Werner v. Kansas Dept. of Revenue

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CORRECTED OPINION


NOT DESIGNATED FOR PUBLICATION

No. 112,447

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SHELBY WERNER,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 4, 2015.
Affirmed.

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

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

Before SCHROEDER, P.J., PIERRON, J., and HEBERT, S.J.

Per Curiam: Shelby Werner appeals the district court's decision to uphold the
administrative suspension of her driver's license based on the certified DC-27 form
completed at the time of her arrest being admitted into evidence without the certifying
officer being present to testify at trial.

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In State v. Baker, 269 Kan. 383, 387, 2 P.3d 786 (2000), the Kansas Supreme
Court held:

"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). Thus, the DC-
27 form, 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.
However, its proper completion is not an absolute requirement for such admission."

Likewise, in Moore v. Kansas Dept. of Revenue, No. 107,810, 2013 WL 5925901
(Kan. App. 2013) (unpublished opinion), a panel of this court found the same statutory
language as used in K.S.A. 2014 Supp. 8-1002(b) was plain and unambiguous:

"[K.S.A. 2014 Supp. 8-1002(b)] 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 [KDOR]'s order to suspend driving
privileges." 2013 WL 5925901, at *5.

In addition, this court recently affirmed various Ellis County District Court
decisions upholding driver's license suspensions based on arguments identical to the
arguments here in Miller v. Kansas Dept. of Revenue, No. 112,924, 2015 WL 7434008
(Kan. App. 2015) (unpublished opinion); Beims v. Kansas Dept. of Revenue, No.
112,138, 2015 WL 6834323 (Kan. App. 2015) (unpublished opinion); and Alt v. Kansas
Dept. of Revenue, No. 112,448, 2015 WL 6621620 (Kan. App. 2015) (unpublished
opinion).

Finally, we note Werner failed to address or distinguish the Baker decision in her
brief, despite the fact the record reflects the decision was used by the district court in
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support of its ruling. Werner's failure to recognize Baker as precedent this court is duty
bound to follow appears to be a violation of Supreme Court Rule of Professional Conduct
3.3(a)(2) (2015 Kan. Ct. R. Annot. 601), which states: "A lawyer shall not knowingly . . .
fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel." See Rotunda & Dzienkowski, Legal Ethics: The Lawyer's Deskbook on
Professional Responsibility § 3.3-2, p. 806 (2015-2016) ("The lawyer . . . has an
affirmative duty to volunteer to the tribunal any legal authority in the controlling
jurisdiction that he knows is directly adverse to his client's position.").

Since Baker is controlling, and Moore and the other unpublished decisions are
persuasive, we find the district court properly admitted the DC-27 form. We find the
district court's decision to uphold the administrative suspension of Werner's driver's
license is supported by substantial competent evidence.

Affirmed under Rule 7.042(b)(3) (2015 Kan. Ct. R. Annot. 68).