IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,013
BRYAN EUGENE KEMPKE,
Appellee,
v.
KANSAS DEPARTMENT OF REVENUE
Appellant.
SYLLABUS BY THE COURT
1. A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.
2. The suspension of issued drivers' licenses involves State action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment to the United States Constitution.
3. In driver's license suspension or revocation cases, the Due Process Clause does not require perfect procedures, but the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In making the determination regarding what process is due in driver's license revocation cases, courts should weigh the varying interests of the State and the licensee.
4. The United States Supreme Court in Mackey v. Montrym, 443 U.S. 1, 10, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979), adopted the balancing test expressed in Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), to determine whether the state procedural law relating to driver's license suspension and revocation denied licensees due process of law: The court weights three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and, third, the government's interest, including the function and burdens involved.
5. Kansas licensees are given the opportunity to examine the certifying officer, who is usually the arresting officer, at the administrative hearing level and are permitted to present other evidence, such as affidavits from other witnesses. At the judicial review level, Kansas licensees are given the opportunity to present evidence and cross-examine witnesses without the statutory restrictions applicable only to administrative hearings. All of the above, at the option of the licensee, occurs before any action is taken against his or her license to drive.
6. Prior to the 2001 amendments to K.S.A. 8-1001 et seq., a person refusing to submit to a test for intoxication ran the risk of having his or her license suspended at the conclusion of the initial administration hearing without the opportunity to present testimony from "relevant witnesses" and, in some cases, without the opportunity to cross-examine relevant witnesses. Thus, decisions of this court in Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 671 P.2d 547 (1983), and Carson v. Division of Vehicles, 237 Kan. 166, 699 P.2d 447 (1985), held, inter alia, that such licensees were denied procedural due process of law.
7. With the passage of K.S.A. 8-1020(o), enacted in 2001, a licensee may now, by filing a petition for review to the district court, subject to K.S.A. 8-1014, insure himself or herself a full due process hearing before any final action is taken against his or her driving privileges for refusing to submit to a test for intoxication.
8. Our earlier decisions in Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 671 P.2d 547 (1983) and Carson v. Division of Vehicles, 237 Kan. 166, 699 P.2d 447 (1985), are superseded in part by the statutory enactment of K.S.A. 8-1020(o). Under the current Kansas implied consent law, a licensee is provided with notice and the opportunity for a meaningful hearing before any official action is taken against his or her driver's license.
Appeal from Ellsworth district court, BARRY A. BENNINGTON, judge. Opinion filed May 5, 2006. Reversed and remanded.
James G. Keller, of the Kansas Department of Revenue Legal Services Bureau, argued the cause and was on the briefs for appellant.
Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: The Kansas Department of Revenue sought to suspend the driver's license of Bryan Eugene Kempke under the Kansas implied consent law, K.S.A. 8-1001 et seq. The Ellsworth County District Court held that the statutory scheme of the Kansas implied consent law was unconstitutional as applied to Kempke in that the law denied Kempke of due process of law under the Fourteenth Amendment to the United States Constitution for the reason that he was not permitted to subpoena a relevant witness to testify at his administrative hearing. The Kansas Department of Revenue appealed. This appeal was transferred to this court on our own motion under K.S.A. 20-3018(c).
FACTS
On November 23, 2003, Deputy James Tyree of the Ellsworth County Sheriff's Department stopped Bryan Kempke's vehicle for failing to have an illuminated license tag light. Before stopping the vehicle, Deputy Tyree observed no signs that Kempke's driving was impaired. After Kempke's vehicle was stopped, the deputy approached and saw that there were two occupants in the car. Both were under the age of 21.
According to Tyree, Kempke was lethargic and had slurred speech and watery, bloodshot eyes. The deputy thought Kempke appeared to be under the influence of alcohol and/or drugs. Deputy Tyree did not smell an odor of alcohol, but he saw what he thought was a bottle of alcohol under the passenger's leg. When the deputy returned to Kempke's vehicle after running driver's license checks, the bottle was hidden by a coat. When he asked about the bottle, the passenger initially denied its existence, but he subsequently produced the bottle. It was an open bottle of Lord Calvert whiskey. Deputy Tyree decided to investigate Kempke for driving under the influence (DUI) of alcohol.
Deputy Tyree requested assistance from Officer Lawrence of the Ellsworth Police Department, specifically asking him to bring a preliminary breath test machine to the scene. When Kempke and his passenger got out of the vehicle, Officer Lawrence performed a sweep of the two front seats and found a 12-ounce beer can in a blue "koozy." The can was still cold to the touch, and the beer was partially consumed. Upon exiting the vehicle, Kempke was unsteady, and he had to hold onto the vehicle to maintain his balance as he moved along the side of the vehicle. Deputy Tyree asked Kempke to perform four field sobriety tests–the "walk and turn," the "one-leg stand," the "horizontal gaze nystagmus" (HGN), and the preliminary breath test (PBT). Kempke agreed only to take the HGN test and the PBT.
Officer Lawrence administered the PBT to Kempke, but Deputy Tyree was present during the test. The PBT confirmed that there was alcohol in Kempke's system; however, his level of breath alcohol concentration registered .05, which fell below the legal limit of .08. Kempke was placed under arrest for DUI, minor in possession of alcohol, and transporting an open container. Tyree took Kempke to the Ellsworth County Sheriff's Office. Ultimately, Kempke refused to submit to an evidentiary test for alcohol and/or drugs, and Deputy Tyree completed an "Officer's Certification and Notice of Suspension" (DC-27 form), certifying that Kempke refused a test. For some unknown reason, Officer Lawrence neither initialed nor signed the form. On Kempke's form, Deputy Tyree marked the boxes indicating that he had reasonable grounds to believe Kempke was under the influence of alcohol and/or drugs because (1) alcoholic beverage containers were found in the vehicle; (2) Kempke had slurred speech, bloodshot eyes, difficulty in communicating, and poor balance or coordination; and (3) Kempke failed the PBT. The certification form was served on Kempke by Deputy Tyree on November 23, 2003.
On the certification form, Tyree marked the box indicating that Kempke had valid driving privileges for 30 days. The reverse side of the form stated that a timely hearing request would result in Kempke's driving privileges being "extended until a final determination is made." On December 3, 2003, Kempke requested an administrative hearing. On December 5, 2003, the Kansas Department of Revenue (KDR) sent a letter to Kempke confirming receipt of his request for an administrative hearing and stating that his driving privileges would remain valid until after the hearing was conducted.
At the April 9, 2004, administrative hearing in Salina, Deputy Tyree was present and was examined by Kempke's attorney. No transcript of the hearing, however, was included in the record on appeal. Kempke was represented by counsel at the administrative hearing, but he was not personally present. An administrative hearing order was issued on May 18, 2004, stating that Kempke's driving privileges would be suspended on the 30th day after the date of the hearing order "unless respondent files a timely petition for review with the district court and serves a copy of the petition upon the Secretary of Revenue."
Kempke filed a timely petition for review in the Ellsworth County District Court on May 24, 2004. He sought review of all issues raised before the administrative hearing officer, alleging that Deputy Tyree (1) lacked a reasonable suspicion to initiate the stop, (2) lacked probable cause to arrest him, and (3) lacked a reasonable suspicion to initiate a DUI investigation. In addition, Kempke alleged that K.S.A. 8-1001 et seq. denied him due process of law because the law denied him the right to subpoena other "relevant witnesses" to testify at his administrative hearing. Upon service of a copy of the petition for review, a letter was sent to Kempke, confirming that the Secretary of Revenue had received the petition for review and that Kempke's driving privileges had been "extended until the decision on your petition is final."
The district court held a trial de novo on October 21, 2004. Deputy Tyree was the only witness to testify at trial and was examined by both parties. Officer Lawrence was present and available for examination but was not called as a witness. After the examination of Tyree was complete, the KDR rested. The district court ruled against Kempke on all issues except one--the issue involving Kempke's due process rights. The court held: "[P]laintiff's due process rights were violated 'as applied,' under the current version of the Kansas Implied Consent Law" and did not address Kempke's facial attack. The district court concluded:
"The legal issue here really is whether or not the statute which prohibits the subpoenaing of witnesses to a due process hearing denies the plaintiff due process. And [Kempke's] position is that if it's a due process hearing, then by golly, you ought to be able to have a witness testify that you think can present relevant testimony. It doesn't take a huge imagination to be able to believe that there are factual scenarios that can be manufactured that would provide the existence of a witness whose testimony might completely clear or exonerate the person who has been arrested, but that witness is not able to be called by subpoena. The State's response is that the State of Kansas does not suspend your driver's license until this multifaceted, many-stepped process is complete. And that the person is entitled to due process as an aggregate and not necessarily due process at each step or any particular step of the statutory procedure. . . . [I]t's pretty clear that the Department of Revenue and the Kansas legislature have attempted to chart a course of travel that was close to the constitutional limit of what constitutes due process. They want to sail as close to the edge of the world as they can without falling off. . . . I think that when you absolutely prohibit someone the right to call a witness that might completely exonerate them of the charges you have fallen off the edge."
The district court ordered that Kempke's suspension be vacated and his driving privileges be reinstated.
The KDR filed a motion to alter or amend, arguing that Kempke's rights were protected by the automatic extension of his driving privileges while he sought judicial review, which included the right to a full trial de novo without the limitations on witnesses or evidence imposed by K.S.A. 8-1020(g) and (l). The KDR pointed out that, at the administrative hearing stage, a plaintiff has not yet been deprived of any rights or privileges. The KDR contended that, before Kempke was ever deprived of driving privileges, he first had the opportunity to subpoena witnesses and introduce evidence in a de novo trial before the district court; therefore, Kempke's due process rights were not violated. The motion was denied.
IS THE KANSAS IMPLIED CONSENT LAW, K.S.A. 8-1001 et seq., UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF THIS CASE?
Standard of Review
The determination of whether a statute is unconstitutional involves a question of law over which this court has unlimited review. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197, 62 P.3d 236 (2003).
"A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. . . . This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. ¶ 2, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997).
Due Process
The core issue of this case is whether Kempke's due process rights were violated under the provisions of K.S.A. 8-1001 et seq. More specifically, did the provisions of K.S.A. 8-1020, which denied Kempke the opportunity to call a relevant witness at the administrative hearing level, deny him due process of law under the Fourteenth Amendment to the United States Constitution? We answer the question in the negative.
Due process is not a static concept; instead, its requirements vary to assure the basic fairness of each particular action according to its circumstances. A person's entitlement to due process in drivers' license suspension cases is well-settled. "'Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.' [Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971)]." Dixon v. Love, 431 U.S. 105, 112, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977).
However, when it is determined that due process applies to a governmental action, the court must still determine "what process is due to protect against an erroneous deprivation of that interest." Mackey v. Montrym, 443 U.S. 1, 10, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979). The Due Process Clause does not require perfect procedures, but the fundamental requirement of due process is the opportunity to be heard "'at a meaningful time and in a meaningful manner.'" Brock v. Roadway Express, Inc., 481 U.S. 252, 261, 95 L. Ed. 2d 239, 107 S. Ct. 1740 (1987) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 [1976]); Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 187, 959 P.2d 940, rev. denied 265 Kan. 885 (1998).
In making the determination regarding "what process is due" in driver's license revocation cases, courts have weighed the varying interests of the State and the licensee. See, e.g., State v. Heironimus, 262 Kan. 796, 805-07, 941 P.2d 1356 (1997). Courts have concluded that due process does not require a prerevocation hearing in cases involving suspensions of drivers' licenses due to repeated traffic violations, Dixon, 431 U.S. at 115, or in cases involving the refusal to consent to a PBT, Mackey, 443 U.S. at 18-19. The United States Supreme Court in Mackey adopted the three-factor balancing test expressed in Mathews v. Eldridge, 424 U.S. 319, to determine whether the state procedural law relating to such suspensions denied licensees due process of law:
"'[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. '" Mackey, 443 U.S. at 10 (quoting Eldridge, 424 U.S. at 335).
The United States Supreme Court has also suggested what state law procedures in the suspension of drivers' licenses will satisfy due process. See Jennings v. Mahoney, 404 U.S. 25, 30 L. Ed. 2d 146, 92 S. Ct. 180 (1971); Bell, 402 U.S. at 542-43. The Eldridge balancing test, together with the above-cited cases, will be more fully discussed below.
This court has held that a licensee has the right to subpoena and cross-examine the arresting officer at the initial administrative hearing. Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 246-47, 671 P.2d 547 (1983). This court has also established that due process requires a factually detailed affidavit by the arresting officer to support a revocation when the officer does not testify at the hearing. The licensee also has a right to have present at the initial administrative hearing "other relevant witnesses." Carson v. Division of Vehicles, 237 Kan. 166, 174-76, 699 P.2d 447 (1985); Wulfkuhle, 234 Kan. at 248.
Recently, this court had the opportunity to consider and render a decision in a case very similar to the case we now consider. In Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 504-07, 110 P.3d 438 (2005), the licensee was arrested for DUI. She agreed to testing and requested an administrative hearing after receiving a notice of suspension. After the administrative hearing officer affirmed the suspension, Cross petitioned the district court for review. Not unlike the present case, Cross argued that K.S.A. 8-1020(g) denied her due process of law because she was prohibited from calling "other relevant witnesses" for her administrative hearing. She contended that the statutory scheme of the Kansas implied consent law was unconstitutional on its face and as applied. 279 Kan. at 501-02, 507-08.
We rejected Cross' assertion that her due process rights were violated. First, we observed that Cross failed to proffer the substance of the testimony she expected from other witnesses. She merely claimed that such evidence would be relevant to establish whether the officers had reasonable grounds to request sobriety tests. 279 Kan. at 508. We determined that Cross failed to demonstrate that she was denied the opportunity to subpoena other relevant witnesses at her administrative hearing.
Cross observed that while other officers were present at the scene, the officer called to testify at the administrative hearing and who had signed the DC-27 form was the only officer involved in Cross' detention, arrest, and sobriety testing. This court emphasized that "Cross did not testify or present any evidence to the contrary at the hearing or before the district court, nor did she submit affidavits from other witnesses as permitted by K.S.A. 8-1020(l)." 279 Kan. at 512.
Finally, this court found it significant that, in the request for admissions before the district court, Cross admitted that she told the arresting officer that she had consumed an alcoholic beverage and admitted that the officer had reasonable grounds to believe she was operating or attempting to operate a vehicle while under the influence of alcohol. 279 Kan. at 512-13. The court concluded: "In light of Officer Steere's [arresting officer] uncontradicted testimony, Cross' own admissions, and her mere speculation as to how these other witnesses might testify, Cross has not established that other witnesses were relevant to establish the absence of reasonable grounds to ask her to submit to the test." 279 Kan. at 513. Thus, it was held that, based on the facts of the case, K.S.A. 8-1020(g) was not unconstitutional as applied and did not deny Cross her due process rights at the administrative hearing. Based on this holding, we concluded that Cross had no standing to make a facial constitutional attack.
The KDR contends that, similar to the situation in Cross, Kempke did not himself offer any testimony at the administrative hearing or before the district court to contradict the arresting officer, Deputy Tyree. Kempke failed to personally attend the administrative hearing. The KDR further notes that Kempke could have submitted affidavits from other witnesses at the administrative hearing, see K.S.A. 8-1020(l), but failed to do so. In addition, the KDR emphasizes that, under K.S.A. 8-1020(o), the temporary driver's license issued by the arresting officer is automatically extended when the licensee timely petitions for review from the administrative decision and is extended throughout the review process. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92, 106 P.3d 492 (2005) (under current law, process for suspensions due to intoxication testing refusals or failures has changed; temporary licenses are now automatically extended).
On the other hand, Kempke argues that Cross is distinguishable in that she had failed to identify any relevant witness other than the arresting officer who testified. Kempke points out that in this case Officer Lawrence, the officer who administered the PBT at the time of Kempke's arrest, was by law prohibited from testifying at the administrative hearing under K.S.A. 8-1020(g).
Kempke correctly distinguishes his case from our Cross decision. No relevant witness was excluded from testifying in Cross. However, in this case Officer Lawrence was a relevant witness and the law precluded Kempke from having this witness personally present at the initial administrative hearing. It makes no difference that Kempke did not subpoena the officer as a witness since K.S.A. 8-1020(g) excluded him; the law does not require a useless act. Kempke did not file a cross-appeal; thus, the sole question raised by this appeal is whether the exclusion of a relevant witness, Officer Lawrence at the administrative hearing level, denied Kempke due process of law under the Fourteenth Amendment to the United States Constitution.
Kansas Implied Consent Law
A brief overview of the current Kansas implied consent law will be helpful in the resolution of this constitutional issue. As discussed in Cross, under K.S.A. 8-1001(b)(1) and (2), if an officer has reasonable grounds to believe a person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs and the person has been arrested or taken into custody in relation thereto or the person was involved in a vehicle accident or collision resulting in property damage, personal injury, or death, then the officer shall request the person to submit to a test. The officer directing administration of the test(s) may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest. See K.S.A. 2005 Supp. 8-1001(b)(1) and (2).
If the test is refused, a law enforcement certification must be prepared and signed by one or more officers to certify that reasonable grounds existed to believe the person was operating a vehicle under the influence of alcohol or drugs; the person had been placed under arrest, was in custody, or had been involved in a vehicle accident; a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001; and the person refused to submit to or complete testing as requested by a law enforcement officer. K.S.A. 8-1002(a)(1).
"[C]ertification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein." K.S.A. 8-1002(b).
When the person has refused a test and the criteria of K.S.A. 8-1002(a)(1) have been met, the officer shall serve the licensee a DC-27 form. In addition to the requirements of subsection (a)(1), the form must include:
"(1) The person's name, driver's license number and current address; (2) the reason and statutory grounds for the suspension; (3) the date notice is being served and a statement that the effective date of the suspension shall be the 30th calendar day after the date of service; (4) the right of the person to request an administrative hearing; and (5) the procedure the person must follow to request an administrative hearing." K.S.A. 8-1002(d).
A copy of the completed DC-27 form is forwarded to the KDR, which will review the certification to determine that all requirements have been met. If so, it will suspend the licensee's driving privileges in accordance with the notice of suspension already served. K.S.A. 8-1002(e), (f).
If the licensee refuses a test, the officer shall take his or her driver's license and issue a 30-day temporary license. K.S.A. 8-1002(e). Upon receipt of the officer's certification and notice of suspension, the licensee has 10 days (13 if served by mail) to request an administrative hearing, which will keep the temporary license active until 30 days after the hearing. K.S.A. 8-1020(a), (b).
K.S.A. 8-1020(g) governs which witnesses may be called at the administrative hearing:
"Witnesses at the hearing shall be limited to the licensee, to any law enforcement officer who signed the certification form and to one other witness who was present at the time of the issuance of the certification and called by the licensee. The presence of the certifying officer or officers shall not be required, unless requested by the licensee at the time of making the request for the hearing. The examination of a law enforcement officer shall be restricted to the factual circumstances relied upon in the officer's certification."
K.S.A. 8-1020(l) sets forth limitations on evidence to be presented at an administrative hearing:
"(l) Evidence at the hearing shall be limited to the following:
(1) The documents set out in subsection (e);
(2) the testimony of the licensee;
(3) the testimony of any certifying officer;
(4) the testimony of any witness present at the time of the issuance of the certification and called by the licensee;
(5) any affidavits submitted from other witnesses;
(6) any documents submitted by the licensee to show the existence of a medical condition, as described in K.S.A. 8-1001, and amendments thereto; and
(7) any video or audio tape record of the events upon which the administrative action is based."
At the administrative hearing, the licensee has the burden of proof by a preponderance of the evidence to show that the facts stated in the officer's certification are false or insufficient and that the order suspending the driving privileges should be dismissed. K.S.A. 8-1020(k). If the suspension is affirmed by the administrative hearing officer, the suspension shall begin 30 days later unless the licensee petitions the district court for a trial de novo, in which case the temporary license is again extended throughout the appeal process. K.S.A. 8-1020(m), (o). Upon petition for review to the district court, the licensee is entitled to a trial de novo, and the evidentiary restrictions of K.S.A. 8-1020(l) are inapplicable. K.S.A. 2005 Supp. 8-259(a); K.S.A. 8-1020(p). The licensee has the burden to show that the agency's decision should be set aside. K.S.A. 8-1020(q).
Discussion and Analysis of Parties' Arguments
With this overview, we now turn to the arguments advanced by the parties. Kempke relies on Wulfkuhle, 234 Kan. 241, and Carson, 237 Kan. 166, to support his contention that his due process rights were violated because he was not able to subpoena "other relevant witnesses" to testify at the administrative hearing. Notably, the licensee in Cross also relied primarily on these two cases. Without deciding the issue regarding "other relevant witnesses," the Cross court observed that the Kansas implied consent law in effect during those 1980's cases was different from the current law which became effective in 2001. See Cross, 279 Kan. at 508.
At an administrative hearing in the early 1980's, a driver could attempt to have the suspension action dismissed, in general, on three different grounds: (1) the officer lacked reasonable grounds to request testing; (2) the driver's refusal to submit to testing was reasonable; and (3) the officer's report (DC-27 form) was not properly verified or "sworn to" by the officer. See K.S.A. 8-1001 (1982 Ensley); Wulfkuhle, 234 Kan. at 244-45; Carson, 237 Kan. at 170-71. It was the duty of the hearing officer to find "good cause" to affirm the suspension. State v. Peterson, 265 Kan. 732, 735, 962 P.2d 1076 (1998); Wulfkuhle, 234 Kan. at 244. Under current law, the licensee bears the burden of proof by preponderance of the evidence. K.S.A. 8-1020(k). In addition, the reasonableness of a driver's refusal to take a test is no longer a factor under the current implied consent law. There are other differences between the old implied consent law and the current law, which will be discussed below.
Kempke does not dispute that the current law is different from the old law. Instead, he argues that the legislature ignored, in all its subsequent amendments to K.S.A. 8-1001 et seq., the holdings in Wulfkuhle and Carson. He contends that Wulfkuhle and Carson establish