447 P.3d 959
Kan.2019Background
- Michael Creecy was arrested for DUI in Oct 2014; at the station he had medical episodes and twice failed to produce sufficient breath for an Intoxilyzer postarrest evidentiary test.
- Officer Rollf advised Creecy (oral and DC-70 written form), declared his failure to provide an adequate sample a refusal, completed a DC-27 suspension notice, handed it to Creecy, and later placed it with Creecy’s belongings when Creecy was taken by ambulance to the hospital.
- Creecy paid the $50 hearing fee required by K.S.A. 2014 Supp. 8-1020(d)(2), requested an administrative hearing, lost before the KDR ALJ, sought de novo district court review, and lost there; the Court of Appeals affirmed.
- Creecy appealed to the Kansas Supreme Court raising: (1) facial challenge to the $50 fee as a precondition to administrative due process; (2) insufficiency of personal service of the DC-27; (3) that his medical incapacity negated a refusal; and (4) that the implied-consent advisory was inadequate.
- The Supreme Court held the $50 fee unconstitutional on its face for lacking any indigency bypass, ordered a refund of the fee, but affirmed the suspension on the remaining claims (personal service, medical incapacity burden, and advisory sufficiency).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of $50 prepayment for administrative hearing | Creecy: fee unconstitutionally conditions access to procedural due process; no indigency exception makes it facially invalid | KDR: fee is permissible; Creecy paid and received a hearing so no injury; other states have upheld similar fees | Court: Fee is facially unconstitutional because it bars due process without an indigency remedy; refund ordered, license suspension not automatically undone |
| Personal service of DC-27 form | Creecy: officer did not properly serve DC-27 (took it back; later put with belongings) | KDR: officer handed DC-27 to Creecy who read it and later it was placed with belongings; Creecy used it to timely request hearing | Court: Personal service occurred—form was handed, read, and retained briefly; service requirement satisfied |
| Whether medical inability excused failure to complete breath test | Creecy: medical condition (asthma/episodes) prevented adequate samples, so not a refusal under statute | KDR: Creecy failed to prove the specific episode caused inability; burden on motorist to show medical cause unrelated to alcohol/drugs | Court: Creecy failed to meet burden; substantial evidence supports finding of test refusal |
| Adequacy of implied-consent advisories (DC-70) | Creecy: form could confuse by not clearly excluding preliminary breath tests (PBTs) from prior refusals | KDR: DC-70 language tracks statute and references "evidentiary test," distinguishing PBTs | Court: Form substantially complied; use of "evidentiary test" sufficiently distinguishes postarrest test from PBT; advisory adequate |
Key Cases Cited
- Bell v. Burson, 402 U.S. 535 (procedural due process protects entitlements like driver's licenses)
- Mathews v. Eldridge, 424 U.S. 319 (due process balancing test for administrative procedures)
- Boddie v. Connecticut, 401 U.S. 371 (state may not deny access to divorce due to inability to pay when fundamental interest implicated)
- M.L.B. v. S.L.J., 519 U.S. 102 (access to appellate review in parental-rights cases cannot be conditioned on payment when fundamental interests are at stake)
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (reasonable procedural prerequisites, including filing fees, may be permissible)
- Mackey v. Montrym, 443 U.S. 1 (application of Mathews in drivers' license suspension context)
- Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209 (implied-consent advisories require substantial compliance with statute)
- Byrd v. Kansas Dept. of Revenue, 295 Kan. 900 (treatment of service and mailing issues under amended statutory scheme)
- Kempke v. Kansas Dept. of Revenue, 281 Kan. 770 (driver's license is a regulated privilege entitled to due process)
- State v. Casady, 289 Kan. 150 (fees constitutionality upheld where indigency safeguards existed)