McGinnis v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 118,326

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SARAH LYNN MCGINNIS,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed November 2, 2018.
Reversed and remanded with directions.

Ashley R. Iverson, of Legal Services Bureau, Kansas Department of Revenue, for appellant.

Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellee.

Before ARNOLD-BURGER, C.J., HILL and BUSER, JJ.

BUSER, J.: This is an appeal by the Kansas Department of Revenue (KDR) of the
district court's judgment reversing the KDR's suspension of Sarah Lynn McGinnis'
driver's license. Upon our review we conclude the district court erred as a matter of law
in its ruling. Accordingly, we reverse and remand with directions to reinstate the
suspension.




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FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts are undisputed. McGinnis was arrested on December 30, 2016,
for driving under the influence of alcohol (DUI) in Riley County. In accordance with
K.S.A. 2016 Supp. 8-1001(k), Kansas Highway Patrol Trooper Matthew Malo, the
arresting officer, advised McGinnis of implied consent advisories by reading from a
revised DC-70 form and giving her a copy of the form. The revised DC-70 form
contained all the required advisories listed in K.S.A. 2016 Supp. 8-1001(k) except for
subsections (k)(2) and (k)(4). These two subsections had been deleted from the DC-70
form because they were in conflict with recent decisions by our Supreme Court.

McGinnis consented and submitted to an evidentiary breath alcohol test which
showed her blood alcohol level greater than the .08 limit. After an administrative hearing,
the KDR suspended McGinnis' driver's license. McGinnis appealed to the district court
arguing that the revised implied consent advisories did not substantially comply with
K.S.A. 2016 Supp. 8-1001(k). A trial was held and Trooper Malo presented the only
testimony.

At the conclusion of the trial, the district court vacated the KDR's driver's license
suspension order. In a journal entry memorializing its ruling, the district court held that
Trooper Malo "did not substantially comply with the requirements of K.S.A. 8-1001(k)
when he read and provided petitioner with a written copy of the [revised] implied consent
advisory." According to the district court, this was because two subsections, (k)(2) and
(k)(4), were not read to McGinnis or provided in writing at the time of her arrest. The
district court also ruled that the good-faith exception as discussed in State v. Kraemer, 52
Kan. App. 2d 686, 371 P.3d 954 (2016) was inapplicable given the facts of this case.
KDR filed a timely appeal.


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DID TROOPER MALO SUBSTANTIALLY
COMPLY WITH K.S.A. 2017 SUPP. 8-1001(k)?

On appeal, KDR contends the district court erred in its legal conclusion that
Trooper Malo did not substantially comply with the implied consent advisories mandated
by K.S.A. 2016 Supp. 8-1001(k) when he informed McGinnis of the advisories as stated
in the revised DC-70 form. KDR seeks reversal of the district court's order reinstating
McGinnis' driver's license.

We begin with a brief summary of our standard of review. Generally, a substantial
competent evidence standard of review is utilized in a case involving an administrative
suspension of a driver's license. But when the facts are undisputed, as they are in the
present appeal, the appellate court defers to the district court's factual findings and
exercises de novo review of the legal issues. Swank v. Kansas Dept. of Revenue, 294 Kan.
871, 881, 281 P.3d 135 (2012). Moreover, issues of statutory and constitutional
interpretation raise pure questions of law for which our review is unlimited. Katz v.
Kansas Dept. of Revenue, 45 Kan. App. 2d 877, Syl. ¶ 1, 256 P.3d 876 (2011.

K.S.A. 2016 Supp. 8-1001(k) provides that before a blood, breath, or urine test is
administered, the driver arrested for DUI shall be given oral and written notice regarding
specific provisions of the Kansas implied consent law and the consequences of refusing
to submit to testing or failing the test. An overview of recent legal developments in
Kansas DUI jurisprudence is helpful to an understanding of our analysis.

On February 26, 2016, the Kansas Supreme Court filed two important opinions
relating to Kansas implied consent advisories required to be provided to drivers arrested
in DUI cases. In State v. Ryce, 303 Kan. 899, 963-64, 368 P.3d 342 (2016) (Ryce I), aff'd
on reh'g 306 Kan. 682, 396 P.3d 711 (2017), our Supreme Court held that it was facially
unconstitutional to impose criminal penalties on a licensee if that individual withdrew
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consent or refused to submit to a breath test. Next, in State v. Nece, 303 Kan. 888, 897,
367 P.3d 1260 (2016) (Nece I), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017), our
Supreme Court held that a defendant's consent to a breath alcohol test is coerced if it is
given after receiving unconstitutional implied consent advisories. Of note, the Supreme
Court stayed the initial decisions as it awaited an opinion from the United States Supreme
Court in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560
(2016).

On June 23, 2016, the United States Supreme Court ruled that a warrantless breath
test is a reasonable search under the Fourth Amendment as a search incident to a lawful
arrest. Birchfield, 136 S. Ct. at 2184. In light of Birchfield, our Supreme Court granted
review of Ryce I and Nece I and then affirmed those decisions in State v. Ryce, 306 Kan.
682, 396 P.3d 711 (2017) (Ryce II) and State v. Nece, 306 Kan. 679, 396 P.3d 709 (2017)
(Nece II).

The purpose of the mandatory K.S.A. 2016 Supp. 8-1001(k) advisories is to
inform a person arrested for DUI of their statutory and constitutional rights. Following
the Ryce I and Nece I decisions, the Kansas Attorney General created a revised DC-70
form which omitted the two unconstitutional provisions. Specifically, the form omitted
subsections (k)(2) and (k)(4). These two subsections provided:

"(k) Before a test or tests are administered under this section, the person shall be
given oral and written notice that:
. . . .
(2) the opportunity to consent to or refuse a test is not a constitutional right;
. . . .
(4) if the person refuses to submit to and complete any test of breath, blood or
urine hereafter requested by a law enforcement officer, the person may be charged with a
separate crime of refusing to submit to a test to determine the presence of alcohol or
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drugs, which carries criminal penalties that are greater than or equal to the criminal
penalties for the crime of driving under the influence, if such person has:
(A) Any prior test refusal . . . ; or
(B) any prior conviction for [DUI] . . . or enter[ed] into a diversion agreement
. . ." K.S.A. 2016 Supp. 8-1001(k).

KDR contends—and McGinnis does not dispute—that the revised DC-70 form
comports with our Supreme Court's opinions in Ryce and Nece. KDR submits that by
deleting the two constitutionally infirm subsections from the DC-70 form, law
enforcement officers faithfully followed Kansas Supreme Court precedent. KDR also
asserts that Trooper Malo substantially complied with the implied consent statute because
in providing McGinnis with the revised form and advisories, the trooper correctly advised
McGinnis of the lawful consequences she faced if she refused to submit to a breath test.

In response, McGinnis argues that the revised DC-70 form does not substantially
comply with K.S.A. 2016 Supp. 8-1001(k) because it omits two essential (albeit
unconstitutional) provisions from the list of advisories required under Kansas law.
McGinnis' case presents an interesting dilemma: Comply with our Supreme Court's
opinions in Ryce and Nece and use the revised form which omits the unconstitutional
provisions at the risk of not complying with K.S.A. 2016 Supp. 8-1001(k) as written, or
provide all the statutory implied consent advisories as written and erroneously advise the
licensee regarding their constitutional and statutory rights.

The question is presented: Did Trooper Malo substantially comply with K.S.A.
2016 Supp. 8-1001(k) by informing McGinnis of the advisories as stated on the revised
DC-70 form?

"Because there are legal consequences for an accused [who] either refuses or fails
a breath test, the law requires that such persons be told of those consequences before they
decide to take the test." State v. Kaiser, No. 102,845, 2010 WL 3853206, at *1 (Kan.
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App. 2010) (unpublished opinion). Generally, substantial compliance with statutory
notice provisions is sufficient. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 680-81,
840 P.2d 448 (1992). "To substantially comply with the requirements of the statute, a
notice must be sufficient to advise the party to whom it is directed of the essentials of the
statute." Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988).
Substantial compliance, however, does not require a verbatim reading of the statute.
Meigs, 251 Kan. at 680-81.

Kansas appellate courts have previously addressed the issue of substantial
compliance as it relates to the Kansas implied consent law.

In Barnhart, the arresting officer did not read verbatim an advisory contained in
K.S.A. 1985 Supp. 8-1001(f) that informed the licensee of a right to an attorney after
testing was completed and that a licensee may obtain additional testing. Our Supreme
Court held the advisory provided to Barnhart, although not exactly in the words of the
statute, substantially complied with the implied consent statute because he received
notice of the essentials of the statute. 243 Kan. at 213. In particular, the advisory did not
mislead Barnhart because he was fully informed of his statutory right to obtain additional
testing. Of note, in her brief, McGinnis acknowledges that Barnhart stands for the legal
principle that while verbatim advisories are not required under K.S.A. 2016 Supp. 8-
1001(k), the notices must convey the essentials of the statute.

In contrast, our Supreme Court in Meigs held that an advisory provided to the
licensee did not substantially comply with the implied consent statute. 251 Kan. at 683.
The officer informed Meigs that refusing a blood alcohol test would result in at least a
180-day suspension, however, the statute provided that the suspension term was for at
least 1 year. Even though the warning conveyed that refusal would result in a suspension,
our Supreme Court—quoting from the Meigs Court of Appeals opinion—noted that the
Legislature mandated notification of the exact period of the suspension and "'[a]n
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accurate and precise notice of that risk is required by statute.'" 251 Kan. at 681. Because
the actual risk of a one-year suspension was more than twice the suspension period that
Meigs was told she could receive, the advisory did not convey an accurate account of the
statutory risk. As a result, the district court's order vacating the driver's license suspension
was affirmed on appeal. 251 Kan. at 683.

Finally, in City of Overland Park v. Lull, 51 Kan. App. 2d 588, 349 P.3d 1278
(2015), the DC-70 form omitted an entire paragraph. As a result, the arresting officer did
not inform Lull that, because he was a repeat DUI offender, the statutory penalty for
refusing to submit to alcohol testing was more severe as it related to him. Because the
officer did not substantially comply with K.S.A. 2012 Supp. 8-1001(k), our court found
that Lull did not receive the information necessary to make an informed decision
regarding whether to refuse or submit to a breath test. As a result, the incriminating
breath test results were suppressed prior to trial. 51 Kan. App. 2d at 594.

Based on the teachings of Lull, Meigs, and Barnhart, the critical issue on appeal is
whether the implied consent advisories provided by the revised DC-70 form properly
advised McGinnis of the essentials of K.S.A. 2016 Supp. 8-1001(k) so that she could
make an informed decision as to whether or not she should consent and submit to the
breath test.

On appeal, KDR contends it is misleading for a police officer to administer the
advisories as written in K.S.A. 2016 Supp. 8-1001(k) because, in light of our Supreme
Court opinions for Ryce and Nece, two of those advisories would be an incorrect
statement of law. Instead, KDR asserts that by omitting the unconstitutional provisions,
McGinnis received the essential information of the implied consent statute necessary to
make a decision whether to refuse or submit to a breath test.

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Our court recently addressed this substantial compliance issue with regard to the
revised DC-70 form in three unpublished cases. In White v. Kansas Dept. of Revenue, No.
117,956, 2018 WL 1769396, at *5 (Kan. App. 2018) (unpublished opinion), petition for
rev. filed May 9, 2018, White was arrested for DUI in June 2016, subsequent to the filing
of the Ryce I and Nece I opinions. As in the present case on appeal, the officer provided
White with implied consent advisories as stated in the revised DC-70 form. White
consented and then failed the breath test, which resulted in her license being suspended.

On appeal, White argued that the officer violated her statutory rights by failing to
provide all of the warnings that are required under K.S.A. 2015 Supp. 8-1001(k). Our
court, however, held that the revised DC-70 form and the arresting officer substantially
complied with the implied consent laws. 2018 WL 1769396, at *6. In particular, we
pointed to the implied consent statute's severability clause, K.S.A. 8-1007, which
specifically provides that "[t]his act shall be construed as supplemental to existing
legislation" and the remaining portions of the statute should continue to be enforced if
other portions are found to be unconstitutional. 2018 WL 1769396, at *5. In White, our
court determined that since it was the Legislature's intent for the remaining portion of the
statute to survive, the revised DC-70 form reflected that legislative purpose. 2018 WL
1769396, at *6. We also noted that substantial compliance did not require the officer to
erroneously advise White of the possible adverse consequences of withdrawing her
consent to testing. 2018 WL 1769396, at *6.

In State v. Barta, No. 117,990, 2018 WL 1883878 (Kan. App. 2018) (unpublished
opinion), petition for rev. filed May 15, 2018, the defendant consented to a breath test
after having been advised of the revised DC-70 advisories. Barta sought suppression of
the incriminating breath test results because the revised DC-70 form omitted the language
in K.S.A. 2015 Supp. 8-1001(k)(4). In affirming the district court's denial of the motion
to suppress, our court found the revised DC-70 was in substantial compliance with
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K.S.A. 2015 Supp. 8-1001(k). 2018 WL 1883878, at *4-5.We observed that the omitted
advisory actually rendered the defendant's consent free from the very coercion discussed
in the Ryce and Nece opinions. Our court also noted that the severability clause of K.S.A.
8-1007 supported the attorney general's modification of the DC-70 to comply with the
constitutional determinations of the Ryce and Nece opinions. 2018 WL 1883878, at *4.

In Bynum v. Kansas Dept. of Revenue, No. 117,874, 2018 WL 2451808 (Kan.
App. 2018) (unpublished opinion), following his arrest for DUI, Bynum refused a breath
test after having been advised of the revised DC-70 advisories. Barta's driver's license
was suspended and he appealed to the district court which affirmed the suspension. On
appeal to our court, Bynum argued that the revised DC-70 form omitted the language in
K.S.A. 2016 Supp. 8-1001(k)(2) and (4). Our court, citing White and Barta concluded:
"We find the analysis and conclusions set forth in Barta and White to be pertinent,
persuasive, and determinative of the issues herein." 2018 WL 2451808, at *4.
Accordingly, in affirming the license suspension, our court found the revised DC-70 form
read to Bynum by the arresting officer was in substantial compliance with K.S.A. 2016
Supp. 8-1001(k). 2018 WL 2451808, at *4.

White, Barta, and Bynum provide valuable guidance in addressing the question
presented on appeal. Officer Malo would have misled McGinnis about the consequences
of withdrawing her implied consent if he had informed her of subsections K.S.A. 2016
Supp. 8-1001(k)(2) and (k)(4). Since K.S.A. 8-1007 specifically provides for a
severability clause, once the unconstitutional provisions are stricken, the remaining
statutory advisories are required to be given to the licensee.

In support of its substantial compliance argument, KDR points out that the omitted
advisory in K.S.A. 2016 Supp. 8-1001(k)(4) regarding the possible criminal penalties
applicable when an arrested driver refuses the breath test did not apply to McGinnis
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because she did not have any prior DUI convictions or breath test refusals. As a result,
that advisory did not apply to her. KDR's argument has merit.

"When dealing with an omission, this court has found no error when the omitted
paragraph did not apply to the driver in any way." Lull, 51 Kan. App. 2d at 593. One case
is particularly noteworthy in this regard. In Kaiser, the driver who was arrested for DUI
was 47 years old. As a result, the officer did not read aloud a paragraph on the DC-70
form that advised drivers under the age of 21 that their driver's license could be
suspended for one year if their breath test results were above the legal limit. Kaiser
agreed to submit to a breath test.

Upon being charged with DUI, Kaiser unsuccessfully sought to suppress the
incriminating breath test results. He argued there was not substantial compliance with the
Kansas implied consent law because the arresting officer failed to read the advisory that
only pertained to drivers under the age of 21. Our court held that the omitted paragraph
did not apply to Kaiser. As a result, our court found no error and concluded there was
substantial compliance with K.S.A. 2007 Supp. 8-1001 under the circumstances. 2010
WL 3853206, at *2.

We find Kaiser is persuasive authority as applied to this case. Since K.S.A. 2016
Supp. 8-1001(k)(4) did not apply to McGinnis, the omission of that provision did not
render Trooper Malo's compliance with the statute insufficient.

In additional support of her argument that Trooper Malo's omissions did not
constitute substantial compliance with K.S.A. 2016 Supp. 8-1001(k), McGinnis asserts at
the time of her arrest, Ryce I and Nece I had no precedential value because our Supreme
Court had granted a rehearing on both cases. As a result, McGinnis argues these cases
had no precedential effect and the two statutory provisions in question were still valid
Kansas law. See Supreme Court Rule 8.03(j) (2018 Kan. S. Ct. R. 53).
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In Kraemer, after the defendant was arrested for DUI, he was advised of the
advisory found in 8-1001(k)(4), and submitted to a breath test. After Kraemer was
charged, he argued that his consent was coerced because he was improperly advised that
he could be charged with an additional crime upon his refusal of the test. The district
court found that Kraemer's consent was coerced, but denied his motion to suppress
because the officer had acted in good faith.

Upon our court's review, we concluded that, "[a]lthough the mandate in Ryce has
not yet issued, we must accept the Kansas Supreme Court's analysis and its ultimate
holding." 52 Kan. App. 2d at 696. Similarly, we conclude that, given our Supreme
Court's opinions in Ryce I and Nece I, despite the procedural posture that mandates had
not been issued in those cases, Trooper Malo appropriately followed our Supreme Court's
guidance and, therefore, substantially complied with K.S.A. 2016 Supp. 8-1001(k).

McGinnis also argues that only the Legislative branch, not the executive branch,
has the power to make and amend law, and that the Attorney General's revised DC-70
form should not serve as amended legislation. However, complying with the statute in the
way that McGinnis requests would mean not complying with our Supreme Court's
judicial rulings. In arguing that she should have been read the unconstitutional provisions,
McGinnis is essentially asking the State to violate her constitutional rights. The revised
DC-70 form prevents law enforcement officers from engaging in such improper conduct.

Based on all the reasons discussed, we hold that by providing McGinnis with the
revised DC-70 form and reading it to her, Trooper Malo substantially complied with
K.S.A. 2016 Supp. 8-1001(k).

Finally, KDR presents an alternative argument that should our court find there was
no substantial compliance, the good-faith exception should apply in this case. Given our
holding, however, we decline to review this alternative argument.
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Reversed and remanded with directions to reinstate the suspension.