Dumler v. Kansas Department of Revenue
302 Kan. 420
| Kan. | 2015Background
- On April 17, 2010, Dumler was stopped, arrested for DUI, read Miranda warnings, and given the Implied Consent advisories required by K.S.A. 8-1001(k), including the right to consult an attorney after testing and to obtain additional testing.
- Dumler requested to consult an attorney several times before the breath test; the officer never allowed him to consult counsel and administered the breath test, which Dumler failed.
- Dumler did not renew his request for counsel after the test and did not request additional testing before release.
- KDR suspended Dumler’s license; he requested an administrative hearing, lost, then sought district-court review; the Court of Appeals affirmed, applying a bright-line rule that the statutory right to post-test counsel must be invoked after testing.
- The Kansas Supreme Court granted review to resolve whether a pre-test request can invoke the statutory post-testing right to counsel and what remedy, if any, applies when that right is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When must a driver invoke the K.S.A. 8-1001(k)(10) right to consult counsel (timing)? | Dumler: a pre-test request suffices if it pertains to post-test consultation. | KDR/majority below: the right must be invoked after completion of testing; pre-test requests are insufficient. | The court rejected a bright-line post-test-only rule; a pre-test request can invoke the post-test right if it clearly seeks post-testing consultation. |
| Does the statutory post-test consultation right limit the subject matter of counsel consultation (scope)? | Dumler: the right is not limited; consultation may cover any topic including but not limited to additional testing. | District court/KDR: the right applies principally to decisions about additional testing. | The court held the statute does not restrict subject matter; the consultation right is unrestricted in topic. |
| Is denial of the statutory right to consult counsel a proper issue in an administrative license-suspension hearing (scope of review)? | Dumler: yes—denial affects ability to seek additional testing and challenges competence of test evidence. | KDR: (implicitly) not relevant if right not invoked post-test. | Court held denial is germane to administrative hearing issues and is reviewable. |
| What is the appropriate remedy when the statutory post-test right to counsel is denied? | Dumler: suppression of the State's test results. | KDR/concurring view below: no explicit statutory remedy; courts should not imply one. | Court held suppression of the alcohol test results is the proper remedy for denial of the statutory right to counsel. |
Key Cases Cited
- Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209 (1988) (notice provisions under implied consent are mandatory)
- State v. Luft, 248 Kan. 911 (1991) (failure to give statutory warnings requires suppression of test results in criminal DUI context)
- Ostmeyer v. Kansas Dept. of Revenue, 16 Kan. App. 2d 639 (1992) (applying Luft to administrative license-suspension proceedings)
- State v. Kelly, 14 Kan. App. 2d 182 (1990) (recognizing violation where defendant requested counsel and was denied; post-test consultation implicated)
- State v. Tedder, 38 Kan. App. 2d 141 (2007) (articulated a bright-line rule requiring post-test request to invoke right; rejected here)