Aten v. Kansas Department of Revenue

22 P.3d 1077, 29 Kan. App. 2d 30, 2001 Kan. App. LEXIS 338
CourtCourt of Appeals of Kansas
DecidedMay 4, 2001
DocketNo. 85,208
StatusPublished
Cited by1 cases

This text of 22 P.3d 1077 (Aten v. Kansas Department of Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aten v. Kansas Department of Revenue, 22 P.3d 1077, 29 Kan. App. 2d 30, 2001 Kan. App. LEXIS 338 (kanctapp 2001).

Opinion

Rulon, C.J.:

Plaintiff Brett Aten appeals the district court’s affirmance of the administrative suspension of his driver’s license for 1 year after finding that plaintiff had operated a motor vehicle under the influence of alcohol. We affirm.

The material facts are as follows:

In September of 1999, Kansas Highway Patrol Trooper Rob Istas noticed a vehicle cross over the center line of the highway and swerve back into the proper lane. After stopping the vehicle, [31]*31Trooper Istas confirmed the plaintiff was the driver and was under age 21.

Based on Trooper Istas’ observations and the plaintiff s performance of the field sobriety tests, the plaintiff was arrested for driving under the influence of alcohol. Trooper Istas then read plaintiff the DC-70 form printed by the Kansas Department of Revenue (KDR), which includes both the general implied consent advisory and the advisory for drivers under the age of 21. The plaintiff consented to a breath test, which revealed a breath alcohol concentration of .113. Trooper Istas completed the test failure portion of the DC-27 form and mailed it to KDR. At trial, Trooper Istas testified the advisories were read prior to tire administration of the breath test.

The plaintiff sought an administrative hearing regarding the officer’s assessment that plaintiff had been driving under the influence of alcohol. After a hearing, the administrative officer found that Trooper Istas had possessed reasonable grounds to believe plaintiff was under the influence of alcohol, drugs, or both, and the plaintiff was arrested on those grounds. The hearing officer further found that plaintiff received the applicable implied consent advisories; the testing equipment was reliable; and the test result indicated plaintiff s breath alcohol concentration was above .08 percent.

Consequently, the hearing officer ordered the plaintiff s driving privileges suspended for 1 year. Ultimately, plaintiff filed the present action, alleging that Trooper Istas lacked reasonable grounds to believe the plaintiff was operating the vehicle under the influence of alcohol or drugs, and the officer failed to properly advise the plaintiff in a timely manner of the law governing implied consent.

Eventually, the district court found that Trooper Istas properly read both advisories as required by law and that, although the advisories might be confusing, plaintiff was not prejudiced by the officer’s conduct. The district court stayed plaintiff s suspension pending appeal to this court.

As a preliminary matter, the defendant contends plaintiff s sole issue is not properly before this court on appeal. The defendant [32]*32asserts that plaintiff s argument, alleging the implied consent advisories are unconstitutionally vague, is raised for the first time on appeal and should not be considered. While the defendant states the general rule, see Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 827-28, 888 P.2d 832 (1995), there is an exception to the rule where consideration of the issue is necessary to further justice or prevent the denial of fundamental rights. See State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). Because plaintiff s vagueness argument challenges the due process afforded to plaintiff, this court can properly consider the plaintiff s constitutional arguments, especially as those arguments are integrally related to arguments that were raised before the district court. See State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). Unquestionably, one of the limited issues in administrative suspension cases is whether the appropriate advisories were given.

Prior to analyzing the appropriateness of the officer s conduct in this case, this court must determine whether the law requires only one of the advisories, or both, to be read. If an inappropriate advisory was given, the remedy is suppression of the test results. See State v. Luft, 248 Kan. 911, 913, 811 P.2d 873 (1991). The general implied consent advisory and the implied consent advisory for drivers under the age of 21 state the requirements of K.S.A. 2000 Supp. 8-1001 and K.S.A. 2000 Supp. 8-1567a. As we understand, the plaintiff s objection to the advisories is that the statutes are inconsistent. Interpretation of a statute is a question of law over which this court has unlimited review. See Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).

One of the fundamental principles of statutory construction is that the entire act in which a challenged provision lies must be considered in attempting to determine legislative intent. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).

Examining the plain language of K.S.A. 2000 Supp. 8-1567a, the legislature clearly intended this statute to be read in conjunction with the existing provisions, including K.S.A. 2000 Supp. 8-1001.

K.S.A. 2000 Supp. 8-1567a provides in pertinent part:

[33]*33“(b) Whenever a law enforcement officer determines that a breath or blood alcohol test is to be required of a person less than 21 years of age pursuant to K.S.A. 8-1001 ... in addition to any other notices required by law, the law enforcement officer shall provide written and oral notice that: ... (2) if the person is less than 21 years of age at the time of the test request and submits to and completes the test or tests and the test results show an alcohol concentration of .02 or greater, the person’s driving privileges will be suspended for one year.” (Emphasis added.)

K.S.A. 2000 Supp. 8-1001(f)(1)(G) provides:

“Before a test or tests are administered under this section, the person shall be given oral and written notice that: ... if the person is less than 21 years of age at the time of the test request and submits to and completes the tests and the test results show an alcohol concentration of .08 or greater, the person’s driving privileges will be suspended up to one year.” (Emphasis added.)

We conclude the above statutes are not in conflict. K.S.A. 2000 Supp. 8-1567a was designed to cover conduct not previously covered in K.S.A.

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Cite This Page — Counsel Stack

Bluebook (online)
22 P.3d 1077, 29 Kan. App. 2d 30, 2001 Kan. App. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aten-v-kansas-department-of-revenue-kanctapp-2001.