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102792
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No. 102,792
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DAWN CRETEN,
Appellant,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellee.
SYLLABUS BY THE COURT
1.
The statutory list of issues that may be decided in an administrative driver's license
suspension hearing authorizes the court to consider whether the testing procedures used
by the local agency substantially complied with the procedures set out by the Kansas
Department of Health and Environment (KDHE).
2.
The phrase "testing procedures" as used in this statutory scheme is limited to the
testing procedures established by the KDHE for administering a particular breath test and
does not include general testing procedures established by the KDHE to ensure the
continued certification of a breath test machine.
3.
The mootness doctrine recognizes that it is the function of a judicial tribunal to
determine real controversies relative to the legal rights of persons and properties which
are actually involved in the particular case properly brought before it and to adjudicate
those rights in such a manner that the determination will be operative, final, and
conclusive.
2
4.
This court recognizes an exception to the mootness doctrine where a particular
issue, although moot, is capable of repetition and is one of public importance.
5.
Under the facts of this case, substantial competent evidence supports the district
court's finding that the local agency substantially complied with KDHE protocol
requiring a weekly certified standard run of the breath test machine.
Appeal from Wyandotte District Court; DAVID W. BOAL, judge. Opinion filed June 24, 2011.
Affirmed.
Bruce D. Mayfield, of Bruce D. Mayfield, Chartered, of Overland Park, for appellant.
J. Brian Cox, senior litigation attorney, of Legal Services Bureau, Kansas Department of
Revenue, for appellee.
Before BUSER, P.J., MALONE and STANDRIDGE, JJ.
STANDRIDGE, J.: Dawn Creten appeals from the district court's decision to affirm
the suspension of her driver's license by the Kansas Department of Revenue (KDR). In so
doing, Creten argues the Tonganoxie Police Department's failure to perform a certified
standard run of the Intoxilyzer machine during the calendar week immediately prior to
her breath test necessarily established that the Tonganoxie Police Department failed to
substantially comply with Kansas Department of Health and Environment (KDHE)
procedures, which in turn rendered the results of her blood alcohol concentration (BAC)
test unreliable as a matter of law. The KDR cross-appeals, alleging the district court erred
in various evidentiary rulings. For the reasons stated below, we affirm the suspension of
Creten's driver's license and, as a result, decline to address the issues presented in the
KDR's cross-appeal.
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FACTS
On December 16, 2007, Creten was pulled over by a Tonganoxie police officer for
speeding and driving left of center. Upon making contact, the officer noted that Creten
smelled of alcohol and had bloodshot eyes. After Creten failed numerous field sobriety
tests, the officer arrested Creten and transported her to the Tonganoxie police station to
take a breath test on an Intoxilyzer 5000 certified by the KDHE. The result of the test
revealed that Creten had a BAC of .191; thus, the KDR suspended Creten's driver's
license.
Creten appealed, and an administrative hearing officer (AHO) affirmed the
suspension. On September 17, 2008, Creten filed a petition for judicial review in district
court seeking de novo review of her claims that (1) the Intoxilyzer machine was not
properly certified by the KDHE and (2) the Tonganoxie Police Department did not
substantially comply with testing procedures established by the KDHE in order to
maintain the agency's certification of the Intoxilyzer machine.
At the hearing, Creten presented evidence showing that a certified standard run of
the Intoxilyzer machine was performed on December 8, 2007, but a subsequent run was
not performed until 8 days later on December 16, 2007, after Creten took a breath test on
the machine earlier that same day. Creten argued the failure to perform a "certified
standard run" of the machine during the calendar week of December 9 to December 15,
2007, was a violation of the KDHE Breath Alcohol Training Manual, Standard #2,
paragraph 1, which states that "[e]ach certified instrument will have a certified standard
run during each calendar week (2 trials), recorded on the monthly Certified Report and
the original submitted MONTHLY to Kansas Department of Health and Environment
Laboratory, Kansas Department of Health and Environment."
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Christine Houston, the breath alcohol supervisor for the KDHE, testified that the
1-day delay in performing the certified standard run did not affect the reliability of the
Intoxilyzer machine used to test Creten's breath. Houston noted that during the machine's
external standard check of the standard solution that occurred immediately before testing
Creten's breath, the machine registered a reading of .082. Houston stated that such a
result indicated the machine was working properly because it correctly determined that
the standard solution had an alcohol concentration between .070 and .089.
Houston also testified that if a law enforcement agency failed to perform a
certified standard run on an Intoxilyzer machine during a calendar week, the KDHE
would not automatically revoke the agency's certification of the machine. Instead,
Houston stated that the KDHE would send a letter to the law enforcement agency
reminding it to perform the weekly test.
The district court ultimately affirmed the suspension of Creten's driver's license.
The court concluded that the failure to perform a certified standard run of the Intoxilyzer
machine during the calendar week immediately prior to Creten's breath test—in and of
itself—was insufficient to defeat a finding of substantial compliance with testing
procedures established by the KDHE. In reaching this decision, the court found
particularly persuasive the testimony from Houston indicating that a 1-day delay in
performing the certified standard run had no effect on the machine's reliability. In sum,
the court held there was no evidence in this case from which to find that the underlying
objective of the weekly testing—reliability—was compromised in any way.
ANALYSIS
The sole issue presented by Creten on appeal is whether the failure to perform a
certified standard run of the machine during the calendar week immediately prior to
Creten's breath test necessarily established that the Tonganoxie Police Department failed
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to substantially comply with KDHE testing procedures, which in turn rendered the results
of her BAC test unreliable as a matter of law. The KDR argues the issue presented by
Creten is not within the scope of issues listed in K.S.A. 2007 Supp. 8-1020(h)(2) that can
be raised to the court in an administrative review of a license suspension resulting from a
breath test failure. Alternatively, the KDR argues that even if the issue is one that can be
raised, substantial competent evidence supports the district court's finding that the
Tonganoxie Police Department substantially complied with KDHE protocol requiring a
weekly certified standard run of the machine. Given the procedural nature of the KDR's
initial argument, we will discuss it first.
Statutory Restrictions Related to Administrative Review When a Driver's License
Suspension Results from a Breath Test Failure
The sole legal authority upon which Creten relies to substantively challenge the
suspension of her driver's license is K.S.A. 2007 Supp. 8-1020(h)(2)(F), which authorizes
administrative review by the court of a suspension when the issue presented for review is
whether "the testing procedures used substantially complied with the procedures set out
by the Kansas department of health and environment." The KDR contends the issue
presented by Creten does not come within the scope of K.S.A. 2007 Supp. 8-
1020(h)(2)(F) because the "testing procedures" to which that subsection of the statute
refers are limited to the procedures employed by the individual officer as he or she
actually administers a particular test to a particular person. Creten disagrees, arguing that
the phrase "testing procedures" as used in K.S.A. 2007 Supp. 8-1020(h)(2)(F) also
includes the weekly certified standard run that is performed to ensure continued
certification of the Intoxilyzer machine by the KDHE.
Resolution of the issue presented hinges upon our interpretation of K.S.A. 2007
Supp. 8-1020(h)(2)(F). Issues of statutory interpretation raise pure questions of law and
are subject to this court's unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan.
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625, 629, 176 P.3d 938 (2008). "[S]tatutory interpretation begins with the language
selected by the legislature. If that language is clear, if it is unambiguous, then statutory
interpretation ends there as well." 285 Kan. at 629. Ordinary words should be given their
ordinary meaning. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). Courts
should not focus on an isolated part of a legislative act but are required, if possible, to
consider and construe together all parts of the act in pari materia. McIntosh v. Sedgwick
County, 282 Kan. 636, 642, 147 P.3d 869 (2006).
When, as here, an officer has certified under K.S.A. 2007 Supp. 8-1002(a)(3) that
a licensee failed a breath test, K.S.A. 2007 Supp. 8-1020(h)(2) limits the scope of the
court's administrative review of the agency decision to the following issues:
"(A) law enforcement officer had reasonable grounds to believe the person was
operating a vehicle while under the influence of alcohol or drugs, or both, or had been
driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
thereto, while having alcohol or other drugs in such person's system;
(B) the person was in custody or arrested for an alcohol or drug related offense or
was involved in a vehicle accident or collision resulting in property damage, personal
injury or death;
(C) a law enforcement officer had presented the person with the oral and written
notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of health
and environment;
(E) the person who operated the testing equipment was certified by the Kansas
department of health and environment;
(F) the testing procedures used substantially complied with the procedures set
out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration of .08
or greater in such person's breath; and
(H) the person was operating or attempting to operate a vehicle." (Emphasis
added.)
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We must consider the various provisions of this statute in pari materia to reconcile
and bring the provisions into workable harmony, if possible. See Redd v. Kansas Truck
Center, 291 Kan. 176, 195, 239 P.3d 66 (2010). In so doing, we conclude that the
legislature intended the phrase "testing procedures" in subsection (h)(2)(F) to be limited
to the procedures employed by an individual officer administering a particular test to a
particular person. We find particularly persuasive the legislature's decision to authorize
administrative review of a challenge to the testing procedure used to measure BAC under
K.S.A. 2007 Supp. 8-1020(h)(2)(F) and to independently authorize administrative review
of a challenge to the testing equipment used to measure BAC under K.S.A. 2007 Supp. 8-
1020(h)(2)(D). Based on its decision to authorize the administrative review of a challenge
to the testing procedure in one subsection of the statute and administrative review of a
challenge to the testing equipment in another subsection, we find the legislature intended
K.S.A. 2007 Supp. 8-1020(h)(2)(D) to be the exclusive legal authority for presenting an
administrative challenge to the testing equipment used to measure BAC. See Hawley v.
Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006) (courts should
construe statutes to avoid unreasonable results and should presume the legislature does
not intend to enact useless or meaningless legislation).
Notably, our conclusion that the legislature intended the phrase "testing
procedures" in subsection (h)(2)(F) to be limited to the testing procedures established by
the KDHE regarding the administration of a breath test, not the testing procedures
established by the KDHE to ensure the continued certification of an Intoxilyzer machine,
is entirely consistent with the conclusion reached by those courts in Kansas that have
interpreted and applied K.S.A. 8-1020(h)(2)(F). See Mitchell v. Kansas Dept. of Revenue,
41 Kan. App. 2d 114, 117-19, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009) (pursuant
to K.S.A. 8-1020[h][2][F], court addressed issue of substantial compliance with KDHE
protocols for administering breath test when driver, during 20-minute deprivation period,
was allowed to drink cup of water and go to restroom alone for 2 to 4 minutes); Martin v.
Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 9-10, 163 P.3d 313 (2006) (pursuant to
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K.S.A. 8-1020[h][2][F], court addressed issue of substantial compliance with KDHE
protocols for administering breath test when officer who administered breath test left
driver alone in testing room several times for only a few seconds at a time during 20-
minute deprivation period); Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820,
822-23, 74 P.3d 588 (2003) (pursuant to K.S.A. 8-1020[h][2][F], court addressed
substantial compliance with KDHE protocols for administering breath test when officer
failed to visually check to see if tubing running from simulator solution to Intoxilyzer
5000 was properly attached prior to administering breath test); Bryant v. Kansas Dept. of
Revenue, No. 99,515, unpublished opinion filed January 16, 2009, slip op. at 4-7
(pursuant to K.S.A. 8-1020[h][2][F], court addressed substantial compliance with KDHE
protocols for administering breath test in conjunction with 20-minute deprivation period);
Burkhart v. Kansas Dept. of Revenue, No. 91,345, unpublished opinion filed September
10, 2004, slip op. at 2-4 (pursuant to K.S.A. 8-1020[h][2][F], court addressed issue of
whether Intoxilyzer 5000 machine which printed "inverted" copy of test results
substantially complied with KDHE protocols for administering breath testing); Resner v.
Kansas Dept. of Revenue, No. 89,889, unpublished opinion filed January 9, 2004, slip op.
at 3-5 (pursuant to K.S.A. 8-1020[h][2][F], court addressed issue of substantial
compliance with KDHE protocols for administering breath test when officer who
conducted 20-minute deprivation period was not the same officer who administered the
breath test).
On a final note, and in conjunction with our finding that the legislature intended
K.S.A. 2007 Supp. 8-1020(h)(2)(D) to be the exclusive legal authority for presenting the
court with an administrative challenge to the testing equipment used to measure BAC, we
acknowledge that another panel of this court has limited the scope of a K.S.A. 8-
1020(h)(2)(D) challenge to whether the Intoxilyzer machine was actually certified at the
time the driver was tested. See Barnett v. Kansas Dept. of Revenue, 44 Kan. App. 2d 498,
Syl. ¶ 2, 500, 238 P.3d 324 (2010) (issues concerning whether an Intoxilyzer machine
was properly tested in order to maintain its certification with the KDHE were not issues
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encompassed by K.S.A. 2009 Supp. 8-1020[h][2][D]). In support of its holding, the
Barnett court stated its belief that "if the legislature intended to allow hearings to
encompass proper certification of Intoxilyzers—rather than just whether the machine has
been certified—it could have done so in the language of K.S.A. 2009 Supp. 8-
1020(h)(2)(D)." 44 Kan. App. 2d at 501.
Thus, even if Creten had presented the court with a challenge to the testing
equipment under K.S.A. 2007 Supp. 8-1020(h)(2)(D) instead of K.S.A. 2007 Supp. 8-
1020(h)(2)(F), the holding in Barnett likely would preclude administrative review by the
court of her challenge because the issue she presents goes well beyond a claim that the
equipment was not actually certified. As noted by the court in Barnett, legislative history
suggests that such preclusion is precisely the outcome desired by the legislature. Under
the 1997 version of the statute, the scope of issues that could be considered in an
administrative challenge to suspension of a driver's license included reliability of the
testing equipment; thus, licensees could challenge the certification record for the testing
equipment at administrative hearings. See Meehan v. Kansas Dept. of Revenue, 25 Kan.
App. 2d 183, 185, 959 P.2d 940, rev. denied 265 Kan. 885 (1998). In 2001, however, the
legislature amended the statute, now codified at K.S.A. 2010 Supp. 8-1020(h)(2)(D), to
limit the scope of issues that can be considered under this subsection to whether the
equipment was "certified." K.S.A. 2010 Supp. 8-1020(h)(2)(D).
In sum, we find the phrase "testing procedures" as used in K.S.A. 2007 Supp. 8-
1020(h)(2)(F) does not include the weekly certified standard run that is performed to
ensure continued certification of the Intoxilyzer machine by the KDHE. Because it does
not come within the scope of issues that a court may consider upon judicial review of an
administrative suspension of driving privileges, we are procedurally precluded from
reaching the merits of the issue presented by Creten on appeal. Thus, albeit for reasons
different from those cited by the district court, we affirm the district court's decision to
uphold administrative suspension of Creten's driving privileges. See Bergstrom v. Noah,
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266 Kan. 847, 875-76, 974 P.2d 531 (1999) (if a trial court reaches the right result, its
decision will be upheld even though the trial court relied upon the wrong ground or
assigned erroneous reasons for its decision).
Substantial Compliance
Given our finding that the issue presented by Creten does not come within the
scope of issues that a court may consider upon judicial review of a driver's license
suspension, it appears the substantial compliance issue presented by Creten may be moot.
"The mootness doctrine is one of court policy which recognizes that it is the function of a
judicial tribunal to determine real controversies relative to the legal rights of persons and
properties which are actually involved in the particular case properly brought before it
and to adjudicate those rights in such manner that the determination will be operative,
final, and conclusive." Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504,
912 P.2d 716 (1996).
At the same time, we have recognized an exception to the mootness rule "where a
particular issue, although moot, is one capable of repetition and one of public
importance." Duffy, 259 Kan. at 504. In this case, Creten asserts the failure to perform a
certified standard run of the machine during the calendar week immediately prior to her
breath test necessarily established that the Tonganoxie Police Department failed to
substantially comply with KDHE procedures, which in turn rendered the results of her
BAC test unreliable as a matter of law. Based on our review of the arguments presented
on appeal, we find the particular issue presented by Creten, although moot, is one capable
of repetition. Accordingly, we will address the merits of Creten's claim.
In support of her improper certification claim, Creten relies on the KDHE Breath
Alcohol Training Manual, Standard #2, paragraph 1, which states that "[e]ach certified
instrument will have a certified standard run during each calendar week (2 trials),
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recorded on the monthly Certified Standard Report and the original submitted
MONTHLY to a Kansas Health and Environment Laboratory, Kansas Department of
Health and Environment." Barnett argues that because the Tonganoxie Police Department
failed to perform a certified standard run of the machine during the calendar week
immediately prior to her breath test, the Tonganoxie Police Department failed to
substantially comply with KDHE procedures, which in turn rendered the results of her
BAC test unreliable as a matter of law.
In this case, a certified standard run of the Intoxilyzer machine was performed on
December 8, 2007, and a subsequent run was performed 8 days later on December 16,
2007, after Creten took a breath test on the machine earlier that same day. Based on the
facts presented and the applicable regulations, we agree with Creten that the Tonganoxie
Police Department failed to perform a certified standard run of the machine during the
calendar week immediately prior to her breath test and that its failure to do so means the
Tonganoxie Police Department did not comply with KDHE procedures. For the reasons
set forth below, however, we do not agree that the Tonganoxie Police Department failed
to substantially comply with KDHE procedures.
First, paragraph 1 of the KDHE Breath Alcohol Training Manual, Standard #2
requires an Intoxilyzer machine to be tested once in each "calendar week." By using the
"calendar week" language instead of requiring weekly tests once every 7 days, the KDHE
presumably meant that tests could be conducted as far apart as 13 days: thus, a test could
be run on the Sunday of one week and the Saturday of the next week and still satisfy
Standard #2's requirements.
Second, although paragraph 1 of the KDHE Breath Alcohol Training Manual,
Standard #2 requires an Intoxilyzer machine to be tested once in each calendar week, the
discretionary language used by the KDHE in paragraph 6 of that Standard indicates the
certification revocation is not mandatory, but discretionary, in the event that instrument
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testing does not comply with certification directives. See KDHE Breath Alcohol Training
Manual, Standard #2, paragraph 6 ("Failure to participate in the breath analysis certified
standard evaluation program may constitute reason for revoking certification of the
agency.").
Third, there was undisputed expert testimony presented at the administrative
hearing from which a factfinder reasonably could conclude that the underlying objective
of the weekly testing—reliability—was not compromised in any way. Houston, the
breath alcohol supervisor for the KDHE, testified that the 1-day delay in performing the
certified standard run did not affect the reliability of the Intoxilyzer machine used to test
Creten's breath. Houston also testified that during the machine's external standard check
of the standard solution that occurred immediately before testing Creten's breath, the
machine registered a reading of .082. Houston stated that such a result indicated the
machine was working properly because it correctly determined that the standard solution
had an alcohol concentration between .070 and .089. Finally, Houston testified that if a
law enforcement agency failed to perform a certified standard run on an Intoxilyzer
machine during a calendar week, the KDHE would not automatically revoke the agency's
certification of the machine. Instead, Houston stated that the KDHE would send a letter to
the law enforcement agency reminding it to perform the weekly test.
Under the facts of this case, we find substantial competent evidence supports the
district court's finding that the Tonganoxie Police Department substantially complied
with KDHE protocol requiring a weekly certified standard run of the machine. Based on
this finding, we decline to address any of the issues raised by KDR in its cross-appeal.
Affirmed.