Generally, only issues raised at the administrative hearing
may be raised in a petition for judicial review.
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.
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.
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.
from Russell District Court; Steven E. Johnson, judge.
R. Iverson, of Legal Services Bureau, Kansas Department of
Revenue, for appellant.
Michael S. Holland II, of Holland and Holland, of Russell,
Schroeder, P.J., Powell and Gardner, JJ.
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.
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.
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.
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 ...