Zurawski v. Kansas Dept. of Revenue, 68476

• Decision Date: 14 May 1993
• Docket Number: No. 68476,68476
• Citation: 851 P.2d 1385,18 Kan.App.2d 325
• Parties: Timothy A. ZURAWSKI, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Court of Appeals

Page 1385

851 P.2d 1385

18 Kan.App.2d 325

Timothy A. ZURAWSKI, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 68476.

Court of Appeals of Kansas.

May 14, 1993.

Review Denied July 8, 1993.

Syllabus by the Court

1. The district court's standard of review in driver's license suspension cases is governed by K.S.A. 8-259(a), which provides for de novo review.

2. An appellate court applies a substantial competent evidence standard when reviewing a district court's ruling in a driver's license suspension case. K.S.A. 77-623 provides: "Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases."

3. Any objection to evidence submitted at the administrative hearing must be made at the time of its submission, and the district court, in its consideration of issues raised below, will consider the objection and admissibility of that evidence in its de novo review.

4. 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).

5. An appellant bears the burden of providing a sufficient record on appeal to establish a claimed error.

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

William K. Rork, Topeka, and Sean D. Ervin, Lawrence, for appellee.

Before BRISCOE, C.J., and LEWIS and ROYSE, JJ.

BRISCOE, Chief Judge:

The Kansas Department of Revenue appeals the decision of the district court reversing the suspension of Timothy Zurawski's driver's license.

Zurawski was stopped for driving while under the influence. He tried several times to complete a breath test at the scene, but did not blow hard enough for an adequate test sample. After he was taken to the police station, he again failed to provide an adequate breath sample. Zurawski was told that his behavior constituted a test refusal. Zurawski claims he told the officer before he was taken to the station that he had asthma and needed a doctor and his medication. The officer testified Zurawski first made reference to having asthma after he was told his failure to give a breath sample constituted a test refusal.

Zurawski's license was suspended for refusing to blow into the machine and failing to complete testing. An administrative hearing officer found Zurawski refused to submit to testing pursuant to K.S.A. 8-1001 and K.S.A. 8-1002, and upheld the suspension. The district court reversed the suspension, finding Zurawski was prevented from performing the breath test because of a medical condition unrelated to the ingestion of alcohol or other chemicals. As regards its conclusion pertaining to Zurawski's medical condition, the court relied upon two letters from a doctor which were admitted into evidence at the district court level over the Department's objection. The court stated:

"At the administrative hearing there [were] admitted two letters from Dr. Glen O. Bair of Topeka indicating that the plaintiff's asthmatic and pulmonary condition did interfere with his ability to provide an adequate sample and that a medical reason existed for his poor performance on the test. That evidence is a part of the record as being admitted in the administrative hearing and accordingly the Court has considered it. The Department having provided no contrary evidence, the Court is satisfied that this action must be reversed and the Court specifically finds, based upon the medical evidence mentioned, that the plaintiff's inability to perform on the test was the result of a medical condition unrelated to the ingestion of alcohol or other chemicals."

The Department filed a motion to reconsider, alleging the letters relied upon by the district court were inadmissible hearsay and lacked foundation. The court denied the motion after concluding the administrative hearing officer had not ruled the letters were inadmissible and, therefore, the court must conclude they were considered.

The Department first contends it is unclear what standard of review is applicable at the district court level. The Department then identifies a potential conflict between K.S.A. 8-259(a) and K.S.A. 77-621(c) as regards the district court's standard of review. The Department argues the de novo standard in 8-259(a) conflicts with the substantial competent evidence standard in 77-621(c)(7).

K.S.A. 77-621(c) is applicable "[e]xcept to the extent that this act or another statute provides otherwise." K.S.A. 77-621(a). As a general rule, judicial review of disputed issues of fact is confined to the agency record for judicial review as supplemented by additional evidence taken pursuant to the act. K.S.A.1992 Supp. 77-618. One of the listed exceptions to this general rule is review of driver's license suspensions. Orders of the division of vehicles which suspend a driver's license are to be reviewed by the district court in accordance with 8-259(a). K.S.A.1992 Supp. 77-618(c). K.S.A. 8-259(a) provides: "The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension, cancellation or revocation under the provisions of this act." Therefore, the district court's standard of review in driver's license suspension cases is governed by 8-259(a), which provides for de novo review.

Even though 8-259(a) provides for de novo review, different degrees of de novo review exist. This concept was discussed in Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 758 P.2d 226, rev. denied 243 Kan. 777 (1988), an appeal from an order upholding suspension of Angle's driver's license for refusing to submit to a breath alcohol test. This court first determined the Act for Judicial Review and Civil Enforcement of Agency Actions should be applied retrospectively to the case and that the Act provided for de novo review by the district court pursuant to 8-259(a). We then noted the nature of the agency function will determine the district court's scope of review. When the subject of review is a purely administrative function, the district court is restricted to a more limited form of review, even if the statute provides for do novo review. When the subject of de novo review is a judicial function of the agency, the district court may make independent findings of fact and law. Angle, 12 Kan.App.2d at 763, 758 P.2d 226. This court then held that "the agency is performing a judicial function in driver's license suspension cases." 12 Kan.App.2d [18 Kan.App.2d 328] at 763, 758 P.2d 226. See Podrebarac v. Kansas Dept. of Revenue, 15 Kan.App.2d 383, 384, 807 P.2d 1327 (1991).

Although the Department argues this court's decisions in Angle and Buchanan v. Kansas Dept. of Revenue, 14 Kan.App.2d 169, 788 P.2d 285 (1989), are contradictory concerning the review applicable at the district court level, both decisions recognize 77-621 generally applies to the district court's review of the Department's administrative decisions. In Angle, which specifically addressed the issue concerning the appropriate standard of review for the district court in driver's license suspension cases, the analysis concluded 8-259(a) governed.

As regards this court's standard of review, this court applies a substantial competent evidence standard when reviewing a district court's ruling in a driver's license suspension case. K.S.A. 77-623 provides: "Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases."

The Department next contends the district court erred in admitting letters from Zurawski's doctor, arguing the letters were hearsay and lacked proper foundation. Before addressing this issue, we must first determine whether the issue was preserved for appeal because it was not raised by the Department at the administrative hearing.

In Angle, the...