Opinion
No. 106,410.
2012-06-1
Ryan KUGLER, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge. Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Donald J. Cooper, of Kansas Department of Revenue, for appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Donald J. Cooper, of Kansas Department of Revenue, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ryan Kugler appeals the district court's decision to affirm the Kansas Department of Revenue's (KDR) suspension of his driver's license. Kugler asserts that he was not given the mandatory Implied Consent Advisory (ICA) notices and was not properly served with notice of his license suspension. We affirm.
On June 12, 2009, Kansas Highway Patrol Trooper Chris Hammond arrested Kugler for driving under the influence of alcohol (DUI). Trooper Hammond transported Kugler to the Saline County jail for an Intoxilyzer 8000 breath test. The test results indicated that Kugler had a blood alcohol concentration of .244.
The room in which the Intoxilyzer 8000 test was given is referred to as the “Intox room.” Trooper Hammond and Kugler were the only individuals in the Intox room when the breath test was administered. Hammond and Kugler disagree on to what transpired in the Intox room.
Trooper Hammond testified that he followed the procedure he usually follows in DUI cases. While in the Intox room with Kugler, Hammond stated that he read Kugler the ICA, commonly referred to as the DC–70 form, filled out his paperwork, and provided Kugler with a copy of the form and a copy of his driver's license suspension, commonly referred to as the DC–27 form. Hammond also testified that on the DC–27 form he marked the box indicating that he personally served Kugler with a copy. The copy of the DC–27 form given to Kugler was pink.
Kugler testified that he never received the DC–27 and DC–70 forms from Hammond while at the jail. Kugler stated that when he was booked into jail, deputies collected all of his personal belongings, which were returned to him when he was released the following day. When Kugler returned home, he noted that one of the items with his personal possessions was a sealed envelope. He opened the envelope, which contained his wallet, a white sheet of paper, and a pink sheet of paper. Kugler testified that he never received these papers when he was in jail.
Melissa Kugler, Kugler's wife, testified that she was home when Kugler returned from jail and she witnessed Kugler open the sealed envelope. She testified that Kugler did not recognize the pink piece of paper. She further testified that the pink paper was folded to fit inside the envelope and was not inside of Kugler's wallet.
Intake records from the Saline County jail show that when Kugler was booked into the jail, included with his personal belongings were copies of the DC–27 and the DC–70 forms.
Kugler requested an administrative hearing on his license suspension. Following that hearing, the KDR affirmed the suspension of Kugler's license. Kugler petitioned the district court to review the KDR's decision. The district court held a hearing and affirmed Kugler's license suspension, finding that there was substantial competent evidence to support the finding that Hammond gave Kugler oral and written notification of the required advisories and personally served him with a copy of the DC–27. Kugler timely appealed.
An appellate court reviews a district court's decision to suspend an individual's driver's license under a substantial competent evidence standard. “Substantial competent evidence is ‘such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ [Citations omitted.] Whether substantial competent evidence exists is a question of law.” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010).
Kugler argues that there is not substantial competent evidence to support a finding that Hammond (1) read the ICA to him and gave him a copy of the DC–70 form and (2) personally served him with a copy of the DC–27 form.
K.S.A.2008 Supp. 8–1001(k) provides that a law enforcement officer must give an individual certain oral and written notifications before requesting that the individual submit to testing to determine the individual's blood alcohol concentration. The requirements of this statute are mandatory and a court will not uphold a driver's license suspension when an officer fails to substantially comply with these notice requirements. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 680, 840 P.2d 448 (1992).
Kugler's argument that Hammond failed to give him the required oral and written notices before requesting that he submit to a breath test is unpersuasive. Kugler's basic argument is that his testimony, and that of his wife, established that he did not receive the mandatory oral notifications or a copy of the DC–70 form when he was in jail. Kugler also complains that because the jail did not have audio-visual recording capabilities, it prevents him from demonstrating that his version of events is the correct one. Kugler is essentially asking the court to reweigh the evidence and find his version of events more credible.
In reviewing a district court's decision to suspend a driver's license, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. Mitchell v. Kansas Dept. of Revenue, 32 Kan.App.2d 298, 301, 81 P.3d 1258 (2004). Rather, an appellate court's role is to determine whether the district court's findings are supported by substantial competent evidence. Smith, 291 Kan. at 514.
In this case, Hammond testified that he read Kugler the ICA in the Intox room and provided Kugler with a copy of the DC–70 form. Moreover, intake logs from the jail show that when Kugler was booked into jail, he had a copy of the DC–70 form with his personal possessions. Therefore, there was substantial competent evidence to support the district court's finding that Hammond gave Kugler the oral and written notices required in K.S.A.2008 Supp. 8–1001(k).
Kugler also challenges the district court's finding that Hammond personally served him with a copy of the DC–27 form. On this issue as well, Kugler disagrees with the district court's findings and asks this court to conclude that his version of events is correct. Kugler testified that he never received a copy of the DC–27 form from Hammond, and the first time he saw his copy of that form was the day after his arrest when he returned home and looked into the envelope that contained his personal possessions. Kugler points out that his DC–27 form was not folded and placed in his wallet—an action Kugler presumably would have taken had Hammond given him his copy of the DC–27 form at the jail. Instead, Kugler asks this court to infer that the DC–27 form was placed with his belongings after he was booked into jail based upon the fact that the document was folded and placed in an envelope that was included with his other personal property.
K.S.A.2008 Supp. 8–1002(c) provides:
“When the officer directing administration of the testing ... determines that a person has failed a test and the criteria of subsection.(a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8–1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles.”
Even if we were to accept Kugler's statement that Hammond did not personally serve him with a copy of the DC–27 form, it is still not a sufficient reason for reversal.
In Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 853 P.2d 69,rev. denied 253 Kan. 856 (1993), a panel of this court addressed a situation nearly identical to the one in this case. In that case, Anderson disputed that he had been properly served with his copy of the DC–27 form. The KDR conceded that Anderson's DC–27 form was probably placed with his personal belongings when Anderson was booked into the jail. Anderson, 18 Kan.App.2d at 351.
A panel of this court held that placing a copy of the DC–27 form with Anderson's personal belongings was inadequate because K.S.A. 8–1002(c) (Furse 1991) required personal service of the DC–27 form. The panel then concluded that substantial compliance did not apply to the provisions of K.S.A. 8–1002(c) (Furse 1991). Citing Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 673 P.2d 1126 (1983), the court noted that the Code of Civil Procedure contained a provision authorizing substantial compliance, but K.S.A. 8–1001 et seq. did not contain a comparable provision. Anderson, 18 Kan.App.2d at 352–53.
However, in Byrd v. Kansas Dept. of Revenue, 43 Kan.App.2d 145, 221 P.3d 1168 (2010), another panel of this court revisited the substantial compliance issue in K.S.A.2007 Supp. 8–1002(c). In that case, Byrd's driver's license was suspended after the results of a blood test revealed that Byrd's blood alcohol concentration exceeded the legal limit. An administrative assistant, and not the officer who actually directed Byrd to submit to a blood test, mailed a copy of the DC–27 form to Byrd after learning the results of the test. Byrd contested the validity of that service pursuant to K.S.A.2007 Supp. 8–1002(c). Byrd, 43 Kan.App.2d at 146–47.
The court in Byrd acknowledged the Anderson decision but also recognized that after the Anderson decision, the legislature amended K.S.A. 8–1001 (Furse 1991) by adding K.S.A. 8–1001(i) (now at [v] ), which provided that the act was remedial in nature and is to be liberally construed to promote public health, safety, and welfare. See L.1993, ch. 275, sec. 1. They concluded that the inclusion of this provision altered the statutory scheme that provided the primary basis of the Anderson court's decision. The panel further concluded that the inclusion of K.S.A.2007 Supp. 8–1001(v) allowed the court to apply the doctrine of substantial compliance and evaluate whether the administrative assistant's mailing of the DC–27 form to Byrd substantially complied with the service requirements of K.S.A.2007 Supp. 8–1002(c). Byrd, 43 Kan.App.2d at 154.
Kugler cites Byrd in his brief, but he attempts to distinguish the case by arguing that substantial compliance does not apply to personal service under K.S.A.2008 Supp. 8–1002(c). Although it is true that the panel in Byrd did not address the adequacy of personal service under 8–1002(c), that was the precise issue addressed in Anderson. The Anderson court concluded that substantial compliance did not apply, but the panel in Byrd reasoned that the legislature altered the reasoning in Anderson by enacting K.S.A.2007 Supp. 8–1001(v). Therefore, a fair reading of Byrd leads to the conclusion that substantial compliance applies to both service by mail and personal service under K.S.A.2008 Supp. 8–1002(c). Accordingly, if Hammond had placed a copy of the DC–27 form with Kugler's belongings after Kugler was booked into jail, then Hammond substantially complied with the requirements of K.S.A.2008 Supp. 8–1002(c).
The district court's findings that Hammond gave Kugler oral and written notice of the ICA and personally served Kugler with a copy of the DC–27 form were supported by substantial competent evidence. Moreover, even if Kugler's version of the events is accurate, he has still failed to show that Hammond failed to substantially comply with the personal service requirement of K.S.A.2008 Supp. 8–1002(c).
Affirmed.