BY THE COURT
Appeals from administrative suspensions of driver's
licenses are subject to review under the Kansas Judicial
Review Act (KJRA). They are considered by the district court
de novo. The burden of proving the invalidity of the
agency's action rests on the party asserting invalidity.
reviewing a driver's license suspension, an appellate
court applies the substantial competent evidence standard. To
uphold an agency's action it must be supported by
evidence that is substantial when viewed in light of the
record as a whole.
Substantial compliance is sufficient to satisfy the protocols
established by the Kansas Department of Health and
Environment (KDHE) for administering an Intoxilyzer 9000 test
of a suspected intoxicated driver. In driver's license
suspension cases, the substantial compliance standard
requires a licensee seeking to overturn the agency's
action to demonstrate a violation of the KDHE testing
procedures that strikes at the purpose for the protocol and
casts doubt upon the reliability of the subsequent test
20-minute alcohol deprivation period required before
administering an Intoxilyzer 9000 test ends when the breath
test is actually administered by the test subject providing a
breath sample, not when the Intoxilyzer 9000 machine is
turned on prior to the test.
from Ford District Court; Van Z. Hampton, judge.
J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for
D. Shultz, of Legal Services Bureau, Kansas Department of
Revenue, for appellee.
Leben, P.J., Gardner, J., and McAnany, S.J.
Molina appeals the district court's denial of relief on
his petition for judicial review of the decision of the
Kansas Department of Revenue to impose a one-year suspension
on his driving privileges.
hearing before the district court, Molina failed to present
evidence that the proper procedures were not followed in
administering the Intoxilyzer 9000 breath test. The test
results showed that Molina had been driving while
intoxicated. Rather, Molina based his claim before the
district court-and again before us-on a speculative and
unsupported hypothetical scenario which itself is based on an
erroneous understanding of how the statutory alcohol
deprivation period is measured before the Intoxilyzer 9000
test is to be administered.
Molina has failed to show any impropriety in the manner in
which the test was administered, we affirm.
Waide Scott of the Gray County Sheriff's Office stopped
Molina for failing to maintain a single lane and changing
lanes without signaling. Molina smelled of alcohol, his
speech was slurred, he failed a series of field sobriety
tests, he failed his preliminary breath test, and he told
Deputy Scott that he had been drinking. Scott arrested ...