Opinion
No. 108,216.
2013-07-5
David A. HEITMAN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge. Shawn R. DeJarnett, of DeJarnett Law Office, L.L.C., of Wellington, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge.
Shawn R. DeJarnett, of DeJarnett Law Office, L.L.C., of Wellington, for appellant. James G. Keller, deputy general counsel, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David A. Heitman appeals the decision of the Sumner County District Court to uphold the Kansas Department of Revenue's suspension of his driving privileges for refusing to take a blood-alcohol test. Heitman argues that because he voluntarily submitted to a blood test, his earlier refusal to take a breath test should not be grounds to suspend him. While that argument has a certain superficial sensibility to it, the controlling statutory language is plainly to the contrary. We, therefore, affirm the district court.
The issue here ultimately presents a fairly narrow question of statutory interpretation. The material facts are not really in dispute on appeal. In outlining the factual background, we draw heavily on the district court's findings made following a de novo hearing on the Department's suspension of Heitman's driving privileges. The district court heard evidence on May 7, 2012, and filed its written findings and conclusions upholding the suspension 2 weeks later.
On May 8, 2011, Sumner County Sheriff's Deputy Fred Corley arrested Heitman for driving under the influence, in violation of K.S.A.2010 Supp. 8–1567, and transported him to the Sheriff's Office. Corley requested that Heitman submit to both a breath test and a blood test to measure the level of alcohol in his system. Heitman agreed to the dual testing but asked that the blood draw be done at a hospital.
Deputy Michael Roths actually administered the breath test to Heitman using an Intoxilyzer 8000. Corley was physically present before and during the testing. Heitman twice failed to provide a sufficient breath sample to complete the testing. Roths told Heitman that the failure would be treated as a refusal. The district court credited Roths' testimony that Heitman was blocking air flow into the Intoxilyzer with his tongue, thereby preventing a valid test of his blood-alcohol level. Heitman presented no evidence his failure to provide an adequate breath sample resulted from a physical impairment or medical condition, a valid legal excuse for a failed test. See K.S.A.2010 Supp. 8–1001(q).
Heitman was taken to a nearby hospital where he compliantly had his blood drawn.
The district court testimony from Corley and Roths indicated that the sheriff had ordered DUI suspects undergo both breath and blood tests because the Sumner County Attorney did not want to prosecute cases based on Intoxilyzer 8000 results. The deputies understood that the sheriff directed both tests done as a way of demonstrating the reliability of the Intoxilyzer 8000 to the county attorney.
In due course, Corley reported Heitman's refusal to take the breath test to the Department. And the Department, in turn, suspended Heitman's driving privileges for a test refusal, as provided in K.S.A.2010 Supp. 8–1014. Heitman exhausted the administrative review process and requested a hearing in the district court challenging his suspension. Heitman now appeals the district court's decision.
Basically, Heitman says he should not be suspended for refusing the breath test because he submitted to the blood test, so the deputies and the county attorney obtained his blood-alcohol level in a way that could be used to prosecute him for DUI. Heitman contends his conduct satisfied the fundamental purpose of the statutes governing chemical tests.
On appeal, Heitman does not contest the sufficiency of the various notices he received about submitting to the tests and his right to hearings challenging the Department's decision to suspend him. Nothing in the record suggests the paperwork was in any way deficient. Nor does Heitman contest the district court's factual finding that he refused the breath test by obstructing air flow into the Intoxilyzer 8000. Such an argument would have been unavailing, since there was substantial evidence to support the district court's finding. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010) (standard for reviewing factual findings on appeal); Schoen v. Kansas Dept. of Revenue, 31 Kan.App.2d 820, 822, 74 P.3d 588 (2003) (same).
As we have indicated, Heitman's contention on appeal turns on the interpretation of statutory language relevant to testing and test refusals. Appellate courts exercise unrestricted review of those issues and owe no particular deference to administrative or district court determinations. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009) ( “Interpretation of a statue is a question of law over which this court has unlimited review.”); Gudenkauf v. Kansas Dept. of Revenue, 35 Kan.App.2d 682, 683, 133 P.3d 838 (2006).
In construing statutory provisions, appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). It is not the courts' business or function to add to or take away from the language of a statute. And the courts should not impose some meaning on a statute beyond what the words themselves convey through their common and usual definitions. Gracey, 288 Kan. at 257. The Kansas Supreme Court recently summed up those rules of construction in Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903–04, 249 P.3d 434 (2011), and reemphasized judicial adherence to the “plain and unambiguous meaning” of the statutory language.
We turn to the statutes applicable here. In pertinent part, K.S.A.2010 Supp. 8–1001(a) provides:
“(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs.” (Emphasis added.)
Similarly, K.S.A.2010 Supp. 8–1001(b) refers to a law enforcement officer “request[ing] a person to submit to a test or tests deemed consented to under subsection (a).” And K.S.A.2010 Supp. 8–1013(i) provides: “ ‘Test refusal’ or ‘refuses a test’ refers to a person's failure to submit to or complete any test, other than a preliminary screening test, in accordance with this act....”
Those statutes plainly permit a law enforcement officer to request multiple tests of a person arrested for DUI. The broad language of K.S.A.2010 Supp. 8–1001(a) extends implied consent to “one or more tests” of blood or breath to detect alcohol or drugs. The consent is without any particular limitation, although the legislature could have included restrictive language if it wished. The next subsection makes clear that an officer may request multiple tests. The legislature has defined a test refusal triggering suspension of driving privileges as the failure to complete a single test among the multiple tests an officer may request. The meaning of these statutes seems plenty clear. And they permit exactly what Deputies Corley and Roths did here in requiring breath and blood tests from Heitman. It seems equally clear that Heitman's failure on the breath test—conduct we treat as deliberate based on the district court findings—fits the definition of a refusal.
The legislature could have treated the circumstances here as something other than a refusal by including language to the effect that a person need only complete one of the requested tests to comply. But the legislature chose not to do so. It really isn't our business to speculate about the reasons behind those sorts of choices when they plainly must be what the legislature intended based on the statutory language. Nonetheless, the statutory scheme aims to insure compliance with an officer's testing request, whether for a single test or multiple tests, and punishes any recalcitrance. That's true even if an officer ultimately obtains the required blood-alcohol evidence despite a refusal on one of the requested tests. To do otherwise, would effectively encourage persons arrested to obstruct an officer's efforts to secure compliance with one test, knowing that obstructionism would have no particular consequences so long as they then complied with another test.
Heitman's suggested interpretation of the statutes would also create problems in an alternative fact scenario:
A significantly impaired driver smelling of alcohol is taken into custody for DUI. The arresting officer requests a breath test to measure the alcohol in the driver's system. The driver complies, but the results are well below .08 and what the driver's level of impairment would suggest. So the arresting officer requests a blood test to check for the presence of drugs that would account for the driver's degree of impairment. Under Heitman's construction of the statutes, the driver's refusal to take the blood test would not trigger an administrative suspension because he or she had completed a requested test.
The legislature drafted broad implied consent language integrated with the definition of refusal to cover those varied circumstances. While Heitman's situation might not fit right in the bull's eye of the legislative target, it certainly isn't so wide of the mark as to reflect an absurd result. He did, after all, obstruct the administration of the breath test.
The deputies here did not seek multiple tests from Heitman because of a particular evidentiary need in his case. They apparently did so as the result of a bugaboo the county attorney had about Intoxilyzer 8000 results holding up in court or a similar squabble between the county attorney and the sheriff. Although their motive in asking for multiple tests may have been unusual and from some perspective, perhaps, unfair to or at least inconvenient for Heitman, the deputies were acting within the scope of K.S.A.2010 Supp. 8–1001(a) in seeking both tests for the purpose of determining the presence of alcohol in his system. To the extent Heitman has a gripe about being collateral damage in a fight between the Sumner County Sheriff and the Sumner County Attorney—and that is the essence of his complaint here—he should be talking to the Kansas Legislature about changing the statutory language rather than asking us to misconstrue it.
Heitman has failed to present a legally viable argument for rejecting the administrative suspension of his driving privileges for a test refusal.
Affirmed.