Beims v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 112,138

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MITCHELL SCOTT BEIMS,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Thomas District Court; EDWARD E. BOUKER, judge. Opinion filed November 6,
2015. Affirmed.

Michael S. Holland II, of Russell, for appellant.

John D. Shultz, deputy general counsel, of Kansas Department of Revenue, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: Mitchell Scott Beims claims the district court erred when it admitted
the police officer's certification and notice of suspension form, commonly called the
Form DC-27, as evidence in lieu of testimony from the officer. Following reasoning
adopted in prior cases, we reject Beims' appeal.

Kansas Highway Patrol Trooper Adam Medlicott arrested Beims for DUI after he
failed multiple field sobriety tests and refused a breath test. His Intoxilyzer score was
.092. Trooper Medlicott gave Beims a DC-27 indicating that Beims had an odor of
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alcoholic beverage, alcoholic containers in the vehicle, failed multiple field sobriety tests,
and failed a blood alcohol test.

Beims filed a timely request for an administrative hearing and requested that
Trooper Medlicott be subpoenaed for the hearing along with all evidence regarding the
matter. Trooper Medlicott testified at Beims' administrative hearing. After hearing all of
the evidence, the hearing officer affirmed the suspension of Beims' driver's license.

Beims then sought review in the district court arguing that Trooper Medlicott
lacked reasonable grounds to request a test and the trooper failed to follow proper field
sobriety protocol. At trial, Beims objected to the admission of the DC-27 into evidence
because it was similar to a complaint in a criminal case or a petition in a civil case and it
was not intended to be evidence, especially since Trooper Medlicott was not present at
the trial.

Beims testified about the stop and denied failing any of the DUI indicators. The
Kansas Department of Revenue attorney cross-examined Beims on all of the factors
witnessed by Trooper Medlicott including the blood-alcohol test result and the DC-27. At
the end of the hearing, the trial court did not rule on the admissibility of the DC-27 but
took the issue under advisement.

The trial court overruled Beims' objection to admission of the DC-27 evidence.
Based on the clear language in K.S.A. 2014 Supp. 8-1002(b) and the cases interpreting
that statute, the trial court held that a properly completed DC-27 must be considered by
the court as evidence and that failure to do so would be error. The court concluded that
considering all of the testimony and evidence, Beims' petition was denied because he
failed to prove that Trooper Medlicott did not have reasonable grounds to believe that
Beims was operating his vehicle while under the influence of alcohol.

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This appeal is limited to a question of law. K.S.A. 2014 Supp. 8-1002(b) provides:

"For purposes of this section, certification 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. Any person who signs a certification submitted to the division
knowing it contains a false statement is guilty of a class B nonperson misdemeanor."

Two prior cases have addressed this issue. In Moore v. Kansas Department of
Revenue, No. 107,810, 2013 WL 5925901, at *5 (Kan. App. 2013) (unpublished
opinion), the court found K.S.A. 2010 Supp. 8-1002(b) was plain and unambiguous. The
Moore court relied on State v. Baker, 269 Kan. 383, 2 P.3d 786 (2000), in finding the
DC-27 is admissible as evidence in a driving license suspension proceeding.

In discussing Baker, the Moore court found its discussion of K.S.A. 8-1002(b) was
essential. The Baker court stated, in part: "The DC-27 form promulgated by the [Kansas
Department of Revenue], if properly completed, is a tool which satisfies the foundational
requirements for admission of the results of a defendant's blood alcohol test or refusal to
take the test." (Emphasis added.) 269 Kan. 383, Syl. ¶ 1. The Moore court found the
Baker court left no doubt when it stated: "The DC-27 form contains the certifications
required by K.S.A. 1999 Supp. 8-1002. Once the certification requirements are
completed, the DC-27 form is admissible as evidence to prove the statements contained
therein. See K.S.A. 1999 Supp. 8-1002(b)." (Emphasis added.) 269 Kan. at 387. In the
context of a criminal prosecution and the evidence of a defendant's blood alcohol test, or
refusal to take the same, the Baker court held: "The State may seek to establish a
foundation for admission through the use of a completed DC-27 form, through competent
testimony, or through a combination of the two." 269 Kan. 383, Syl. ¶ 2.

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In Moore, the certifying officer did not testify, but the court still held:

"We find K.S.A. 2010 Supp. 8-1002(b) is plain and unambiguous. It states the
legislature's determination that an officer's DC-27 certification shall be admissible as
evidence in all proceedings provided for in the Implied Consent Act relating to alcohol
testing for driving under the influence of drugs or alcohol. This would include a trial de
novo, like the one under review, requested by a licensee who files a petition for review of
the KDR's order to suspend driving privileges." 2013 WL 5925901 at *5.

We see no reason that would compel us to rule differently.

The issue of whether reasonable grounds existed to believe that Beims operated a
vehicle while under the influence of alcohol is a question of fact. The scope of appellate
review, therefore, is whether there is substantial competent evidence to support the
findings of the district court. Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705,
707, 815 P.2d 566 (1991).

Beims does not allege that Trooper Medlicott's completed DC-27 certification was
defective or deficient in any way. The evidence before both lower tribunals substantially
supported the findings that Beims had an odor of alcoholic beverage coming from him,
his eyes were bloodshot, and his speech was slurred. Alcoholic containers were found in
Beims' vehicle. Beims failed several field sobriety tests, refused a breath test, and later
failed a blood alcohol test according to the Intoxilizer. Reasonable grounds existed for
Trooper Medlicott to request a test.

Affirmed.