Opinion
No. 107,810.
2013-11-1
Christopher J. MOORE, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellant. Michael S. Holland II, of Holland and Holland, of Russell, for appellee.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellant. Michael S. Holland II, of Holland and Holland, of Russell, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
BUSER, J.
The Kansas Department of Revenue (KDR) appeals from the district court's reversal of its administrative order suspending Christopher J. Moore's driving privileges for failure of a blood-alcohol test. First, the KDR contends the trial court erred by refusing to admit statements made by Officer Michael Kirkwood in the officer's DC–27 certification as evidence at trial. Second, the KDR asserts the trial court improperly shifted the burden of proof to the KDR when it ruled the evidence failed to show that Officer Kirkwood had reasonable grounds to believe Moore was operating a vehicle while under the influence of alcohol (DUI). We reverse the district court's order and remand with directions.
Factual and Procedural Background
On March 31, 2011, Officer Kirkwood filed an Officer's Certification and Notice of Suspension of Moore's driver's license based on a chemical test failure. This certification, completed on a DC–27 form (DC–27 certification), contained several statements by Officer Kirkwood about certain indicators of Moore's intoxication, his arrest of Moore for DUI, and the subsequent chemical testing of Moore's blood.
Relevant to this appeal, Officer Kirkwood certified that “reasonable grounds existed” to believe that Moore was operating a vehicle while DUI on February 13, 2011, in Pawnee County. In particular, the officer certified that he stopped Moore's vehicle because its license plate light was not illuminated, which is a traffic violation. After making contact with Moore, Officer Kirkwood certified that Moore smelled of alcoholic beverages and had slurred speech, bloodshot eyes, difficulty in communicating, and poor balance or coordination.
Officer Kirkwood also certified that he placed Moore under arrest or otherwise took him into custody and advised him of the appropriate oral and written notices as required by statute. The officer determined that Moore should take a blood test, and the results indicated that Moore had a blood-alcohol concentration of .08 or greater. A Kansas Bureau of Investigation lab report indicated that Moore's blood-alcohol concentration was .18.
Directly above Officer Kirkwood's signature on the officer's DC–27 certification was the following statement: “I hereby certify to the Division of Vehicles that each of the statements I have initialed above are [sic] true and accurate, under penalty of K.S.A. 8–1002(b).” That statute provides: “Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B non-person misdemeanor.” K.S.A.2010 Supp. 8–1002(b). As a consequence of Officer Kirkwood's certifications, Moore's driving privileges were suspended.
At Moore's request, the KDR held a hearing before an administrative hearing officer on August 30, 2011. At this hearing, Moore argued that Officer Kirkwood had no reasonable grounds to request blood-alcohol testing, his test request was improper because Moore was not under arrest, and the hearing officer's questions exhibited partiality.
According to the administrative hearing notes, Officer Kirkwood testified at the hearing. Officer Kirkwood explained that he observed a “tag light out” on Moore's vehicle, and when he attempted to initiate a traffic stop, Moore “took off and his vehicle struck a snow bank. Moore subsequently refused to perform any field sobriety testing. Moore was arrested for DUI but before Officer Kirkwood could transport Moore to the law enforcement center for an breath-alcohol test, Moore complained of “asthma problems.” He was promptly taken to the hospital for medical observation and a blood-alcohol test.
At the conclusion of the administrative hearing, the hearing officer issued an order affirming the KDR's suspension of Moore's driver's license. The hearing officer found that Officer Kirkwood had reasonable grounds to believe Moore was DUI, Moore was in custody or arrested for an alcohol-related offense, and his test results indicated a blood-alcohol concentration of .150 or greater.
On September 8, 2011, Moore filed a petition for judicial review in the Pawnee District Court challenging the KDR's suspension of his driving privileges. In the petition, Moore asserted he was entitled to relief because he was not “under arrest or in custody for a DUI[,] nor was he involved in an automobile accident,” and Officer Kirkwood lacked reasonable grounds to request chemical testing.
The district court held a trial de novo on January 30, 2012. As a preliminary matter, the trial court was advised that despite the personal service of a subpoena on Officer Kirkwood, the officer was not present at trial. The record does not show that any party requested a continuance or other relief because of the officer's absence. The KDR indicated it would offer Officer Kirkwood's DC–27 certification into evidence and indicated that it would be “relying on the [certified] factual statements” contained therein, the forensic lab report, and the results from Moore's blood-alcohol test.
Moore countered that Officer Kirkwood's DC–27 certification was only admissible as “a complaint or ... pleading.” He objected to the admission of the certification for any other purpose than to establish the district court's jurisdiction. Moore argued that “all of the information written in [the DC–27 certification] by Officer Kirkwood, who [was] not present[,] ... that ha[d] to do with the facts that go towards reasonable grounds” should not be considered by the court. Moore also objected to the admission of the incriminating blood-alcohol test results because he claimed the results were irrelevant to the issue of whether Officer Kirkwood had reasonable grounds to request the testing. The trial court agreed with Moore regarding the blood-alcohol testing results and, while the court agreed to admit the officer's DC–27 certification, it reserved its ruling regarding whether Officer Kirkwood's certified statements would be considered as admissible evidence in the trial.
At the commencement of trial, Moore's counsel was asked to call his first witness. In response, Moore's counsel advised the trial court:
“Well, Your Honor, based upon the fact that the certifying—the sole certifying officer is not available—I don't believe that Officer Bauer is certified.
....
“Based upon the fact that the sole certifying officer did not—or is not present, but knowing that Officer Bauer is present and has some limited information in regard to the facts, we will go ahead and call Officer Bauer.”
Officer Bauer testified that he assisted Officer Kirkwood with the DUI investigation. When he arrived at the scene, Officer Kirkwood had already stopped Moore's vehicle, and initiated contact with him. Officer Kirkwood was standing outside Moore's vehicle, and Moore was sitting inside it. According to Officer Bauer, although he did not personally conduct “any type of DUI investigation,” when he came into contact with Moore, he “noted a very strong odor of alcohol coming from his person” and he observed Moore having difficulty locating his driver's license and insurance. Officer Bauer could not recall, however, whether Moore had slurred speech, difficulty in communicating, or bloodshot eyes.
Officer Bauer testified that Officer Kirkwood asked Moore to submit to field sobriety testing. While Officer Bauer was adjusting the camera in his patrol vehicle to record the testing, “some kind of a physical altercation” ensued between Moore and Officer Kirkwood because Moore had “leaned up against [his] car” and refused to comply with Officer Kirkwood's commands “to come away from the car to do the sobriety tests.” Officer Kirkwood drew his taser, and the situation deescalated. After Moore informed Officer Kirkwood that he was not going to perform any field sobriety tests, Officer Kirkwood placed Moore under arrest for DUI.
According to Officer Bauer, Moore complained that he was having an asthma attack, so Officer Kirkwood took him to the hospital for a medical evaluation and blood draw. Officer Bauer explained that when they arrived at the hospital, Moore needed assistance exiting the patrol car because he was very unsteady on his feet and almost fell down. According to the officer, Moore “got out and he started falling. I grabbed him.” Officer Bauer indicated that although Moore complained that he was having difficulty breathing and walking due to his asthma, the officer was skeptical regarding the validity of these complaints because he had “seen asthma attacks and [, in his opinion,] it wasn't a real harsh asthma attack.” When the hospital discharged Moore, Officer Kirkwood released him from custody.
Officer Bauer was Moore's only witness at trial. Moore did not testify but simply rested his case. The KDR presented no witnesses.
After taking the matter under advisement, the district court issued its memorandum decision and order reversing the KDR's suspension of Moore's driving privileges. As the district court explained its ruling:
“Officer Bauer testified that he did not see the licensee operate a motor vehicle. He admitted that he did not participate in an investigation for driving under the influence and he saw no field sobriety testing. Officer Bauer made no observation or otherwise did not recall any instance of blood shot eyes or slurred speech by [Mr. Moore] during the course of his contact with him. Officer Bauer did recall a strong odor of alcohol about [Mr. Moore's] person, and difficulty that [he] experienced in displaying his driver's license and producing proof of liability insurance. The officer further recalled that Mr. Moore, when taken to the hospital due to an asthma attack, was unsteady on his feet, but admitted that the unsureness of [Mr. Moore] could have been medically related.
....
“The form DC–27 was admissible in this action for the purposes of subject matter jurisdiction to support the initial conclusion of [the KDR] to suspend Mr. Moore's driving privileges. The DC–27 was certified only by officer Michael Kirkwood. The factual statements within the law enforcement officer's certification were not established by any testimony or evidence at the trial de novo. The conclusions of officer Kirkwood contained within the certification are not admissible due to lack of foundation.
“The Plaintiff in this matter has met his burden of proof under K.S.A.2010 Supp. 8–1020(q), by a preponderance of the evidence in that the evidence at the trial de novo failed to show that the law enforcement officer had reasonable grounds to believe Mr. Moore was operating a vehicle while under the influence of alcohol.”
The KDR filed a timely appeal.
Admissibility of Officer Kirkwood's DC–27 Certification Statements as Evidence
The KDR contends the trial court erred by refusing to admit Officer Kirkwood's statements contained in the officer's DC–27 certification as evidence at trial.
We first address our standards of review. A court's consideration of the admissibility of evidence may require application of statutory rules controlling the admission and exclusion of certain types of evidence. These statutory rules are applied as a matter of law or as an exercise of the trial court's discretion, depending on the applicable rule. An appellate court exercises de novo review of a challenge to the adequacy of the legal basis of a trial judge's decision on admission or exclusion of evidence. See State v. Holman, 295 Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012). Lastly, interpretation of a statute is a question of law over which appellate courts have unlimited review. Milano's Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
In the present case, the trial court admitted the officer's certification only to establish the court's subject matter jurisdiction. It ruled, however, that “[t]he factual statements within the law enforcement officer's certification were not established by any testimony or evidence at the trial de novo. The conclusions of Officer Kirkwood contained within the certification are not admissible due to lack of foundation.” (Emphasis added.)
The KDR contends the trial court erred by “failing to follow the requirements of K.S.A. 8–1002(b).” Moore does not address the KDR's legal argument or even mention the relevant statute. Instead, he counters that “the trial court did admit the DC–27 form, however, took under advisement the weight to give the hearsay statements....” Moore claims that “[t]he KDR's real argument is not that the DC–27 form was not admitted into evidence, it is that the Court did not give the DC–27 form as much weight in making its determination that reasonable grounds did not exist by not considering the hearsay statements contained therein as the KDR would have preferred.”
We disagree with the premise of Moore's argument. The trial court's written findings were clearly stated and unambiguous. The trial court did not admit the content of Officer Kirkwood's DC–27 certification because the court determined the statements were not established by testimony or other evidence. Without the admission of the DC–27 certification statements as evidence at trial, the trial court could not consider the statements at all, let alone weigh their probative value, as Moore suggests.
The issue presented by the KDR is one of law: Did the trial court err in failing to admit the officer's certification statements as evidence at trial as provided in K.S.A.2010 Supp. 8–1002(b)?
K.S.A.2010 Supp. 8–1002(b) provides:
“For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act....”
In an appellate court's review of a statute, it is fundamental that the intent of the legislature governs. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). Moreover, we attempt to ascertain legislative intent by giving common words their ordinary meanings. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). And when a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013).
We find K.S.A.2010 Supp. 8–1002(b) is plain and unambiguous. It 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 KDR's order to suspend driving privileges.
Support for this interpretation of the statute is found in State v. Baker, 269 Kan. 383, 2 P.3d 786 (2000), a case cited by the KDR. In Baker, the defendant was charged with violating the state's DUI statute (K.S.A.1999 Supp. 8–1567[a][2] ). The district magistrate judge suppressed the incriminating blood-alcohol test because of the officer's failure to “check the box” on the DC–27 certification that the officer had probable cause to believe that Baker was driving while DUI. 269 Kan. at 383. Upon review, the district court agreed with the magistrate judge and affirmed the suppression, resulting in the State's appeal.
Our Supreme Court reversed, holding:
“The failure to properly check the boxes on the DC–27 form will result in the form itself not being admissible to prove the statements that were not checked. However, the failure to check the boxes does not mandate suppression. Rather the failure to check the box on the DC–27 form requires that the State use actual competent testimony to meet the foundational requirements of K.S.A.1999 Supp. 8–1002 in order for the blood alcohol test result or refusal to be admissible in evidence.” 269 Kan. at 387.
Essential to our Supreme Court's holding was its discussion of the meaning of K.S.A. 8–1002(b). As the Supreme Court stated, in part, in its first syllabus: “The DC–27 form promulgated by the [KDR], 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.” (Emphasis added.) 269 Kan. 383, Syl. ¶ 1. Should there be any doubt, the court also stated in its opinion: “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)” (Emphasis added.) 269 Kan. at 387. This interpretation of K.S.A. 8–1002(b) resulted in the Supreme Court's second syllabus which was dispositive in the Baker case. It stated in relevant part: “The State may seek to establish a foundation for admission through the use of a completed DC–27 form, through competent testimony, or through a combination of the two.” 269 Kan. 383, Syl. ¶ 2.
Of note, in his briefing, Moore does not mention Baker or provide any contrary precedent. He also does not complain that Officer Kirkwood's completed DC–27 certification was defective or deficient in any way. We conclude that Baker is dispositive of this issue. The plain meaning of K.S.A.2010 Supp. 8–1002(b), as interpreted by Baker, results in our conclusion that the trial court erred as a matter of law in refusing to admit Officer Kirkwood's DC–27 certification as evidence for purposes of the trial de novo.
Having found error, we next consider whether the exclusion of Officer Kirkwood's relevant statements in the DC–27 certification was harmless error. See K.S.A.2010 Supp. 60–261; State v. Ultreras, 296 Kan. 828, Syl. ¶ 11, 295 P.3d 1020 (2013).
It is obvious that Officer Kirkwood's certified statements that he had reasonable grounds to request alcohol testing, that he observed specific indicators of alcohol impairment which caused him to believe that Moore was DUI, and that he placed Moore under arrest prior to the testing were the subjects of Moore's petition for review and at the very heart of the trial de novo. The trial court's failure to consider Officer Kirkwood's DC–27 certifications as evidence clearly prejudiced the KDR and resulted in reversible error.
Improper Shifting of the Burden of Proof
The KDR also complains that the trial court improperly shifted the burden of proof to the KDR. Moore, on the other hand, argues that allowing the KDR to rely on “the unsubstantiated allegations contained in the DC–27 form” would shift the burden to the licensee to establish “the negative that reasonable grounds did not exist, [and] additionally, ... [to rebut] a presumption that the officer did have reasonable grounds even if that officer was not available to testify.” Because this matter will be retried, we will address this related matter to assist the trial court and the parties.
Under Kansas' Implied Consent Law, K.S.A. 8–1001 et seq. , at the administrative hearing, the licensee has “the burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification are false or insufficient and that the order suspending or suspending and restricting the licensee's driving privileges should be dismissed.” K.S.A.2010 Supp. 8–1020(k). When a driver challenges the administrative suspension of his or her driving privileges, the district court conducts a de novo trial to “take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension or suspension and restriction.” K.S.A.2010 Supp. 8–1020(p); see K.S.A.2010 Supp. 8–259(a).
When, as in this case, an officer has certified that the licensee failed a blood-alcohol test, K.S.A.2010 Supp. 8–1020(h)(3) limits the scope of the district court's review to eight issues. In the present case, two of those issues are relevant on appeal:
“(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. K .S.A.2010 Supp. 8–1020(hX3).
While the district court's review of the administrative action shall be by trial de novo, K.S.A.2010 Supp. 8–1020(q) specifically provides that “the licensee shall have the burden to show that the decision of the agency should be set aside.” (Emphasis added.); see also K.S.A.2012 Supp. 77–621(a)(l) ( “The burden of proving the invalidity of agency action is on the party asserting invalidity.”).
Consequently, Kansas appellate courts have consistently held that the licensee bears the burden of proof when challenging a driver's license suspension. In other words, the licensee has the “initial burden of putting on evidence showing that at least one of the issues listed in the applicable subsection of K.S.A.2008 Supp. 8–1020(h) has not been satisfied.” Henke v. Kansas Dept. of Revenue, 45 Kan.App.2d 8, 13, 246 P.3d 408 (2010); see Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 463, 980 P.2d 1022 (1999) (“burden to produce evidence is on the State in the DUI criminal case, whereas the burden is on the licensee in the administrative action and subsequent appeal of that action”); Mitchell v. Kansas Dept. of Revenue, 41 Kan.App.2d 114, 122, 200 P.3d 496 (licensee has burden of proof “at both the administrative hearing and at the bench trial in district court”), rev. denied 289 Kan. 1279 (2009); Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 761, 758 P.2d 226 (licensee “carries the burden of proof at the de novo hearing before the district court”), rev. denied 243 Kan. 777 (1988).
We find guidance in resolving this issue by relying on our court's decision in Henke. Henke challenged the administrative suspension of his driving privileges on the ground that the individual who withdrew his blood for his chemical test was not statutorily qualified to do so. When the trial court found that Henke bore the burden of proof on this issue, Henke “proffered that the only evidence he would present ... would be [his own] testimony that his blood was drawn at the law enforcement center, as opposed to a hospital, and that [he] did not know the person who drew his blood or that person's qualifications.” 45 Kan.App.2d at 10.
The trial court subsequently found this evidentiary proffer was insufficient to support a reversal of Henke's suspension. On appeal, Henke contended that once “he raised the issue, the KDR had the burden to prove that the person who drew his blood was qualified to do so under the statute in order for the results of the test to be admitted into evidence.” 45 Kan.App.2d at 10. Our court disagreed:
“Although these statutes provide that the hearing before the district court is de novo, K.S.A.2008 Supp. 8–1020(q) specifically states that at the hearing, ‘the licensee shall have the burden to show that the decision of the agency should be set aside.’ [Citation omitted.] In other words, the licensee bears the initial burden of putting on evidence showing that at least one of the issues listed in the applicable subsection of K.S.A.2008 Supp. 8–102000 has not been satisfied. [Citations omitted.]
“Based on the clear and unambiguous language of K.SA.2008 Supp. 8–1020(q), as well as the case law interpreting such language, we find the district court did not err in concluding that Henke had the initial evidentiary burden to show that the person who drew his blood was not qualified to do so under K.S.A.2008 Supp. 8–1001(c). Because Henke failed to make this initial showing, the district court properly affirmed the administrative order suspending Henke's driving privileges.” 45 Kan.App.2d at 13–14.
Notably, several panels of our court have adopted the reasoning set forth in Henke. See, e.g., James v. Kansas Dept. of Revenue, No. 103,891, 2011 WL 1196923, at *1 (Kan.App.2011) (unpublished opinion); Calderon v. Kansas Dept. of Revenue, No. 103,901, 2011 WL 781527, at *1–2 (Kan.App.2011) (unpublished opinion); Chance v. Kansas Dept. of Revenue, No. 103,900, 2011 WL 781542, at *1–2 (Kan.App.2011) (unpublished opinion); Long v. Kansas Dept. of Revenue, No. 103,942, 2011 WL 420720, at *1–2 (Kan . App.2011) (unpublished opinion).
Henke dealt with subsection (F) of K.S.A.2008 Supp. 8–1020(h)(3), while the case on appeal concerns subsections (A) and (B) of K.S.A.2010 Supp. 8–1020. See K.S.A.2010 Supp. 8–1020(h)(3); Henke, 45 Kan.App.2d at 11. As a result, Henke is on point and dispositive of this issue.
Applying Henke, we conclude that at trial Moore had the burden to prove that Officer Kirkwood did not have reasonable grounds to believe Moore was operating a vehicle while under the influence of alcohol, or that Moore was not under arrest or not involved in a vehicle accident or collision resulting in property damage, personal injury or death. In short, Moore had the burden to prove that his license suspension was predicated on a false or insufficient DC–27 certification by Officer Kirkwood. See K.S.A.2010 Supp. 8–1020(q).
In its ruling, the trial court stated that Moore had met his burden of proof. According to the trial court, this was because, “the evidence at the trial de novo failed to show that the law enforcement officer had reasonable grounds to believe Mr. Moore was operating a vehicle while under the influence of alcohol.” We conclude this finding was based, in part, on the trial court's mistaken belief that the KDR had the burden to establish the truth or accuracy of Officer Kirkwood's statements contained in the DC–27 certification. Having offered the properly completed DC–27 certification in evidence, however, the KDR did not have a burden to present other evidence to prove the truth or sufficiency of those statements. On the contrary, it was Moore's burden to prove the insufficiency or falsity of those certifications. Moreover, as summarized earlier, Moore's evidence—the testimony of Officer Bauer—did not show that Officer Kirkwood's DC–27 certification was insufficient or false. If anything, Officer Bauer's testimony corroborated many of the certified statements made by Officer Kirkwood.
In his effort to support the trial court's decision, Moore complains that it “makes no practical or logical sense” to require a licensee to prove the negative-that reasonable grounds to request alcohol testing did not exist. But that is the burden the law places upon the licensee who is challenging the validity of the KDR's administrative order. See K.S.A.2010 Supp. 8–1020(q).
Moore also complains of the requirement that the licensee have the “hurdle” of rebutting that the certifying officer did have reasonable grounds when that officer was not available to testify. This is a hurdle that Moore could have overcome. Moore could have moved the trial court to compel Officer Kirkwood to honor the district court's subpoena. For whatever reason, Moore chose not to move for a continuance of trial to compel Officer Kirkwood's attendance. Apart from that, Moore also had the opportunity to testify on his own behalf or to present knowledgeable witnesses to counter the certified statements made by Officer Kirkwood that Moore drove his vehicle under the influence and was arrested for DUI prior to the blood-alcohol testing.
We conclude the trial court improperly shifted the burden of proof to the KDR. This is another basis to reverse the trial court's order that reversed and vacated the KDR's order suspending Moore's driving privileges.
Accordingly, the trial court's order is reversed. The case is remanded to the district court with directions to reconsider Moore's petition for review of administrative action. This reconsideration should take into account Officer Kirkwood's statements contained in the DC–27 certification and application of the appropriate burden of proof.
Reversed and remanded with directions.