Reilly v. Kansas Dept. of Revenue ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 120,840
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JEROME REILLY,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed May 1, 2020.
Affirmed in part, vacated in part, and remanded with directions.
Jay Norton, of Norton Hare LLC, of Overland Park, for appellant.
Marissa Jones, of Legal Services, Kansas Department of Revenue, for appellee.
Before HILL, P.J., BUSER and BRUNS, JJ.
PER CURIAM: Jerome Reilly challenges the district court's decision affirming the
administrative suspension of his driving privileges by the Kansas Department of Revenue
(KDOR) after his arrest for driving under the influence of alcohol. On appeal, Reilly
contends that the implied consent advisories on the DC-70 form read and provided to him
were unconstitutionally coercive. He also contends the DC-70 form did not substantially
comply with Kansas law. In addition, Reilly contends that the failure of the implied
consent advisories to inform him of the consequence of driving with an ignition interlock
device violates due process. Finally, Reilly contends that the nonrefundable $50
application fee imposed under K.S.A. 2016 Supp. 8-1020(d)(2) is unconstitutional.
1
Following precedent established by the Kansas Supreme Court, we vacate the $50
application fee imposed on Reilly and we remand to the KDOR with directions to refund
this amount to him. However, we affirm the district court's decision to uphold the
administrative suspension in all other respects.
FACTS
On the evening of November 12, 2016, Major Jonathan Keys of the Johnson
County Sheriff's Office arrested Reilly on suspicion of driving under the influence
following a traffic stop for speeding on Highway 10 near DeSoto. The arresting officer
took Reilly to the central booking facility. Major Keys then provided Reilly with the oral
and written notices required by the Kansas implied consent law. In doing so, Major Keys
read from the current DC-70 implied consent advisory form that the Office of the
Attorney General revised on February 26, 2016.
The revised DC-70 included the following advisories:
"1. Kansas law (K.S.A. 8-1001) requires you to submit to and complete one or more tests
of breath, blood or urine to determine if you are under the influence of alcohol or drugs or
both.
"2. You have no constitutional right to consult with an attorney regarding whether to
consent to testing.
"3. If you refuse to submit to and complete any test of breath, blood or urine hereafter
requested by a law enforcement officer, your driving privileges will be suspended for 1
year.
"4. If you submit to a breath or blood test requested by a law enforcement officer and
produce a completed test result of .15 or greater, your driving privileges will be
suspended for 1 year.
"5. If you submit to a breath or blood test requested by a law enforcement officer and
produce a completed test result of .08 or greater, but less than .15, the length of the
suspension will depend upon whether you have a prior occurrence. A prior occurrence is
2
a prior test refusal, test failure or conviction or diversion for an alcohol related conviction
as defined in K.S.A. 8-1013, and amendments thereto, or any combination thereof,
whether before, on or after July 1, 2011.
"6. If you fail a test with an alcohol content of .08 or greater, but less than .15, and do
not have any prior occurrences, your driving privileges would be suspended for 30
days.
"7. If you have a prior occurrence and fail a test with an alcohol content of .08 or
greater, but less than .15, your driving privileges will be suspended for one year.
"8. Refusal to submit to testing may be used against you at any trial on a charge arising
out of the operation or attempted operation of a vehicle while under the influence of
alcohol or drugs, or both.
"9. The results of the testing may be used against you at any trial on a charge arising out
of the operation or attempted operation of a vehicle while under the influence of alcohol
or drugs, or both.
"10. After the completion of testing, you have the right to consult with an attorney and
may secure additional testing, which, if desired, should be done as soon as possible and is
customarily available from medical care facilities willing to conduct such testing."
After being given the implied consent advisories, Reilly consented to an
evidentiary breath-alcohol test. The test results revealed that his blood-alcohol content
was above the legal limit. As a result, Major Keys informed Reilly that his driving
privileges were administratively suspended and gave him a copy of a DC-27 certification
and notice of suspension form.
Reilly timely appealed his administrative suspension to the KDOR under K.S.A.
2016 Supp. 8-1020(a)(1) to challenge the suspension of his driver's license. As part of the
appeal application process, Reilly paid a $50 administrative fee to KDOR as required by
K.S.A. 2016 Supp. 8-1020(d)(2). Ultimately, the KDOR affirmed the administrative
suspension of Reilly's driver's license and he sought judicial review in the district court.
On December 29, 2017, the district court held an evidentiary hearing. At the
hearing, Major Keys testified consistent with his DC-27 certification. No other witnesses
3
were called by the parties. However, four exhibits were admitted into evidence, including
the DC-27, two traffic citations, and the in-car video of the traffic stop. Following the
hearing, the parties filed written submissions setting forth their respective arguments. In a
comprehensive 30-page written decision issued on January 24, 2019, the district court
upheld the KDOR's suspension of Reilly's driver's license. Thereafter, Reilly timely
appealed to this court.
ANALYSIS
On appeal, Reilly raises four issues. First, he contends that the DC-70 implied
consent advisory form read and provided to him by the arresting officer was
unconstitutionally coercive. Second, he contends that the advisories in the DC-70 form
did not substantially comply with the provisions of K.S.A. 2016 Supp. 8-1001(k). Third,
he contends that the failure of the DC-70 form to advise of the length of restriction to an
ignition interlock device violates due process. Fourth, he contends that the $50
application fee charged by the KDOR was unconstitutional. In response, the KDOR
denies the first three contentions and concedes the fourth issue.
Standard of Review
The Kanas Judicial Review Act, K.S.A. 77-601 et seq., governs this action. Under
the KJRA, one of the grounds for relief is that the "[t]he agency action, or the statute or
rule and regulation on which the agency action is based, is unconstitutional on its face or
as applied." K.S.A. 77-621(c)(1). Challenges involving statutory and constitutional
interpretation are questions of law over which we have unlimited review. Katz v. Kansas
Dept. of Revenue, 45 Kan. App. 2d 877, 883, 256 P.3d 876 (2011). The burden is on the
petitioner—in this case Reilly—to show error. K.S.A. 2019 Supp. 8-1020(q).
4
Whether a DC-70 implied consent advisory form complies with statutory
requirements is a question of statutory interpretation, which is a question of law subject
to unlimited review. Shrader v. Kansas Dept. of Revenue, 296 Kan. 3, 6, 290 P.3d 549(2012). In addition, because the implied consent statute is remedial in nature, it should be
liberally construed to promote public health, safety, and welfare. K.S.A. 2019 Supp. 8-
1001(u). As the United States Supreme Court found in Birchfield v. North Dakota, 579
U.S. ___, 136 S. Ct. 2160, 2178, 195 L. Ed. 2d 560 (2016), "the States and the Federal
Government have a 'paramount interest . . . in preserving the safety of . . . public
highways.' Mackey v. Montrym, 443 U.S. 1, 17, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979).
Although the number of deaths and injuries caused by motor vehicle accidents has
declined over the years, the statistics are still staggering."
Revised DC-70 Implied Consent Advisory Form
The first three issues presented by Reilly in this appeal relate to the DC-70 implied
consent advisory form that was revised on February 26, 2016. We note that there is no
dispute about whether Major Keys read the DC-70 form to Reilly and gave a copy to him.
So, we will analyze the first three issues together.
Reilly contends that the DC-70 implied consent advisory form read and provided
to him by Major Keys was unconstitutional. In particular, he argues that the DC-70 form
was coercive and that his consent to the evidentiary breath test was not voluntary. In
response, the KDOR contends that the advisories given to Reilly by Major Keys
substantially complied with Kansas law as it existed at the time and were not coercive.
The Fourth Amendment to the United States Constitution and §15 of the Kansas
Constitution Bill of Rights prohibit unreasonable searches. State v. Jones, 300 Kan. 630,
637, 333 P.3d 886 (2014). Although a breath test conducted by a law enforcement officer
to determine a driver's blood-alcohol content constitutes a search, breath tests—unlike
5
blood tests—"do not 'implicat[e] significant privacy concerns.'" Birchfield, 136 S. Ct. at
2176 (citing Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 626, 109 S. Ct.
1402, 103 L. Ed. 2d 639 [1989]). Still, valid consent to a search requires both (1) clear
and positive testimony that consent was unequivocal, specific, and freely given; and (2)
the absence of duress or coercion. State v. James, 301 Kan. 898, Syl. ¶ 4, 349 P.3d 457(2015).
K.S.A. 2016 Supp. 8-1001(k) required that certain implied consent advisories must
be given—both orally and in writing—to a driver suspected of driving under the
influence before the administration of a breath test could determine a driver's blood-
alcohol content. But it is not necessary that an implied consent advisory mirror the
statutory language. Rather, substantial compliance with K.S.A. 8-1001(k) is usually
sufficient. Substantial compliance is construed to mean that the notice given is sufficient
to advise a person suspected of driving under the influence with the essentials of the
statute. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 471-72, 447 P.3d 959 (2019)
(citing Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 [1988]).
To assist law enforcement officers in complying with the statute and fulfilling
their obligation to advise those suspected of driving under the influence of their rights,
the Office of the Attorney General revised the DC-70 implied consent advisory form on
February 26, 2016. We note that this was the same day that the Kansas Supreme Court
issued their opinions in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I), aff'd
on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II); and State v. Nece, 303 Kan. 888,
367 P.3d 1260 (2016) (Nece I), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) (Nece
II). We further note that the decisions in Ryce II and Nece II were not rendered—and no
mandates were issued—until after Reilly's arrest.
In Ryce I, our Supreme Court held that it was unconstitutional to impose criminal
penalties on drivers if they either withdrew consent before testing or refused to submit to
6
a test. 303 Kan. at 963-64. Likewise, in Nece I, our Supreme Court held that a driver's
consent to a breath alcohol test is coercive if given after receiving implied consent
advisories that are unconstitutional. 303 Kan. at 897. Both Ryce I and Nece I were stayed
in anticipation of the United States Supreme Court's opinion in Birchfield.
On June 23, 2016, the United States Supreme Court held in Birchfield that a
warrantless breath test of a driver is a reasonable search under the Fourth Amendment as
a search incident to a lawful arrest. 136 S. Ct. at 2184. In response to the holding in
Birchfield, our Supreme Court granted review of Ryce I and Nece I and granted
rehearings in both cases. Finally, on June 30, 2017, our Supreme Court announced its
decisions in Ryce II, 306 Kan. 682; Nece II, 306 Kan. 679.
In an attempt to comply with the holdings in Ryce I and Nece I, the Kansas
Attorney General revised the DC-70 implied advisory consent form by deleting the two
unconstitutional provisions. The portions deleted from the DC-70 form had previously
provided:
"(2) the opportunity to consent to or refuse a test is not a constitutional right;
....
"(4) if the person refuses to submit to and complete any test of breath, blood or urine
hereafter requested by a law enforcement officer, the person may be charged with a
separate crime of refusing to submit to a test to determine the presence of alcohol or
drugs, which carries criminal penalties that are greater than or equal to the criminal
penalties for the crime of driving under the influence, if such person has:
(A) Any prior test refusal . . . ; or
(B) any prior conviction for [DUI] . . . or enter[ed] into a diversion agreement . . . ."
K.S.A. 2016 Supp. 8-1001(k).
Reilly argues that DC-70 implied consent advisory form was coercive because it
stated that "Kansas law (K.S.A. 8-1001) requires you to submit to and complete one or
more tests of breath, blood or urine to determine if you are under the influence of alcohol
7
or drugs or both." (Emphasis added.) However, we note that the last time the Kansas
Legislature amended K.S.A. 8-1001(k) before Reilly's arrest was in 2014. See L. 2014,
ch. 131, § 1. So, during the relevant time period, K.S.A. 8-1001(k)(1) mandated that law
enforcement officers give oral and written notice that "Kansas law requires the person to
submit to and complete one or more tests of breath, blood or urine to determine if the
person is under the influence of alcohol or drugs, or both." (Emphasis added.) In addition,
the Kansas Legislature has explicitly expressed the intent that if a portion of the Kansas
implied consent law is unconstitutional, the remaining provisions of the statute survive.
K.S.A. 8-1007; see Williamson v. Kansas Dept. of Revenue, No. 118,325, 2018 WL
5730137, at *5 (Kan. App. 2018) (unpublished opinion). Consequently, we find that
Major Keys properly advised Reilly of his rights under K.S.A. 2016 Supp. 8-1001(k)(1)
as they existed at the time of his arrest.
In support of his argument, Reilly cites an unpublished case from this court, City
of Lenexa v. Gross, No. 96,367, 2007 WL 2043580 (Kan. App. 2007) (unpublished
opinion). In that case, a panel of this court upheld the district court's decision to suppress
a preliminary breath test (PBT) because the officer informed the defendant that she had to
take the test and the proper advisories were not given. 2007 WL 2043580, at *4. But
Gross is factually distinguishable from this case because the results of a PBT are not at
issue. Here, Reilly agreed to take an evidentiary breath test at the jail after being given
both oral and written advisories as set forth in the revised DC-70 form. Moreover, unlike
Gross—which was a criminal case—this matter involves an administrative suspension in
which Reilly—as the petitioner—has the burden of proof to show error. See K.S.A. 2019
Supp. 8-1020(q).
We note that several panels of our court have rejected similar—if not identical—
arguments as those made by Reilly relating to the DC-70 implied consent advisory form
revised in 2016. See Williamson, 2018 WL 5730137, at *5-6; McGinnis v. Kansas Dept.
of Revenue, No. 118,326, 2018 WL 5728375, at *5-6 (Kan. App. 2018) (unpublished
8
opinion); Bynum v. Kansas Dept. of Revenue, No. 117,874, 2018 WL 2451808, at *4
(Kan. App. 2018) (unpublished opinion). Each of those panels concluded that the DC-70
form substantially complied with the statutory language. We agree with the analysis set
forth in the prior opinions of this court that the DC-70 form as revised in 2016
substantially complied with the essential requirements of the statute.
Reilly also argues that paragraph 8 of the revised DC-70 was unconstitutionally
coercive. It stated: "Refusal to submit to testing may be used against you at any trial on a
charge arising out of the operation or attempted operation of a vehicle while under the
influence of alcohol or drugs, or both." However, in the criminal context, the United
States Supreme Court has held that "a refusal to take a blood-alcohol test, after a police
officer has lawfully requested it, is not an act coerced by the officer, and thus is not
protected by the privilege against self-incrimination." South Dakota v. Neville, 459 U.S.
553, 564, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983).
In White v. Kansas Dept. of Revenue, No. 117,956, 2018 WL 1769396 (Kan. App.
2018) (unpublished opinion), the petitioner unsuccessfully challenged the exact version
of the DC-70 at issue in this case by arguing that the DC-70 was unduly coercive.
Although the petitioner's argument in White focused on whether the revised version of the
form substantially complied with the statute, the panel found that the "provisions of the
DC-70 advisory, after deletion of the provision for the charging of a separate crime for
failure to submit to testing, remain valid and do not amount to unconstitutional coercion
of a suspect driver's consent to testing." 2018 WL 1769396, at *4. The panel reasoned
that substantial compliance with the statute did not require the officer to misadvise the
DUI suspect of the possible consequences of refusing to consent to the test. 2018 WL
1769396, at *6.
Finally, we note that Reilly did not testify at the evidentiary hearing. Without his
testimony, the only facts in the record come from Major Keys' testimony and from the
9
DC-27 form which the officer completed. The record reflects that Major Keys testified
that Reilly consented to the evidentiary breath test after being given the implied consent
advisories both orally and in writing. We find nothing in the record to suggest that Major
Keys somehow coerced Reilly into consenting.
We find that the DC-70 form revised in 2016 substantially complied with the
status of Kansas law at the time of Reilly's arrest. Although Reilly suggests that the
failure of the implied consent advisory form was inadequate because it did not state the
consequences of being required to drive with an ignition interlock device, we do not find
this argument to be persuasive. We find nothing in K.S.A. 2016 Supp. 8-1001(k) to
require that a law enforcement officer must advise a driver that it is possible that he or
she may have to use an ignition interlock device on the vehicle. See Robinson v. Kansas
Dept. of Revenue, 37 Kan. App. 2d 425, 427-29, 154 P.3d 508 (2007) (officer not
required to inform driver of the consequences to his commercial driver's license when the
driver was stopped while driving a noncommercial vehicle).
Our Supreme Court had held that administrative hearings—such as the hearing
afforded to Reilly—satisfy a driver's procedural due process rights. Kempke v. Kansas
Dept. of Revenue, 281 Kan. 770, 779, 133 P.3d 104 (2006). In Ruble v. Kansas Dept. of
Revenue, 26 Kan. App. 2d 1, 3, 973 P.2d 213 (1999), a panel of this court held that
K.S.A. 1994 Supp. 8-1001 does not require an officer to inform a driver that his driving
privileges can also be restricted following a period of suspension. Ruble claimed that he
had a right to know of any significant consequences which might affect his decision to
submit to testing. However, the court found that "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 driving privileges of a person who has exhibited
dangerous behavior." 26 Kan. App. 2d at 3-4. The court noted that the Kansas Legislature
sets out specific notices that law enforcement officers must give and noted that it did not
10
have the authority to judicially amend K.S.A. 8-1001 to add additional requirements. 26
Kan. App. 2d at 4.
Reilly asks this court to distinguish his case from the holding in Ruble because the
restrictions to driver's licenses are now more significant and require that an ignition
interlock device be installed at a significant cost to the licensee. However, Kansas law
does not require notice about these collateral consequences even though they may impact
an individual's lifestyle. Moreover, we do not find Standish v. Kansas Dept. of Revenue,
235 Kan. 900, 683 P.2d 1276 (1984), which is cited by Reilly in support of his argument,
to be applicable. In Standish, our Supreme Court found that a driver's refusal to consent
to testing was reasonable in light of confusion. 235 Kan. at 905. Here, we find no
evidence in the record to suggest that Reilly was confused.
In summary, we conclude that the DC-70 implied consent advisory form that
Major Keys provided to Reilly substantially complied with the requirements of K.S.A.
2016 Supp. 8-1001(k), as well as Kansas case law as it existed at the time of his arrest. In
particular, Major Keys appropriately told Reilly that his driver's license would be
suspended for one year if he refused to consent to a breath test and also gave him proper
notice of his opportunity to seek administrative review by the KDOR. Kansas law does
not require that a law enforcement officer advise a driver of all of the collateral
consequences that might result from a test refusal—such as the duration and cost
associated with an ignition interlock device. Thus, we affirm the district court's decision
to uphold the KDOR's suspension of Reilly's driver's license.
$50 Application Fee
Reilly also contends that the nonrefundable $50 application fee imposed under
K.S.A. 2016 Supp. 8-1020(d)(2) is unconstitutional. While this appeal was pending
before our court, the Kansas Supreme Court ruled that the application fee is
11
unconstitutional because it requires payment before a driver can obtain procedural due
process without a provision for indigency. 310 Kan. at 465-66. The remedy, however, is
not the restoration of driving privileges as Reilly suggests. Rather, the appropriate
remedy is a refund of the $50 fee to the applicant. Creecy, 310 Kan. at 465-66; see Meats
v. Kansas Dept. of Revenue, 310 Kan. 447, 450, 447 P.3d 980 (2019). Accordingly, we
vacate that portion of the district court's decision upholding the constitutionality of
K.S.A. 2016 Supp. 8-1020(d)(2), and we remand this matter to the KDOR with directions
to refund the $50 to Reilly.
Affirmed in part, vacated in part, and remanded with directions to refund the $50
fee.
12