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Wall v. Kansas Department of Revenue

Court of Appeals of Kansas

August 11, 2017

Craig Wall, Appellee,
v.
Kansas Department of Revenue, Appellant.

         SYLLABUS

         1. Generally, only issues raised at the administrative hearing may be raised in a petition for judicial review.

         2. 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.

         3. The Kansas Department of Revenue has an independent duty under K.S.A. 2016 Supp. 8-1002(f) to review an officer's certification and notice of suspension form (DC-27) to determine if it meets the requirements of K.S.A. 2016 Supp. 8-1002(a).

         4. Upon its independent review, if the Kansas Department of Revenue determines the officer's certification fails to meet the requirements of K.S.A. 2016 Supp. 8-1002(a), it shall dismiss the administrative proceeding and return any driver's license surrendered by the driver.

         Appeal from Russell District Court; Steven E. Johnson, judge. Affirmed.

          Ashley R. Iverson, of Legal Services Bureau, Kansas Department of Revenue, for appellant.

          Michael S. Holland II, of Holland and Holland, of Russell, for appellee.

          Before Schroeder, P.J., Powell and Gardner, JJ.

          SCHROEDER, J.

         The Kansas Department of Revenue (KDOR) appeals the dismissal for lack of jurisdiction of its administrative suspension of Craig Wall's driver's license for failure of an alcohol test. We agree with Wall-KDOR never had jurisdiction to proceed with the administrative hearing as the certification and notice of suspension (DC-27) form was incorrectly prepared. We affirm.

         On March 25, 2016, Wall was arrested for driving under the influence of alcohol. The arresting officer completed a DC-27 form indicating Wall failed an evidentiary breath test. However, the accompanying test results showed no breath sample was given. The officer also did not mark Paragraphs 9-11 of the DC-27 form, which are required to be certified when there is a test failure. Wall timely requested an administrative hearing before KDOR. At the administrative hearing he argued: (1) The arresting officer lacked reasonable grounds to request a preliminary breath test; (2) the implied consent warnings given prior to testing were unconstitutionally coercive; and (3) his due process rights were violated based on an improper recitation of the law by the arresting officer. KDOR affirmed the suspension.

         Wall timely filed a petition for judicial review, arguing the same issues raised at the administrative hearing. At trial, he moved for summary judgment, arguing the suspension should be dismissed for lack of jurisdiction because the DC-27 form was improperly certified. Specifically, he argued the certifying officer indicated a breath test failure but the test results showed no breath sample was given. The district court granted Wall's motion based on the inconsistency between the DC-27 form and the test results because KDOR "never gained jurisdiction with a properly certified and filed DC-27 form." KDOR timely appealed.

         KDOR argues the district court lacked jurisdiction to consider the issue of subject matter jurisdiction because Wall did not raise it at the administrative hearing or in his petition for judicial review. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015). 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), rev. denied303 Kan. 1078 (2016). To the extent the issue requires this ...


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