prove that the licensee was under the influence of alcohol at the time she operated the vehicle, and (c) that the Department of Revenue's order of suspension was without adequate support and therefore unlawful, arbitrary, capricious, and contrary to the evidence strictly complied with the pleading requirement of K.S.A. 77–614(b) and thus invoked the subject matter jurisdiction of the district court.

2. Evidence of a licensee's post-driving alcohol consumption may be considered in a driver's license suspension proceeding's evaluation of whether a law enforcement officer had the reasonable grounds required under K.S.A. 8–1020(h)(2)(A).

3. An appellate court evaluates a district court's ruling in a driver's license suspension case for substantial competent evidenceto support it. Only if the facts are undisputed does the appellate court engage in de novo review. Further, Kansas courts evaluate “reasonable grounds” under probable cause standards, which consider the totality of the circumstances.

John D. Schultz, of Legal Services Bureau, Kansas Department of Revenue, argued the cause, and Matt Franzenburg, of the same office, was with him on the briefs for appellant.

Douglas E. Wells, of Topeka, argued the cause, and Charles H. Apt III, of Apt Law Offices, LLC, of Iola, was on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This appeal concerns Kathryn Swank's challenge to her driver's license suspension for driving under the influence of alcohol and the appropriate role, if any, for evidence and legal argument regarding post-driving alcohol consumption.

Factual and Procedural Background

This case began when Yates Center Police Officer Jacob G. Morrison responded to a 1:46 a.m. call about Swank driving recklessly. The call had been placed by Jana Waddell, who said she and Swank had been in an argument at Waddell's ex-husband's home. Waddell alleged that Swank chased her home and then sped back and forth in front of Waddell's house, almost striking Waddell's car. Waddell described Swank as highly intoxicated and Swank's driving as erratic.

After speaking with Waddell at her house, Morrison left to search for Swank. He found her a few blocks away in Waddell's ex-husband's driveway. Swank had pulled into the driveway and was already out of her car. Morrison saw no alcohol in her hands as he approached her.

According to Morrison, Swank admitted that she had been drinking and admitted that she had followed Waddell. Morrison did not ask Swank if she had consumed any alcohol after she pulled into the driveway, i.e., after she had stopped driving.

Morrison arrested Swank for suspicion of driving under the influence, and Swank submitted to an Intoxilyzer 8000 breath test at the police station. Swank's breath alcohol concentration was .203.

After the test, Morrison returned to Waddell's ex-husband's driveway and searched Swank's car. He found an open can of still-cold beer in a Koozie.

Notes from the Kansas Department of Revenue administrative hearing leading to Swank's license suspension show that the hearing officer was aware Morrison had not asked Swank about any post-driving alcohol consumption and had not personally seen Swank driving or attempting to drive. The notes also record that Swank's counsel moved unsuccessfully to dismiss the proceeding, arguing Morrison had “no reason to believe” that Swank was driving under the influence.

Swank filed a petition for judicial review of the agency decision. Her petition did not say explicitly that Morrison lacked “reasonable grounds to believe that Swank was operating a vehicle while under the influence,” the exact language of K.S.A. 8–1020(h)(2)(A), but it alleged that “[t]he evidence presented at the administrative hearing through the testimony of the arresting officer reflected that the arresting officer did not ever see [Swank] operate the motor vehicle on the date in question” and did not “provide evidence that [Swank] was under the influence of alcohol at the time she operated the vehicle.” It also alleged that the agency's order of suspension was “without adequate support, is therefore unlawful, arbitrary and capricious, and in fact contrary to the evidence presented at the administrative hearing.”

District Judge Daniel Creitz conducted a de novo evidentiary hearing on Swank's petition, where he heard testimony from Morrison and Swank.

Morrison's testimony was consistent with the summary set out above. In addition, he acknowledged that, had Swank consumed alcohol after she pulled into the driveway, her post-driving consumption could have had an impact on her Intoxilyzer result.

Swank's testimony before Judge Creitz conformed in large part to Morrison's. As might be expected, however, it also contained details helpful to Swank's explanation of her behavior and Intoxilyzer result.

On the night of her arrest, Swank said, she had consumed three beers at about 6 p.m. She admitted to arguing with Waddell and to following her, but she said she was not drinking at that point. Swank estimated that 15 to 20 minutes passed between the time she left Waddell's street and the time she pulled into the driveway where Morrison found her. When she got out of her car, Swank testified, she was upset; and she drank from a half-pint bottle of “Hot Damn” alcohol. Swank said that she thought that she had thrown the bottle away before Morrison arrived. She said she did not consume any alcohol other than the Hot Damn after driving. She admitted that the open beer Morrison later found in her car belonged to her.

The district judge ruled in Swank's favor and set the agency order of suspension aside, stating at the hearing that Morrison

“did not have reasonable grounds to believe [Swank] was operating or attempting to operate the motor vehicle while under the influence of alcohol.... The issue is the intervening—intervening consumption, which is really uncontroverted.... I read (h)(1), K.S.A. 8–1020, it's conjunctive, not disjunctive; and what I mean by that, paragraph one, you have to prove A, B, C and D; and the same applies to paragraph two, when a breath test failure has occurred you have to prove all of those A through H, and it's ‘and H.’ ”

The judge's written order read in pertinent part:

“[T]he court finds that it cannot be determined from the evidence that the officer had reasonable grounds to believe the person was operating a vehicle while under the influence, in accordance with K.S.A. 8–1020(h)(2)(A), in that the evidence does not establish that the Petitioner had a blood alcohol level of .08 or greater, K.S.A. 8–1020(h)(2)(G), while operating or attempting to operate a vehicle, K.S.A. 8–1020(h)(2)(H).”

The Department of Revenue appealed to the Court of Appeals. It did not raise any jurisdictional concern. It argued that Judge Creitz had misapplied the law under K.S.A. 8–1020(h)(2), effectively requiring it to demonstrate that Swank's blood alcohol content was greater than .08 at the time she was driving, something it characterized as “a practical impossibility.” It also argued that post-driving alcohol consumption could not, as a matter of law, be considered by a district court on a driver's appeal from a license suspension, citing Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 631, 176 P.3d 938 (2008). In the alternative, the Department argued, if post-driving consumption can be considered, it does not negate the existence of reasonable grounds.

The Court of Appeals panel reversed the district court. Swank v. Kansas Dept. of Revenue, No. 102,223, ––– Kan.App.2d ––––, 2010 WL 446036 (Kan.App.2010) (unpublished opinion). It agreed with the Department's criticism of the standard of proof applied by Judge Creitz, determined that the evidence demonstrated the existence of Morrison's reasonable grounds, and said that Swank's post-driving alcohol consumption could not be considered because it was not among the legal issues enumerated in K.S.A. 8–1020(h)(2). Swank, 2010 WL 446036, at *3–4.

We granted Swank's petition for review. After we did so, the State filed a supplemental brief. That brief, for the first time, conceded that post-driving consumption is a fact that may be considered among other facts that may or may not lead to a law enforcement officer's reasonable suspicion that a suspect has been driving under the influence. Having surrendered on this point of law, the State argued that the Court of Appeals panel nevertheless correctly determined that reasonable grounds existed in this case.

At oral argument before this court, the State advocated for its revised position. It also, for the first time, questioned the existence of subject matter jurisdiction in the district court, because, in its view, Swank failed to plead the issue of reasonable grounds in her petition for judicial review.

Discussion

Subject Matter Jurisdiction

Subject matter jurisdiction may be raised at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010); Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). Parties cannot confer subject matter jurisdiction by failure to object to the absence of it. Kansas Bd. of Regents v. Skinner, 267 Kan. 808, Syl. ¶ 5, 987 P.2d 1096 (1999). And a district court's lack of subject matter jurisdiction to support a ruling means that an appellate court cannot acquire subject matter jurisdiction to review that ruling. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). Thus, even though the Department did not...