Opinion
No. 110,765.
2014-10-24
James M. GORMAN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Johnson District Court; James F. Vano, Judge.David C. Graham, of Kansas City, for appellant.James G. Keller, deputy general counsel, Kansas Department of Revenue, for appellee.
Appeal from Johnson District Court; James F. Vano, Judge.
David C. Graham, of Kansas City, for appellant. James G. Keller, deputy general counsel, Kansas Department of Revenue, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
James M. Gorman appeals the administrative suspension of his driver's license after he failed a breath alcohol test. Gorman challenged the reliability of the breath test because there was no evidence the Intoxilyzer was actually working correctly at the time he gave his breath sample. The district court granted the motion to dismiss filed by the Kansas Department of Revenue (KDOR) after the court found the only issue raised by Gorman was outside the scope of the limited issues reviewable under K.S.A.2011 Supp. 8–1020(h)(2). We affirm.
The facts are not much in dispute. On January 25, 2012, Gorman was stopped by Officer John DeMoss of the Merriam Police Department. Officer DeMoss arrested Gorman on suspicion of driving under the influence. At the police station, Gorman blew a .129 in the Intoxilyzer 8000. The legal measure for intoxication in Kansas is .08. Gorman challenged the administrative suspension of his license. At the administrative hearing, the KDOR presented a copy of the officer's certification and notice of suspension, a copy of the printout indicating the result of Gorman's breath test, a copy of the affidavit from the Kansas Department of Health and Environment (KDHE) showing proper certification of the officer and the machine, and a copy of the KDHE testing protocol. The administrative hearing officer affirmed the suspension of Gorman's license. On judicial review, the district court found Gorman had not raised a challengeable issue.
K.S.A.2011 Supp. 8–1020(h) provides an exclusive list of issues that can be raised by a person who has refused a test or when a person has failed a test. The appellate courts have repeatedly rejected challenges to the reliability of the results of the Intoxilyzer machine under K.S.A.2013 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 allowing review of whether the equipment was “reliable” to whether it was “certified.” See K.S.A.2011 Supp. 8–1020(h)(2)(D). When the legislature revises an existing law, we presume the legislature intended to change the law as it existed prior to the amendment. State v. Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012). Thus, we presume the legislature intended to restrict challenges to the reliability of the equipment.
Gorman's argument goes straight to the reliability of the Intoxilyzer. He argues that without objective proof that the Intoxilyzer was working correctly, its readings were unreliable. And it is a violation of his due process rights to not allow him the opportunity to challenge the breath-alcohol test result.
As the district court noted in its decision, the facts in Mowry provided an even better argument for a due process violation because Mowry had evidence the Intoxilyzer in that case had malfunctioned several weeks before Mowry's test. Yet, the court in Mowry still held the legislature has the prerogative to define the scope of an administrative hearing and the issues that may be contested in that process or upon judicial review, and found Mowry's claim did not fall within the scope of issues that a court may consider upon judicial review of an administrative suspension of driving privileges Mowry, 2012 WL 6217192, at *6. The district court correctly held we are procedurally precluded from reaching the merits of this issue.
Affirmed.