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Molina v. Kansas Department of Revenue

Court of Appeals of Kansas

December 13, 2019

Cruz Molina, Appellant,
v.
Kansas Department of Revenue, Appellee.

         SYLLABUS BY THE COURT

         1. 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.

         2. When 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.

         3. 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 results.

         4. The 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.

          Appeal from Ford District Court; Van Z. Hampton, judge.

          Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.

          John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

          Before Leben, P.J., Gardner, J., and McAnany, S.J.

          McAnany, J.

         Cruz 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.

         At the 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.

         Because Molina has failed to show any impropriety in the manner in which the test was administered, we affirm.

         Deputy 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 ...


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