Pratt v. Kansas Department of Revenue

296 P.3d 1128, 48 Kan. App. 2d 586, 2013 WL 475206, 2013 Kan. App. LEXIS 7
CourtCourt of Appeals of Kansas
DecidedFebruary 8, 2013
DocketNo. 108,204
StatusPublished
Cited by5 cases

This text of 296 P.3d 1128 (Pratt 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
Pratt v. Kansas Department of Revenue, 296 P.3d 1128, 48 Kan. App. 2d 586, 2013 WL 475206, 2013 Kan. App. LEXIS 7 (kanctapp 2013).

Opinion

Arnold-Burger, J.:

Before the Kansas Department of Revenue (KDR) can suspend a driver’s license as a result of a driver’s illegal breath alcohol concentration (BAC) level, Kansas law requires the arresting officer to serve the driver with a form notice called a DC-27 form. K.S.A. 2010 Supp. 8-1002(c). Our courts have treated the service of this form on the driver as jurisdictional, meaning if it is not properly served, then the KDR lacks the administrative authority or jurisdiction to suspend or restrict the driver’s driving privileges. Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 348, 853 P.2d 69, rev. denied 253 Kan. 856 (1993).

In this case, the arresting officer personally served Pratt with tire DC-27 form but failed to check a box on the DC-27 form to indicate the manner of service, personal or mailed. We find that this did not deprive the KDR of jurisdiction to suspend Pratt’s driver’s license for two reasons. First, Pratt stipulated that the officer per[587]*587sonally served her with the notice. Second, while the DC-27 form includes a paragraph that allowed for the arresting officer to certify tire manner of service, personal or mailed, there is no statutory requirement for such certification. Thus, the officer s failure to certify the manner of service of the DC-27 form on Pratt does not, standing alone, deprive the KDR of jurisdiction. The only other issue raised by Pratt involves a claim of actual prejudice that is refuted by the record. Accordingly, we affirm the decision of the district court affirming the KDR’s suspension of Pratt’s driver’s license.

Factual and Procedural History

Pratt was driving when she was stopped by police and subsequently submitted a BAC test that was over the legal limit. Following her arrest for driving under the influence (DUI), the officer personally served her with a copy of a DC-27 form. At issue is a numbered paragraph of the DC-27 form served on Pratt that read as follows:

“8. A copy of this document which contains a Notice of Driver’s License Suspension is being served on tire above-named person on 7-17,2010 by (check one) personal service; mailing by first-class mail to the address shown above. NOTE: Personal service is required if a determination of refusal or failure is made while the person is in custody.”

Although the officer initialed this paragraph, he did not check either box within die paragraph. The officer’s failure to check either box under this paragraph on the DC-27- form serves as the impetus behind this appeal. Simply put, Pratt insists that the officer’s failure to certify, by checking the appropriate box, that he personally served her with the DC-27 form deprived the KDR of jurisdiction to suspend her driving privileges.

After receiving trial briefs from both parties, which included a stipulation regarding all relevant facts, the district court concluded the officer’s failure to check a box under paragraph 8 on the DC-27 form did not deprive the KDR of jurisdiction, so it denied Pratt’s petition for review and affirmed the KDR’s suspension of Pratt’s driving privileges. This is Pratt’s timely appeal from that decision.

[588]*588Analysis

On appeal, Pratt reiterates her argument that tire KDR lacked jurisdiction to suspend her driving privileges due' solely to the arresting officer’s failure to check a box under paragraph 8 on the DC-27 form to certify his personal service of that form on Pratt. The KDR responds that the officer was not statutorily obligated to certify the manner in which he served Pratt with the DC-27 form and that Pratt cannot show any actual prejudice given her admission of personal service and her timely request and receipt of an administrative hearing.

Our standard of review in this case is de novo.

The parties agree that this court has unlimited review over this issue for at least three reasons.

First, Pratt frames the issue of the officer’s failure to check tire box noting personal as opposed to mailed service on the DC-27 form as one involving the KDR’s jurisdiction. See Anderson, 18 Kan. App. 2d at 348 (framing tire issue of proper service of notice as jurisdictional). Whether the KDR had subject matter jurisdiction is a legal question subject to unlimited appellate review. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).

Second, resolution of the issue requires this court to interpret statutes, which also raises a question of law which is subject to unlimited appellate review. 288 Kan. at 395.

Third, appellate courts have de novo review of a district court’s decision based upon stipulated facts and documents. Shirley v. Kansas Dept. of Revenue, 45 Kan. App. 2d 44, 46, 243 P.3d 708 (2010).

The general purpose of the DC-27 form is examined.

Before discussing the parties’ arguments, some general background of tire creation of the DC-27 form is necessary for context. In that regard, our Supreme Court has explained that the DC-27 form was developed by the KDR to aid law enforcement officers, the Division of Motor Vehicles, and drivers who have been requested to submit to alcohol testing. There are two primary com[589]*589ponents to the DC-27 form: a notification aspect and a certification aspect. The notification aspect arises under K.S.A. 2010 Supp. 8-1001(k) and contains information an officer must advise the driver of before administering an alcohol test. The certification aspect arises under K.S.A. 2010 Supp. 8-1002(a) and concerns matters occurring after the test failure or test refusal has already taken place. See State v. Baker, 269 Kan. 383, 385-87, 2 P.3d 786 (2000). There is no dispute here that the DC-27 form served on Pratt reflects the officer s strict compliance with these pretest notice and posttest certification requirements. See K.S.A. 2010 Supp. 8-1002(a) and (d) (setting forth information officer is required to certify and additional information required on the DC-27 form).

We review the pu-rpose of the check boxes in paragraph 8 on the DC-27 form.

Rather, the sole dispute in this case involves the substance of numbered paragraph 8 of the DC-27 form, which the KDR points out serves a purpose distinct from the pretest notification and post-test certification requirements discussed in Baker: it indicates how the DC-27 form was served upon the driver. An entirely separate subsection of K.S.A. 2010 Supp. 8-1002 governs that requirement, providing, in pertinent part:

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Cite This Page — Counsel Stack

Bluebook (online)
296 P.3d 1128, 48 Kan. App. 2d 586, 2013 WL 475206, 2013 Kan. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pratt-v-kansas-department-of-revenue-kanctapp-2013.