Juenemann v. Kansas Dept. of Revenue (Previously Unpublished)

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No. 101,3291

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHELSEY ROSE JUENEMANN,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


SYLLABUS BY THE COURT

1.
K.S.A. 2007 Supp. 8-1020(m) permits an administrative hearing officer, after a
hearing, to enter an order either affirming the order of suspension of a person's driving
privileges or dismissing the administrative suspension for good cause.

2.
In an appeal of the administrative hearing officer's decision, K.S.A. 2007 Supp. 8-
1020(p) authorizes the district court to determine whether the petitioner is entitled to
driving privileges or whether the petitioner's driving privileges are subject to suspension
or suspension and restriction.

3.
K.S.A. 2007 Supp. 8-1020(h) limits the scope of review of both the agency and the
district court in proceedings to suspend a person's driving privileges.

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4.
An administrative hearing officer's role is to review the agency's suspension order
within the confines of the scope of review specified in K.S.A. 2007 Supp. 8-1020(h).

5.
K.S.A. 2007 Supp. 8-1020(h)(2)(G) permits an administrative hearing officer and
a district court to review whether the person subject to suspension had a breath alcohol
test result revealing an alcohol concentration of .08 or greater.

6.
The scope of review set forth in K.S.A. 2007 Supp. 8-1020(h)(2)(G) necessarily
permits review of whether the person's breath alcohol test results revealed an alcohol
concentration of .15 or greater.

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed January 15, 2010.
Reversed and remanded with directions.

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

John M. Lindner, of Lindner & Marquez, of Garden City, for appellee.

Before HILL, P.J., CAPLINGER AND LEBEN, JJ.

CAPLINGER, J.: The Kansas Department of Revenue (KDOR) appeals the district
court's order reversing the KDOR's suspension of Chelsey Rose Juenemann's driver's
license. Because we conclude the district court erred in reversing the suspension, we
reverse and remand this case to the district court to enter judgment affirming the
administrative suspension.

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FACTUAL AND PROCEDURAL BACKGROUND

Juenemann was arrested for driving under the influence of alcohol on December
15, 2007. In the Officer's Certification and Notice of Suspension (DC-27) served on
Juenemann, Kearny County Sheriff's Department Sergeant Mike Fontenot certified that
Juenemann failed a chemical breath test, which showed she had an "alcohol concentration
of .08 or greater" in her blood or breath. Further, the certification advised Juenemann that
a "readable copy of the test result" should be attached.

In fact, it appears from the record that a readable copy of Juenemann's Intoxilyzer
5000 chemical breath test result was attached to the DC-27 and showed a blood alcohol
level of .226. Additionally, the reverse side of the DC-27 notified Juenemann of the
penalties for a failed test result of ".08 or above, but less than .15" and of the increased
penalties for a test result of ".15 or above": the individual's driver's license would be
suspended for 1 year and the individual would be subjected to a 1-year "ignition interlock
restriction."

As evidence of "reasonable grounds" to believe Juenemann was operating a
vehicle while under the influence of alcohol or drugs, Sergeant Fontenot indicated on the
DC-27 that Juenemann committed a traffic infraction, smelled of alcohol, had bloodshot
eyes and poor balance or coordination, failed field sobriety tests, and admitted consuming
alcohol. Additionally, Sergeant Fontenot specified that Juenemann refused to take a
preliminary breath test and "stated she drank too much to pass it."

Juenemann timely requested an administrative hearing. Following the hearing, the
administrative hearing officer issued an order affirming the suspension and finding,
among other things, that "[t]he test results indicated that the respondent had an alcohol
concentration of .150 or greater in the respondent's breath."
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Juenemann then filed a petition for judicial review in the district court, raising
several issues: (1) The certifying officer lacked reasonable grounds to believe
Juenemann was operating a vehicle while under the influence of alcohol or drugs, or
both, prior to requesting a chemical test; (2) the testing procedures used did not
substantially comply with required administrative procedures; (3) the test result of .15 or
greater was invalid due to the failure to follow testing protocol; (4) the certifying officer
failed to personally serve Juenemann with the DC-27; and (5) the hearing order was
"fatally defective" because it was inaccurate as to the occurrence date and the
administrative hearing date.

Several months after Juenemann filed her petition for review, the district court
proceedings took an odd procedural turn when Juenemann filed a motion entitled
"Motion to Dismiss Driver's License Suspension and to Reinstate Driving Privileges."
Although Juenemann had asserted in her petition for review that the district court had
jurisdiction to review the matter, in her motion she argued the KDOR and the district
court lacked subject matter jurisdiction because the hearing order contained a finding that
exceeded the scope of review of the administrative hearing.

Specifically, Juenemann argued K.S.A. 2007 Supp. 8-1020(h)(2)(G) permits
review only of whether "the test result determined that the person had an alcohol
concentration of .08 or greater in such person's breath." Juenemann reasoned that the
KDOR hearing officer thus lacked jurisdiction to "issue the finding" that Juenemann's
breath alcohol concentration was .150 or greater. Consequently, Juenemann reasoned the
final order suspending her driver's license should be "set aside for lack subject matter
jurisdiction."

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Following a trial, the district court issued a journal entry which first considered
and rejected each of Juenemann's substantive issues. The court found: (1) Sergeant
Fontenot had reasonable grounds to believe Juenemann was operating a vehicle while
under the influence of alcohol; (2) the chemical breath test was properly administered; (3)
the test result of .226 was valid; (4) Juenemann was personally served with the DC-27;
and (5) the hearing order was not fatally defective.

However, after rejecting Juenemann's substantive arguments, the court then stated
that Juenemann had "posed an interesting legal issue," i.e., that "there is no statutory
procedure created to review the issuance of suspensions" for test results of .15 or greater.
Citing Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), and
Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 630, 176 P.3d 938 (2008), the district
court agreed with Juenemann that the issue was one of "subject matter jurisdiction." The
court concluded: "Based upon the above law that Mr. Shultz [counsel for the KDOR]
helped to create, the Court is forced to agree with Plaintiff. The Administrative Judge did
not have jurisdiction to issue a 1 year suspension of the Plaintiff's license."

I. The District Court Erred in Granting Juenemann's Motion to Dismiss and
Reversing the Suspension of Her Driver's License.

In this appeal of the dismissal of the order suspending Juenemann's driver's
license, the KDOR argues the district court erroneously held the administrative hearing
officer lacked jurisdiction to issue a 1-year suspension of Juenemann's license. The
KDOR's rationale is confusing, but it appears the gist of its argument is that the district
court erred in finding the legislature's failure to reference the enhanced penalty in K.S.A.
2007 Supp. 8-1020(h) requires dismissal of the KDOR's suspension of Juenemann's
license. Instead, the KDOR suggests that when the implied consent statutes are read in
pari materia, it is clear the legislature intended to enhance the penalty for driving under
the influence when a driver's breath or blood alcohol test result is .15 or greater.
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Whether jurisdiction exists is a question of law over which we exercise unlimited
review. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009). Similarly, we exercise
unlimited review in interpreting statutes. Double M Constr. v. Kansas Corporation
Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).

A. Nature of Relief Requested

Initially, we struggle procedurally with the nature of this case on appeal. As
noted, Juenemann sought review of the agency's suspension order, yet Juenemann then
filed a motion to dismiss the suspension based upon the lack of "subject matter
jurisdiction" before both the administrative hearing officer and the district court.

It appears to us that neither party detected the procedural flaw in this motion.
Namely, while it may have been appropriate to file a motion to dismiss the suspension at
either the administrative hearing level or in the district court, the basis for the motion, i.e.,
a lack of subject matter jurisdiction, did not permit the relief requested.

Clearly, an administrative hearing officer is permitted, after a hearing, to enter an
order either affirming the order of suspension or dismissing the administrative action for
"good cause appearing therefor." K.S.A. 2007 Supp. 8-1020(m). Further, in an appeal of
the administrative decision, the district court is authorized to determine whether the
petitioner is entitled to driving privileges or whether petitioner's driving privileges are
subject to suspension or suspension and restriction under the provisions of the act.
K.S.A. 2007 Supp. 8-1020(p).
However, the basis for Juenemann's motion to dismiss the suspension of her
driving privileges was that the hearing officer and the district court lacked subject matter
jurisdiction to review whether her breath test resulted in a blood alcohol level of .15 or
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greater. Juenemann correctly pointed out that our Supreme Court has held that 8-1020(h)
limits the scope of review of the agency and the district court to the issues specified in
that section. See Martin, 285 Kan. at 628; Bruch, 282 Kan. at 773. Juenemann then
argued that because K.S.A. 2007 Supp. 8-1020(h)(2)(G) permits review only based upon
whether "the test result determined that the person had an alcohol concentration of .08 or
greater in such person's breath," neither the agency nor the district court had authority to
review that issue.

Taking Juenemann's argument at face value requires that we reverse the district
court's decision dismissing the suspension of her driving privileges for lack of subject
matter jurisdiction. While the caption of Juenemann's motion sought dismissal of her
"driver's license suspension," she argued in the body of the motion that the court lacked
subject matter jurisdiction to find that the result of Juenemann's breath alcohol test was
.15 or greater. Assuming the court agreed, it was required to dismiss that particular issue
as being outside the scope of its review. It was not entitled, however, to dismiss the
suspension.

The language utilized by the district court in dismissing the suspension reveals the
flaw in its analysis. The court ultimately concluded that "[t]he Administrative Judge did
not have jurisdiction to issue a 1 year suspension of the Plaintiff's license." (Emphasis
added.) In fact, the administrative judge did not issue the order of suspension. Instead, the
administrative judge's role was to review the agency's suspension order within the
confines of its scope of review, as specified in K.S.A. 2007 Supp. 8-1020(h).

Moreover, because the district court incorrectly classified this issue as one of
subject matter jurisdiction, which can be decided at any time, it failed to consider that
Juenemann was raising a new issue in her appeal to the district court. See Kingsley v.
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Kansas Dept. of Revenue, 288 Kan. 390, 395, 410, 204 P.3d 562 (2009) (failure to raise
issue at administrative hearing bars a district court from reviewing that particular issue).

For these reasons, we conclude the district court erred in invalidating Juenemann's
license suspension.

B. Scope of Review under K.S.A. 2007 Supp. 8-1020(h)(2)(G)

Further, even if we were faced with a proper challenge to the scope of review
under K.S.A. 2007 Supp. 8-1020(h)(2)(G), we do not agree that this section limits review
as suggested by Juenemann.

As the KDOR points out, the statute outlining the penalties for a test refusal or test
failure, K.S.A. 8-1014, was amended effective July 1, 2007, to provide increased
penalties when a driver's blood or breath test results in an alcohol concentration of .15 or
greater. L. 2007, ch. 181, sec. 5. At the same time, the legislature amended the statute
requiring oral and written notice to require that the individual be informed of the
increased penalties. L. 2007, ch. 181, sec. 3; K.S.A. 2007 Supp. 8-1001(k).

However, the legislature did not amend 8-1020(h)(2), which limits the scope of an
administrative hearing on a license suspension in the case of a test failure. See Martin,
285 Kan. at 631 (list contained in 8-1020(h)(2)(A)-(H) is clear, unambiguous, and
exclusive). Instead, K.S.A. 2007 Supp. 8-1020(h)(2)(G) continues to permit review of
whether "the test result determined that the person had an alcohol concentration of .08 or
greater in such person's breath."

Nevertheless, we need look no further than the language of the statute itself to
determine the scope of the statute. As the KDOR points out, when the penalties were
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increased in 2007, K.S.A. 2007 Supp. 8-1020(h)(2)(G) did not require amendment
because it already permitted consideration of a test failure of ".08 or greater." Giving
ordinary words their ordinary meaning, we conclude a test result of .08 or greater
necessarily includes a test result of .15 or greater. See State v. Stallings, 284 Kan. 741,
742-43, 163 P.3d 1232 (2007) (in interpreting a statute, appellate court must give effect
to the legislature's intent as expressed through the language selected for the statute; if
statute is clear and unambiguous, there is no need to attempt statutory interpretation).

Here, Juenemann's breath test result was .226, which was punishable under the
increased penalties of K.S.A. 2007 Supp. 8-1014(b)(2). Juenemann was served with a
notice of suspension indicating that her test result showed an alcohol concentration of .08
or greater in her blood or breath, and referring to the attached Intoxilyzer report, which
verified her result of .226. Further, the reverse side of the DC-27 notified Juenemann of
the increased penalties for a failed test result of ".15 or above" depending upon the
number of prior occurrences, if any. Finally, we note that the district court considered and
rejected the merits of Juenemann's arguments seeking reversal of the suspension of her
license.

Under these circumstances, we conclude Juenemann was fully informed under the
applicable implied consent statutes, and we therefore reverse the district court's decision
reversing the suspension of Juenemann's license and remand to the district court with
directions to enter judgment affirming the administrative suspension. See Rivera v.
Kansas Dept. of Revenue, 41 Kan. App. 2d 949, 955, 206 P.3d 891 (2009).

Reversed and remanded to the district court to enter judgment affirming the
administrative suspension.

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1 REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted
a motion to publish pursuant to Rule 7.04 (2010 Kan. Ct. R. Annot. 55). The published version
was filed with the Clerk of the Appellate Courts on July 19, 2011.