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No. 103,667 IN THE COURT OF APPEALS OF THE STATE OF KANSAS BRYCE J. KATZ, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

SYLLABUS BY THE COURT 1. Issues of statutory and constitutional interpretation raise pure questions of law subject to unlimited appellate review.

2. Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., an appellate court exercises the same limited review of the agency's action as does the district court, i.e., as though the appeal had been made directly to the appellate court.

3. K.S.A. 2009 Supp. 8-1020(h)(2)(A)-(H) is clear and unambiguous, and its list of issues that may be decided in an administrative driver's license hearing is exclusive. If the law enforcement officer certifies that the licensee failed the breath test, the scope of the hearing is limited to whether the officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs; the person was in custody or arrested for an alcohol or drug-related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury, or death; an officer had presented the person with the oral and written notice required by K.S.A. 2009 Supp. 1

8-1001; the testing equipment used was certified by the Kansas Department of Health and Environment; the person who operated the testing equipment was certified by the Kansas Department of Health and Environment; the testing procedures used substantially complied with the procedures set out by the Kansas Department of Health and Environment; the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and the person was operating or attempting to operate a vehicle.

4. Under K.S.A. 2009 Supp. 8-1020(k), at the administrative hearing to determine whether a person's driving privileges should be suspended, the licensee has the burden of proving, by a preponderance of evidence, that the facts set out in the certification are false or insufficient and that the suspension should, therefore, be dismissed.

5. Under K.S.A. 2009 Supp. 8-1020(p), upon judicial review of the administrative hearing decision, if the district court finds that the grounds for action by the agency have been met, the court shall affirm the agency action.

6. Under K.S.A. 2009 Supp. 8-1020(q), upon judicial review of the administrative hearing decision, the licensee shall have the burden to show that the decision of the agency should be set aside.

7. Under K.S.A. 2009 Supp. 8-1020(h)(2)(A)-(H), the Kansas Department of Revenue is not required to prove that a person was actually operating a vehicle while under the influence of alcohol or had a greater than .08 breath alcohol level at the time of operating the vehicle in order to meet the statute's certification requirements. 2

8. Under K.S.A. 2009 Supp. 8-1020(h)(2)(A), a person's consumption of alcohol after driving but before submitting to a breath alcohol test may be a relevant factor in the determination of whether the law enforcement officer had reasonable grounds to believe the driver was operating the vehicle while under the influence of alcohol.

9. Under the facts of this case, the administrative hearing officer did not err in ordering the suspension of driving privileges because the Kansas Department of Revenue's action was supported by substantial evidence, was not unreasonable, arbitrary, or capricious, did not involve an erroneous interpretation or application of law, and did not violate substantive due process of law.
Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge. Opinion filed May 6, 2011. Reversed and remanded with directions.

Matt Franzenburg, of Legal Services Bureau, of Kansas Department of Revenue, of Topeka, for appellant.

Terrence J. Campbell, of Barber Emerson, L.C., of Lawrence, for appellee.

Before BUSER, P.J., STANDRIDGE, J., and BUKATY, S.J.

BUSER, J.: In 2007, Bryce J. Katz was involved in an early morning automobile accident outside a Lawrence bar. A short time later, he was arrested for driving a motor vehicle while under the influence of alcohol. After his arrest, he failed an Intoxilyzer 5000 breath alcohol test and was informed by the Kansas Department of Revenue (KDR) that his driving privileges would be suspended. In 2008, at the conclusion of an evidentiary hearing, an administrative hearing officer for KDR suspended Katz' driving privileges. 3

Katz appealed to the district court which reversed the suspension order and reinstated his driving privileges. The district court found the test result of .203 alcohol concentration did not reflect the amount of alcohol in Katz' breath at the time he was operating his motor vehicle. Rather, the district court found that Katz "consumed copious amounts of alcohol after driving," but before the test, which resulted in the test failure. As discussed below, based on these findings, the district court held KDR's suspension order was not supported by substantial evidence, was unreasonable, arbitrary, and capricious, involved an erroneous interpretation or application of law, and violated substantive due process of law.

KDR filed a timely appeal.

We reverse the district court's judgment and remand with directions to reinstate KDR's order suspending Katz' driving privileges.

FACTUAL AND PROCEDURAL BACKGROUND On November 6, 2007, Katz went to a Lawrence bar at 9:45 p.m. During the 4 hours he was at the bar, Katz drank 5 pints of beer. Shortly before closing time, at 1:45 a.m. to 1:50 a.m., Katz left the drinking establishment. As Katz was backing his vehicle out of a parking space, he "felt a bump." Katz testified that he "turned around, and I looked, and there was . . . just like a barrier pole and I figured that's what I hit." In fact, Katz had struck another car. After the accident, Katz did not stop but drove from the scene.

In the company of two friends, Katz drove to his Lawrence apartment. According to Katz, while driving home he was not drunk: "I tried to watch what I consumed in terms of alcohol . . . tried to keep it under what I thought was . . . the legal limit of being able to drive home because I was responsible for other people." In support of his 4

testimony, Katz presented an expert witness, Michael Clarke, a certified operator and maintenance technician for the Intoxilyzer 5000. Clarke testified it was possible that a driver with Katz' weight who had consumed the amount of alcohol he claimed could have had an alcohol concentration below .08 at the time he drove his vehicle.

According to Katz, once at home, he began a drinking game with friends. Katz testified that over "[r]oughly thirty, forty minutes" he had, "[o]n top of four or five, maybe six shots . . . three, four beers also. Somewhere in that range." Katz testified that he became intoxicated and "went to bed I believe. It gets a little hazy at this point."

In the meantime, a witness to the accident reported it to the police. Officer Bruce Elliott arrived at the bar at about 2 a.m. to investigate. Finding no witnesses, the officer left the establishment. Shortly thereafter, at 2:26 a.m., Officer Elliott was dispatched to the bar again where he made contact with witnesses who provided him with the license plate number of Katz' vehicle.

Officer Elliott arrived at Katz' apartment shortly after 3 a.m., about 1 hour and 15 minutes after the accident. The officer located Katz' vehicle, noticed some damage, and then knocked on the apartment door. Katz had to be shaken "awake pretty forcefully" by his roommate. Officer Elliott testified that Katz had slurred speech, bloodshot eyes, and a moderate odor of alcohol on his breath. He also observed "alcohol containers" about the apartment.

Officer Elliott informed Katz that his vehicle had "been involved in an accident behind [the bar]." Katz denied the allegation. He told Officer Elliott he had not driven his vehicle and that an unnamed friend had been driving it at that time. In fact, Katz claimed he had last seen his vehicle in front of a different Lawrence bar. When Officer Elliott confronted Katz with information provided by witnesses who saw the accident, Katz finally admitted he had "backed into another vehicle then drove away." 5

Officer Elliott asked Katz if he had consumed alcohol since he returned to his apartment from the bar. Katz responded, "No." The officer also asked Katz whether he had consumed any alcohol since the accident. Katz replied, "No." Officer Elliott asked Katz these questions to give him "that benefit of the doubt to say, yeah, I downed a fifth, but [Katz] said that he that he had nothing to drink." Katz had no recollection of the early morning conversation with Officer Elliott.

Because it was within "a two hour limit" since Katz had driven his vehicle, Officer Elliott administered a field sobriety test. According to the officer, the test results "gave me clues indicating [Katz] had alcohol in his system." As a result, Katz was arrested for driving under the influence of alcohol. At 4:26 a.m.--about 2 hours and 45 minutes after the accident--Katz submitted to an Intoxilyzer 5000 breath test. This test revealed that Katz had a .203 breath alcohol concentration. In compliance with K.S.A. 2009 Supp. 81002(a)(2), Officer Elliott completed and served Katz with an officer's certification and notice of suspension of his driving privileges.

Katz requested an administrative license suspension hearing. See K.S.A. 2009 Supp. 8-1020. At the conclusion of the evidentiary hearing, the administrative hearing officer's notes show Katz argued "intervening intoxication" and raised "a constitutional issue." The administrative hearing officer, however, affirmed the suspension order.

Katz petitioned for review pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). K.S.A. 77-601 et seq. He alleged KDR "improperly suspended [his] driver's license because [he] did not operate or attempt to operate a vehicle under the influence." Katz also claimed his "intoxication developed only after he had returned home--not while he was operating or attempting to operate a vehicle."

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A trial on Katz' petition was held in Douglas County District Court where the facts discussed above were fully developed. The trial focused on Officer Elliott's certification of eight statements made on the DC-27 form that the officer completed and served on Katz. These statements were required to be certified before KDR could suspend Katz' driving privileges for driving a motor vehicle and having a breath test result which indicated .08 or greater in alcohol concentration. K.S.A. 2009 Supp. 8-1020(h)(2)(A)(H).

The eight statements were listed in numerical order on the DC-27 form. According to the instructions on the form, beside each statement "at least one officer must initial on the line to the left of each of the statements intended to be certified." Officer Elliott had placed his initials beside each of the eight statements.

Referring to the eight statements, Katz' counsel argued: "[W]hat the [KDR] wants the Court to do . . . is to check every box. If you can check every box, then you don't need to think about these all together." Katz' counsel candidly conceded that under the facts that were developed at trial, "you can check all those boxes." (Emphasis added.)

Nevertheless, the crux of Katz' argument was that KDR was required to prove a temporal relationship between two individual statements certified by Officer Elliott. The first statement, set forth in K.S.A. 2009 Supp. 8-1020(h)(2)(A), and found on line 1 of the DC-27 form, was that Officer Elliott certified he had "reasonable grounds" to believe that Katz had been operating a vehicle while under the influence of alcohol. The second statement, set forth in K.S.A. 2009 Supp. 8-1020(h)(2)(G), and found on line 4 of the DC-27 form, was that after the breath test given to Katz upon his arrest, the result showed Katz had an alcohol concentration of .08 or greater. Katz argued "the only common sense approach is that there has to be some sort of temporal scope that puts all of this together, and . . . we [have] proven . . . that [the] breath test doesn't have anything to do with the amount of alcohol Mr. Katz consumed prior to driving." 7

KDR's counsel agreed, "we do check the boxes here," which meant that Officer Elliott had proven the factual basis for his certification of the eight statements necessary for suspension of driving privileges. The district court, however, remarked that the "question is . . . whether [Katz] failed the breath test." KDR's counsel agreed. But the district court challenged KDR's counsel to explain how the Intoxilyzer 5000 test "can be reliable if there was alcohol consumed [after Katz drove the vehicle]." In the district court's view, the test was only reliable "as to what [Katz'] breath alcohol was as of 4:30 in the morning . . . and that's all." KDR's counsel agreed with the district court but pointed out "the statute . . . doesn't say that the test must be a reliable measure of the [alcohol concentration] at the time [Katz] drove" his vehicle. (Emphasis added.)

After extensive argument, the district judge concluded:

"I just think . . . under the facts, the question is whether or not [Katz] was driving at the time under the influence of alcohol. .... "Now, did the officer have reasonable grounds to give him the test? Yeah. Given what he told him, he did have reasonable grounds. . . . I think that check mark can be made. The problem is I don't see how the test can be accurate, knowing what we know . . . and I don't think the evidence, other than that, is sufficient to show that he was under the influence of alcohol . . . at the time he was driving."

The district court filed a journal entry stating Katz "did not operate or attempt to operate a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle." In particular, the district court found the "test results . . . provide no reliable indication of the amount of alcohol [Katz] consumed prior to operating a vehicle or the alcohol concentration in [his] breath at the time he was operating a vehicle." Instead, the district court found the test results were due to Katz' consumption of "copious amounts of alcohol after driving." (Emphasis added.)

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Based on these factual findings, the district court held KDR's driver's license suspension order was unsupported by substantial evidence, unreasonable, arbitrary, and capricious, involved an erroneous interpretation or application of law, and violated due process. The suspension order was reversed, and Katz' driving privileges were reinstated.

KDR appeals.

DISCUSSION This case concerns the interpretation and application of certain provisions of the Kansas Implied Consent Law, K.S.A. 2009 Supp. 8-1001 et seq. On appeal, KDR contends the district court went beyond the plain language of K.S.A. 2009 Supp. 81020(h)(2)(A)-(H) by requiring the administrative agency to prove that the .203 Intoxlyzer 5000 test result reflected the alcohol concentration in Katz' breath at the time he was operating his motor vehicle about 2 hours and 45 minutes earlier. KDR argues:

"Nothing in the statute requires an officer to establish that the driver was in fact operating a vehicle with a blood alcohol content (BAC) of .08 or greater. K.S.A. 81020(h)(2)(G) requires only that a subsequent 'test result determined that the person had an alcohol concentration of .08 or greater in such person's breath.' Had the legislature intended for that determination to be made as of the time of operation, that language could have been included in the statute. Similarly, had the legislature intended to allow post-driving alcohol consumption to have an effect on an evidentiary breath test, it could have included language to that effect as well. Neither of those issues is included in the language of the statute."

In response, Katz counters "[i]t is wholly arbitrary and unreasonable to suspend the license of a person who is not drunk, simply because he decided to get drunk innocently and legally after driving."

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At the outset, some legal standards are relevant. At the administrative hearing, Katz had "the burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification [were] false or insufficient." K.S.A. 2009 Supp. 81020(k). Upon review of KDR's administrative action by the district court under the provisions of the KJRA, Katz also had the burden "to show that the decision of the agency should be set aside." K.S.A. 2009 Supp. 8-1020(q).

On appeal, our review is well established: "Under the . . . (KJRA), K.S.A. 77-601 et seq., an appellate court exercises the same limited review of the agency's action as does the district court, i.e., as though the appeal had been made directly to the appellate court." Kansas Dept. of Revenue v. Powell, 290 Kan. 564, Syl.

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