Ratzlaff v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 118,153

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TRACI RATZLAFF,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed May 4, 2018.
Affirmed.

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

Adam D. King, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before MCANANY, P.J., LEBEN and SCHROEDER JJ.

PER CURIAM: Traci Ratzlaff appeals the administrative suspension of her driver's
license, objecting to the use of the officer's certification and notice of suspension form
(DC-27) as evidence to support the suspension when the officer who prepared the form
did not testify. We find no error in the form's admission, and we affirm.

The Kansas Department of Revenue (KDOR) suspended Ratzlaff's driving
privileges as a result of an administrative hearing. Ratzlaff appealed the decision to the
Reno County District Court.
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At the evidentiary hearing, Ratzlaff was the only person to testify. She
acknowledged she was pulled over for reckless driving. Ratzlaff explained she was
driving around exposed manhole covers in a construction zone. Ratzlaff further testified
she had a broken flip-flop yet she was still required to conduct field sobriety tests,
including the walk-and-turn and one-leg-stand tests. Ratzlaff also testified she did not
know what clues the officer was looking for in this testing.

KDOR entered the DC-27 form into the record. According to the DC-27, the
certifying officer stopped Ratzlaff because an off-duty officer reported Ratzlaff driving
recklessly. The DC-27 form indicated the certifying officer saw Ratzlaff operating a
vehicle. It also indicated he observed Ratzlaff with bloodshot eyes, slurred speech, poor
balance or coordination, and an odor of alcohol. Finally, the DC-27 form noted Ratzlaff
admitted to consuming alcohol or drugs, failed her field sobriety tests, and failed her
preliminary breath test (PBT) with a blood alcohol level over the legal limit.

Ratzlaff did not contest the contents of the DC-27. She argued the DC-27, without
any additional evidence, was insufficient to find reasonable grounds to uphold the
administrative suspension of her driving privileges. Ratzlaff argued without the officer at
the hearing to testify, there was no foundation for the PBT, the failed field sobriety tests,
the bloodshot eyes, or any other contentions. Although not done here, Ratzlaff had the
right to subpoena the officer and then examine him over the contents of the DC-27 form.
Ratzlaff reasoned the DC-27 is similar to a complaint in a criminal case. The district
court upheld the administrative decision finding the DC-27 is admissible in court without
the presence of the officer and reasonable grounds existed for the officer's actions.

Ratzlaff argues the district court lacked substantial competent evidence because
the PBT was unlawfully obtained; therefore, the results should be excluded, and
Ratzlaff's live testimony contradicted the certified DC-27 form. "Generally, when police
officers obtain evidence in violation of a person's Fourth Amendment rights, the evidence
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may not be used at trial—this is known as the exclusionary rule. [Citation omitted.]"
State v. Quinn, No. 117,286, 2018 WL 1440586, at *4 (Kan. App. 2018) (unpublished
opinion), petition for rev. filed April 19, 2018. However, the exclusionary rule does not
apply to administrative proceedings to suspend driving privileges. Martin v. Kansas Dept.
of Revenue, 285 Kan. 625, Syl. ¶ 8, 176 P.3d 938, 941 (2008), overruled on other
grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048 (2015); Fischer v.
Kansas Dept. of Revenue, 55 Kan. App. 2d 225, Syl. ¶ 9, 410 P.3d 933 (2017), petition
for rev. filed January 19, 2018; Brumitt v. Kansas Dept. of Revenue, No. 113,416, 2017
WL 6395804, at *3 (Kan. App. 2017) (unpublished opinion), petition for rev. filed
January 10, 2018.

The exclusionary rule is a judicially crafted remedy and its purpose is to "deter the
government from engaging in unconstitutional conduct. [Citations omitted.]" Martin, 285
Kan. at 640. As such, the exclusionary rule is applied only when "its deterrence benefits
outweigh its 'substantial social costs.'" Martin, 285 Kan. at 640 (quoting Pennsylvania
Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d
344 [1998]). In administrative proceedings to suspend driving privileges, the remedy of
preventing impaired drivers from killing or injuring themselves or others outweighs any
deterrent effect of excluding evidence in the civil suspension proceeding. Martin, 285
Kan. at 646. The Court of Appeals is duty bound to follow Kansas Supreme Court
precedent, absent some indication the Supreme Court is departing from its previous
position. Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015), rev.
denied 303 Kan. 1078 (2016). Thus, the exclusionary rule does not apply in this case.

Even if the exclusionary rule applied, Ratzlaff was not entitled to relief. The
Kansas Judicial Review Act (KJRA) defines the scope of judicial review of state agency
actions unless the agency is specifically exempted from application of the statute. K.S.A.
2017 Supp. 77-603(a); Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 458, 284 P.3d
337 (2012). Appellate courts exercise the same statutorily limited review of the agency's
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action as does the district court, as though the appeal had been made directly to the
appellate court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856
(2010). On appeal, the burden of proving the invalidity of the agency action rests on the
party asserting such invalidity. K.S.A. 2017 Supp. 77-621(a)(1). Appeals from the
administrative suspension of driver's licenses are subject to review under the KJRA
except that appeals to the district court are de novo. K.S.A. 2017 Supp. 8-259(a); Moser
v. Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009).

K.S.A. 2017 Supp. 77-621(d) defines substantial evidence "'in light of the record
as a whole'" to include the evidence both supporting and detracting from an agency's
finding. Courts must determine whether there is substantial competent evidence
supporting the agency's factual findings in light of all the evidence. Sierra Club v. Moser,
298 Kan. 22, 62, 310 P.3d 360 (2013). "Substantial competent evidence is 'evidence
which possesses both relevance and substance and which furnishes a substantial basis of
fact from which the issues can be reasonably resolved.' [Citations omitted.]" Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 73-74, 350 P.3d 1071 (2015).

The certified DC-27 form is admissible evidence even without the certifying
officer's testimony in court. K.S.A. 2017 Supp. 8-1002(b); State v. Baker, 269 Kan. 383,
387, 2 P.3d 786 (2000); Pfeifer v. Kansas Dept. of Revenue, 52 Kan. App. 2d 591, 601,
370 P.3d 1200, rev. denied 305 Kan. 1252 (2016). Thus, if no evidentiary exclusion
applies, the information contained in Ratzlaff's DC-27 form is evidence subject to
admission and consideration by the district court. See Martin, 285 Kan. at 646.

Here, the district court had substantial competent evidence for finding reasonable
grounds to uphold the administrative suspension of Ratzlaff's driving privileges. The
certifying officer stopped Ratzlaff because an off-duty officer reported Ratzlaff driving
recklessly. The certifying officer observed Ratzlaff operating a vehicle. He also saw
Ratzlaff with bloodshot eyes, slurred speech, poor balance or coordination, and an odor
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of alcoholic beverages. The officer noted on the DC-27 form that Ratzlaff admitted to
consuming alcohol or drugs and failed her field sobriety tests. Ratzlaff's testimony only
informs us her footwear was broken at the time of the stop, and she alleges she was
avoiding road construction, not driving recklessly. Ratzlaff did not contest the facts
shown on the DC-27 form.

Ratzlaff's facts are nearly identical to those in Fischer. In Fischer, another driver
reported Fischer for reckless driving. The officer observed Fischer had bloodshot eyes
and smelled of alcohol. Fischer also admitted he had consumed alcohol. Fischer failed his
field sobriety tests and provided a PBT sample over the legal limit. The Fischer court
determined those facts were substantial competent evidence to find reasonable grounds
existed for Fischer's suspension and affirmed the district court's decision to uphold the
administrative suspension of Fischer's license. 55 Kan. App. 2d at 232-33.

Here, even if the PBT results were excluded, which they are not, the district court
still had substantial competent evidence to find reasonable grounds to uphold Ratzlaff's
administrative suspension. The uncontroverted facts on the DC-27 indicated reasonable
grounds to suspend Ratzlaff's driver's license. Ratzlaff is not entitled to relief.

Affirmed.