Martin v. Kansas Department of Revenue

94,033 No. Martin, v. Kansas

Thomas Appellee, J.G. Revenue, Appellant. (176 938) P.3d filed 2008. Opinion February cause, Shultz, D. the of Kansas of argued Department James John Keller, was the G. with him on briefs for appellant. P.A., Park, Millett, Millett, A. Law Offices Michael A. of Overland Michael the and was on the brief for cause argued appellee. Wells, was for Kansas E. on the brief amicus curiae Asso- Topeka, Douglas

ciation of Criminal Defense Lawyers. The of the court was delivered by opinion whether, when, case and to what effect Beier, This addresses J.: contest an alcohol- and/or admin- a Kansas driver may drug-based a law traffic out of enforcement istrative suspension arising the to the United Fourth Amendment violating stop allegedly Bill of the Kansas Constitution States Constitution rights.

Factual and Procedural Background This case when Thomas Martin was plaintiff pulled began J.G. Police over Officer Wilson of Prairie Christopher Village 2002. have that Mar- Department August parties stipulated time, but there had been influence at the tin was under the nothing Rather, the officer to this fact. that alerted about Martin s driving of a rear brake Martin because Wilson malfunctioning stopped time, to be Wilson believed At malfunctioning light light. law, rear brake on even two other in violation of lights though Martin’s vehicle were working. that Martin had been became

After the Wilson suspicious stop, tests, field refused Martin failed prehminary sobriety drinking. test, at the failed a chemical breath test breath and later police chemical breath test result led Kansas station. The Martin’s driver’s license. Notes Revenue (Department) suspend on the show that from Martin’s administrative hearing suspension Martin unsuccessfully argue unconstitutionality attempted the of the traffic before Department. stop court, in the district where the re- Martin review sought judge the that Wilson versed misinterpreted suspension, holding law brake and that this the governing lights misinterpretation he lacked to initiate Martin’s meant reasonable suspicion stop. the district court A of our Court of overturned panel Appeals decision, a with the that the agreeing propriety traffic is irrelevant in a driver’s license hearing. suspension Revenue, 561, 567, 142 2d Martin v. Kansas 36 Kan. Dept. App. the fundamental differ P.3d The focused on panel ences such an administrative and a criminal between proceeding in that the of the former is prosecution, noting particular purpose latter, remedial and the 36 Kan. 2d at 564-65 punishment. App. Revenue, Huelsman v. Kansas (citing Dept. of [1999]; Meehan v. Kansas [1998]). rev. denied App. 8-1020(h)(2), The then turned to the of K.S.A. language panel it this 2d at 565. evaluating “[a]gainst backdrop.” App. This of the statute reads: portion test, the

“If the officer certifies that the failed a breath the scope person shall be limited to whether: hearing (A) A law officer had reasonable to believe the enforcement person grounds both, a vehicle while under the influence of alcohol or or or was drugs, operating vehicle, 8-2,128, had been a commercial motor in as defined K.S.A. driving and thereto, amendments while alcohol or other in such having drugs person’s system; (B) the was or arrested for an alcohol or related person custody offense drug or was involved in a vehicle accident or collision resulting property damage, death; or personal injury (C) a law enforcement officer had the with the oral and writ- presented person 8-1001, thereto; ten notice K.S.A. and amendments required by (D) the used was certified the Kansas testing equipment by department environment; health and (E) the who was person certified operated Kansas testing equipment by environment; of health and department (F) the used with testing procedures substantially set complied procedures environment; out the Kansas of health and department (G) the test result determined that the had an alcohol concentration of person breath; .08 or in such greater person’s (H) the was person vehicle.” K.S.A. 8- operating attempting operate 1020(h)(2). The concluded that this list ex- panel clearly unambiguously intention to limit the issues that can be presses legislature’s raised at an administrative license Had the suspension hearing. intended to allow more before the legislature expansive inquiry it would have said so. 36 Kan. 2d at 565-66. Department, App. also Martin’s constitutional to its panel rejected challenge statute, because is not a but a reading driving right privilege; and administrative of a driver’s license for the holder’s suspension test, failure of a chemical breath to which driver every givesimplied consent, is supported by government’s legitimate promotion health, and welfare. 36 Kan. 2d at 566. In public safety, sup of this noted several cases from other port holding, panel ju risdictions. 36 Kan. 2d at 566-67 Tomabene v. Bonine App. (citing ex rel. 203 Ariz. 54 P.3d 355 Highway Dept., [Ct. App. 2002]; State, 1303, Powell v. 614 A.2d 1305-06 Secretary [Me. 1992]; v. Vehicles, 435, Beavers State 438, 109 Nev. Dept. of Mtr. cert, 432, 851 P.2d [1993]). denied 510 U.S.

This court Martin’s for review. To resolve this granted petition case, review, after reference to our standard of it is for necessary us to address whether the is to decide the Department permitted merits of a driver’s constitutional in an administrative challenge whether, on license even if a decision hearing suspension; by a driver in an administrative is may setting, precluded there; limitations on searches and claim whether such a raise Kansas Con- 15 of the Amendment of the Fourth seizures license when the driver’s are Bill of stitution Rights implicated issue; is at and whether criminal sanction rather than suspension traffic to an constitutional meritorious underlying challenge and reverse court to a district requires license suspension. Review

Standard of com court a substantial an applies generally appellate Although when a district of review evidence standard examining petent case, Schoen v. see in a driver’s court’s suspension ruling Kansas Syl. ¶ and consti (2003), before us here the issues statutory require law raise These tutional subject pure questions interpretation. See, v. Brooks review. to unlimited Plumbing, e.g., Johnson Werholtz, 1212, 1213-14, (2006); 135 P.3d 1203 Kan. Cooper (2004). 83 P.3d 1212 statute, we first we are called to When attempt upon interpret the intent of tire effect to through legislature expressed give we do not a statute is its When unambiguous, plain language. be; not nor what the law should or should to determine attempt intent behind it. We will we to divine the do attempt legislative not such a statute to add not read or rewrite something readily written, there is no need to within it. If a statute is clear as found Amrani, 283 Kan. Williamson v. resort to construction. statutory (2007); Robinson, State short, 539-40,132 (2006). be- P.3d 934 In statutory interpretation If that selected with the language language legislature. gins clear, ends if then is it is statutory unambiguous, interpretation Graham v. Dokter there as well. Trucking Group, must be re- and all doubts A statute is constitutional presumed If there is reasonable solved favor of its any way validity. valid, do so. the court must a statute as construe constitutionally construe but also the not has the This court duty, authority, only 630 constitutional, statute such a manner that it is if the same can

be done within the intent apparent legislature passing statute. Revenue, Kansas Kempke Dept. Syl. ¶ (2006). 133 However, P.3d 104 we not rewrite a clear and may statute to make it constitutional muster. See unambiguous pass Marsh, State v. (2004), revd on other Marsh, Kansas v. 548 U.S. 165 L. Ed. 2d grounds S. Ct. 2516 Decide a Constitutional Claim?

May In the administrative Martin a decision on the hearing, sought merits of his constitutional to Wilson’s decision to challenge pull him over. Martin that the traffic was not alleged supported by reasonable as it must be under both the Fourth Amend suspicion, ment to the United States Constitution and 15 of the Kansas Constitution Bill of 22-2402(1); See K.S.A. Ohio, Rights. Terry 1,20 889, 88 U.S. L. Ed. 2d S. (1968); Ct. 1868 Schultz, (§ of the Kansas Con stitution Bill of identical in to Fourth Amendment). Rights scope

In Cross v. Kansas (2005), this court set out a overview of the comprehensive Law, Kansas’ Consent K.S.A. 8-1001 provisions Implied etseq., of which K.S.A. 8-1020(h)(2)(A)-(H) is a We need not part. repeat Rather, overview that, here. we note when a driver refuses only fails test to determine the of alcohol or in the presence drugs driver’s a law enforcement certification must body, be prepared and Cross, one or more officers. 279 Kan. at signed by 504-05 8-1002[a][2]). K.S.A. Division of (citing Vehi Department’s cles reviews the certification to ensure that all were requirements met; so, if it will 8-1002(e), driver’s license. (f); K.S.A. suspend 8-1013(c); Cross, K.S.A. 279 Kan. at 505. The driver then may an administrative to determine whether request hearing suspen sion is 8-1020(a)-(d); K.S.A. Cross, 279 Kan. at appropriate. 505.

K.S.A. 8-1020 Cross, administrative governs hearing. Kan. at 505. (e) (f) Subsections limit the documents and ma- terials subsection limits the witnesses who subject discovery; (g) (h), above, subsection lists the may testify; issues for quoted (k), the burden of the driver bears Under subsection decision. evidence, that the facts set out aby preponderance proving, that the insufficient and are false or in the certification suspension dismissed. therefore be should at a license in is unsuccessful

If a driver suspension challenging court level, the district he or she administrative may petition K.S.A. see novo, in this case. as Martin did for trial de 8-1020(p); bears the burden of Cross, at 506-07. The driver proving set aside. K.S.A. 8- decision should be that the to the court agency 1020(q). of a Fourth Amend- can decide the merits

If the Department here, Martin it must be as that raised ment or 15 claim such by 8-1020(h)(2) it K.S.A. to do so either because permits empowered that, demands or, the federal or state constitution because fading statute. it. We turn first to the that K.S.A. 8- Court of

We with the Appeals panel agree list is ex- 1020(h)(2)(A)-(H) and and that its is clear unambiguous so, us Martin To the extent this is clusive. persuade attempts to believe” a driver whether “reasonable that the issue of grounds 8-1020(h)(2)(A) is under K.S.A. was under the influence equivalent existed to of whether “reasonable to the issue support suspicion” asserts, words, the issue he wished to he the traffic In other stop. those the in the administrative was have decided hearing among there and then. to be statute pursued permitted to be- this “Reasonable We are unmoved grounds argument. the influence and “reasonable lieve” a driver is under suspicion” law are distinct sufficient under constitutional concepts. legal before, a driver dur- of the behavior of first demands consideration time the wheel. The relevant after he or she is behind ing, contrast, of “reasonable for determination suspicion,” period addition, we observe is effected. In ends at the moment 8-1020(h)(2)(A) after the was enacted in that K.S.A. long United States standard arose in “reasonable Supreme suspicion” we it Kan- after Court constitutional analysis long employed Ohio, 88 S. Ct. 20 L. Ed. 2d 392 U.S. sas. See Terry Boone, (1968); State in existence at knows the law Because our we legislature presume enactment, the time of an see In re Tax American Res- Appeal of taurant (1998), we Operations, consider it that it did not choose to mimic the “reason- significant able from cases when it drafted K.S.A. 8- suspicion” language 1020(h)(2)(A). Instead, it decided to enunciate a dif- deliberately ferent standard.

The statute’s exclusion of Martin’s from issues the list that may be decided means of an administrative hear by Department by also is consistent with several of our cases out of ing chal arising to Board of Tax decisions and other lenges actions. Appeals agency cases, In those we have that administrative repeatedly recognized are not to decide agencies constitutional empowered questions; courts are. See In re 98, 1, 285 Kan. Appeal Weisgerber, Syl. of (2007); 169 P.3d 321 In re Tax Co., CIG Field Services Appeal of 857, 864, 112 279 Kan. (2005); P.3d 138 In re Tax Appeal Sprint of Co., 690, Communications 278 700-02, 101 Kan. (2004); P.3d 1239 U.S.D. No. 443 v. Education, Kansas State 75, Board 266 Kan. 81-82, (1998); 966 P.2d 68 State, 364, 370, Zarda v. 250 Kan. 826 (1992); P.2d 1365 In re 236 Kan. Residency Application Bybee, 443, 4, Syl. ¶ Does due otherwise demand that process be to decide a Fourth Amendment or 15 empowered claim raised a driver to license We by have subject rec suspension? previously that limited due in ognized such matters. See process applies Barnes v. Revenue, Kansas 820, 824, 238 Kan. 714 P.2d Dept. of (1986) 975 of driver’s license (possession regulated privilege; “dep rivation ... the State constitutes a by deprivation property sufficient to necessitate clause,” of the due cit application process v. 1, 321, 443 U.S. 61 L. Ed. ing 99 Mackey S. Ct. Montrym, [1979]; Love, 2612 Dixon 431 U.S. 52 L. Ed. 2d 97 S. [1977]); Ct. 1723 Heironimus, compare 941 (1997) (license P.2d 1356 not inherent fundamental right); v. Motor Vehicle 508 Popp P.2d 991 Dept., (1973) (“The driver’s license . . . is to those privilege granted who are who with reasonable qualified, comply police power in the welfare, interest of requirements and is public safety withheld not.”); from those who do v. Kansas Com- Agee Highway (1967) (license to mission, drive Kan. sub natural but not vehicle on streets motor right privilege, public State, interest); Lee v. in to reasonable regulation public ject natural, (driver’s unre license not to reasonable license strained regulations subject privilege right; welfare). interest under State public safety, police power cases cited above administrative the outcomes But agency addition, no. in the to is In the answer this pe question suggest sus driver’s license of alcohol- and/or culiar context drug-related than that full we have held more once delaying pensions, recently and decision of a aspect case—preventing particular argument it later court level and its at the administrative deferring pursuit run due See Kansas not afoul of Kempke process. appeal—does Cross, (2006); P.3d Kan. 501. that due was offended the driver

In Kempke, argued process to call the officer who administered he was not because permitted at the license breath test as a witness administrative the preliminary did not We hearing. holding suspension suspension disagreed, court until de novo to district take after place appeal finally on call the officer as a witness that the driver’s ability appeal Cross, we due 281 Kan. at 799-800. rebuffed satisfied In process. statute wit- an due limiting process challenge as-applied on at administrative driver’s nesses hearings suspensions. 279 Kan. at 513. license is rather than view of the fact that a driver’s a

In privilege that of in we hold the and in view our Kempke, approach right, 15 issues from exclusion of Fourth Amendment § 8- K.S.A. in under decision administrative hearings suspension 1020(h)(2)(A)-(H) does not violate due procedural process. in an Driver a Fourth Amendment Claim Raise

May Administrative HearingP issue decided an rule that a constitutional cannot be a driver from administrative does not necessarily agency preclude cases do not an issue in that forum. Our such previous raising Fourth Amendment claim be- Martin’s effort to raise his preclude 634 See, CIG, 864;

fore the 279 Kan. at Department. Sprint, e.g., 700-02; Mudd Kan. at see also v. Neosho Memorial Med. Regional Center, 187, 197-200, (workers P.3d com- case; addressed, merits of constitutional even pensation question below). issue not decided though fact,

In our decision in similar in circumstances Bruch Kansas Revenue, (2006), makes rais Dept. of constitutional issue at the time of ing any potentially controlling the administrative the wise for a course driver who wishes hearing the in issue for review the court district judicial preserve Bruch, In 282 Kan. at 776. we stated that the district court beyond. lacked to consider whether an officer jurisdiction possessed prob able to arrest on cause based results of a driver s breath preliminary test, because driver had failed to raise the in issue first administrative tribunal. Kan. at 776.

Do Driver’s License the Fourth Amendment Suspensions Implicate

and 15?§ Previous Kansas cases have not addressed whether or squarely how Fourth Amendment and to traffic that stops an alcohol- or driver’slicense See precede drug-related suspension. Revenue, Butcher Kansas Dept. of (2005) (Court P.3d 1078 holds officer had cause to make Appeals traffic no discussion whether Fourth Amendment stop; applies Revenue, v. Kansas suspension proceedings); Pywell Dept, of 95,598, No. (Court filed unpublished opinion February issue); declines to reach Hinton v. Kansas Appeals panel Dept, Revenue, 90,806, 8,2004 No. filed October unpublished opinion (Court of holds district court lacked to decide Appeals jurisdiction whether traffic violated Fourth Amendment when pretextual licensee had failed to with comply specific pleading requirements). Since Court case, issued its decision in this Appeals panel another has decided the limited of an administra panel scope tive driver’s license does not suspension hearing implicate Fourth Amendment. See v. Kansas No. Bray 95,702, filed March 2007. Another unpublished opinion panel, Martin, the issue and the decision addressed the merely noting

635 traffic was claim that a unconstitutional. merits of the driver’s Revenue, 95,517, Kruserv. Kansas No. See unpublished Dept. of 13, 2007. filed opinion April all Fourth Amendment to applies governmental

Generally action, and its not actions criminal investigation; protections just not criminal defendants. to all just people, “ unreasonable searches Fourth Amendment prohibition against protects '[T]he civil as well as criminal [Ci- warrantless intrusions investigations. during against reason is in the “basic this Amend- tation found omitted.] purpose . . . is to individuals ment safeguard privacy security against [which] If the [Citation omitted.] invasions officials.” arbitrary by governmental govern- suffers, interest whether ment intrudes on privacy person’s property, is to of criminal laws or breaches motivation violations investigate government’s ” Smith, 715, 243 720- other or standards.’ Kan. regulatory statutory Barlow’s, Inc., (1988) v. Marshall 436 U.S. 56 L. (citing [1978]). 1816 Ed. 2d 98 S. Ct. breath, blood, urine for alcohol can A test or constitute drugs See State search for Fourth Amendment. v. Jones, purposes (2005) P.3d 1 breath 106 test [PBT] (preliminary search; driver after accident on performed qualifies deep lung air, driver to blow extractable into device only by requiring forcibly seconds, 3 to 5 not out for held normally public).

Yet for alcohol or im drivers’ testing compulsoiy drugs through coerced, Constitution; even consent does not violate the it plied, is reasonable in the State’s interest on safety light compelling Revenue, See roads. Kansas public Furthmyer 825, 835, (1995); Kan. P.2d Standish Department of (1984); v. Motor Popp (1973); Vehicle P.2d 991 see also Dept. Neville, 553, 559-65, 74 L. South Dakota v. 459 U.S. Ed. 2d (1983) S. 103 Ct. 916 consent law licensee permits (implied blood with submit or refuse test caveat that evidence of refusal case; admissible in criminal Fifth related against any upheld Amendment and due self-incrimination challenge process); 757, 16 Schmerber v. 384 U.S. L. Ed. 2d 86 S. Ct. California, test law blood under consent (state-compelled implied on Fifth Amendment self-incrimination challenge, reject- upheld counsel, related on due to ing arguments process, premised right searches); of unreasonable State v. 279 prohibition compare Jones, 79, 71, (2005) (PBT Kan. 106 P.3d 1 results cannot be admitted in consent; DUI criminal case absent evidence of voluntary statutory PBT; consent does not its law implied purpose help enforcement ascertain test whether to covered by request implied rule). consent

Here, Martin does not the constitutional challenge legitimacy that will he submit to under the expectation testing Implied Law or Consent from a test failure or consequences flowing refusal. His Fourth Amendment and 15 claims instead on focus § whether Wilson’s initial decision to him over was pull supported not, asserts, If reasonable it was he then Wilson’s suspicion. observation of him and that conclusion there subsequent resulting were “reasonable to believe” Martin was under' grounds driving the influence as well as the results of the chemical test breath must be cannot be used to license sus- they suppressed; simply support pension. were a

If this criminal there is no a doubt that traffic proceeding, would be considered seizure under law. constitutional State Morris, 11, 3-6, v. 276 (2003); Kan. 72 P.3d 570 State v. Syl. ¶¶ Slater, 694, 696-97, (1999); 986 P.2d 1038 v. State Mitch ell, 238, 241, McKeown, Kan. (1998); State v. (1991). vehicle, Kan. To stop moving an officer must have a reasonable based on articulable suspicion been, facts that a crime has is isor about to be committed. being, 22-2402(1); Ohio, See K.S.A. 392 U.S. 20 L. Ed. 2d Terry (1968); McKeoum, 88 Ct. S. 249 Kan. at 510. A traffic violation an valid reason to effect a traffic provides objectively stop, if States, even the is See Whren United 517 U.S. stop pretextual. 135 L. (1996); Ed. 116 S. Ct. DeMarco, (1998). 952 P.2d 1276 A traffic stop is not to a converted “nonseizure” when it to a civil leads magically or administrative rather than a criminal Fourth proceeding. Amendment and transcend this be implications boundary cause those delineate that attach to individuals in provisions rights either circumstance. free from unreasonable to be if constitutional

Even rights here, asserts are and seizures searches implicated were in Wilson’s facts the articulable adequate that possession had Martin was that reasonable committing, suspicion support State v. Tooth a crime. See committed, to commit or was about 3,985 Martin P.2d 701 man, 267 Kan. responds Syl. ¶ the ordinance of law made a mistake Wilson interpreting func a vehicle must be on rear brake how many lights governing view, law makes a mistake of In his such any suspicion tioning. constitu unreasonable have harbored Wilson inherently may the traffic to stop. support tionally inadequate . . shall vehicle . 8-1708(a) that motor K.S.A. “[e]very requires (2) with two or more be meeting require- stop lamps equipped (a) K.S.A. 8-1721 of K.S.A. 8-1721.” subsection ments of requires on the or with a to be vehicle stop lamp lamps “equipped every actuated . . . which shall be of the vehicle rear upon application sets forth the colors foot brake” and of the service or “lamp The must be visible. from which and the distance they lamps” of Martin for Wilson’s that formed basis ordinance stop city 8-1721. 8-1708 and K.S.A. to K.S.A. contains identical provisions three two of the Wilson observed that Before the only stop, were Martin’s vehicle on the rear of brake prop- operating lights three be all the ordinance functioning, required erly. Believing mis- Martin that Wilson We with Martin over. Wilson agree pulled rear Two the ordinance. understood and functioning misapplied under the law. were sufficient brake “lamps” the to- is based on an The reasonableness of officer’s suspicion of those from the and is viewed of circumstances perspective tality Toothman, at 418 267 Kan. See in law enforcement. versed (citing [1998], 727, 734-35, 1276 DeMarco, 952 P.2d 263 Kan. State v. [1993]). 651, 656, 350 In 862 P.2d 253 Kan. State v. Toney, citing “reason- human sense and of common experience, ordinary light 'minimum level of able objective justifica- suspicion represents ” Men- States v. Toothman, United 267 Kan. at 418 tion.’ (quoting 1997], States v. United dez, 1431 Cir. 118 F.3d [10th citing [1989]). 1, 7, S. Ct. 1581 Sokolow, L. Ed. 2d 490 U.S. have not whether an We decided officer’s mistake previously law alone invalidate traffic Decisions from various may stop. pan- our els of Court of be inconsistent on this Appeals point. appear Ross, 126, 131, State v. 2d App. Compare (officer (2007) lacked when reasonable defendant suspicion line; failure to not crossed maintain lane vi- fog necessarily single Kotos, State v. statute); 769, 777, 2d olation App. (2006) (officer’s P.3d 677 observation of vehicle solid dou- crossing ble lines while in U-tum on advance DUI yellow making bridge articulable factual reason- basis for checkpoint provided objective, did, fact, able even no statute in driver’s suspicion, though prohibit actions); 2d Knight, App. (defendant’s failure to when out of signal private pulling ordinance; lot onto a street not violation con-

parking public viction reversed lack of for reasonable suspicion support stop); Larson, Manhattan v. City (2000) (officer’s P.2d 1087 of defendant’s truck for expired renewal, for valid reason- under tag, despite statutory grace period standard). able suspicion Tenth Circuit has the view an officer’s mistake adopted can

of law make all the difference on reasonable suspicion. ruling United, Ramstad, States v. 1263, 1267 (2000) (mistake See 219 F.3d unreasonable; of law makes objectively fundamentally suspicion to unfair hold “citizens to that the traditional rule of the ignorance excuse, no law is while those to the entrusted enforce law allowing Salinas-Cano, it”); see also United to be States of ignorant (10th 1992) (Fourth F.2d 865-66 Cir. Amendment does not fact, invalidate warrantless search on a of based reasonable mistake law). a of from mistake The Eleventh Circuit has distinguished Chanthasouxat, United States ruled See 342 F.3d similarly. (11th 2003). Cir. We observe the also that rationale of the of Court our of was in accord with that of Knight panel Appeals essence, the Tenth Circuit. 2d at See 327. In Knight, App. a a stated that officer must held be to a more de panel police standard of than citizen be who manding legal knowledge any may to the officer’s exercise of subject authority. hold that an and this

We find consequently reasoning persuasive a traffic violative of can render of law alone officer’s mistake stop Here, Wil- the Bill of and Fourth Amendment Rights. the ordinance on son’s misapplication misunderstanding hu- sense and him outside the common took brake ordinary fights a to considered us on that must be man by challenge experience thus lacked consti- Wilson of reasonable the existence suspicion. Martin, and the district was correct to tutional judge authority stop this of the analysis. point ? Reversal Rule Does the Suspension Require Exclusionary in criminal Martin insists that the exclusionary applicable for a traffic is when reasonable cases lacking requires suspicion He further and thus reversal of his suspension. suppression Revenue, 16 Kan. 2d v. Kansas App. Dept. suggests Meigs Rev (1992), v. Kansas Dept. Ostmeyer (1992), should us enue, guide App. this on question. notice of the an officer failed to Elizabeth

In Meigs give Meigs, a breath test. if she refused to take that would result suspension with determined the State’s failure The court mandatory comply sanction, an a and it drew in the statute notice required provisions in which the it and criminal cases between the case before analogy admit evidence rule is to refuse to gathered employed the court vacated of the Constitution. violation Ultimately, with the stat- that the State’s failure to comply suspension, ruling li- it ute’s divested of authority suspend Meigs’ requirements 543. cense. 16 Kan. 2d at App. that the State’s failure to the court ruled

Similarly, Ostmeyer, after a breath test with counsel at her licensee request provide test results in an administrative license of the required suppression An statutory provision granted proceeding. express suspension after the test. 16 Kan. to consult with an licensee attorney right 2d at 642-44. not involve a violation of This case does mandatory provision there- of the State. We Consent Law an officer Implied fore distinguishable. Ostmeyer regard Miegs 640

Martin’s also that the rule is argument implies exclusionary Leon, It constitutional mandate. is not. United States 468 U.S. 906, 82 677, 104 (1984) (Fourth 2d L. Ed. S. Ct. 3405 Amend ment contains no use of evidence expressly provision precluding commands.). obtained violation its rule is created judicially remedy, designed deter the from in unconstitutional conduct. government engaging See, Scott, Bd. Probation and Parole v. 524 e.g., Pennsylvania 357, 362-63, (1998) (“We U.S. 141 L. Ed. 2d 118 S. Ct. 2014 have that the use of evidence emphasized repeatedly government’s obtained in of the violation Fourth Amendment does not itself Constitution.”); Evans, 1, 10, violate the Arizona v. 514 U.S. (1995) L. Ed. 2d Ct. 115 S. rule (“exclusionary operates aas created future judicially remedy designed safeguard against violations of Fourth Amendment the rule’s rights through general effect,” Leon, 906); Turner, deterrent 468 U.S. at citing (Turner I) (“[exclusionary] rule ‘is a created Fourth judicially remedy designed safeguard effect, Amendment its deterrent rather rights generally through ” than a constitutional personal right aggrieved,’ party citing Calandra, United States v. 414 U.S. 38 L. Ed. 2d [1974]). S. Ct. 613 “ ” A Fourth Amendment violation is an ‘fullyaccomplished’ by seizure, search or and no exclusion evidence from a illegal ju “ dicial or administrative can ‘cure the invasion of the proceeding ” Leon, defendant’s which he has suffered.’ 468 U.S. rights already Calandra, such, at 906 348). at As U.S. the rule does (citing not the introduction of seized evidence in all “proscribe illegally all added). Stone proceedings against persons.” (Emphasis Powell, 465, 486, 49 1067,96 (1976). U.S. L. Ed. 2d S. Ct. 3037 “ It in contexts ‘where its remedial are applies only objectives ” Calandra, 348; most served.’ 414 U.S. at thought efficaciously 433, 454, n.29, see United States v. 428 U.S. 49 L. Ed. Janis, 96 S. Ct. 3021 The United States Court held the has Supreme applicable where its deterrence benefits its ‘substantial social “only outweigh ” Probation, 363; Leon, costs.’ Bd. U.S. at Pennsylvania 915, 865, 870-71, Turner, P.2d 907; 259 Kan. U.S. at to the (Turner ) whether (1996) II exclusionary apply (“deciding to which the rule the extent must be determined rule by weighing the truth-find- with the cost to conduct deter unconstitutional will for And, set out a framework the Court has deciding ing process”). of the merit which exclusionary application types proceedings the exercise 433. 428 U.S. rule. See maybe,” “Imprecise Jams, social the benefits a court must excluding unlawfully likely weigh v. costs. See I.N.S. evidence seized Lopez-Men- likely against 778, 1032, 1041-42, 104 S. Ct. 3479 doza, 82 L. Ed. 2d 468 U.S. (1984). ‘the the benefit side of balance “prime purpose” [exclusionary] “On ’ rule, one, conduct.” On the “is to deter future unlawful if not the sole police side, evidence and of the rule means the loss often cost probative application the less accurate or more cumbersome of the costs that flow from all secondary 468 U.S. 1041-42 that therefore occurs.” Lopez-Mendoza, (quoting adjudication 347); McCloud, Calandra, 414 U.S. at State 428 U.S. at quoting

Janis, 1, 11-12, that, Court has noted com The United States “[i]n Supreme rule, the Court and turbulent [exclusionary] history plex a civil never has it to exclude evidence from proceeding, applied 447; federal or state.” 428 U.S. at see Lopez-Mendoza, Janis, 1041-42; U.S. at One 1958 Sedan Plymouth Pennsyl compare vania, 693, 696, 700, 14 L. Ed. 2d 85 S. Ct. 380 U.S. (1965) (“the rule does constitutional exclusionary are in char forfeiture which [civil] “quasi-criminal proceedings,” acter”). case in which we have Nor does our research reveal any rule to ob suppress unlawfully previously applied in an civil context. Divine v. tained evidence administrative or (1984) 679 P.2d 700 (exclusionary Groshong, of blood test evidence in civil not extended to introduction prohibit suit; in civil in which neither State nor its officers case suppression have no deterrent effect law enforcement were would upon parties (evidence officers); 1,257 Kan. seized from Turner Syl. illegally revocation see not barred from proceeding); probationer probation 456, 461-62, also Huelsman v. Kansas Dept. of (1999) in criminal DUI of evidence (suppression based on a lack of cause to arrest does not prosecution probable State from in civil license collaterally estop arguing suspension pro- that officer had reasonable breath test ceeding grounds request State v. 1990 Lincoln Law); Consent pursuant Implied compare Car, Town (noting Fourth Amendment to civil forfeiture protection applicable pro- criminal but in related case does not dictate ceedings, suppression case; in forfeiture collateral sole issue on suppression estoppel ap- We therefore examine this case under the frame- peal). balancing work outlined tire United States Court. by Supreme

Public interest demands that alcohol- and/or driv- drug-impaired ers be removed from the road. The of the Im- opening provisions Consent Law state the intention that the reme- plied legislature’s dial act “be health, construed to liberally promote public safety welfare.” K.S.A. And we have that it was 8-1001(q). recognized to counteract on the designed “continuing slaughter highways of this state and those of the nation as a whole” alcohol- and 768; drivers. 211 Kan. at Popp, see K.S.A. 8- drug-impaired 1001(q).

The criminal under the influence are consequences driving for in different statutes. K.S.A. 8-1567 provided Compare (part traffic; uniform act 1974, 33, enacted as L. ch. regulating originally 8-1567) sec. law, K.S.A. 8-1001 consent et-seq., (implied orig 1955, 1; enacted as L. ch. sec. revised L. inally substantially Mertz, see ch. 12); sec. 758-61, of driver’s license for un (suspension driving der influence of civil alcohol remedy designed protect public, not criminal driver). Such civil and penalty designed punish criminal are from one another and are proceedings wholly separate Huelsman v. Kansas intended to serve two different purposes. (1999); Mertz, 258 Kan. at 759-60. Turner I This court’s decision may provide helpful analogy.

The Turner I court concluded that the rule exclusionary generally would not to bar evidence seized from a illegally probationer at a revocation extension of exclusion- probation proceeding. “Any rule its traditional in criminal ary beyond applicability proceedings where use of would result warranted is remedy appreciable only Leon, 257 Kan. at 21-22 misconduct.” deterrence (citing police 909). be warranted We noted that use of 468 U.S. at might circumstances, if, misconduct was under a totality police egre- reveal 257 Kan. at 27. The facts here do not certainly egre- gious. misconduct. gious police have reached conclusions on the

Our sister states varying appli- rule in this context. cability ex rel. In Tornabene v. Bonine 203 Ariz. Highway Dept., rev. denied (2002), May Wendy Lyn based on a from an Tomabene was stopped by police tip anony caller. She failed field tests and refused or unrea mous sobriety a breath test. At her administrative license sus delayed sonably the administrative law mled her. pension hearing, judge against She the reasonableness of the initial traffic appealed, challenging Court vacated order of Superior suspension, stop. ALJ’s “ that to believe that ‘reasonable [a implicitly concluding grounds . . . the influence of was under intoxi motorist] [w]hile driving . . . that the inves cating liquor’ require[d] predicate finding led to those for belief was tigatory stop ultimately grounds lawful.” 203 Ariz. at 332. review,

On the Arizona Court of noted its to Appeals obligation “decide cases on if and nonconstitutional first grounds possible,” addressed whether its statute officer to de- required hearing termine whether 203 Ariz. at Tomabene had been legally stopped. Kansas, 332. Like Arizona limits the of an administrative scope under its consent suspension hearing implied provisions. Such a decide hearing may

“ the issues of whether:’ ‘only

1. A law enforcement officer had reasonable to believe that the person grounds or in actual a vehicle in this state was was control of motor driving physical either:

(a) While under the influence of intoxicating liquor drugs. (b) If the with is under person twenty-one years age, spirituous liquor the person’s body.

2. The was under arrest. person placed

3. The refused to submit to the test. person ”

4. The was informed of the of refusal.’ 203 Ariz. at 331- person consequences 28-1321[K][l]-[4]). Ariz. Rev. Stat. Ann. (citing § The Tomabene court concluded that the statute and expressly officer from clearly prohibited hearing deciding validity 333. if 203 Ariz. at Even the statute’s were not stop. language clear, context, “the obvious and effect of the consent statute spirit, purpose, implied establish clear intent to limit the issues for admin- [citation omitted] legislative review,

istrative not them to include consideration of the constitutional expand a criminal to DUI arrest. As our validity investigatory stop leading supreme stated, court has a civillicense afor DUI arrestee’s refusal suspension proceeding DUI, is from and unrelated to’ criminal for testing ‘separate prosecution the ‘outcome of one will not have effect on the outcome proceeding usually any sum, of the other.’ In we find [Citation 28-1321 or its omitted.] nothing § rationale to intent to all the underlying suggest any legislative incorporate pro- cedural available to a DUI criminal defendant into the civil license protections Rather, the intended such to suspension process. legislature apparently hearings focus, aha, inter on whether the law enforcement officer ‘had reasonable narrowly to believe’ that the motorist had been while under the influence grounds driving of alcohol or of the circumstances of the drugs, regardless underlying stop.” Ariz. at 333. The Arizona Court of mindful that a statute “cannot Appeals, circumvent a established constitutional then moved firmly right,” to the if Tomabene’s propriety applying exclusionary violated the Fourth Amendment. It held: “Based on our evaluation of the relevant and our of the relative policies weighing detriments, rule, benefits and we hold that the although required context, Fourth Amendment in the criminal should preserve protect rights 28-1321(K).” not be to civil license under 203 Ariz. applied suspension hearings at 336.

It cited similar decisions from several other states. See Fishbein Kozlowski, 38, 49-50, 252 Conn. 743 A.2d 1110 (“[F]ailure with the for criminal comply requirements prose- cution as should not sus- they apply investigatory stops prevent of the license of a arrested cause to pension person upon probable believe that he was under the influence of operating intoxicating State, Powell v. 1303, (Me. 614 A.2d Secretary of liquor.”); 1992) (administrative officer license hearing suspension pro- need not “determine the or whether ceeding legality stop vehicle”); there was cause to Riche v. Director probable stop 331, 333, (Mo. 1999) 987 S.W.2d (refusing of “ on license of or rea impose suspension requirement probable sonable cause to for drivers over of stop’ twenty-one years age”); Director, Vehicles, v. N. H. Div. Motor 145 N.H. Lopez of (2000) (“A 761 A.2d 448 valid arrest and traffic while stop, vital to a criminal is not a under proceeding, required predicate statute”); Com. v. [license suspension] Dep’t Transp. Wy of socki, (1987) 517 Pa. 535 A.2d 77 (alleged illegality vehicle does not of license for refusal to stop prevent suspension test); State, submit to see also Nevers v. Ad breathalyzer min., (Alaska2005) rule (exclusionary generally does not to license revocation would proceedings; exception rule in where case misconduct . . . shocksthe con trigger “police science, or is of a nature that calls for the as a matter of judiciary, to disassociate itself from benefits derivable judicial integrity, therefrom”); Neth, Chase 269 Neb. 697 N.W.2d 675 (2005) li administrative (holding exclusionary inapplicable cense revocation as proceedings, except indirectly applied through later that for refusal to submit to statutory provision suspension chemical test successful criminal dependent upon prosecution); Ja Director, Vehicles, cobs v. Div. Motor 149 N.H. 823 A.2d (2003) reasonableness of ir Lopez; (affirming underlying stop relevant in driver’s license unlawful suspension proceeding; rule). does not trigger application A issue, that have considered the minority jurisdictions court, noted the Tomabene “have on their license superimposed statutes a that the be law suspension requirement underlying stop ful, even when the statutes contained no such condition.” Torna bene, 334; see, 203 Ariz. at 208 Ill. e.g., People Krueger, cert, 897, (1991), N.E.2d 717 denied 503 U.S. 919 (“[W]e are to conclude that the intended to unwilling legislature authorize the of drivers’ licenses based on the fruits of suspension arrests”); Olson v. Com'r Public 371 N.W.2d illegal Safety, (Minn. 1985) DUI result (investigatory stops revocation must with Fourth Amendment proceedings comply Lussier, 19, 28,

standards); 171 Vt. 757 A.2d 1017 see also State Constitution; Vermont state constitution con on (relying Amendment); MVD, than strued more Fourth Pooler liberally 47, 51, (1988) (en banc) (court refuses to Or. the the intent to sanction unconstitutional “attribute to legislature of driver’s license under consent implied procedures”; suspension arrest; otherwise, statute must be based on valid evidence resulting excluded); Vehicles, must be v. Bur. Motor 110 Ohio Watford (1996) (“a arrest, 3d 674 N.E.2d 776 lawful includ App. a constitutional before refusal to take test ing stop,” required trig gers suspension). Zolin,

California's cases are inconsistent. See Gikas v. 6 Cal. 4th (1993) (en banc) Cal. Rptr. (license arrest lawful based on constitutional suspension requires Valverde, but Park v. see Cal. 4th 61 Cal. stop); (2007), 3d 895 rev. denied Rptr. September (suppression in license not traffic based on proceeding required, although information). outdated

We and outcomes of the Arizona Court of regard reasoning and the of our sister states as more sound. The Appeals majority balance outlined the United States Court between the Supreme rule, benefits and costs of of the when exclusionaiy application in driver’s license in favor employed suspension proceedings, tips of the Martin and other drivers. The de- against terrent effect of the rule is in the criminal already accomplished arena. additional deterrent effect on law enforcement violation Any of the Fourth Amendment and 15 to be from extension gleaned minimal, criminal DUI would be beyond setting and it cannot the remedial al- outweigh imperative preventing cohol- and/or drivers from them- drug-impaired injury killing selves or others. administrative license is es- Responsive regulation sential to that It should not be public good. hamstrung by rule here. application

Court of is affirmed. District court is reversed. Appeals Davis and not Johnson, JJ., participating. S.J., S.J., assigned.

Brazil, Larson, I with the well-reasoned Rosen, J., dissenting: agree majority’s to the it declines to opinion up point rule in this context. I cannot concur with a result that renders me, of the Fourth Amendment. For meaningless guarantees the balance in favor of Martin and reversal of his tips requires this case under the framework as suspension. Resolving balancing results in the unconstitutional applied by majority legalizing seizure of our citizens to effectuate a I do not statutory purpose. 8-1020(h)(2) now, K.S.A. aas result of interpret tolerating this unconstitutional searches and seizures and ruling, condoning driver’s license to be based on the fruits authorizing suspensions of unconstitutional conduct. to the Quite our police contrary, ap cases strict with K.S.A. 8- pellate consistently require compliance 1002 and 8-1020 to secure a See, driver’s licence suspension. e.g., Conn, 387, 400, State v. 278 Kan. (2004); 99 P.3d 1108 State v. Muck, (1997); 262 Kan. 939 P.2d 896 State v. 248 Kan. Luft, 911, 912, (1991); State, 811 P.2d 873 Lee v. 187 Kan. (1961);

358 P.2d 765 Revenue, Schulz v. Kansas 19 Kan. 665, 667, (1994); 2d 877 P.2d 1 v. Kansas App. Furthmyer Dept. Revenue, 591, 593, 2d (1994); 873 P.2d App. of Anderson v. Kansas 2d Dept. App. of (1993); S, Double Inc. v. Northwest Kansas Prod. Cred. Ass'n, (1992). It is incon sistent and that the law such strict illogical requires compliance with created in administrative statutorily rights suspension hearings while from those same defendants in those same removing pro their to be free from un ceedings constitutionally protected right lawful seizures.

I am mindful of the extremely paramount public objective intoxicated drivers from our roads and removing public highways; however, achievement of this should not be at the goal expense de- our Constitution. majority’s guaranteed protections make random officers to law enforcement

cision now stops permits all in or no reason at of vehicles for impaired hopes detecting any drivers. “ in civil law rule were not ‘If the suspension proceedings, exclusionary applied stere- based on hunches or officers could make stops enforcement investigatory whatsoever, beliefs, if reason that even any or for or no knowing any otyped in criminal obtained from the were to be proceedings, evidence stop suppressed license could still follow. Given the significance obtaining suspensions in civil obtained evidence to be admitted sus- allowing unlawfully suspensions, limits of a for the constitutional could encourage disregard pension proceedings LaFave, at 202-03 relevant factors See determining supra, (highly legal stop.’ are rule in

whether to proceedings magnitude quasi—criminal would involved and extent to which nonexclusion for individual consequences seizures).” Lussier, 171 Vt. unlawful searches encourage n A.2nd 1017

Further, to initiate traffic creates dual standard majority for no reason at for law enforcement. One standard allowing stops an consent driver’s license sus- all to a motorist for implied The other standard reasonable suspicion stop requiring pension. (DUI offenses) violation of K.S.A. 8-1567 a motorist for suspected This is or other statute or ordinance. confusing duality any A line enforcement of our laws. to lead to inconsistent bright likely a motorist for rule reasonable suspected suspicion stop requiring whether it leads to a criminal or violation of law any regardless clear, enforceable, to result in con- civil sanction is and more likely laws our and uniform of our sistent upon citizenry. application utilized I am not that by majority balancing persuaded evidence in a civil the introduction of obtained unlawfully compels nor the Kansas De- Neither majority suspension proceeding. evidence that of Revenue cites to any empirical indicating partment will have a suspension hearings applying alcohol- harmful effect on “the remedial imperative preventing themselves or and/or drivers from injury killing drug-impaired 646. could others.” See 285 Kan. at One argue just easily them- driver’s license and the the threat of suspensions suspensions our had on drunk drivers off selves have little high- impact keeping at civil or adminis- do not Our constitutional rights stop ways. trative law a lawful vehicle as a doorstep. By requiring for the of a driver’s license prerequisite imposition suspension pur- 8-1020(h)(2) suant to K.S.A. we establish a consistent and logical enforcement mechanism that our citizens’ constitutional protects to be free of unlawful seizures and at the same rights government time effectuates the strict and harsh drunk penalties against driving as enacted our legislature.

Luckert, in the J., joins foregoing dissenting opinion.

Case Details

Case Name: Martin v. Kansas Department of Revenue

Court Name: Supreme Court of Kansas

Date Published: Feb 1, 2008

Citation: 176 P.3d 938

Docket Number: 94,033

Court Abbreviation: Kan.