Lead Opinion
The opinion of the court was delivered by
This case addresses whether, when, and to what effect
a Kansas driver may contest an alcohol- and/or drug-based administrative license suspension arising out of a law enforcement traffic stop allegedly violating the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of rights.
Factual and Procedural Background
This case began when plaintiff Thomas J.G. Martin was pulled over by Officer Christopher Wilson of the Prairie Village Police Department in August 2002. The parties have stipulated that Mar
After the stop, Wilson became suspicious that Martin had been drinking. Martin failed field sobriety tests, refused a prehminary breath test, and later failed a chemical breath test at the police station. The chemical breath test result led Kansas Department of Revenue (Department) to suspend Martin’s driver’s license. Notes from Martin’s administrative hearing on the suspension show that Martin attempted unsuccessfully to argue the unconstitutionality of the traffic stop before the Department.
Martin sought review in the district court, where the judge reversed the license suspension, holding that Wilson misinterpreted the law governing brake lights and that this misinterpretation meant he lacked reasonable suspicion to initiate Martin’s stop.
A panel of our Court of Appeals overturned the district court decision, agreeing with the Department that the propriety of a traffic stop is irrelevant in a driver’s license suspension hearing. Martin v. Kansas Dept. of Revenue,
The panel then turned to the language of K.S.A. 8-1020(h)(2), evaluating it “[a]gainst this backdrop.”
“If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:
(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*628 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;
(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of health and environment;
(E) the person who operated the testing equipment was certified by the Kansas department of health and environment;
(F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath; and
(H) the person was operating or attempting to operate a vehicle.” K.S.A. 8-1020(h)(2).
The panel concluded that this list clearly and unambiguously expresses the legislature’s intention to limit the issues that can be raised at an administrative license suspension hearing. Had the legislature intended to allow a more expansive inquiry before the Department, it would have said so.
The panel also rejected Martin’s constitutional challenge to its reading of the statute, because driving is not a right but a privilege; and administrative suspension of a driver’s license for the holder’s failure of a chemical breath test, to which every driver gives implied consent, is supported by government’s legitimate promotion of public health, safety, and welfare.
This court granted Martin’s petition for review. To resolve this case, after reference to our standard of review, it is necessary for us to address whether the Department is permitted to decide the merits of a driver’s constitutional challenge in an administrative hearing on license suspension; whether, even if a decision by the
Standard of Review
Although generally an appellate court applies a substantial competent evidence standard of review when examining a district court’s ruling in a driver’s license suspension case, see Schoen v. Kansas Dept. of Revenue,
When we are called upon to interpret a statute, we first attempt to give effect to the intent of tire legislature as expressed through its language. When a statute is plain and unambiguous, we do not attempt to determine what the law should or should not be; nor do we attempt to divine the legislative intent behind it. We will not read or rewrite such a statute to add something not readily found within it. If a statute is clear as written, there is no need to resort to statutory construction. Williamson v. Amrani,
A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. This court not only has the authority, but also the duty, to construe
May the Department Decide a Constitutional Claim?
In the administrative hearing, Martin sought a decision on the merits of his constitutional challenge to Wilson’s decision to pull him over. Martin alleged that the traffic stop was not supported by reasonable suspicion, as it must be under both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. See K.S.A. 22-2402(1); Terry v. Ohio,
In Cross v. Kansas Dept. of Revenue,
K.S.A. 8-1020 governs the administrative hearing. Cross,
If a driver is unsuccessful in challenging a license suspension at the administrative level, he or she may petition the district court for trial de novo, as Martin did in this case. K.S.A. 8-1020(p); see Cross,
If the Department can decide the merits of a Fourth Amendment or § 15 claim such as that raised by Martin here, it must be empowered to do so either because K.S.A. 8-1020(h)(2) permits it or, fading that, because the federal or state constitution demands it. We turn first to the statute.
We agree with the Court of Appeals panel that K.S.A. 8-1020(h)(2)(A)-(H) is clear and unambiguous and that its list is exclusive. To the extent this is so, Martin attempts to persuade us that the issue of whether “reasonable grounds to believe” a driver was under the influence under K.S.A. 8-1020(h)(2)(A) is equivalent to the issue of whether “reasonable suspicion” existed to support the traffic stop. In other words, he asserts, the issue he wished to have decided in the administrative hearing was among those the statute permitted to be pursued there and then.
We are unmoved by this argument. “Reasonable grounds to believe” a driver is under the influence and “reasonable suspicion” sufficient under constitutional law are distinct legal concepts. The first demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel. The relevant time period for determination of “reasonable suspicion,” in contrast, ends at the moment the stop is effected. In addition, we observe that K.S.A. 8-1020(h)(2)(A) was enacted in 2001, long after the “reasonable suspicion” standard arose in United States Supreme Court constitutional analysis and long after we employed it in Kansas. See Terry v. Ohio,
The statute’s exclusion of Martin’s issues from the list that may be decided by the Department by means of an administrative hearing also is consistent with several of our cases arising out of challenges to Board of Tax Appeals decisions and other agency actions. In those cases, we have repeatedly recognized that administrative agencies are not empowered to decide constitutional questions; courts are. See In re Appeal of Weisgerber,
Does due process otherwise demand that the Department be empowered to decide a Fourth Amendment or § 15 claim raised by a driver subject to license suspension? We have previously recognized that limited due process applies in such matters. See Barnes v. Kansas Dept. of Revenue,
In Kempke, the driver argued that due process was offended because he was not permitted to call the officer who administered the preliminary breath test as a witness at the administrative license suspension hearing. We disagreed, holding that suspension did not finally take place until after de novo appeal to district court and that the driver’s ability to call the officer as a witness on appeal satisfied due process.
In view of the fact that a driver’s license is a privilege rather than a right, and in view of our approach in Kempke, we hold that the exclusion of Fourth Amendment and § 15 issues from Department decision in administrative suspension hearings under K.S.A. 8-1020(h)(2)(A)-(H) does not violate procedural due process.
May a Driver Raise a Fourth Amendment Claim in an Administrative HearingP
The rule that a constitutional issue cannot be decided by an administrative agency does not necessarily preclude a driver from raising such an issue in that forum. Our previous cases do not preclude Martin’s effort to raise his Fourth Amendment claim be
In fact, our decision in similar circumstances in Bruch v. Kansas Dept. of Revenue,
Do Driver’s License Suspensions Implicate the Fourth Amendment and § 15?
Previous Kansas cases have not squarely addressed whether or how the Fourth Amendment and § 15 apply to traffic stops that precede an alcohol- or drug-related driver’s license suspension. See Butcher v. Kansas Dept. of Revenue,
Generally the Fourth Amendment applies to all governmental action, not just actions in criminal investigation; and its protections apply to all people, not just criminal defendants.
“ '[T]he Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. [Citation omitted.] The reason is found in the “basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” [Citation omitted.] If the government intrudes on a person’s property, the privacy interest suffers, whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.’ ” State v. Smith,243 Kan. 715 , 720-721,763 P.2d 632 (1988) (citing Marshall v. Barlow’s, Inc.,436 U.S. 307 ,56 L. Ed. 2d 305 ,98 S. Ct. 1816 [1978]).
A breath, blood, or urine test for alcohol or drugs can constitute a search for purposes of the Fourth Amendment. See State v. Jones,
Yet compulsoiy testing for alcohol or drugs through drivers’ implied, even coerced, consent does not violate the Constitution; it is reasonable in light of the State’s compelling interest in safety on the public roads. See Furthmyer v. Kansas Dept. of Revenue,
Here, Martin does not challenge the constitutional legitimacy of the expectation that he will submit to testing under the Implied Consent Law or of the consequences flowing from a test failure or refusal. His Fourth Amendment and § 15 claims focus instead on whether Wilson’s initial decision to pull him over was supported by reasonable suspicion. If it was not, he asserts, then Wilson’s subsequent observation of him and resulting conclusion that there were “reasonable grounds to believe” Martin was driving under' the influence as well as the results of the chemical breath test must be suppressed; they simply cannot be used to support license suspension.
If this were a criminal proceeding, there is no doubt that a traffic stop would be considered a seizure under constitutional law. State v. Morris,
K.S.A. 8-1708(a) requires that “[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721.” K.S.A. 8-1721 requires every vehicle to be “equipped with a stop lamp or lamps on the rear of the vehicle . . . which shall be actuated upon application of the service or foot brake” and sets forth the colors of the “lamp or lamps” and the distance from which they must be visible. The city ordinance that formed the basis for Wilson’s stop of Martin contains provisions identical to K.S.A. 8-1708 and K.S.A. 8-1721.
Before the stop, Wilson observed that only two of the three brake lights on the rear of Martin’s vehicle were operating properly. Believing the ordinance required all three to be functioning, Wilson pulled Martin over. We agree with Martin that Wilson misunderstood and misapplied the ordinance. Two functioning rear brake “lamps” were sufficient under the law.
The reasonableness of an officer’s suspicion is based on the totality of circumstances and is viewed from the perspective of those versed in law enforcement. See Toothman,
The Tenth Circuit has adopted the view that an officer’s mistake of law can make all the difference in ruling on reasonable suspicion. See United, States v. Ramstad,
Does the Exclusionary Rule Require Reversal of the Suspension ?
Martin insists that the exclusionary rule applicable in criminal cases when reasonable suspicion for a traffic stop is lacking requires suppression and thus reversal of his license suspension. He further suggests that Meigs v. Kansas Dept. of Revenue,
In Meigs, an officer failed to give Elizabeth Meigs notice of the suspension that would result if she refused to take a breath test. The court determined the State’s failure to comply with mandatory notice provisions in the statute required a sanction, and it drew an analogy between the case before it and criminal cases in which the exclusionary rule is employed to refuse to admit evidence gathered in violation of the Constitution. Ultimately, the court vacated the suspension, ruling that the State’s failure to comply with the statute’s requirements divested it of authority to suspend Meigs’ license.
Similarly, in Ostmeyer, the court ruled that the State’s failure to provide a licensee with counsel at her request after a breath test required suppression of the test results in an administrative license suspension proceeding. An express statutory provision granted the licensee the right to consult with an attorney after the test.
This case does not involve a violation of a mandatory provision of the Implied Consent Law by an officer of the State. We therefore regard Miegs and Ostmeyer as distinguishable.
The exclusionary rule is a judicially created remedy, designed to deter the government from engaging in unconstitutional conduct. See, e.g., Pennsylvania Bd. of Probation and Parole v. Scott,
A Fourth Amendment violation is “ ‘fully accomplished’ ” by an illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can “ ‘cure the invasion of the defendant’s rights which he has already suffered.’ ” Leon,
The United States Supreme Court has held the rule applicable “only where its deterrence benefits outweigh its ‘substantial social costs.’ ” Pennsylvania Bd. of Probation,
“On the benefit side of the balance ‘the “prime purpose” of the [exclusionary] rule, if not the sole one, “is to deter future unlawful police conduct.” ’ On the cost side, application of the rule means the loss of often probative evidence and all of the secondary costs that flow from the less accurate or more cumbersome adjudication that therefore occurs.” Lopez-Mendoza,468 U.S. 1041 -42 (quoting Janis,428 U.S. at 446 , quoting Calandra,414 U.S. at 347 ); State v. McCloud,257 Kan. 1 , 11-12,891 P.2d 324 (1995).
The United States Supreme Court has noted that, “[i]n the complex and turbulent history of the [exclusionary] rule, the Court never has applied it to exclude evidence from a civil proceeding, federal or state.” Janis,
Public interest demands that alcohol- and/or drug-impaired drivers be removed from the road. The opening provisions of the Implied Consent Law state the legislature’s intention that the remedial act “be liberally construed to promote public health, safety and welfare.” K.S.A. 8-1001(q). And we have recognized that it was designed to counteract the “continuing slaughter on the highways of this state and those of the nation as a whole” by alcohol- and drug-impaired drivers. Popp,
The criminal consequences of driving under the influence are provided for in different statutes. Compare K.S.A. 8-1567 (part of uniform act regulating traffic; originally enacted as L. 1974, ch. 33, sec. 8-1567) and K.S.A. 8-1001 et-seq., (implied consent law, originally enacted as L. 1955, ch. 61, sec. 1; substantially revised L. 2001, ch. 200, sec. 12); see State v. Mertz,
This court’s decision in Turner I may provide a helpful analogy. The Turner I court concluded that the exclusionary rule generally would not apply to bar evidence illegally seized from a probationer at a probation revocation proceeding. “Any extension of exclusionary rule beyond its traditional applicability in criminal proceedings
Our sister states have reached varying conclusions on the applicability of the exclusionary rule in this context.
In Tornabene v. Bonine ex rel. Highway Dept.,
On review, the Arizona Court of Appeals noted its obligation to “decide cases on nonconstitutional grounds if possible,” and first addressed whether its statute required the hearing officer to determine whether Tomabene had been legally stopped.
“ ‘only the issues of whether:’
1. A law enforcement officer had reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle in this state either:
(a) While under the influence of intoxicating liquor or drugs.
(b) If the person is under twenty-one years of age, with spirituous liquor in the person’s body.
2. The person was placed under arrest.
3. The person refused to submit to the test.
*644 4. The person was informed of the consequences of refusal.’ ”203 Ariz. at 331-332 (citing Ariz. Rev. Stat. Ann. § 28-1321[K][l]-[4]).
The Tomabene court concluded that the statute expressly and clearly prohibited the hearing officer from deciding the validity of the stop.
“the obvious spirit, purpose, context, and effect of the implied consent statute [citation omitted] establish a clear legislative intent to limit the issues for administrative review, not expand them to include consideration of the constitutional validity of the investigatory stop leading to a criminal DUI arrest. As our supreme court has stated, a civil license suspension proceeding for a DUI arrestee’s refusal of testing is ‘separate from and unrelated to’ a criminal prosecution for DUI, and the ‘outcome of one proceeding usually will not have any effect on the outcome of the other.’ [Citation omitted.] In sum, we find nothing in § 28-1321 or its underlying rationale to suggest any legislative intent to incorporate all the procedural protections available to a DUI criminal defendant into the civil license suspension process. Rather, the legislature apparently intended such hearings to narrowly focus, inter aha, on whether the law enforcement officer ‘had reasonable grounds to believe’ that the motorist had been driving while under the influence of alcohol or drugs, regardless of the circumstances of the underlying stop.”203 Ariz. at 333 .
The Arizona Court of Appeals, mindful that a statute “cannot circumvent a firmly established constitutional right,” then moved to the propriety of applying the exclusionary rule if Tomabene’s stop violated the Fourth Amendment. It held:
“Based on our evaluation of the relevant policies and our weighing of the relative benefits and detriments, we hold that the exclusionary rule, although required to preserve and protect Fourth Amendment rights in the criminal context, should not be applied to civil license suspension hearings under § 28-1321(K).”203 Ariz. at 336 .
It cited similar decisions from several other states. See Fishbein v. Kozlowski,
A minority of jurisdictions that have considered the issue, as noted by the Tomabene court, “have superimposed on their license suspension statutes a requirement that the underlying stop be lawful, even when the statutes contained no such condition.” Tornabene,
California's cases are inconsistent. See Gikas v. Zolin,
We regard the reasoning and outcomes of the Arizona Court of Appeals and the majority of our sister states as more sound. The balance outlined by the United States Supreme Court between the benefits and costs of application of the exclusionaiy rule, when employed in driver’s license suspension proceedings, tips in favor of the Department and against Martin and other drivers. The deterrent effect of the rule is already accomplished in the criminal arena. Any additional deterrent effect on law enforcement violation of the Fourth Amendment and § 15 to be gleaned from extension of the rule beyond the criminal DUI setting would be minimal, and it cannot outweigh the remedial imperative of preventing alcohol- and/or drug-impaired drivers from injury or killing themselves or others. Responsive administrative license regulation is essential to that public good. It should not be hamstrung by application of the rule here.
Court of Appeals is affirmed. District court is reversed.
Dissenting Opinion
dissenting: I agree with the majority’s well-reasoned opinion up to the point that it declines to apply the exclusionary rule in this context. I cannot concur with a result that renders meaningless the guarantees of the Fourth Amendment. For me, the balance tips in favor of Martin and requires reversal of his suspension. Resolving this case under the balancing framework as applied by the majority results in legalizing the unconstitutional seizure of our citizens to effectuate a statutory purpose. I do not interpret K.S.A. 8-1020(h)(2) as tolerating or now, as a result of this ruling, condoning unconstitutional searches and seizures and authorizing driver’s license suspensions to be based on the fruits of unconstitutional police conduct. Quite to the contrary, our appellate cases consistently require strict compliance with K.S.A. 8-1002 and 8-1020 to secure a driver’s licence suspension. See, e.g., State v. Conn,
I am extremely mindful of the paramount public objective of removing intoxicated drivers from our public roads and highways; however, achievement of this goal should not be at the expense of
“ ‘If the exclusionary rule were not applied in civil suspension proceedings, law enforcement officers could make investigatory stops based on hunches or stereotyped beliefs, or for any or no reason whatsoever, knowing that even if any evidence obtained from the stop were to be suppressed in criminal proceedings, license suspensions could still follow. Given the significance of obtaining license suspensions, allowing unlawfully obtained evidence to be admitted in civil suspension proceedings could encourage disregard for the constitutional limits of a legal stop.’ See LaFave, supra, at 202-03 (highly relevant factors in determining whether to apply exclusionary rule in quasi—criminal proceedings are magnitude of consequences for individual involved and extent to which nonexclusion would encourage unlawful searches and seizures).” State v. Lussier,171 Vt. 19 , 757 A.2nd 1017 (2000). ■
Further, the majority creates a dual standard to initiate traffic stops for law enforcement. One standard allowing for no reason at all to stop a motorist for an implied consent driver’s license suspension. The other standard requiring reasonable suspicion to stop a motorist for suspected violation of K.S.A. 8-1567 (DUI offenses) or any other statute or ordinance. This duality is confusing and likely to lead to inconsistent enforcement of our laws. A bright line rule requiring reasonable suspicion to stop a motorist for suspected violation of any law regardless of whether it leads to a criminal or civil sanction is clear, enforceable, and more likely to result in consistent and uniform application of our laws upon our citizenry.
I am not persuaded that the balancing utilized by the majority compels the introduction of unlawfully obtained evidence in a civil suspension proceeding. Neither the majority nor the Kansas Department of Revenue cites to any empirical evidence indicating that applying the exclusionary rule in suspension hearings will have a harmful effect on “the remedial imperative of preventing alcohol- and/or drug-impaired drivers from injury or killing themselves or others.” See