Trowbridge v. Kansas Dept. of Revenue

NOT DESIGNATED FOR PUBLICATION
No. 119,510
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ZACHARY R. TROWBRIDGE,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; RHONDA K. MASON, judge. Opinion filed July 17, 2020.
Affirmed.
Thomas J. Bath Jr., of Bath & Edmonds, P.A., of Overland Park, for appellant.
Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.
PER CURIAM: Zachary R. Trowbridge appeals the district court's decision
affirming the administrative suspension of his driver's license, contending the notice he
received before refusing a breath test did not substantially comply with Kansas implied
consent laws. Trowbridge argues the advisory notice did not meet the notice requirements
of the statute because the Kansas Department of Revenue (KDOR) revised the form in
2016, removing statements after the Kansas Supreme Court declared criminal penalties
for test refusal unconstitutional. Trowbridge also asserts the arresting officer erroneously
advised him that he was required to submit to testing. After a review of Trowbridge's
claims, we affirm.
1
FACTUAL AND PROCEDURAL HISTORY
In the early morning hours on March 26, 2017, Deputy Blake of the Johnson
County Sheriff's Department witnessed a vehicle failing to maintain its lane and
speeding. Blake initiated a traffic stop and ultimately arrested the driver, Trowbridge,
because he showed signs of impairment, failed several field sobriety tests, and refused a
preliminary breath test.
Trowbridge refused to provide a breath sample after Blake read and provided a
revised copy of the DC-70 also known as the implied consent advisory form. Paragraph 1
of the revised DC-70 provided: "Kansas Law [K.S.A. 2016 Supp. 8-1001(k)(1)] 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." Blake served Trowbridge with
an "Officer's Certification and Notice of Suspension" (DC-27), which stated in paragraph
3 that "[t]he person was presented oral and written notice as required by [K.S.A. 2016
Supp. 8-1001(k)] and amendments thereto."
Trowbridge requested an administrative hearing to review the suspension of his
driving privileges, arguing that his constitutional rights were violated "when he was
advised [on the DC-70] that he was required to submit to a test of breath, blood, or
urine," and that the DC-70 did not substantially comply with the notice requirements of
K.S.A. 2016 Supp. 8-1001 because one of the statutory advisories was omitted. The
KDOR affirmed the suspension.
Next, Trowbridge petitioned for judicial review of the KDOR's decision,
requesting a new trial and reasserting the same arguments previously made at the
administrative hearing. Trowbridge moved for summary judgment on these claims, also
asserting that the DC-70's noncompliance with K.S.A. 2016 Supp. 8-1001 deprived the
KDOR of jurisdiction to suspend his license.
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The district court ultimately denied Trowbridge's petition, finding the KDOR had
jurisdiction because the DC-70 substantially complied with K.S.A. 2016 Supp. 8-
1001(k)(4). The court also determined "the amended DC-70 and [K.S.A. 2016 Supp. 8-
1001(k)] with the unconstitutional portions stricken make it clear that petitioner has
choice whether or not to submit to testing, even with the 'require' language present in
[K.S.A. 2016 Supp. 8-1001(k)(1)]."
The district court also noted Trowbridge's "contradictory" arguments that Blake
failed to substantially comply with K.S.A. 2016 Supp. 8-1001 both when he failed to read
K.S.A. 2016 Supp. 8-1001(k)(2) and (4) and when he read the text of K.S.A. 2016 Supp.
8-1001(k)(1). On this point, the court found that Blake's invocation of K.S.A. 2016 Supp.
8-1001(k)(1) was an example of strict compliance with the statute.
Ultimately, the matter proceeded to a bench trial on stipulated facts, after which
the court conclusively denied Trowbridge's petition for review, thus affirming the
suspension of his driving privileges.
Trowbridge timely appealed.
ANALYSIS
KDOR had jurisdiction to suspend Trowbridge's driver's license.
Trowbridge first argues the district court erred in concluding the KDOR had
subject matter jurisdiction to suspend his license because Blake failed to provide all of
the implied consent advisories in K.S.A. 2016 Supp. 8-1001(k). As a result, Trowbridge
contends the DC-27 was not accurately certified and therefore the KDOR did not obtain
subject matter jurisdiction to suspend his driving privileges.
3
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. Jahnke v. Blue Cross & Blue Shield
of Kansas, 51 Kan. App. 2d 678, 686, 353 P.3d 455 (2015). 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 that the issue requires this 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).
The only aspect of the DC-27 Trowbridge challenges is Blake's statement
certifying that Trowbridge was presented "'with the oral and written notice required by
[K.S.A. 2016 Supp. 8-1001].'" See K.S.A. 2016 Supp. 8-1002(a). To begin, it bears
mentioning that Trowbridge's jurisdiction challenge is fundamentally the same argument
he made in the district court that the revised DC-70 does not substantially comply with
the notice requirements of the implied consent statute.
Trowbridge mainly 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 this court determined 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," no matter if a driver requests an administrative
hearing upon receiving a notice of suspension. This mandate 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, but the
attached test results showed no sample was taken. In other words, the DC-27 erroneously
reflected the driver had failed a breath test, but he had actually refused the test. In
addition, the officer failed to mark several check boxes required for the DC-27 to comply
with K.S.A. 2016 Supp. 8-1002(a). As a result, the panel concluded subject matter
4
jurisdiction was lacking and affirmed the district court's reversal of the suspension. 54
Kan. App. 2d at 515.
In another recent case, the DC-27 at issue lacked the certifying officer's initials,
signature, and several check marks because the triplicate carbon copy form failed to
transfer down to the copy given to the driver. Stutsman v. Kansas Dept. of Revenue, No.
119,528, 2019 WL 1303063, at *5 (Kan. App. 2019) (unpublished opinion). There, the
panel determined the certification was not substantially compliant because the DC-27
given to the driver was missing that essential information, and thus the KDOR lacked
subject matter jurisdiction to suspend his driving privileges. 2019 WL 1303063, at *4-5.
The determinations made by the panels in these cases suggest that the statute only
requires the KDOR to review the DC-27 at this early stage for easily discernable errors,
like missing signatures or checkmarks and factual discrepancies. If those items are
missing, KDOR is required to dismiss the action. Walls and Stutsman both hold that
because KDOR is required to dismiss the action, its failure to do so leaves it without
jurisdiction to conduct a requested administrative hearing. We disagree.
Before addressing why we are holding contrary to two cases from this court, one
published and one not, we begin by noting that one Kansas Court of Appeals panel is not
bound by another panel's decision. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d
506 (2018). Each panel conducts an independent analysis of the issues presented and
comes to its own conclusions.
Subject matter jurisdiction is vested by statute and the Kansas Constitution and
establishes a court's authority to decide a particular type of action. Dunn, 304 Kan. at
811; Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92, 106 P.3d 492 (2005).
The KDOR has the authority to suspend driver's licenses and conduct administrative
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hearings regarding those suspensions. See K.S.A. 2019 Supp. 8-1002; K.S.A. 2019 Supp.
8-1020; K.S.A. 2019 Supp. 8-259.
There are two primary components to the DC-27 form: a notification aspect and a
certification aspect. The notification aspect arises under K.S.A. 2019 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. 2019 Supp. 8-1002(a) and
concerns matters occurring after the test failure or test refusal has already taken place.
See Pratt, 48 Kan. App. 2d at 588-89.
The DC-27 is the functional equivalent of a charging document. It gets the ball
rolling on the suspension of driving privileges that accompany a DUI arrest. Without the
filing of the DC-27 with the KDOR, a driver's license suspension for an alcohol test
refusal or failure does not happen. And just as the goal of a charging document is to
inform the defendant of the alleged offense, so the DC-27 provides notice to the driver of
the reasons for the suspension action and the evidence that supports it. See State v. Rasch,
243 Kan. 495, 497, 758 P.2d 214 (1988) (purpose of complaint is to fairly apprises the
defendant of the crime charged). The driver may challenge the sufficiency of the
certification at the administrative hearing. K.S.A. 2019 Supp. 8-1020(h).
The Kansas Supreme Court has held that charging documents do not bestow or
confer subject matter jurisdiction. Dunn, 304 Kan. 773, Syl. ¶ 1. Likewise, defects in a
complaint or indictment do not deprive a court of its power to adjudicate a case. See
United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002).
Even the failing to swear to or verify the complaint does not deprive the court of
jurisdiction. State v. Graham, 247 Kan. 388, 394, 799 P.2d 1003 (1990).
Like a complaint, once the DC-27 is filed with the KDOR, the KDOR and
subsequent reviewing courts have subject matter jurisdiction over the driver's license
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suspension subject matter; and that makes sense. The KDOR and the courts have to have
jurisdiction to make the decision regarding the adequacy of the DC-27. Perhaps KDOR
should have dismissed the case upon filing and should never have required the licensee to
request and have an administrative hearing, but that can only be determined by an
administrative or judicial officer's decision. An error in KDOR's decision does not impact
its jurisdiction to make the decision. And the KDOR and the courts are not somehow
deprived of that jurisdiction because the DC-27 was insufficient. In discussing subject
matter jurisdiction over criminal complaints, the Supreme Court has noted that "even
prejudicial deficiencies in due process or notice do not render the outcome of a
prosecution void for lack of subject matter jurisdiction." Dunn, 304 Kan. at 814.
Accordingly, we find that the KDOR had subject matter jurisdiction to suspend
Trowbridge's driver's license. The question is whether it properly did so. We turn to that
question next.
The district court did not err when it found that the revised DC-70 advisory substantially
complied with the provisions of K.S.A. 2016 Supp. 8-1001.
Trowbridge's primary argument on appeal is that the revised DC-70 did not
substantially comply with Kansas implied consent laws, challenging the advisory in two
respects: first, that it improperly advised him he was "'required'" to submit to testing; and
second, that it omitted two of the subparts required by K.S.A. 2016 Supp. 8-1001(k).
Generally, this court will review a district court's decision in an administrative
driver's license suspension by "ascertaining whether substantial competent evidence in
the record supported the district court's factual findings and whether the conclusion
derived from those findings is legally correct." Casper v. Kansas Dept. of Revenue, 309
Kan. 1211, 1213, 442 P.3d 1038 (2019). But where an issue involves statutory and
constitutional interpretation, that presents a question of law subject to unlimited review.
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Mart. v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008), overruled
on other grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048 (2015).
Trowbridge has failed to properly preserve his challenge to the omission of K.S.A.
2016 Supp. 8-1001(k)(2).
To begin, part of Trowbridge's argument is not properly before this court based on
a review of the record. There is no dispute that two subparts of K.S.A. 2016 Supp. 8-
1001(k) were omitted from the revised DC-70 given to Trowbridge, specifically subparts
(k)(2) ("the opportunity to consent to or refuse a test is not a constitutional right") and
(k)(4) (if the driver refuses the test, the officer may charge the driver with a separate
crime for refusal). But the pleadings available in the record reveal that Trowbridge only
challenged the omission of subpart (k)(4). Likewise, the district court's ruling on this
issue only mentioned the omission of subpart (k)(4).
Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34) requires appellants to
explain why an issue not raised below should be considered for the first time on appeal.
Parties who ignore Rule 6.02(a)(5) "risk a ruling that an issue improperly briefed will be
deemed waived or abandoned." State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528
(2014). In Williams, our Supreme Court warned that Rule 6.02(a)(5) will be strictly
enforced. See 298 Kan. at 1085.
Thus, because Trowbridge challenges the omission of K.S.A. 2016 Supp. 8-
1001(k)(2) for the first time on appeal and offers no basis for why this court should
consider an issue not raised before the district court, that argument is considered waived
and abandoned.
That said, his challenge to the omission of subpart (k)(4) was properly raised and
ruled on below and will be considered by this court.
8
The district court did not err when it found that, despite the omission of one
statutorily mandated notice in the implied consent advisory, the officer
substantially complied with the provisions of K.S.A. 2016 Supp. 8-1001.
Under K.S.A. 2016 Supp. 8-1001(k), an arresting officer must provide a list of
nine notices before administering a test of a person's blood, breath, urine, or other bodily
substance to determine the presence of alcohol or other drugs in the driver's system.
Trowbridge challenges the omission of subpart (k)(4) in the revised DC-70, which
informs the driver of possible criminal penalties for refusing to submit a breath, blood, or
urine test. See K.S.A. 2016 Supp. 8-1001(k)(4).
This omission was prompted by two important decisions released by the Kansas
Supreme Court February 2016, prompting the KDOR to begin using the revised DC-70.
In State v. Ryce, 303 Kan. 899, 963-64, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682,
396 P.3d 711 (2017), the court held that the statute imposing criminal penalties on a
driver if that individual withdrew consent or refused to submit to a breath test was
facially unconstitutional. Then, in State v. Nece, 303 Kan. 888, 897, 367 P.3d 1260
(2016), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017), the court held that giving
unconstitutional implied consent advisories before a defendant's consent leads to
coercion.
The KDOR does not dispute that the revised DC-70 omitted certain provisions,
explaining that their omission was "in direct response to the Kansas Supreme Court
finding the statute on which it was based to be unconstitutional." Likewise, Trowbridge
concedes the KDOR revised the DC-70 to accommodate these decisions. Nonetheless,
Trowbridge asserts the invalidated provisions needed to be given to comply with K.S.A.
2016 Supp. 8-1001(k).
9
This argument is unpersuasive because Kansas courts have never required strict
compliance with the implied consent advisory statute, instead opting for substantial
compliance. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 472, 447 P.3d 959 (2019)
(citing Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 [1988]).
"To substantially comply with the requirements of the statute, a notice must be sufficient
to advise the party to whom it is directed of the essentials of the statute." Barnhart, 243
Kan. at 213. The essentials, i.e., the purpose, of the implied consent advisories are to
inform a driver of the law before his or her submission to a requested test and any
potential consequences that may result. Similarly, K.S.A. 2016 Supp. 8-1001(v) explicitly
provides that "[t]his act is remedial law and shall be liberally construed to promote public
health, safety and welfare." Accordingly, requiring a law enforcement officer to comply
strictly by informing a driver about unconstitutional and unenforceable statutory
provisions would subvert that purpose.
Trowbridge tries to get around this by asserting that the unconstitutional advisories
still applied to him and needed to be given because his breath test refusal occurred
between the Kansas Supreme Court granting motions for rehearing of Ryce and Nece and
the decisions reaffirming those rulings. In arguing that he should have been read the
unconstitutional provisions, Trowbridge essentially asks the State to violate his
constitutional rights. We will not promote that folly for a few reasons.
First, when interpreting statutes, this court must seek to avoid absurd or
unreasonable results. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 918, 296 P.3d 1106 (2013). Requiring law enforcement officers to recite the
unconstitutional portions would defeat the primary purpose of the statute and lead to
drivers being misinformed about the law. This conclusion is supported even more by the
severability clause in K.S.A. 8-1007:
10
"This act shall be construed as supplemental to existing legislation; and if any
clause, paragraph, subsection or section of this act shall be held invalid or
unconstitutional, it shall be conclusively presumed that the legislature would have
enacted the remainder of this act without such invalid or unconstitutional clause,
paragraph, subsection or section."
Second, the fact that this is a civil administrative proceeding arising from a breath
test refusal is notable. In effect, the revised DC-70 advised Trowbridge that refusing to
submit to testing would lead to a suspension of his driving privileges, which is consistent
with the essentials of K.S.A. 2016 Supp. 8-1001(k). Trowbridge does not suggest, nor is
there anything in the record to show, that the threat of criminal penalties would have
affected his decision to refuse testing or that he was subjected to criminal penalties for
refusal. See K.S.A. 2016 Supp. 8-1020(t); see also Martin, 285 Kan. at 642 (recognizing
that "civil and criminal proceedings are wholly separate from one another and are
intended to serve two different purposes").
In sum, the omitted subsection discussing criminal penalties for test refusal were
invalidated by the Ryce and Nece decisions, and thus is no longer essential an component
of the statute. The district court correctly determined the revised DC-70 substantially
complied with the statutory requirements despite the omission of K.S.A. 2016 Supp. 8-
1001(k)(4).
The arresting officer did not invalidate Trowbridge's refusal to take the test by
informing him, in compliance with K.S.A. 2016 Supp. 8-1001(k)(1), that he was
"required" to submit to testing.
Trowbridge also challenges the paragraph of the revised DC-70 which advised
him that "Kansas Law [K.S.A. 2016 Supp. 8-1001(k)(1)] 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." He contends this is a misstatement of law, arguing
11
that nothing in K.S.A. 2016 Supp. 8-1001 requires drivers to submit to a test because
they are ultimately given the choice whether to ratify their implied consent.
The parties agree that testing under the implied consent laws is voluntary but
essentially disagree about the effect of the term "require" as used in K.S.A. 2016 Supp. 8-
1001(k)(1), which provides:
"(k) Before a test or tests are administered under this section, the person shall be
given oral and written notice that:
(1) 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."
As the KDOR points out and the district court determined in its ruling on this
issue, the revised DC-70 directly mirrors the statutory language. Trowbridge
acknowledges the text of this provision but asserts he was inaccurately advised of the law
and thus his suspension must be set aside. He claims subpart (k)(1) is itself incorrect
because other sections require the officer to "request" the person submit to a test after
providing the advisory information. See K.S.A. 2016 Supp. 8-1001(b), (m). He cites as
support Whigham v. Kansas Dept. of Revenue, No. 117,043, 2018 WL 1884742 (Kan.
App. 2018) (unpublished opinion), petition for rev. granted 308 Kan. 1602 (2018).
In that case, Whigham made the same argument as Trowbridge does now: that the
use of "require" in the DC-70 advisories is a misstatement of law based on the use of
"request" in other provisions of the statute. 2018 WL 1884742, at *3. Trowbridge also
repeats Whigham's argument that the panel cannot overlook the Legislature's choice to
switch from directory language to mandatory language when considering legislative
intent. See 2018 WL 1884742, at *4; Walker v. Brizendine, No. 114,776, 2016 WL
5012505, at *2-3 (Kan. App. 2016) (unpublished opinion).
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The panel in Whigham then considered the definitions of "'require'" and other
forms of that term, noting while "the term required can be read to mean something
similar to a request," that the definitions provided by the KDOR as support "mostly
include definitions that insinuate something mandatory." 2018 WL 1884742, at *5. In
contrast, the panel discussed the proposed amendments for the 2018 legislative
amendments swapping "'requires'" for "'allows,'" calling the substituted language
"comparatively a more directional term rather than a mandatory term, suggesting the
original use of required was intended as a mandatory term." 2018 WL 1884742, at *5-6.
Ultimately, the panel concluded Whigham's argument about legislative intent was more
persuasive but was "foreclosed" by the arresting officer's "good-faith reliance on the
advisories." 2018 WL 1884742, at *6.
In response, the KDOR contends interpreting "required" as a mandatory term
"would insert more ambiguity in the interpretation of the statute" because the statute
consistently allows a driver to refuse a test. The KDOR focuses on the use of "required"
in context, asserting the other provisions of the DC-70 must be considered because they
make it clear that a driver ultimately gets to choose whether to refuse a test.
This court is not bound by the panel's reasoning in Whigham. See Fleming, 308
Kan. at 706 (one Kansas Court of Appeals panel is not bound by another panel's
decision). And we adopt a different interpretation—one more aligned with that
propounded by KDOR.
We are asked to determine whether a warning given under K.S.A. 2016 Supp. 8-
1001(k)(1) substantially complies with the statutory scheme of implied consent law as set
out in K.S.A. 8-1001 et seq. The advisory given here was presented in the language of
(k)(1), so it explicitly complied with (k)(1). Instead, Trowbridge argues that the advisory
is a misstatement of the law and, as such, it did not substantially comply with the
statutory scheme of implied consent law. Because there was not substantial compliance,
13
he argues he is not required to show he was prejudiced by the statement. See Meigs v.
Kansas Dept. of Revenue, 251 Kan. 677, 682, 840 P.2d 448 (1992)
First, we agree that under the plain language of the statute, advising a driver that
he or she is required to submit to and complete a requested test is a misstatement of the
law. See Ryce II, 306 Kan. at 695 ("Significantly, while the statutory implied consent
advisory informs the driver he or she is required to take a blood alcohol test or face
consequences, . . . an officer can only 'request' that a driver submit to a test."). Although a
driver is "deemed to have consented," the driver is not required to consent. See K.S.A.
2016 Supp. 8-1001(a) ("Any person who operates or attempts to operate a vehicle within
this state is deemed to have given consent, subject to the provisions of this article," to
submit to a breath, blood, or urine test.). But just as the statute provides that the driver is
deemed to have given consent, that consent is "subject to the provisions" of the statute.
K.S.A. 2016 Supp. 8-1001(a). And the implied consent advisory goes on to discuss the
consequences of refusal of an officer's test "request." K.S.A. 2016 Supp. 8-1001(k)(4),
(5), (7).
Rather than isolating a particular provision, we must examine the statutory
scheme, considering "various provisions of an act in pari materia with a view to
reconciling and bringing the provisions into workable harmony, if possible." State v.
Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012); State v. Cole, 238 Kan. 370, Syl. ¶ 1, 710
P.2d 25 (1985) ("To this end, it is the duty of the court, as far as practicable, to reconcile
the different provisions so as to make them consistent, harmonious and sensible.").
"[W]ords are given meaning by their context." Scalia and Garner, Reading Law: The
Interpretation of Legal Texts, p. 56 (2012). Accordingly, K.S.A. 2016 Supp. 8-1001(k)(1)
should not be read in isolation. As the district court noted below and the parties agree, the
other provisions of K.S.A. 2016 Supp. 8-1001 make it clear that testing under the implied
consent laws is voluntary. In fact, the meaning of "requires" is limited by paragraphs 3
and 8 of the DC-70: "If you refuse" your driving privileges will be suspended and
14
"[r]efusal to submit to testing" may be used against you at trial. See K.S.A. 2016 Supp. 8-
1001(k)(3), (7). And most telling is the last provision, "Will you take a [breath, blood, or
urine] test?" These provisions, when read together, clarify that a person may refuse the
test, but there are consequences to that refusal.
The statute consistently directs law enforcement officers to "request a person to
submit to a test." See K.S.A. 2016 Supp. 8-1001(b), (c), (h), (i), (m). Likewise, officers
are required to read the implied consent advisories on the DC-70—disregarding the
provisions invalidated as unconstitutional, as discussed—which reference the driver's
ability to refuse testing and potential consequences of test refusal or failure. See K.S.A.
2016 Supp. 8-1001(k)(5)-(9). Reading these provisions as a whole, a reasonable person
would conclude that he or she retains the right to refuse testing. In fact, the DC-70
explicitly gives the driver a choice at its conclusion whether to refuse testing. So, while
read in isolation K.S.A. 2016 Supp. 8-1001(k)(1) may be a misstatement of the law, when
read in context with the rest of subsection (k) its meaning is clarified.
Moreover, Trowbridge's actions bolster this interpretation. The language did not
coerce Trowbridge into taking the test. He refused the requested test. He clearly
understood the language to mean he could refuse.
This is not a case like Meigs upon which Trowbridge relies. In Meigs, the officer
advised Meigs that if he refused the test his license would be suspended for 180 days. But
this was an old advisory. The statute had changed to require suspension for at least a year.
Meigs refused the test. The Supreme Court found that the officer had not substantially
complied with the statute because the statute required that he advise Meigs that his
license would be suspended for at least a year—double the amount of time he told Meigs.
Meigs was not required to show prejudice when there was not substantial compliance
with the statutory language required. Meigs, 251 Kan. at 682. Here the officer complied
with the legislative mandate by reading the advisories to Trowbridge exactly as they are
15
set out in the statute. The officer was required by statute to provide the implied consent
advisories. He did. Trowbridge refused the requested test. Those advisories, when read in
total, substantially comply with the statute. That was all that was necessary to suspend
Trowbridge's driver's license.
For these reasons, we find the district court did not err by determining the revised
DC-70 provided to Trowbridge substantially complied with Kansas implied consent laws.
First, the omitted subsection referencing criminal penalties for test refusal was
invalidated by Kansas Supreme Court decisions and therefore not essential. Likewise,
including the invalidated provision in the revised DC-70 would have been an inaccurate
statement of the law. Second, the use of the term "requires" in the first sentence of the
revised DC-70 mirrors the statutory language, which when read in context makes it clear
that a driver's choice to submit to testing under the implied consent framework is
voluntary.
Affirmed.
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