Warren D. Meats Jr., Appellee/Cross-appellant,
Kansas Department of Revenue, Appellant/Cross-appellee.
$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.
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.
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.
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).
from Johnson District Court; Kevin P. Moriarty, judge.
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.
Norton, of Norton Hare, L.L.C., of Overland Park, argued the
cause and was on the brief for appellee.
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).
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.
and Procedural Overview
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
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