Opinion
No. 111,316.
2014-10-31
Javier LUNA, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Jackson District Court; Michael A. Ireland, Judge.Kevin P. Shepherd, of Topeka, for appellant.Donald J. Cooper, legal services, of Kansas Department of Revenue, for appellee.
Appeal from Jackson District Court; Michael A. Ireland, Judge.
Kevin P. Shepherd, of Topeka, for appellant. Donald J. Cooper, legal services, of Kansas Department of Revenue, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Javier Luna appeals an order by the district court denying his petition for judicial review. The Kansas Department of Revenue (KDOR) denied Luna's request for an administrative hearing after his license was suspended because his request was out of time. Subsequently, Luna sought leave to request a hearing out-of-time on the ground of excusable neglect. Specifically, Luna claimed he did not understand the deadline for requesting a hearing because he allegedly does not understand English very well. Subsequently, the district court affirmed the KDOR's decision. On appeal, we conclude that this case must be remanded to the district court because neither the KDOR nor the district court made a finding regarding excusable neglect.
Facts
On July 3, 2013, Luna was arrested for driving under the influence of alcohol after refusing to take a breath test. The following day, the arresting officer served Luna with a notice of driver's license suspension—known as a Form DC–27—that indicated he had 14 days to request an administrative hearing with the KDOR. Unfortunately, Luna did not request a hearing until July 24, 2013, which was approximately 6 days after the deadline had expired.
In a letter dated July 26, 2013, Luna's attorney requested that the KDOR allow his client to file his request for an administrative hearing out of time on the ground of excusable neglect. In support of this request, Luna signed an affidavit—in English—stating that Spanish is his first language and that he does “not read English very well.” Luna also stated in the affidavit that his unidentified “significant other assisted [him] in reading the notice of suspension” and they both believed he had 30 days to request an administrative hearing.
In a letter dated July 30, 2013, the KDOR denied Luna's request to file out of time. Although the KDOR correctly noted that Luna failed to request an administrative hearing within the 14–day timeframe required by Kansas law, it failed to determine whether Luna had shown excusable neglect. Thereafter, on August 9, 2013, Luna filed a petition for judicial review in the Jackson County District Court.
On December 13, 2013, the district court held a hearing in this judicial review action. Although Luna did not appear at the hearing in person, his attorney argued that his client had shown excusable neglect based on his affidavit. After taking the matter under advisement, the district court issued an order on December 16, 2013, in which it denied Luna's petition for judicial review as a matter of law. In addition, the district court ordered the KDOR to return the $50 administrative hearing fee to Luna. Thereafter, Luna timely appealed to this court.
Analysis
By statute, a person that operates a vehicle in Kansas “is deemed to have given consent, subject to the provisions of this article, 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.” K.S.A.2013 Supp. 8–1001(a). Under K.S.A.2013 Supp. 8–1002, a driver who fails or refuses a test is entitled to notice of his or her rights—including the right to request an administrative hearing and the procedure that the driver must follow to request such a hearing—which are provided in a document commonly known as a DC–27 form.
K.S.A.2013 Supp. 8–1020(a) requires that a licensee must request an administrative hearing within 14 days after being served with the DC–27 form. In the present action, it is undisputed that Luna failed to request a hearing within 14 days. Nevertheless, Luna contends that the court should excuse him from belatedly seeking an administrative hearing because his “first language is Spanish” and he does “not read English very well.” See Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 519, 213 P.3d 1061 (2009).
K.S.A. 60–206 is made applicable to requests for administrative hearings pursuant to K.S.A.2013 Supp. 8–1020(v). Specifically, K.S .A. 60–206(b)(l)(B) provides that a filing deadline may be extended for “good cause” upon a showing of “excusable neglect.” Generally, if a party is claiming excusable neglect when requesting an extension of the deadline to file an appeal, the standard of review of the district court's decision is abuse of discretion. See Bank of Whitewater v. Decker Investments, Inc., 238 Kan. 308, 315, 710 P.2d 1258 (1985).
The burden to show excusable neglect is on the party seeking an extension of the time limitation and must be determined on a case-by-case basis. See Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). In other words:
“When a party in default seeks an enlargement of time based upon excusable neglect under K.S.A. 60–206(b), his request should be supported by evidence of his good faith, he should establish a reasonable excuse for his failure and he should show that the interests of justice can be served by granting the enlargement. After considering these matters the determination should rest in the sound judicial discretion of the trial court.” Boyce v. Boyce, 206 Kan. 53, 56, 476 P.2d 625 (1970).
As the KDOR points out, K.S.A.2013 Supp. 8–1001(r) provides that “[i]t shall not be a defense that the person did not understand the written or oral notice required by this section.” But it is important to recognize that the notice referred to in K.S.A.2013 Supp. 8–1001 is an implied consent notice—commonly known as a DC–70 form. Accordingly, a person cannot escape the provisions of K.S.A.2013 Supp. 8–1001 by claiming that he or she did not understand the written or oral implied consent notice given by a law enforcement officer. See Kim v. Kansas Dept. of Revenue, 22 Kan App.2d 319, 916 P.2d 47 (1996); Buchanan v. Kansas Dept of Revenue, 14 Kan.App.2d 169, 788 P.2d 285 (1989).
This judicial review action, however, does not involve a DC–70 implied consent advisory form controlled by K.S.A.2013 Supp. 8–1001. Rather, as indicated above, this action involves a DC–27 driver's license suspension notice mandated by K.S.A.2013 Supp. 8–1002. Moreover, as also reflected above, the procedure for requesting an administrative hearing after receiving a DC–27 form is controlled by K.S.A.2013 Supp. 8–1020. And, K.S.A.2013 Supp. 8–1020(v) expressly incorporates the provisions of K.S.A. 60–206 for determining the timeliness of a request for an administrative hearing. Thus, we conclude that K.S.A.2013 Supp. 8–1001(r) is not applicable in this judicial review action.
Unfortunately, neither the KDOR nor the district court has made a finding of whether Luna has met his burden of establishing excusable neglect. Moreover, it is impossible for us to determine based on the scant facts contained in the record on appeal whether Luna's alleged difficulty reading the English language is sufficient to constitute excusable neglect. In particular, we cannot determine the extent of Luna's ability to read or comprehend the English language. Hence, we vacate the district court's order entered on December 16, 2013 and remand this petition for a determination of whether Luna's claim of excusable neglect was made in good faith, whether his excuse is reasonable, whether it is supported by evidence, and whether the interests of justice are served by allowing him to belatedly request an administrative hearing.
Vacated and remanded with directions.