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Angie K. Pratt v. Kansas Department of

February 8, 2013

ANGIE K. PRATT, APPELLANT,
v.
KANSAS DEPARTMENT OF REVENUE, APPELLEE.



Appeal from Thomas District Court; GLENN D. SCHIFFNER, judge.

The opinion of the court was delivered by: Arnold-burger, J.:

SYLLABUS BY THE COURT

When a driver is arrested for driving under the influence of alcohol (DUI) and asked to take a breath alcohol test, the law enforcement officer's failure to certify on the DC-27 form the manner of service of the DC-27 form on the driver does not, standing alone, deprive the Kansas Department of Revenue of jurisdiction to suspend or restrict the driver's license.

Affirmed.

Before ARNOLD-BURGER, P.J., GREEN, J., and HEBERT, S.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 the 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 personally served her with the notice. Second, while the DC-27 form includes a paragraph that allowed for the arresting officer to certify the 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 the 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 the 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.

ANALYSIS

On appeal, Pratt reiterates her argument that the 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 ...


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