Rosendahl v. Kan. Dep't of Revenue

447 P.3d 347

Brenda L. ROSENDAHL, Appellee,

v.KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 117,862

Supreme Court of Kansas.

Opinion filed August 23, 2019.

Joanna Labastida, of Legal Services Bureau, Kansas Department of Revenue, argued the cause, and Dwight R. Carswell, assistant solicitor general, was with her on the brief for appellant.

Ronald P. Wood, of Clyde & Wood, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.

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

The Kansas Department of Revenue (KDOR) appeals the district court's decision reversing the administrative suspension of Brenda Rosendahl's driving privileges and finding the statutorily required $50 fee for an administrative hearing to challenge the suspension of driving privileges is unconstitutional. We reverse the district court's reversal of Rosendahl's suspension and reinstate the suspension. We affirm the district court's finding that the $50 hearing fee is unconstitutional for the reasons stated in Creecy v. Kansas Dept. of Revenue , 310 Kan. ––––, ––––, P.3d ––––, 2019 WL 3977508 (2019) (No. 117,035, this day decided).

FACTUAL AND PROCEDURAL OVERVIEW

On December 12, 2015, at 5:35 p.m., Miami County Sheriff's Deputy Jacob Bell was dispatched to a possible noninjury accident. Dispatch advised that the driver might be intoxicated. Bell arrived at the scene at the same time as Sergeant Gray. Bell noticed a car just off the side of the roadway and a pickup near where he pulled onto the scene. Bell asked an unidentified man next to the pickup what happened, but the man just mumbled something and left.

Bell turned his attention to Rosendahl, who was speaking with Sergeant Gray. According to Bell, Rosendahl said she drove off the road after missing her turn at a dark curve. Bell did not know what time the accident occurred, but he assumed it happened shortly before he was dispatched at 5:35 p.m. because it gets dark in December shortly after 5:00 p.m. Bell noticed Rosendahl had bloodshot eyes, slurred her words, and had the odor of alcohol coming from her breath.

Bell asked Rosendahl what she had had to drink, and she admitted to having one beer several hours earlier. Bell described the area of the accident as an industrial-type with no visible restaurants, bars, or liquor stores nearby. Bell testified that he had no indication that Rosendahl had consumed alcohol post-driving; however, he did not explicitly ask Rosendahl about post-driving alcohol consumption.

Bell conducted standardized field sobriety tests which indicated that Rosendahl was impaired, and she failed the preliminary breath test (PBT). Bell arrested Rosendahl for driving under the influence and transported her to the police station. Rosendahl submitted to an Intoxilyzer 8000 breath test which showed her breath alcohol concentration was 0.209. On the Officer's Certification and Notice of Suspension Form (DC-27), Bell certified that reasonable grounds existed to believe Rosendahl had been operating a vehicle while under the influence of alcohol and her test results showed an alcohol concentration of .08 or greater.

Rosendahl requested an administrative hearing to challenge her license suspension and paid the $50 fee for the hearing. The administrative hearing officer affirmed the suspension, finding Bell had reasonable grounds to believe Rosendahl was operating a vehicle under the influence of alcohol.

Rosendahl filed an amended petition for trial de novo and judicial review of her license suspension alleging inter alia that 1) she was arrested and tested without reasonable grounds; and 2) submission of the required $50 administrative hearing fee before the hearing was a denial of due process and equal protection.

At trial de novo before the district court, Bell testified as summarized above. Rosendahl and an acquaintance, Alan Macek, testified that her intoxication was due to alcohol consumption after her car left the roadway and before law enforcement made contact with her.

According to Rosendahl, she lived about two miles outside Osawatomie. Between 4 and 4:30 p.m., she was driving home from running errands in Osawatomie. She saw a deer out of the corner of her eye that caused her to jerk and drive into the ditch. She could not get her car out of the ditch and had left her phone at home, so she walked to a nearby auto body shop operated by Macek to call her husband Gary. Macek offered Rosendahl a drink which she accepted because she was shaken up from the accident and did not plan to drive home. Macek gave Rosendahl a 16-ounce cup of straight raspberry vodka, which she finished before her husband arrived at her car.

Rosendahl testified she saw officers coming down the road after Macek and her husband got her car positioned where Macek could pull it out of the ditch. She told her husband to return home. Rosendahl said she "vaguely" remembered talking with the officers about how dark the corner was but stated that she "had a pretty good buzz on" at that time. When the officers asked her if she had been drinking, she thought they meant before her car went into the ditch, so she said she had consumed a beer several hours earlier. Rosendahl admitted she did not tell the officers that a deer caused her to go in the ditch or that she had consumed alcohol after the accident. She testified that the only way Bell would have learned about her post-driving alcohol consumption was by talking to Macek.

Macek corroborated Rosendahl's account that she had arrived at his body shop after her car went into the ditch, that he gave her a 16-ounce Solo cup of raspberry vodka, and that he helped Gary pull Rosendahl's car out of the ditch. Macek testified he was still there when the police arrived, but he returned to his body shop shortly thereafter. Macek did not tell the officers that he gave Rosendahl vodka after the accident at that time.

With Rosendahl's and Macek's testimony in mind, Bell testified that he did not know whether Rosendahl had gone to Macek's body shop. Bell also testified that he did not recall seeing Rosendahl with a red Solo cup in her hands.

Because of a recording malfunction, a portion of the district court trial transcript was unavailable, so the parties prepared a statement of proceedings in lieu of the balance of the transcript. See Supreme Court Rule 3.04(a) (2018 Kan. S. Ct. R. 23). The statement of proceedings provides that after the parties presented evidence, during a recess and off the record, the district court opined about a possible estoppel issue. After the recess, KDOR argued Rosendahl should be estopped from claiming for the first time at the administrative hearing and subsequently in the district court that she had consumed alcohol post-driving.

The district court reversed the administrative agency decision based on Rosendahl's intervening alcohol consumption, finding Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 281 P.3d 135 (2012), and the later Court of Appeals' decision in that case on remand from this court, Swank v. Kansas Dept. of Revenue , No. 102,223, 2012 WL 4676985 (Kan. App. 2012) (unpublished opinion), controlled.

The parties' prepared statement of proceedings provides:

"The district court summarized its factual findings; specifically that the Petitioner had run off the road in or near her hometown so she was, therefore, familiar with her surroundings. She had gone to Alan Macek's mechanic shop, and had been offered alcohol, which she consumed. When the police arrived, she was clear[ly] intoxicated. However, the police did not specifically investigate whether she had consumed alcohol post-driving, and that should have factored into their reasonable grounds determination. The officers knew the Petitioner had left her vehicle and did not inquire as to where she had been after the car had gone into the ditch. The court believed that the officer should have inquired more about her opportunity to drink with persons in the area, including Mr. Macek and anyone else who might have intervened since the accident.

"The district court held that it appeared from the Swank opinion that if there was any opportunity to consume alcohol post-driving that the officer must consider that in his or her reasonable grounds determination."

The statement of proceedings further provides that the district court speculated about the estoppel issue, but did not rule on it, suggesting that if the case was appealed, the Court of Appeals might direct the parties on the issue.

The district court also found the $50 filing fee for an administrative hearing required by K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional, but that this issue was moot as to Rosendahl because she paid the fee.

KDOR timely appeals to this court. Based on the district court's finding that K.S.A. 2015 Supp. 8-1020(d)(2) is unconstitutional, this court has jurisdiction under K.S.A. 60-2101(b) ("An appeal from a final judgment of a district court in any civil action in which a statute of this state or of the United States has been held unconstitutional shall be taken directly to the supreme court.").

OFFICER'S REASONABLE GROUNDS TO REQUEST AN EVIDENTIARY BREATH TEST

Standard of Review

The district court's journal entry concluded the facts were not in dispute. Neither party challenges this finding on appeal. We agree that the facts are not in dispute; therefore, this court has de novo review. See Swank , 294 Kan. at 881, 281 P.3d 135 ("Only when there is no factual dispute does an appellate court exercise de novo review.").

Analysis

K.S.A. 2015 Supp. 8-1020(h)(2) sets forth an exclusive list of issues that may be addressed at an administrative hearing on a driver's license suspension when the officer certifies that a person has failed a breath test. See Swank , 294 Kan. at 875, 281 P.3d 135. That list includes "whether ... [a] law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol." K.S.A. 2015 Supp. 8-1020(h)(2)(A). See...