Opinion
No. 106,781.
2012-12-7
Vern R. MOWRY, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Phillips District Court; Preston A. Pratt, Judge. Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant. J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Phillips District Court; Preston A. Pratt, Judge.
Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant. J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Vern R. Mowry appeals the district court's decision to affirm the suspension of his driver's license by the Kansas Department of Revenue (KDR). Mowry claims the Intoxilyzer 8000 breath testing instrument used to record his blood-alcohol concentration was not certified at the time of his arrest because the device's certificate incorrectly reflected that it met the requirements of regulations that had been revoked by the Kansas Department of Health and Environment (KDHE). Mowry also contends that the Intoxilyzer was not functioning properly at the time of his arrest. For the reasons stated below, we affirm the decision of the district court.
Facts
On August 30, 2008, a Kansas Highway Patrol trooper arrested Mowry for driving under the influence (DUI) of alcohol. Following his arrest, Mowry agreed to submit to a breath test on the Phillips County Sheriff's Department's (PCSD) Intoxilyzer 8000. The test results indicated that Mowry had a blood-alcohol concentration of .268. After the breath test was completed, the arresting trooper initialed paragraph 9 of the Officer's Certification and Notice of Suspension (commonly known as a DC–27 form), specifically attesting that “[t]he testing equipment used was certified by the Kansas Department of Health and Environment.”
The certification that the PCSD possessed at the time of Mowry's breath test stated that the PCSD “has met the requirements of K.A.R. 28–32–4 for testing of human breath for alcohol for law enforcement purposes with the Intoxilyzer 8000, Serial No. 80–002789.” The certificate was “[e]ffective this 3rd day of April 2008” and had an expiration date of December 31, 2008. But the PCSD certificate incorrectly referred to K.A.R. 28–32–4; the KDHE had revoked K.A.R. 28–32–1 through K.A.R. 28–32–7 in March 2008 and had adopted new regulations that set different standards for certification. The new regulations, K.A.R. 28–32–8 through K.A.R. 28–32–14, became effective March 14, 2008.
In September 2008, the KDHE issued a new certificate for the PCSD's Intoxilyzer 8000, which replaced the previous certificate that had been issued on April 3, 2008. The new certificate referred to the new regulation, K.A.R. 28–32–9, which had replaced K.A.R. 28–32–4. The KDHE indicated that the new certificate was effective April 3, 2008, through December 31, 2008.
The results of Mowry's breath test resulted in the suspension of his driver's license. Mowry appealed, and an administrative hearing officer affirmed the suspension. Mowry filed a petition for judicial review in the district court seeking de novo review of his claims that the PCSD's Intoxilyzer machine (1) was not properly certified by the KDHE and (2) was not properly functioning on the date of his arrest because the same device had allegedly malfunctioned several weeks prior to Mowry's arrest and had never been taken out of service for repair. The KDR moved for summary judgment; the district court denied the motion, finding that controverted issues of material fact remained to be resolved.
At a hearing before the district court, the KDR sought to prevent Mowry from challenging the functionality of the Intoxilyzer because such a challenge was outside the scope of K.S.A. 8–1020(h)(2), which sets forth an exclusive list of issues that can be considered in a driver's license suspension case. The district court granted the motion, holding that K.S.A. 8–1020(h)(2) does not provide for a determination of whether a breath testing machine is working properly, relying in part on this court's opinion in Barnett v. Kansas Dept. of Revenue, 44 Kan.App.2d 498, 238 P.3d 324 (2010). The court held that Mowry's argument on the issue constituted a sufficient proffer of the evidence he would have presented.
The hearing proceeded on the remaining issue of certification. The only witness to testify was Christine Houston, the breath alcohol program supervisor for the KDHE. Houston testified that certification was a process under which each Intoxilyzer 8000 instrument was tested prior to being placed with an agency to ensure that the instrument was working properly. She stated that the original certificate issued to the PCSD referencing K.A.R. 28–32–4 had been printed inadvertently and the KDHE had issued the new certificate to correct this clerical error. She claimed the error did not mean that the Intoxilyzer was never certified or that it was certified under the old regulations. Indeed, Houston maintained that the KDHE was aware of the new regulations at the time the PCSD's Intoxilyzer was certified and that it had, in fact, been certified on April 2, 2008, pursuant to K.A.R. 28–32–9. A document entitled “Certification of Intoxilyzer 8000 Instruments” was admitted into evidence, which detailed the certification procedure for the PCSD's Intoxilyzer and was created at the time the device was certified. Houston discussed some of the differences between the old and new regulations and stated that it was obvious from the face of the document that the PCSD's Intoxilyzer was certified under the new regulations.
Following Houston's testimony, Mowry rested his case, and the KDR moved for judgment on partial findings, claiming that Mowry had failed to prove that the Intoxilyzer was not certified on the date of his breath test in August 2008 and had not shown that the KDHE committed any wrongdoing in creating a new certificate to correct its clerical error. The district court granted judgment in the KDR's favor, finding that the PCSD's Intoxilyzer was certified on April 2, 2008, after the new regulations went into effect and before Mowry's breath test on August 30, 2008. The court further held that that the KDR had the ability to correct a certification mistake, and that such an error on a certificate did not nullify an otherwise valid certification process.
Analysis
Mowry argues on appeal, as he did below, that the results of the PCSD's Intoxilyzer 8000 breath test cannot be used to suspend his driving privileges because at the time he submitted to the test the Intoxilyzer was not (1) properly certified or (2) functioning properly.
Standard of Review
An appellate court generally reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Where, as here, there is no factual dispute, an appellate court exercises de novo review. Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 657, 256 P.3d 845 (2011). “Substantial competent evidence is ‘such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ [Citation omitted.] Whether substantial competent evidence exists is a question of law. [Citation omitted.]” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010).
K.S.A.2011 Supp. 8–1020(h)(2) limits the scope of an administrative hearing on a driver's license suspension by setting forth an exclusive list of issues that may be addressed. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 631, 176 P.3d 938 (2008). When, as here, an officer has certified under K.S.A.2011 Supp. 8–1002(a)(3) that a licensee failed a breath test, the scope of the hearing is limited to whether:
“(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8–2,128, and amendments thereto, while having alcohol or other drugs in such person's system;
“(B) 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;
“(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8–1001, and amendments thereto;
“(D) the testing equipment used was certified by the Kansas department of health and environment;
“(E) the person who operated the testing equipment was certified by the Kansas department of health and environment;
“(F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
“(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and
“(H) the person was operating or attempting to operate a vehicle.” K.S.A.2011 Supp. 8–1020(h)(2).
Our Supreme Court has determined that K.S.A.2011 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 suspension hearing is exclusive.” Martin, 285 Kan. 625, Syl. ¶ 2.
Resolution of Mowry's issues on appeal necessarily involves interpretation of K.S.A.2011 Supp. 8–1020(h)(2). Interpretation of a statute is a question of law over which appellate courts have unlimited review. Martin, 285 Kan. at 629. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Courts should not focus on an isolated part of a legislative act but are required, if possible, to consider and construe together all parts of the act in pari materia. McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006).
I. Proper Certification
Mowry contends that the PCSD Intoxilyzer 8000 was not properly certified at the time he submitted to a breath test. Specifically, he claims that the original certificate's incorrect reference to the old regulations “is the functional equivalent of no certificate at all.” Notwithstanding Houston's testimony that the PCSD's Intoxilyzer was certified on the date of his breath test, Mowry suggests that the reference to the old regulations on the original certificate constituted a critical error because a certificate is “the ultimate evidence of certification.”
K.S.A.2011 Supp. 8–1020, which governs the requirements and procedures of a driver's license suspension administrative hearing, allows a licensee to challenge whether “the testing equipment used was certified by the Kansas department of health and environment.” K.S.A.2011 Supp. 8–1020(h)(2)(D). The statute makes reference to an “affidavit showing certification of the officer and the instrument,” which has the same force and effect as if a certifying officer or a KDHE employee had testified in person. See K.S.A.2011 Supp. 8–1020(e)(3) and (i). But there is nothing in the statute that requires a formal document showing certification from the KDHE. Indeed, Houston testified that the certificate is merely a form of evidence showing that an Intoxilyzer has been certified by the KDHE; an agency's Intoxilyzer may still be certified even without the paper certificate.
We hold K.S.A.2011 Supp. 8–1020 does not require a formal certificate to prove that the testing equipment used was certified by the KDHE. See Double M Constr., 288 Kan. at 271 (appellate court does not read a statute “ ‘to add something not readily found in it’ ”). As contemplated by K.S.A.2011 Supp. 8–1020(e)(3) and (i), certification may be proven by testimony from the certifying officer or a KDHE employee, or by an affidavit of the officer or employee. The plain language of the statute does not limit evidence of certification to testimony or affidavit; thus, certification may also be proven by a formal certificate or other document detailing the instrument's certification process.
In this case, Houston testified that the Intoxilyzer had been certified on April 2, 2008, pursuant to the new regulations. Additionally, the document detailing the instrument's certification procedure on April 2, 2008, was admitted into evidence and reflected that it had been certified under the new regulations. Based on Houston's testimony, we find substantial competent evidence supports the district court's finding that the PCSD's Intoxilyzer was certified on April 2, 2008, after the new regulations went into effect and before Mowry's breath test on August 30, 2008.
II. Reliability of the Intoxilyzer Machine
Mowry argues that the results of the breath test do not support the decision to suspend his driver's license because the PCSD's Intoxilyzer was not functioning properly at the time of his test. In support of his argument, Mowry claims the Intoxilyzer used for his test malfunctioned several weeks prior to his arrest and had never been taken out of service for repair.
We begin our analysis of Mowry's claim by noting that he failed in his brief to identify the particular subsection of K.S.A.2011 Supp. 8–1020(h)(2) he believes would allow him to present this claim at an administrative hearing or on appeal. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002).
Even if this court were to proceed under the assumption that Mowry's challenge to the Intoxilyzer's functionality was brought, as it was below, under K.S.A.2011 Supp. 8–1020(h)(2)(G), he is still not entitled to relief. K.S.A.2011 Supp. 8–1020(h)(2)(G) authorizes administrative review by the court of a driver's license suspension when the issue presented for review is whether “the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath.” But the test result in this case indicated Mowry had a blood-alcohol concentration of .268. Mowry does not dispute that his test result from the Intoxilyzer machine reflected an alcohol concentration of .08 or greater but instead claims the result is not reliable because the Intoxilyzer used for his test malfunctioned several weeks prior to his arrest and had never been taken out of service for repair. With regard to the issue of equipment reliability, we find this court's recent decision in Creten v. Kansas Dept. of Revenue, 45 Kan.App.2d 1098, 257 P.3d 1250 (2011), to be instructive.
In Creten, the licensee challenged the suspension of her driver's license under K.S.A.2007 Supp. 8–1020(h)(2)(F), which authorizes review over whether “the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment.” She argued that the phrase “testing procedures” as used in K.S.A.2007 Supp. 8–1020(h)(2)(F) also included the weekly certified standard run that is performed to ensure continued certification of the Intoxilyzer machine by the KDHE. 45 Kan.App.2d at 1101–02. The Creten court disagreed, holding that the legislature intended this phrase “to be limited to the procedures employed by an individual officer administering a particular test to a particular person.” 45 Kan.App.2d at 1103. In so holding, the court concluded that the legislature intended K.S.A.2007 Supp. 8–1020(h)(2)(D)—whether “the testing equipment used was certified by the Kansas department of health and environment”—to be “the exclusive legal authority for presenting an administrative challenge to the testing equipment used to measure BAC [blood-alcohol concentration].” 45 Kan.App.2d at 1103. Under the rationale of Creten, we find Mowry is precluded from bringing a challenge to the reliability of the Intoxilyzer machine under K.S.A.2011 Supp. 8–1020(h)(2)(G).
If Mowry had presented a challenge below to the testing equipment under K.S.A.2011 Supp. 8–1020(h)(2)(D), he still would not be entitled to relief. In Barnett, a panel of our court held that K .S.A.2009 Supp. 8–1020(h)(2)(D) did not encompass issues related to whether an Intoxilyzer machine was properly tested in order to maintain its certification with the KDHE. See 44 Kan.App.2d 498, Syl. ¶ 2. In reaching this conclusion, the Barnett court stated that “if the legislature intended to allow hearings to encompass proper certification of Intoxilyzers—rather than just whether the machine has been certified—it could have done so in the language of K.S.A.2009 Supp. 8–1020(h)(2)(D).” 44 Kan.App.2d at 501.
The holding in Barnett is consistent with our legislative history. Under the 1997 version of the statute, K.S.A.1997 Supp. 8–1002(h)(2)(D), reliability of the testing equipment was included within the scope of issues that could be considered in an administrative challenge to suspension of a driver's license. Creten, 45 Kan.App.2d at 1105;Barnett, 44 Kan.App.2d at 500 (citing Meehan v. Kansas Dept. of Revenue, 25 Kan.App.2d 183, 185, 959 P.2d 940,rev. denied 265 Kan. 885 [1998] ). In 2001, however, the legislature removed these provisions from 8–1002 and added similar provisions in a new statute—K.S.A. 8–1020. The language in section (h)(2)(D) was revised, changing the scope of review from whether the equipment was “reliable” to whether it was “certified.” See K.S.A.2011 Supp. 8–1020(h)(2)(D). When the legislature revises an existing law, the court presumes that the legislature intended to change the law as it existed prior to the amendment. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs, 290 Kan. 446, 464, 228 P.3d 403 (2010). Mowry's issue challenging the reliability of the PCSD's Intoxilyzer goes well beyond a claim that the equipment was not actually certified.
The legislature has the prerogative to define the scope of an administrative hearing and the issues that may be contested in that process or upon judicial review. K.S A.2011 Supp. 8–1020(h)(2)(A)–(H) is clear, unambiguous, and exclusive. Martin, 285 Kan. 625, Syl. ¶ 2. Mowry's challenge to his breath test result under K.S.A.2011 Supp. 8–1020(h)(2)(G) does not encompass a challenge to the testing equipment used to measure a person's blood-alcohol concentration. Because it does not fall within the scope of issues that a court may consider upon judicial review of an administrative suspension of driving privileges, this court is procedurally precluded from reaching the merits of this issue.
Affirmed.