The Kansas Department of Revenue (KDOR) appeals the district court’s dismissal of driver’s license suspension proceedings against Jason Gudenkauf due to the arresting officer’s failure to comply with K.S.A. 8-1002(c) by serving Gudenkauf a copy of the officer’s certification and notice of suspension, commonly referred to as a DC-27 form, as required by K.S.A. 8-1002(c). We reverse and remand for further proceedings, concluding that service of the form was adequate.
Gudenkauf was arrested for driving while under the influence and transported to jail, where he refused to submit to a breath test. The arresting officer filled out the DC-27 form in Gudenkaufs
“I finished the document and then thoroughly explained it to Mr. Gudenkauf part by part while placing it in front of his facе so he could look at it, and continuously asked him if he had any questions about it, and I went through each part of it right in front of him. I asked him if he would like me to take the handcuffs off so that he could physically touch the document if he wanted to do that. He was looking around from me, refusing to speak to me, and continuously acting bizarre at that time. He wouldn’t answer me. So I thoroughly explainеd all of the parts of it before telling him with great clarity that I was — it was his, that he was being served with it, am now putting it in his property bag, and it was his, in his рossession at that point.”
Gudenkauf testified that although he recalled sitting in handcuffs with the officer at the jail and refusing to answer quеstions, he did not remember either the officer placing the DC-27 in front of him at any time or offering to remove the handcuffs so he сould touch the document. He also confirmed that the officer never touched him with the form and did not place it in his pocket.
Following an administrative hearing, the KDOR affirmed the suspension of Gudenkauf s driver’s license for his refusal to submit to alcohol testing. Gudеnkauf filed his petition for review with the district court, which dismissed the proceedings, concluding that the arresting officer never personally served Gudenkauf with the DC-27 form as required by the statute. We review the district court’s fact findings to determine whether they are supported by substantial competent evidence, but we review questions of law, including statutory construction, de novo. See Zurawski v. Kansas Dept. of Revenue,
The trаnscript of the court’s statements from the bench indicate that the court accepted the officer’s testimony as truе, but simply found the conduct inadequate to effect service:
“[Tjhere is three things there he says, look at it. Does looking at it, is that an offer to deliver a copy? I don’t think so.' Take the handcuffs off so he could — if he had any questions about it; well,- questions about it, again isn’t- — he may or may nothave had questions about it, but that’s not the purpose of die delivery of it. So— and the other part was, touch it.
“. . . He didn’t refuse to touch it, he didn’t refuse to look at it — well, I’m not sure about that, but he looked away. I don’t know if he was looking аt the form or not. But even if he looked at it tiiat doesn’t satisfy die requirement of personal service, and asking questions about it dоesn’t satisfy. . . .
. . [T]lie officer didn’t testify that die plaintiff ever refused to accept service. He never refused, he just never answеred, and the officer took that failure to speak as refusal to be personally served, left him handcuffed, never touched it, so I don’t believe there is any evidence that the defendant refused to accept service. He wasn’t served . . . .”
Thе parties concede that K.S.A. 8-1002(c) requires that the DC-27 form must be “served” upon the defendant “by the officer on behalf of the division of vehicles.” KDOR argues that “there was delivery, an offer to deliver, and a refusal by the plaintiff s uncooperative threatening conduct” regarding the DC-27 form. KDOR relies on K.S.A. 60-303(d)(4) and an unpublished opinion of this court in Ortiz v. Kansas Dept. of Revenue, No. 88,231, filed October 18, 2002.
We agree with KDOR that K.S.A. 60-303(d)(4) is applicable herе; that statutory subsection addresses personal service when there is a refusal to accept process.
“In all cases when the person to be served, or an agent authorized by the person to accept service of process, refuses to receive copies thereof, the offer of the duly authorized process server to deliver copies thereof, and the refusal shall be sufficient service of process.”
Here, we respectfully disagree with the distriсt court regarding the effect of defendant’s refusal to respond to the officer’s attempt to deliver the form. The defendant had a clear opportunity to accept the form without compromising his right to remain silent. Under these circumstanсes, Gudenkauf was “offered” the DC-27, and his actions constituted a refusal to accept the offer to take delivery. Under K.S.A. 60-303(d)(4), Gudenkaufs refusal was sufficient service of the form.
We also agree with KDOR that the Ortiz decision is instructive. In Ortiz, the DC-27 was placed on the table directly in front of the handcuffed defendant who was told to take the form with him. When the form fell to the floor upon the defendant’s movement
Gudenkauf argues that placing the notice in his belongings was not sufficient, citing Anderson v. Kansas Dept. of Revenue,
We conclude that placing the form DC-27 within the direct vision of the defendant and explaining its contents to him, together with offering physical delivery and ultimate placement of a copy in defendant’s belongings, is adequate to сonstitute personal service for purposes of K.S.A. 8-1002(c). To require more effective service under these circumstаnces would potentially imperil officer safety without accomplishing any more effective notice to the defendant of the consequences of his or her decision to decline testing. The district court erred in dismissing the proceedings due to failure of service.
Reversed and remanded for further proceedings.