Ruble v. Kansas Department of Revenue

973 P.2d 213, 26 Kan. App. 2d 1, 1999 Kan. App. LEXIS 22
CourtCourt of Appeals of Kansas
DecidedFebruary 5, 1999
DocketNo. 80,301
StatusPublished
Cited by2 cases

This text of 973 P.2d 213 (Ruble 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
Ruble v. Kansas Department of Revenue, 973 P.2d 213, 26 Kan. App. 2d 1, 1999 Kan. App. LEXIS 22 (kanctapp 1999).

Opinion

Schmisseur, J.:

The Kansas Department of Revenue (KDR) appeals from the district court’s order reversing the 330-day restriction on Lariy J. Ruble’s driving privileges for failing a breath alcohol test. The KDR argues that the court erred in finding that the notices given to Ruble were not adequate because they did not mention the 330-day restriction of driving privileges. Ruble cross-appeals, arguing that the court erred in failing to consider the “margin of error” for his breath sample.

The facts are not substantially in dispute and are highly summarized. On February 23,1995, Ruble was placed under arrest for driving under the influence (DUI). At the law enforcement center, Ruble was asked to take a DUI breath test. Officer Fleming provided Ruble a written and oral implied consent advisoiy as required under K.S.A. 1994 Supp. 8-1001(f). However, the officer did not [2]*2advise Ruble that his driving privileges would be restricted for 330 days following the 30-day suspension period if he failed the test. Ruble agreed to take the breath test which revealed that his alcohol concentration was .087.

Upon Ruble’s request, an administrative hearing was held on May 31, 1995. The administrative hearing officer suspended Ruble’s driving privileges for 30 days with a 330-day restriction. On review to the district court, the court approved the 30-day suspension but rejected the 330-day restriction. The court found that Ruble should have been notified of the 330-day restriction before taking the breath test even though such a notice is not required by K.S.A. 1994 Supp. 8-1001(f)(l).

The first issue on appeal is whether the district court erred in reversing the 330-day restriction against Ruble because he did not receive adequate notice of the restriction.

The KDR argues the district court erred in requiring an additional notice not required by K.S.A. 1994 Supp. 8-1001(f)(l). The KDR maintains that the legislature only intended to notify a driver being tested for the person’s alcohol concentration that his or her driving privileges will be suspended for failing the breath test.

The district court’s interpretation of a statute raises a question of law. An appellate court’s scope of review of questions of law is unlimited. State v. Brady, 261 Kan. 109, 113, 929 P.2d 132 (1996).

“It is the function of a court to interpret a statute to give it the effect intended by the legislature.” In re Application of Zivanovic, 261 Kan. 191, Syl. ¶ 1, 929 P.2d 1377 (1996). “When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997).

K.S.A. 8-1001 et seq., the implied consent law, is the statute which authorizes the KDR to suspend a person’s driver’s license. K.S.A. 1994 Supp. 8-1001(a) provides that any person who operates a car in Kansas has given consent to submit to a chemical test to determine the presence of alcohol. Before a police officer conducts a test, the officer must inform the driver, orally and in writing, with [3]*3certain specified warnings. K.S.A. 1994 Supp. 8-1001(f)(l). If the driver consents to the test and the person’s blood alcohol concentration registers .08 or more, the division of motor vehicles shall suspend the person’s driving privileges for 30 days and then if it is a first occurrence, restrict the person’s driving privileges for an additional 330 days. K.S.A. 1994 Supp. 8-1001(f)(l)(E); K.S.A. 1994 Supp. 8-1014(b)(l).

Under K.S.A. 1994 Supp. 8-1001(f)(1)(E), an officer must inform the driver that if he or she consents to the test and the person’s blood alcohol concentration registers .08 or more, then his or her driving privileges will be suspended for at least 30 days. However, K.S.A. 1994 Supp. 8-1001 does not require an officer to inform the driver that his or her driving privileges can also be restricted for another 330 days for failing the test.

In State v. Kristek, 14 Kan App. 2d 77, 78-80, 781 P.2d 1113 (1989), this court reversed a lower court’s finding requiring an officer to make a written record of whether a driver being tested for alcohol concentration requests an independent alcohol analysis. The court noted that the lower court’s decision imposed an additional requirement than those set out in K.S.A. 1988 Supp. 8-1001. This court emphasized that Kansas courts have been reluctant to add requirements that are not contained in 8-1001. 14 Kan. App. 2d at 79. The court found that 8-1001(f) includes all the requirements that the legislature intended to impose on law enforcement officers. This court concluded that, in the absence of the constitutional reason, it did not have authority to impose an additional requirement under 8-1001.14 Kan. App. 2d at 80; see also Ramirez v. Kansas Dept. of Revenue, 13 Kan. App. 2d 332, 336, 770 P.2d 490, rev. denied 244 Kan. 738 (1989) (reversing a lower court’s finding that an officer should inform a driver of his right to take an alcohol content test after initially refusing the test).

Ruble maintains that a person has a right to know of the significant consequences which would have a major impact on their decision to take a breathalyzer. He maintains the 330-day restriction is such a consequence. However, the 330-day restriction of driving privileges is not a punishment. The restriction is part of the civil regulatory scheme that fosters public safety by restricting the driv[4]*4ing privileges of a person who has exhibited dangerous behavior. See State v. Mertz, 258 Kan. 745, 758-59, 907 P.2d 847 (1995) (civil suspension of driving privileges is not punishment for purposes of double jeopardy).

The Kansas Legislature has set out the specific notices required when a driver is requested to submit to a chemical test to determine the presence of alcohol under 8-1001(f). These notices were properly given in the present case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reilly v. Kansas Dept. of Revenue
Court of Appeals of Kansas, 2020
State v. McClellan
Court of Appeals of Kansas, 2017
State v. Finch
244 P.3d 673 (Supreme Court of Kansas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
973 P.2d 213, 26 Kan. App. 2d 1, 1999 Kan. App. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruble-v-kansas-department-of-revenue-kanctapp-1999.