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Ashley v. Kansas Dep't of Revenue

September 7, 2007

RUSSELL G. ASHLEY, APPELLANT,
v.
KANSAS DEPARTMENT OF REVENUE, APPELLEE.



Appeal from Johnson District Court, THOMAS E. FOSTER, judge.

SYLLABUS BY THE COURT

1. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.

2. The limited scope of an administrative hearing pursuant to K.S.A. 8-1020(h)(2) speaks only to substantive issues and does not attempt to limit procedural issues that can be raised at an administrative hearing. Whether a party has been properly served with notice of suspension of driving privileges pursuant to K.S.A. 8-1002(c) is a procedural issue.

3. K.S.A. 77-614(b) provides specific pleading requirements for a petition for review from an administrative agency action. Strict compliance with the statutory pleading requirements is necessary.

4. Under K.S.A. 8-1002(c), personal service of the notice of suspension of driving privileges is mandatory. The doctrine of substantial compliance is not applicable to the personal service provision of K.S.A. 8-1002(c). If the suspension notice is not personally served when so required by statute, the driver is not required to make the additional showing that he or she was prejudiced by the invalid service.

5. K.S.A. 8-1001 et seq. is a remedial law and shall be liberally construed to promote public health, safety, and welfare.

6. Under the facts and circumstances of this case, either the officer who investigated the offense and requested the driver to take a breath alcohol test or the officer who actually operated the device to perform the test was qualified to serve the notice of suspension of driving privileges pursuant to K.S.A. 8-1002(c).

The opinion of the court was delivered by: Malone, J.

Affirmed.

Before CAPLINGER, P.J., ELLIOTT and MALONE, JJ.

Russell G. Ashley appeals the district court's decision upholding his driver's license suspension by the Kansas Department of Revenue (KDR). Ashley claims he was not properly served with notice of his license suspension because the officer who served the notice was not the officer who administered the breath alcohol test Ashley had failed. KDR contends that neither the district court nor this court has jurisdiction to address Ashley's claim. In the alternative, KDR contends Ashley was properly served with the suspension notice.

On November 19, 2004, Officer Jerrald Glaser arrested Ashley for driving under the influence of alcohol (DUI). Glaser determined that Ashley should take a breath test, and he transported Ashley to the Overland Park police station. Because Glaser was not certified to perform breath testing using the Intoxilyzer 5000 device, he contacted Officer Justin Doherty, who was certified to operate the device.

Glaser asked Ashley to take the breath test, and Ashley consented. Glaser gave the requisite implied consent notices to Ashley before the test was administered. Although Glaser was in charge of the 20-minute alcohol deprivation period, Doherty actually operated the Intoxilyzer 5000 device and performed the breath testing. However, Glaser remained present during the testing.

The Intoxilyzer 5000 results indicated Ashley's blood alcohol level was above 0.08. After Ashley failed the test, both Glaser and Doherty completed and signed the officer's certification and notice of suspension (DC-27 form). Glaser then personally handed the completed DC-27 form to Ashley. Doherty was present when Ashley was served with the suspension notice, although Doherty did not actually see Glaser hand the DC-27 form to Ashley.

Ashley timely requested an administrative hearing. Following the hearing, KDR affirmed the driver's license suspension. Ashley timely petitioned the Johnson County District Court for review of the agency's action. Among other allegations, the petition for judicial review stated that Ashley "was not properly served with the statutory notice of proceedings (Form DC-27)." At the bench trial, Ashley argued he was not properly served with the DC-27 form because the notice had been served by Glaser and not by Doherty, who actually performed the breath testing. After hearing the evidence, the district court entered a written order upholding Ashley's driver's license suspension. The district court specifically found that Ashley had been properly served with the DC-27 form pursuant to K.S.A. 8-1002. Ashley timely appeals.

Jurisdiction

The sole issue on appeal is whether Ashley was properly served with notice of his driver's license suspension pursuant to K.S.A. 8-1002(c). However, KDR contends that neither the district court nor this court has jurisdiction to address Ashley's claim. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Also, to the extent the issue involves statutory interpretation, an appellate court's review is unlimited. 281 Kan. at 374.

KDR's jurisdictional argument is based upon two separate grounds. First, KDR argues that Ashley's claim exceeds the limited scope of an administrative hearing pursuant to K.S.A. 8-1020(h)(2). A licensee may request an administrative hearing to challenge his or her driver's license suspension, pursuant to K.S.A. 8-1020(a). If the officer has certified that the ...


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