Opinion
No. 108,270.
2013-08-23
David ARMSTRONG, Appellant/Cross-appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellee/Cross-appellant.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge. David E. Armstrong, appellant/cross-appellee pro se. J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, for appellee/cross-appellant.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge.
David E. Armstrong, appellant/cross-appellee pro se. J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, for appellee/cross-appellant.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Armstrong appeals from the district court's order affirming the Kansas Department of Revenue's (KDR) decision to suspend his driver's license. He contends that the district court abused its discretion in refusing to hear the testimony of an expert witness that Armstrong's diabetes and exposure to natural gas may have affected the accuracy of the breath test reading. Armstrong also complains that the KDR's failure to file an answer until it was served with process denied his right to a speedy and fair trial.
The KDR cross-appeals, alleging that Armstrong's petition for judicial review should be dismissed for various reasons we need not address because the cross-appeal is predicated upon Armstrong prevailing on his claims of error. Because we find no merit in Armstrong's claims, we affirm the district court, and the cross-appeal is now moot.
Armstrong recites a number of claimed facts for which there is no citation to the record as required by Kansas Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 38). Accordingly, we disregard any such unsupported facts.
On June 25, 2010, Armstrong's vehicle was stopped by law enforcement for failing to maintain a single lane of traffic. The officer noted the odor of alcohol, Armstrong's bloodshot eyes, and his statement about his alcohol consumption. Armstrong failed the sobriety tests and the preliminary breath test.
Armstrong was arrested for driving under the influence of alcohol. Following his arrest, Armstrong was taken to the police station, where he failed a breath test. The result of the testing revealed that Armstrong had a breath alcohol concentration of .152, almost twice the legal limit. Armstrong did not request a blood test to either verify or undermine the Intoxilyzer 8000 test results. Based on the result of Armstrong's chemical breath test, the KDR suspended his driver's license.
Armstrong requested an administrative license suspension hearing. See K.S.A.2009 Supp. 8–1020. Armstrong unsuccessfully argued that he was diabetic and that his condition may have caused the high reading on the breath test. Armstrong also mentioned that he worked for the national gas industry and he had responded to a gas leak earlier that day. Armstrong indicated to the officer that he had consumed six to eight beers. The hearing officer affirmed the suspension.
Armstrong sought judicial review in the district court under the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. After receiving notice of the petition, the KDR stayed the suspension of Armstrong's license.
The KDR moved to dismiss on the basis that the petition was not properly served and did not contain the mformation required by K.S.A.2009 Supp. 77–614(b)(1)–(7). The district court denied the KDR's motion.
Armstrong filed an amended petition, claiming that the KDR's suspension of his driver's license should be set aside because (1) the officer did not have reasonable grounds to request that Armstrong take a breath test, and (2) Armstrong's diabetic condition voided the test result showing a blood-alcohol concentration of .152.
Armstrong wanted to call Thomas Workman as an expert witness to challenge the reliability of the Intoxilizer 8000 test results. At a hearing on the admissibility of Workman's testimony, Armstrong's counsel noted that Armstrong is diabetic. He stated that Workman is an electrical engineer and attorney who would testify that the Intoxilyzer 8000 does not detect molecules of ethyl alcohol but only parts of the molecule. The machine does not differentiate between ethyl alcohol arising from a diabetic condition (and apparently also from natural gas exposure) and the parts of the molecule associated with alcohol consumption, thus rendering Armstrong's breath test result unreliable
The KDR argued that Armstrong's challenge to the accuracy and reliability of the breath test was outside the scope of K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H), which sets forth an exclusive list of issues that can be considered in a driver's license suspension case. The district court agreed and denied Armstrong's request to admit Workman's expert testimony. The court ruled that K.S.A.2009 Supp. 8–1020(h)(2) did not permit the court to question the reliability of the Intoxilyzer 8000.
Armstrong's appeal and the KDR's cross-appeal followed.
Armstrong argues the district court abused its discretion and employed incorrect legal reasoning in refusing to hear Workman's testimony on how Armstrong's diabetes and his exposure to natural gas might have affected the accuracy of the breath test reading. Armstrong claims that he is not challenging the reliability of the machine, but rather he is merely requesting that the district court allow the expert witness to testify regarding the accuracy and content of his breath-alcohol test result.
Under the KJRA, we exercise the same limited review of the agency's action as though the appeal had been made directly to us. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, Syl. ¶ 1, 232 P.3d 856 (2010). When the only issues before the court are legal issues, we exercise de novo review. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012).
We first attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meaning. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009). “[S]tatutory interpretation begins with the language selected by the legislature. If that language is clear, if it is unambiguous, then statutory interpretation ends there as well.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008). We do not focus on an isolated part of a legislative act but rather consider and construe all parts of the act in pari materia with a view of bringing the provisions into workable harmony. Redd v. Kansas Truck Center, 291 Kan. 176, 195, 239 P.3d 66 (2010).
K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H) defines the circumstances under which the district court may grant relief to a licensee whose driving privileges have been suspended on account of a breath test failure. Armstrong's proffered expert testimony regarding the effect of diabetes on the Intoxilyzer 8000 is not within the scope of issues listed in K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H). See Martin, 285 Kan. at 631 (stating that K.S.A. 8–1020[h][2] is “clear and unambiguous” and its list of issues that may be decided in an administrative driver's license suspension hearing is exclusive).
Armstrong's petition for review did not contain reference to any of the subsections of K.S.A.2009 Supp. 8–1020(h)(2), and he fails to specify on appeal under which subsection of K.S.A.2009 Supp. 8–1020(h)(2) his claim falls. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002). Further, K.S . A.2009 Supp. 8–1020(g) limits the witnesses who may testify, and Armstrong's proffered witness does not fall under the list of permissible witnesses.
The appellate courts have repeatedly rejected challenges to the reliability of the results of the Intoxilyzer machine under K.S.A.2009 Supp. 8–1020(h)(2). See Creten v. Kansas Dept. of Revenue, 45 Kan.App.2d 1098, 257 P.3d 1250 (2011); Barnett v. Kansas Dept. of Revenue, 44 Kan.App.2d 498, 238 P.3d 324 (2010); Mowry v. Kansas Dept. of Revenue, No. 106,781, 2012 WL 6217192 (Kan.App.2012) (unpublished opinion).
The legislative history of K.S.A. 8–1020(h)(2) is consistent with the holdings in Barnett, Creten, and Mowry. Under K.S.A.1997 Supp. 8–1002(h)(2)(D), the reliability of the testing equipment was included within the scope of issues that could be considered at the administrative level. But in 2001, K.S.A. 8–1002 was recodified as K.S.A. 8–1020, and the language of (h)(2)(D) was changed from whether the equipment was “reliable” to whether it was “certified .” See K.S.A.2009 Supp. 8–1020(h)(2)(D). When the legislature revises an existing law, we presume that the legislature intended to change the law as it existed prior to the amendment. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 464, 228 P.3d 403 (2010). Thus, we presume that the legislature intended to restrict challenges to the reliability of the equipment.
In this case, Armstrong seeks to challenge the reliability of the Intoxilyzer as it relates to the accuracy of its measurement of blood-alcohol content in individuals with diabetes. He does not argue that the Intoxilyzer machine was not certified or that the testing procedures employed did not substantially comply with KDHE's requirements. Thus, Armstrong's issue is precluded on appeal because it does not fall within the exclusive list under K.S.A.2009 Supp. 8–1020(h)(2)(A)–(H).
Any risk of error in the use of KDHE-approved equipment and procedures could have been minimized under K.S.A. 8–1004 by Armstrong getting an independent test. Drivers are required to be advised of their right to an independent test under K.S.A. 8–1004. There is no evidence in this case that Armstrong was not advised of and provided with the opportunity to take advantage of the independent test. Armstrong did not take advantage of this right.
For the first time on appeal, Armstrong also argues that he was denied a “fair and speedy” trial because the KDR did not file an answer to his petition for judicial review within the time period allowed. The constitutional right to a speedy trial in a criminal case does not apply in a civil proceeding such as this. But we need not consider the issue further because the issue was not raised before the district court, and Armstrong does not argue any exception to this requirement. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
We find no merit in Armstrong's claims. Thus, the issues raised in the KDR's cross-appeal are now moot.
Affirmed.