Woodhead v. Kansas Dept. of Revenue

• Decision Date: 09 December 1988
• Docket Number: No. 62418,62418
• Parties: David P. WOODHEAD, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

Page 167

765 P.2d 167

13 Kan.App.2d 145

David P. WOODHEAD, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 62418.

Court of Appeals of Kansas.

Dec. 9, 1988.

Syllabus by the Court

In a driver's license suspension case, under K.S.A.1987 Supp. 8-1002(d), the reasonableness of plaintiff's refusal to take the requested breath alcohol test is not an issue for consideration for either the Department of Revenue or the district court.

Gregory D. Bangs, Overland Park, and Joseph R. Borich, Kansas City, Mo., for appellant.

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

Before BRISCOE, P.J., and LARSON and GERNON, JJ.

BRISCOE, Presiding Judge:

Plaintiff David Woodhead appeals the judgment of the district court entering summary judgment against him on his petition for review from an order of the Department of Revenue suspending his driver's license. We affirm.

The following facts were alleged by the Department in its motion for summary judgment and were uncontroverted by plaintiff: On February 12, 1987, Officer Richard McBrien arrested the plaintiff for DUI. After plaintiff's arrest, the officer gave plaintiff the Miranda warnings and the oral and written notices required by the implied consent statute, K.S.A.1987 Supp. 8-1001. Immediately thereafter, the officer requested that plaintiff submit to a breath test, but plaintiff refused. Plaintiff indicated he would not take the test because he had recently used a breath spray and because he knew better than to submit to the breath test. Plaintiff did not indicate to the officer that he was confused by the Miranda and implied consent warnings.

On March 26, 1987, a hearing was conducted before a representative of the Division of Vehicles to consider the suspension of plaintiff's license. The hearing officer ordered suspension of plaintiff's license for six months, effective April 6, 1987.

Plaintiff filed a petition for review in district court, seeking reversal of the hearing officer's decision on the ground that plaintiff's refusal to take the test was reasonable. The Department moved for summary judgment, alleging only two issues were before the court according to the pretrial order: (1) whether plaintiff's refusal was "reasonable" because he assumed his use of a breath spray just prior to being stopped would produce an abnormally high reading; and (2) whether plaintiff's refusal was "reasonable" given his confusion created by the officer's giving Miranda warnings and later giving the implied consent warnings. The Department argued that it was entitled to summary judgment because "reasonableness" of the refusal is no longer an issue under the applicable statute.

In his response, plaintiff agreed with the Department's statement of the issues. However, plaintiff argued that the reasonableness of his refusal remained an issue under the applicable statutes. Plaintiff suggested that "excusable" or "reasonable" refusal did not really constitute a refusal which would justify suspension. In its reply, the Department challenged plaintiff to set forth statutory support for his contention that "reasonableness" remained a defense. The trial court agreed with the Department's interpretation of the applicable law and entered summary judgment against plaintiff and dismissed his petition for review.

The sole issue on appeal is whether the district court erred in entering summary judgment. Plaintiff contends summary judgment was inappropriate because the reasonableness of his refusal to submit to the test remained an issue of fact. According to plaintiff, the reasonableness of refusal to submit to a breathalyzer test under the implied consent law must be dealt with on a case-by-case basis. Plaintiff also argues that, if the legislature has deleted reasonableness of refusal as a defense in these cases, it is a denial of due process.

Originally, K.S.A. 8-1001 provided that, if a person's refusal to submit to the test was not reasonable, the division should suspend his license:

"The arresting officer shall make a report verified on oath to the division of vehicles of the refusal.... Upon receipt of the report, the division immediately shall notify the person of the right to be heard on the issue of reasonableness of the failure to submit to the test.... If a hearing is not requested or if, after the hearing, the division finds that the refusal was not reasonable, and after due consideration of the record of motor vehicle offenses of the person, the division shall suspend the person's license or permit to drive or nonresident operating privilege for a period of not less than 120 days and not more than one year." K.S.A. 8-1001(c). (Emphasis added.)

Pursuant to 8-1001, the reasonableness of the refusal was the only issue before the Department and before the district court on review. Carson v. Division of Vehicles, 237 Kan. 166, 170, 174, 699 P.2d 447 (1985). K.S.A. 8-1001(c) was deleted by the legislature effective July 1, 1985. L.1985, ch. 48, § 3. The provision applicable to this case is now found at K.S.A.1987 Supp. 8-1002(d), which states:

"The scope of the hearing shall be limited to whether: (1) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to...