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Meats v. Kansas Department of Revenue

Supreme Court of Kansas

August 23, 2019

Warren D. Meats Jr., Appellee/Cross-appellant,
v.
Kansas Department of Revenue, Appellant/Cross-appellee.

         SYLLABUS

         1. The $50 fee assessed under K.S.A. 2014 Supp. 8-1020(d)(2) is unconstitutional on its face because it requires a payment of a fee, without provision for indigency, before a motorist can obtain procedural due process to which he or she is entitled before a driver's license is suspended or revoked.

         2. An implied consent advisory that mirrors statutory language is legally sufficient to advise a motorist of the consequences of failing to submit to a postarrest breath test.

         3. The term "evidentiary test" is sufficient to distinguish a postarrest breath test from a preliminary breath test; an implied consent advisory that uses the term "evidentiary test" sufficiently complies with statutory notice requirements.

         4. A law enforcement officer who personally hands a form DC-27 notice of suspension of driving privileges to a motorist that failed to complete a breath test, who permits the motorist to read the form, and who subsequently places the form with the motorist's other property has complied with the personal service requirement of K.S.A. 2014 Supp. 8-1002(c).

          Appeal from Johnson District Court; Kevin P. Moriarty, judge.

          Dwight R. Carswell, assistant solicitor general, argued the cause, and J. Brian Cox, deputy general counsel, Kansas Department of Revenue, Jeffrey A. Chanay, chief deputy attorney general, and Bryan C. Clark, assistant solicitor general, were with him on the briefs for appellant.

          Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.

          OPINION

          JOHNSON, J.

         Kansas Department of Revenue (KDOR) appeals the Johnson County District Court's ruling that the $50 fee mandated by K.S.A. 2014 Supp. 8-1020(d)(2) to gain administrative review of a driver's license suspension is unconstitutional. Warren D. Meats Jr. cross-appeals the district judge's order affirming his license suspension, arguing that the arresting officer failed to comply with the statutorily mandated implied consent advisories and that the arresting officer failed to comply with the personal service requirements of K.S.A. 2014 Supp. 8-1001(c).

         We have considered these identical issues in Creecy v. Kansas Dept. of Revenue, 310 Kan.__, __ P.3d __, (No. 117, 035, this day decided), slip op. at 3, and have held that the $50 fee requirement in K.S.A. 2014 Supp. 8-1020(d)(2) is facially unconstitutional. We therefore affirm the district court's ruling on the fee issue, but because Meats did not appeal the district court's ruling that the issue was moot as to him, he is not entitled to any relief in this appeal. We find no merit to Meats' other claims, and affirm the suspension of his driver's license.

         Factual and Procedural Overview

         Following his arrest for DUI in March 2014, Meats refused to submit to a post-arrest evidentiary breath test to measure his blood alcohol content (BAC) while at the Olathe jail. Olathe Police Officer John Forcier testified that his standard procedure was to give the required implied consent advisories per K.S.A. 2014 Supp. 8-1001(k), both orally and using the DC-70 written form, advising Meats of his rights and the potential penalties for failure or refusal. Once Meats refused the test, Officer Forcier would have provided him with the Officer's Certification and Notice of Suspension form-Form DC-27-notifying Meats that his license was being administratively suspended for a refusal of a BAC test. Although Officer Forcier testified to the standard procedure he followed under these circumstances, he was unable to specifically recall the events and procedures used during Meats' arrest.

         Meats testified that he received some paperwork but he did not know whether it included a DC-70 or a DC-27. He did acknowledge receiving a pink copy of a form, which would have been consistent with a DC-27 form. Further, he admitted that the ...


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