BY THE COURT
party to a court action must show that he or she has standing
to seek the requested relief, both under the applicable
statutory provisions and under traditional, common-law
principles. In order to have traditional standing, a party
must show a cognizable injury and establish a causal
connection between the injury and the challenged conduct.
person does not have a right to a driver's license, but
once he or she has a license, the person is entitled to
procedural due process before the license is suspended or
$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 the procedural due process to which he or she is
entitled before a driver's license is suspended or
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).
Under K.S.A. 2014 Supp. 8-1001(q), a motorist has the burden
to prove that his or her inability to successfully complete a
post-DUI breath test was due to a medical condition that was
not caused by alcohol or drugs.
implied consent advisory that mirrors statutory language is
legally sufficient to advise a motorist of the consequences
of refusing or 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.
of the judgment of the Court of Appeals in an unpublished
opinion filed December 15, 2017.
from Johnson District Court; James F. Vano, judge.
of the Court of Appeals affirming the district court is
affirmed in part and reversed in part. Judgment of the
district court is affirmed in part, reversed in part, and
remanded with directions.
Norton, of Norton Hare, L.L.C., of Overland Park, argued the
cause and was on the brief for appellant.
R. Carswell, assistant solicitor general, argued the cause,
and Adam D. King, of Kansas Department of Revenue, Bryan C.
Clark, assistant solicitor general, Toby Crouse, solicitor
general, and Jeffrey A. Chanay, chief deputy attorney
general, were with him on the briefs for appellee.
Creecy seeks our review of the Court of Appeals' decision
to affirm the district court's upholding the suspension
of Creecy's driver's license by the Kansas Department
of Revenue (KDR). Creecy first challenges the
constitutionality of K.S.A. 2014 Supp. 8-1020(d)(2), which
requires a motorist whose driver's license has been
confiscated by a law enforcement officer as a consequence of
a driving under the influence (DUI) arrest to pay a $50 fee
in order to be granted an administrative hearing on the
propriety of the license deprivation. Further, Creecy argues
his driver's license suspension must be reversed because:
(1) the arresting officer failed to comply with the personal
service requirements of K.S.A. 2014 Supp. 8-1001(c); (2)
Creecy's inability to complete the breath test due to a
medical condition did not qualify as a test refusal for
driver's license suspension purposes; and (3) the
arresting officer failed to comply with the statutorily
mandated implied consent advisories.
agree with Creecy's contention that K.S.A. 2014 Supp.
8-1020(d)(2)'s monetary requirement to obtain a due
process hearing, without any exception for the indigency of
the licensee, renders that provision facially
unconstitutional. The remedy, however, is not a restoration
of Creecy's driving privileges, but rather a refund of
the $50 fee. Because we find no merit to Creecy's other
claims, we affirm the suspension of his driver's license.
and Procedural Overview
is no dispute that police had probable cause to arrest Creecy
for DUI in October 2014. After being taken to the Gardner
Police Department for processing and testing, Creecy began to
have difficulty breathing. Officer David Rollf called
emergency medical personnel, who attended to Creecy and
administered oxygen. Creecy appeared to recover and declined
to go to the hospital.
Rollf began the procedure to conduct a postarrest test for
blood alcohol content (BAC) with the Intoxilyzer 8000 breath
testing machine. Officer Rollf gave Creecy the implied
consent advisories required by K.S.A. 2014 Supp. 8-1001(k),
both orally and using the DC-70 written form, advising Creecy
of his rights and potential penalties for failure or refusal.
attempted to provide a breath sample twice, but he was unable
to provide breath in a sufficient amount for the machine to
register a successful test. During the attempts, he displayed
outward physical signs that he was having difficulty
providing the breath samples. After the second unsuccessful
attempt, Officer Rollf told Creecy that his failure to
provide a measurable breath sample was considered a test
refusal. Officer Rollf completed the Officer's
Certification and Notice of Suspension form-Form DC-27-
notifying Creecy that his license was being administratively
suspended for refusal of a BAC test, handed it to Creecy, and
prepared to take Creecy to the Johnson County Jail.
Creecy stood up he had another medical episode, falling to
the floor and jerking violently. Medical personnel again
attended to Creecy, and he regained consciousness after
approximately one minute. Eventually Creecy was put on an
ambulance and taken to a hospital. Officer Rollf told Creecy
that he would give him a ticket, instead of taking him to
jail, and that all of his paperwork, including the DC-27
form, would be with Creecy's belongings.
requested an administrative hearing, pursuant to K.S.A. 2014
Supp. 8-1020(a)(1), to challenge the suspension of his
driver's license. Creecy paid a $50 administrative fee,
required by K.S.A. 2014 Supp. 8-1020(d)(2), to obtain
administrative review. The Kansas Department of Revenue (KDR)
administrative law judge affirmed the suspension, and Creecy
petitioned for de novo review in Johnson County District
Court. After a hearing in June 2016, Johnson County District
Judge James Vano affirmed the suspension.
timely appealed the district court's decision, arguing:
(1) Creecy did not refuse the breath test because his failure
to complete the test was caused by a medical condition; (2)
any refusal was immediately rescinded; (3) the implied
consent advisories did not substantially comply with the
applicable statutes; (4) Creecy did not receive personal
service of the DC-27 certification and notice; and (5) the
requirement to pay a $50 fee per K.S.A. 2014 Supp.
8-1020(d)(2) to get an administrative hearing is
Court of Appeals affirmed the district court. Creecy v.
Kansas Dept. of Revenue, No. 117, 035, 2017 WL 6397038,
at *7 (Kan. App. 2017) (unpublished opinion). The panel
accepted the district court's analysis of the evidence
that refuted Creecy's claim that he was having an asthma
attack that prevented completion of the breath test and
determined the evidence did not support that Creecy asked for
a third test attempt. 2017 WL 6397038, at *2-3. It determined
that the DC-70 form substantially complied with the law
despite "tend[ing] towards the obscure." 2017 WL
6397038, at *4. Applying a substantial compliance test, the
panel opined that the DC-27 was personally served on Creecy.
2017 WL 6397038, at *4-5. Finally, the panel determined that
the $50 fee was not categorically unconstitutional, albeit
the panel expressly indicated that "[t]he
constitutionality of the lack of a bypass for indigents is
not before us." 2017 WL 6397038, at *5-7.
petition for review, Creecy does not raise the issue of
rescission of test refusal, accordingly that issue is not
considered herein. Supreme Court Rule 8.03(a)(4)(C) (2018
Kan. S.Ct. R. 53).
of Mandatory Fee for Due Process Hearing
first challenges K.S.A. 2014 Supp. 8-1020(d)(2)'s
mandatory fee as an unconstitutional barrier to the exercise
of a driver's license holder's right to due process
upon the government's seizure of that property. Before
addressing that question, we pause to review Kansas'
implied consent statutory scheme, which will be relevant to
all of Creecy's issues.
to K.S.A. 2014 Supp. 8-1001(a) any person operating a vehicle
in this State is deemed to have given consent to submit to
testing to determine the presence of alcohol or drugs. Among
other things, an officer is required to request that a person
submit to a test after the driver has been arrested or taken
into custody for DUI. K.S.A. 2014 Supp. 8-1001(b)(1)(A).
postarrest evidentiary test is distinguished from a
preliminary breath test (PBT), which may be used to help an
officer determine whether to make a DUI arrest, and which has
limited admissibility in later proceedings. K.S.A. 2014 Supp.
8-1012(d). The definition of a postarrest test refusal
specifically excludes refusal to submit to a PBT. K.S.A. 2014
administering the postarrest test, an officer must give oral
and written advisories of the various rights and notices of
the implied consent law. K.S.A. 2014 Supp. 8-1001(k). The
written form is known as a DC-70.
person refuses to submit to a test, or fails to complete one,
his or her driver's license will be suspended for one
year. K.S.A. 2014 Supp. 8-1001(k)(5). A person's
inability to successfully complete a test is considered a
test refusal unless the person can show that the failure was
due to a medical condition not caused by drugs or alcohol.
K.S.A. 2014 Supp. 8-1001(q).
event of a test refusal, an officer must prepare an
officer's certification of test refusal and notice of
license suspension. K.S.A. 2014 Supp. 8-1002. The written
form is known as a DC-27. The officer must provide personal
service of the DC-27 to the motorist. K.S.A. 2014 Supp.
person whose license has been suspended may request an
administrative hearing within 14 days of service of the
DC-27. K.S.A. 2014 Supp. 8-1020(a)(1). The person is required
to pay a $50 fee for the hearing. K.S.A. 2014 Supp.
8-1020(d)(2). There is no provision for a waiver of the fee
or for any delay in the payment of the fee in the event the
person is indigent and there is no mechanism for a refund in
the event the law enforcement officer wrongfully deprived the
person of his or her license. Specifically, the fee provision
"The division shall charge a fee of $50 for a hearing,
to be paid within the time period for making a timely request
for a hearing, whether held by telephone or in person, to be
applied by the division for administrative costs to conduct
the hearing. The division shall remit all hearing fees to the
state treasurer in accordance with the provisions of K.S.A.
75-4215, and amendments thereto. Upon receipt of each such
remittance, the state treasurer shall deposit the entire
amount in the state treasury to the credit of the division of
vehicles operating fund. The hearing fee established in this
section shall be the only fee collected or moneys in the
nature of a fee collected for such hearing. Such fee ...