Bixenman v. Kansas Department of Revenue
307 P.3d 217
Kan. Ct. App.2013Background
- KDR appeals district court decision setting aside an administrative order suspending Bixenman's driving privileges for 30 days and 330 days restricted.
- District court found the arresting officers lacked probable cause to arrest for DUI and thus no reasonable grounds to request an evidentiary breath test.
- On April 28, 2010, stop for a headlight violation occurred; Bixenman showed bloodshot eyes and alcohol odor; he admitted to one beer.
- Field sobriety tests were largely passed; officer noted unusual behavior (turning away) during interaction.
- Preliminary breath test indicated BAC > .02 and < .08; evidentiary breath test later yielded BAC within same range, leading to suspension.
- Administrative hearing affirmed the suspension; district court later concluded improper administration of the preliminary breath test and lack of impairment evidence.
- KDR sought reversal; court reversed, holding the state had reasonable grounds to believe under 8-1567a and that civil nature of 8-1567a allows breath testing without criminal arrest first.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause to arrest for DUI under 8-1567a | Bixenman lacked probable cause to be arrested for DUI. | Officers had reasonable grounds to believe under 8-1567a he was under 21 with alcohol in system. | Officers had reasonable grounds to take custody and request a breath test. |
| Authority to administer breath tests without an arrest | Arrest prerequisite required to administer breath test under 8-1001. | 8-1567a is civil; breath test permissible with custody/arrest or other conditions. | Breath test permissible under 8-1001(b) when underage and in custody under 8-1567a framework. |
| Effect of 15-minute deprivation rule on evidence | District court erred by excluding PBT due to deprivation issue. | PBT and subsequent test properly administered under statute. | Not necessary to resolve due to other evidence supporting custody/ground to test. |
Key Cases Cited
- Swank v. Kansas Dept. of Revenue, 294 Kan. 871 (2012) (substantial evidence standard in license suspension cases)
- Allen v. Kansas Dept. of Revenue, 292 Kan. 653 (2011) (statutory interpretation is a question of law)
- Sloop v. Kansas Dept. of Revenue, 296 Kan. 13 (2012) (clarifies reasonable grounds/cause standard in DUI testing)
- State v. Schuster, 273 Kan. 989 (2002) (8-1567a civil nature; no criminal penalties)
- State v. Wick, 28 Kan. App. 2d 888 (2001) (distinguishes 8-1567a vs DUI offenses)