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Bixenman v. Kansas Department of Revenue

Court of Appeals of Kansas

March 15, 2013

Shane A. Bixenman, Appellee,
v.
Kansas Department of Revenue, Appellant.

SYLLABUS

1. Because K.S.A. 8-1567a is a civil offense with its own unique process, and not a criminal offense, an arrest is not a prerequisite to its enforcement.

2. It is unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath- or blood-alcohol content of .02 or greater. A breath or blood test may be administered to an underage driver if he or she has been arrested or placed in lawful custody and the arresting officers have reasonable grounds to believe the driver was operating a vehicle while under the influence of alcohol as defined in K.S.A. 8-1567a.

3. The term "reasonable grounds" is equated to probable cause, which is a higher standard than reasonable suspicion but a lower standard than necessary to establish guilt beyond a reasonable doubt.

4. Under the facts of this appeal, the arresting officers had probable cause to take the underage driver into custody for driving under the influence as defined in K.S.A. 8-1567a and reasonable grounds to request that the driver submit to an evidentiary breath test.

Appeal from Ellis District Court; Thomas L. Toepfer, judge.

John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellant.

Leslie A. Hess, of Kennedy Berkley Yarnevich & Williamson Chartered, of Hays, for appellee.

Before Malone, C.J., McAnany, J., and Knudson, S.J.

KNUDSON, J.

The Kansas Department of Revenue (KDR) appeals from the decision of the district court to set aside an administrative order suspending Shane A. Bixenman's driving privileges for 30 days and thereafter restricting his driving privileges for an additional 330 days. The district court concluded police officers lacked probable cause to arrest Bixenman for driving under the influence of alcohol (DUI) and therefore did not have reasonable grounds to request an evidentiary breath test under K.S.A. 2009 Supp. 8-1001.

We reverse the decision of the district court and remand with directions that the administrative order of the KDR be reinstated.

The underlying facts are not in material dispute. On April 28, 2010, Officer Benjamin Kahle and Investigator Aaron Larson of the Hays Police Department lawfully stopped Bixenman's truck for driving with one headlight. Twenty-year-old Bixenman did not exhibit any signs of intoxication or erratic behavior while driving or stopping his truck.

Kahle spoke to Bixenman and noticed that he had bloodshot eyes and there was an odor of alcohol emanating from Bixenman and his truck. Bixenman told Kahle he ...


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