Creecy v. Kan. Dep't of Revenue

447 P.3d 959

Michael CREECY, Appellant,

v.KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 117,035

Supreme Court of Kansas.

Opinion filed August 23, 2019

Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellant.

Dwight R. Carswell, assistant solicitor general, argued the cause, and Adam D. King, of Kansas Department of Revenue, Bryan C. Clark, assistant solicitor general, Toby Crouse, solicitor general, and Jeffrey A. Chanay, chief deputy attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Johnson, J.:

Michael Creecy seeks our review of the Court of Appeals' decision to affirm the district court's upholding the suspension of Creecy's driver's license by the Kansas Department of Revenue (KDR). Creecy first challenges the constitutionality of K.S.A. 2014 Supp. 8-1020(d)(2), which requires a motorist whose driver's license has been confiscated by a law enforcement officer as a consequence of a driving under the influence (DUI) arrest to pay a $50 fee in order to be granted an administrative hearing on the propriety of the license deprivation. Further, Creecy argues his driver's license suspension must be reversed because: (1) the arresting officer failed to comply with the personal service requirements of K.S.A. 2014 Supp. 8-1001(c) ; (2) Creecy's inability to complete the breath test due to a medical condition did not qualify as a test refusal for driver's license suspension purposes; and (3) the arresting officer failed to comply with the statutorily mandated implied consent advisories.

We agree with Creecy's contention that K.S.A. 2014 Supp. 8-1020(d)(2)'s monetary requirement to obtain a due process hearing, without any exception for the indigency of the licensee, renders that provision facially unconstitutional. The remedy, however, is not a restoration of Creecy's driving privileges, but rather a refund of the $50 fee. Because we find no merit to Creecy's other claims, we affirm the suspension of his driver's license.

FACTUAL AND PROCEDURAL OVERVIEW

There is no dispute that police had probable cause to arrest Creecy for DUI in October 2014. After being taken to the Gardner Police Department for processing and testing, Creecy began to have difficulty breathing. Officer David Rollf called emergency medical personnel, who attended to Creecy and administered oxygen. Creecy appeared to recover and declined to go to the hospital.

Officer Rollf began the procedure to conduct a postarrest test for blood alcohol content (BAC) with the Intoxilyzer 8000 breath testing machine. Officer Rollf gave Creecy the implied consent advisories required by K.S.A. 2014 Supp. 8-1001(k), both orally and using the DC-70 written form, advising Creecy of his rights and potential penalties for failure or refusal.

Creecy attempted to provide a breath sample twice, but he was unable to provide breath in a sufficient amount for the machine to register a successful test. During the attempts, he displayed outward physical signs that he was having difficulty providing the breath samples. After the second unsuccessful attempt, Officer Rollf told Creecy that his failure to provide a measurable breath sample was considered a test refusal. Officer Rollf completed the Officer's Certification and Notice of Suspension form—Form DC-27—notifying Creecy that his license was being administratively suspended for refusal of a BAC test, handed it to Creecy, and prepared to take Creecy to the Johnson County Jail.

As Creecy stood up he had another medical episode, falling to the floor and jerking violently. Medical personnel again attended to Creecy, and he regained consciousness after approximately one minute. Eventually Creecy was put on an ambulance and taken to a hospital. Officer Rollf told Creecy that he would give him a ticket, instead of taking him to jail, and that all of his paperwork, including the DC-27 form, would be with Creecy's belongings.

Creecy requested an administrative hearing, pursuant to K.S.A. 2014 Supp. 8-1020(a)(1), to challenge the suspension of his driver's license. Creecy paid a $50 administrative fee, required by K.S.A. 2014 Supp. 8-1020(d)(2), to obtain administrative review. The Kansas Department of Revenue (KDR) administrative law judge affirmed the suspension, and Creecy petitioned for de novo review in Johnson County District Court. After a hearing in June 2016, Johnson County District Judge James Vano affirmed the suspension.

Creecy timely appealed the district court's decision, arguing: (1) Creecy did not refuse the breath test because his failure to complete the test was caused by a medical condition; (2) any refusal was immediately rescinded; (3) the implied consent advisories did not substantially comply with the applicable statutes; (4) Creecy did not receive personal service of the DC-27 certification and notice; and (5) the requirement to pay a $50 fee per K.S.A. 2014 Supp. 8-1020(d)(2) to get an administrative hearing is unconstitutional.

The Court of Appeals affirmed the district court. Creecy v. Kansas Dept. of Revenue , No. 117,035, 2017 WL 6397038, at *7 (Kan. App. 2017) (unpublished opinion). The panel accepted the district court's analysis of the evidence that refuted Creecy's claim that he was having an asthma attack that prevented completion of the breath test and determined the evidence did not support that Creecy asked for a third test attempt. 2017 WL 6397038, at *2-3. It determined that the DC-70 form substantially complied with the law despite "tend[ing] towards the obscure." 2017 WL 6397038, at *4. Applying a substantial compliance test, the panel opined that the DC-27 was personally served on Creecy. 2017 WL 6397038, at *4-5. Finally, the panel determined that the $50 fee was not categorically unconstitutional, albeit the panel expressly indicated that "[t]he constitutionality of the lack of a bypass for indigents is not before us." 2017 WL 6397038, at *5-7.

In his petition for review, Creecy does not raise the issue of rescission of test refusal, accordingly that issue is not considered herein. Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 53).

CONSTITUTIONALITY OF MANDATORY FEE FOR DUE PROCESS HEARING

Creecy first challenges K.S.A. 2014 Supp. 8-1020(d)(2)'s mandatory fee as an unconstitutional barrier to the exercise of a driver's license holder's right to due process upon the government's seizure of that property. Before addressing that question, we pause to review Kansas' implied consent statutory scheme, which will be relevant to all of Creecy's issues.

Pursuant to K.S.A. 2014 Supp. 8-1001(a) any person operating a vehicle in this State is deemed to have given consent to submit to testing to determine the presence of alcohol or drugs. Among other things, an officer is required to request that a person submit to a test after the driver has been arrested or taken into custody for DUI. K.S.A. 2014 Supp. 8-1001(b)(1)(A).

This postarrest evidentiary test is distinguished from a preliminary breath test (PBT), which may be used to help an officer determine whether to make a DUI arrest, and which has limited admissibility in later proceedings. K.S.A. 2014 Supp. 8-1012(d). The definition of a postarrest test refusal specifically excludes refusal to submit to a PBT. K.S.A. 2014 Supp. 8-1013(i).

Before administering the postarrest test, an officer must give oral and written advisories of the various rights and notices of the implied consent law. K.S.A. 2014 Supp. 8-1001(k). The written form is known as a DC-70.

If a person refuses to submit to a test, or fails to complete one, his or her driver's license will be suspended for one year. K.S.A. 2014 Supp. 8-1001(k)(5). A person's inability to successfully complete a test is considered a test refusal unless the person can show that the failure was due to a medical condition not caused by drugs or alcohol. K.S.A. 2014 Supp. 8-1001(q).

In the event of a test refusal, an officer must prepare an officer's certification of test refusal and notice of license suspension. K.S.A. 2014 Supp. 8-1002. The written form is known as a DC-27. The officer must provide personal service of the DC-27 to the motorist. K.S.A. 2014 Supp. 8-1002(c).

A person whose license has been suspended may request an administrative hearing within 14 days of service of the DC-27. K.S.A. 2014 Supp. 8-1020(a)(1). The person is required to pay a $50 fee for the hearing. K.S.A. 2014 Supp. 8-1020(d)(2). There is no provision for a waiver of the fee or for any delay in the payment of the fee in the event the person is indigent and there is no mechanism for a refund in the event the law enforcement officer wrongfully deprived the person of his or her license. Specifically, the fee provision states:

"The division shall charge a fee of $50 for a hearing, to be paid within the time period for making a timely request for a hearing, whether held by telephone or in person, to be applied by the division for administrative costs to conduct the hearing. The division shall remit all hearing fees to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the division of vehicles operating fund. The hearing fee established in this section shall be the only fee collected or moneys in the nature of a fee collected for such hearing. Such fee shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee." K.S.A. 2014 Supp. 8-1020(d)(2).

After the administrative hearing order, a person may request de novo review of that order by the district court. K.S.A. 2014 Supp. 8-1020(o). Review is in accordance with the implied consent statutes and the Kansas Judicial Review Act (KJRA). K.S.A. 2014 Supp. 8-1020(p).

(a) Standing

As a preliminary matter, we address the KDR's assertion that Creecy does not have...