Vance v. Kan. Dep't of Revenue

500 P.3d 1226 (Table)

Richard VANCE, Appellant,

v.KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 122,889

Court of Appeals of Kansas.

Opinion filed December 17, 2021.

John Ivan, of John Ivan Law, of Shawnee Mission, for appellant.

Nhu Nguyen, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before Buser, P.J., Hill and Isherwood, JJ.

MEMORANDUM OPINION

Buser, J.:

This is an appeal by Richard Vance of the district court's order affirming the Kansas Department of Revenue's (KDOR) suspension of his driving privileges. Upon our review, we hold there was jurisdiction for the KDOR and district court to consider the petition for review, and there was substantial competent evidence to support the district court's legal conclusion that the traffic stop, subsequent arrest for driving under the influence (DUI), and request for Vance to provide a urine test were lawful. We decline to review other claims raised by Vance for the first time on appeal, including his assertion that K.S.A. 2018 Supp. 8-1001(a) - (b)(1) is unconstitutional. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arose when Vance was stopped by Johnson County Sheriff's Deputy Edward Blake at 1:57 a.m. on October 13, 2018, while driving on Highway 169 in Olathe. Deputy Blake testified he began following Vance because he was traveling slower than the posted speed limit and was braking for no apparent reason. Deputy Blake stopped Vance for two traffic violations—making an improper turn and failing to use a turn signal when he switched lanes.

Upon stopping his motor vehicle, Vance partially lowered the car window which Deputy Blake testified was noteworthy because drivers who have been drinking alcohol occasionally will try to hide the odor of alcohol in this way. Still, the deputy noticed an odor of alcohol coming from Vance and the motor vehicle. Deputy Blake observed that Vance had bloodshot eyes, difficulty communicating, and poor balance. Shortly after the traffic stop, the dispatcher informed Deputy Blake that Vance had an active arrest warrant pertaining to a prior DUI charge.

Deputy Blake asked Vance to perform various field sobriety tests, including the walk and turn, one leg stand, alphabet recital, and number counting tests. Deputy Blake testified that Vance failed the field sobriety tests. Regarding Vance's difficulty in completing the field tests to evaluate balance and coordination, Vance later testified that, although he did not inform Deputy Blake at the time, he had physical disabilities that prevented his successful completion of the tests.

Vance agreed to take a preliminary breath test (PBT), which he failed with a reading of .088.

While conversing with Vance, Deputy Blake testified that he believed Vance was lying to him. When the deputy asked Vance where he was coming from, Vance stated he was coming from the QuikTrip. But Deputy Blake concluded that Vance was lying because while the deputy was following Vance, he drove past the convenience store without stopping. Despite the indications that Vance had been recently drinking, Deputy Blake also testified that Vance twice denied drinking alcohol.

Vance later testified that he lied to Deputy Blake about where he was coming from because he was embarrassed and "didn't want anybody to know [he] was leaving a strip club." He also admitted to drinking "one glass of wine" but "didn't feel like [he] would fail the test by drinking one glass of wine and then sitting for, like, two and a half to three hours."

Deputy Blake arrested Vance for DUI and the outstanding warrant in a prior DUI case. Incident to the arrest, the deputy searched Vance and found rolling papers in his pocket. Vance was taken to the detention center, and about an hour later, at Deputy Blake's request, Vance submitted to an Intoxilyzer 9000 breathalyzer test. The result was .073, which is less than the statutory presumption for alcohol intoxication. Deputy Blake then asked Vance to submit to a urine test, which, according to the deputy, Vance refused. Based on this refusal, Vance's driving privileges were suspended.

Vance requested an administrative hearing before the KDOR. On January 15, 2019, the hearing officer affirmed the suspension of Vance's driving privileges. Vance petitioned the district court for judicial review.

Following an evidentiary hearing, the district court affirmed KDOR's decision to suspend Vance's license for refusing a urine test. The district court found Deputy Blake had reasonable suspicion to initiate the traffic stop, reasonable grounds to believe Vance was operating the vehicle while driving under the influence, and it was proper for Deputy Blake to request multiple tests for alcohol or drug consumption. The district court also found Vance's testimony that he did not refuse the urine test was not credible, and ruled that Vance refused the test.

Vance appeals.

JURISDICTION

Vance argues the KDOR and district court did not have jurisdiction to suspend Vance's driving privileges because the certification and notice of suspension form (DC-27 form) did not substantially comply with K.S.A. 2018 Supp. 8-1002. The KDOR counters that the form met the statutory requirements, and, therefore, jurisdiction was proper.

The district court did not make any findings that the certification and notice requirements of K.S.A. 2018 Supp. 8-1002 were not complied with in this case, or that there was any jurisdictional infirmity with the DC-27 form. On the contrary, the district court found that jurisdiction was proper, rejecting Vance's legal conclusion that there was "an absence of reasonable suspicion or probable cause, and therefore [KDOR] had no jurisdiction to suspend petitioner's license." Of note, Vance's jurisdictional argument that he raises on appeal is different than the one he raised in the district court.

Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. In re Care & Treatment of Emerson , 306 Kan. 30, 33, 392 P.3d 82 (2017). Whether jurisdiction exists is a question of law over which this court exercises unlimited review. Fuller v. State , 303 Kan. 478, 492, 363 P.3d 373 (2015). To the extent the issue requires our court to interpret Kansas statutes, it raises a question of law subject to unlimited review. Pratt v. Kansas Dept. of Revenue , 48 Kan. App. 2d 586, 588, 296 P.3d 1128 (2013).

When a test to determine alcohol consumption is requested and results in either a refusal or a failure, "a law enforcement officer's certification shall be prepared." K.S.A. 2018 Supp. 8-1002(a). The DC-27 form "is to be used to certify a test refusal or a test failure." If an officer is certifying a test refusal, paragraphs 1-4 of the DC-27 form are statutorily required to be completed. K.S.A. 2018 Supp. 8-1002(a)(1)(A)-(D). Paragraphs 5-7 are not statutorily required but were completed by Deputy Blake. See K.S.A. 2018 Supp. 8-1002(a). Paragraph 8 of the DC-27 form corresponds with the language of K.S.A. 2018 Supp. 8-1002(d)(3), which requires the DC-27 form to contain the date notice was served. The deputy certified paragraph 8, stating he personally served the DC-27 form on Vance on October 13, 2018. In completing this form, Deputy Blake certified that Vance refused a test by initialing paragraphs 1-8.

Paragraphs 9 through 11 of the DC-27 form certify information relating to the administration of a breath test. Under K.S.A. 2018 Supp. 8-1002(a)(3), these paragraphs are required to be certified if a person fails a breath test. Paragraph 9 certifies the testing equipment was certified by the Kansas Department of Health and Environment (KDHE). Paragraph 10 certifies the testing procedures used were in accordance with KDHE requirements. Paragraph 11 certifies that the operator of the testing equipment was certified by KDHE.

The crux of Vance's jurisdictional claim relates to Deputy Blake's initialing paragraphs 9 through 11 on the DC-27 form. These paragraphs "must ... be completed and certified" if an officer certifies a breath test failure. But since Vance did not fail the Intoxilyzer 9000 test, Vance argues that initialing those 3 paragraphs "renders [Deputy Blake's] certification meaningless and in non-compliance with K.S.A. 8-1002(f)." In the district court, Deputy Blake testified he did not initial those paragraphs because Vance failed a breath test, rather he simply "initialed that the equipment was working."

In support of his jurisdictional argument, Vance relies on Wall v. Kansas Dept. of Revenue , 54 Kan. App. 2d 512, 513-14, 401 P.3d 670 (2017), in which a panel of our court determined that K.S.A. 2016 Supp. 8-1002(f) imposes upon the KDOR an "independent duty to examine" a certifying officer's DC-27 form "upon receipt," regardless of whether a driver requests an administrative hearing. This requirement implicates subject matter jurisdiction because " ‘[s]ubject matter jurisdiction is the power of the court to hear and decide a particular type of action.’ State v. Matzke , 236 Kan. 833, 835, 696 P.2d 396 (1985)." State v. Dunn , 304 Kan. 773, 784, 375 P.3d 332 (2016).

In Wall , the certifying officer indicated a breath test failure on the DC-27 form, but the attached test results showed no sample was taken. In other words, the DC-27 form erroneously reflected that the driver had failed a breath test, when the driver had refused the test. Additionally, the officer failed to check off several boxes required for the DC-27 form to comply with K.S.A. 2016 Supp. 8-1002(a). As a result, the panel concluded that subject matter jurisdiction was lacking and affirmed the district court's reversal of the suspension. 54 Kan. App. 2d at 515.

Vance also relies on Stutsman v. Kansas Dept. of Revenue , No. 119,528, 2019 WL 1303063, at *4-5 (Kan. App. 2019) (unpublished opinion), in which another panel of our court determined that the certification of the DC-27 form did not substantially comply with the statute because the form...