Printable Format8-1002. Test refusal or failure; suspension of license; notice; procedure. (a) Whenever a test is requested pursuant to this act and results in either a test failure or test refusal, a law enforcement officer's certification shall be prepared. If the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, a separate certification pursuant to K.S.A. 8-2,145, and amendments thereto, shall be prepared in addition to any certification required by this section. The certification required by this section shall be signed by one or more officers to certify:
(1) With regard to a test refusal, that: (A) There existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (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; and (D) the person refused to submit to and complete a test as requested by a law enforcement officer.
(2) With regard to a test failure, that: (A) There existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (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; and (D) the result of the test showed that the person had an alcohol concentration of .08 or greater in such person's blood or breath.
(3) With regard to failure of a breath test, in addition to those matters required to be certified under subsection (a)(2), that: (A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.
(b) For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.
(c) When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles. In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension in person or by another designated officer or by mailing the notice to the person at the address provided at the time of the test.
(d) In addition to the information required by subsection (a), the law enforcement officer's certification and notice of suspension shall contain the following information: (1) The person's name, driver's license number and current address; (2) the reason and statutory grounds for the suspension; (3) the date notice is being served and a statement that the effective date of the suspension shall be the 30th day after the date of service; (4) the right of the person to request an administrative hearing; and (5) the procedure the person must follow to request an administrative hearing. The law enforcement officer's certification and notice of suspension shall also inform the person that: (1) Constitutional issues cannot be decided at the administrative hearing, but may be preserved and raised in a petition for review of the hearing as provided in K.S.A. 8-1020(o) and (p), and amendments thereto; and (2) all correspondence will be mailed to the person at the address contained in the law enforcement officer's certification and notice of suspension unless the person notifies the division in writing of a different address or change of address. The address provided will be considered a change of address for purposes of K.S.A. 8-248, and amendments thereto, if the address furnished is different from that on file with the division.
(e) If a person refuses a test or if a person is still in custody when it is determined that the person has failed a test, the officer shall take any license in the possession of the person and, if the license is not expired, suspended, revoked or canceled, shall issue a temporary license effective until the 30th day after the date of service set out in the law enforcement officer's certification and notice of suspension. If the test failure is established by a subsequent analysis of a breath or blood sample, the temporary license shall be served together with the copy of the law enforcement officer's certification and notice of suspension. A temporary license issued pursuant to this subsection shall bear the same restrictions and limitations as the license for which it was exchanged. Within seven days after the date of service of a copy of the law enforcement officer's certification and notice of suspension the officer's certification and notice of suspension, along with any licenses taken, shall be forwarded to the division.
(f) Upon receipt of the law enforcement officer's certification, the division shall review the certification to determine that it meets the requirements of subsection (a). Upon so determining, the division shall proceed to suspend the person's driving privileges in accordance with the notice of suspension previously served. If the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.
(g) The division shall prepare and distribute forms for use by law enforcement officers in giving the notice required by this section.
(h) The provisions of K.S.A. 60-206, and amendments thereto, regarding the computation of time shall be applicable in determining the effective date of suspension set out in subsection (d).
History: L. 1955, ch. 61, § 2; L. 1985, ch. 48, § 4; L. 1985, ch. 50, § 2; L. 1986, ch. 40, § 3; L. 1988, ch. 47, § 14; L. 1989, ch. 38, § 35; L. 1989, ch. 38, § 36; L. 1990, ch. 44, § 3; L. 1991, ch. 36, § 19; L. 1993, ch. 259, § 2; L. 1993, ch. 275, § 2; L. 1995, ch. 208, § 2; L. 2001, ch. 200, § 13; L. 2007, ch. 181, § 4; L. 2010, ch. 135, § 5; L. 2016, ch. 69, § 1; July 1.
Law Review and Bar Journal References:
"The Decisive Blow to The Double Jeopardy Defense In Kansas Drunk Driving Prosecutions: State v. Mertz," Todd A. LaSala, 44 K.L.R. 1009 (1996).
"Don't Hold Your Breath: Kansas's Criminal Refusal Law Is on a Collision Course with the U.S. Constitution," Taryn Alexandra Locke, 52 W.L.J. 289 (2013).
Attorney General's Opinions:
Driving under the influence; ignition interlock device. 93-139.
Driving under influence of alcohol or drugs by persons under 21; proceedings for determining violation; filing abstracts of court records; penalties. 97-69.
Conditions wherein peace officer can obtain warrantless extraction of blood after subject has refused to submit to blood test. 2002-26.
CASE ANNOTATIONS
1. Purpose of act; constitutional exercise of police power; license revocation upheld. Lee v. State, 187 Kan. 566, 567, 358 P.2d 765.
2. Inadvertent failure to provide blood test results for DUI (K.S.A. 8-1567) no justification for suppression of results. State v. Wanttaja, 236 Kan. 323, 324, 691 P.2d 8 (1984).
3. Prior to 1985 amendment, failure to verify chemical test refusal report on oath (K.S.A. 8-1001) per K.S.A. 54-101 et seq. invalidated challenged suspension. Dewey v. Kansas Dept. of Revenue, 11 Kan. App. 2d 72, 713 P.2d 490 (1986).
4. Cited; refusal to submit to blood tests does not permit issuance of search warrants for blood samples (K.S.A. 8-1001(f), 8-1001(g)). State v. Adee, 241 Kan. 825, 829, 833, 740 P.2d 611 (1987).
5. Cited; admissibility of blood alcohol test performed with consent but without notices contained in K.S.A. 8-1001(f)(1) examined. State v. Doeden, 12 Kan. App. 2d 245, 251, 738 P.2d 876 (1987).
6. Cited; nature of de novo review of administrative hearing, issues permitted to be raised examined. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 760, 758 P.2d 226 (1988).
7. Reasonableness of refusal to take requested breath alcohol test not an issue for department of revenue or district court. Woodhead v. Kansas Dept. of Revenue, 13 Kan. App. 2d 145, 147, 765 P.2d 167 (1988).
8. Cited; notice provisions of K.S.A. 8-1001 concerning right to independent test as mandatory rather than directory examined. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 210, 755 P.2d 1337 (1988).
9. Failure to understand required notices in K.S.A. 8-1001(f)(1)(B) as no defense for refusing to submit (K.S.A. 8-1001(f)(1) and (3)) determined. Buchanan v. Kansas Dept. of Revenue, 14 Kan. App. 2d 169, 170, 788 P.2d 285 (1990).
10. Failure to inform accused of notice provisions in K.S.A. 8-1001(f) held to require suppression of blood/alcohol test results. State v. Luft, 248 Kan. 911, 912, 811 P.2d 873 (1991).
11. Conditions for administrative suspension under implied consent statute reviewed. Podrebarac v. Kansas Dept. of Revenue, 15 Kan. App. 2d 383, 386, 807 P.2d 1327 (1991).
12. "Reasonable grounds" in K.S.A. 8-1001 equated with "probable cause"; refusal to consent to test following notices herein examined. Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 706, 815 P.2d 566 (1991).
13. Refusal of DUI test by arrestee examined. Lund v. Kansas Department of Revenue, 16 Kan. App. 2d 265, 266, 267, 824 P.2d 211 (1992).
14. Cited in opinion that notice of at least six months' suspension for refusing blood alcohol test (K.S.A. 8-1001) not substantial compliance. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 678, 840 P.2d 448 (1992).
15. Denial of right to consult attorney after breath test, test results and other evidence suppressed. Ostmeyer v. Kansas Dept. of Revenue 16 Kan. App. 2d 639, 642, 644, 827 P.2d 780 (1992).
16. What constitutes completed breath test, inadequate sample due to physical inability caused by medical condition examined. Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d 79, 81, 831 P.2d 970 (1992).
17. Noted in opinion that order of suspension following administrative hearing void where notice (K.S.A. 8-255(d)) mailed to licensee's attorney. State v. Lovett, 17 Kan. App. 2d 450, 451, 839 P.2d 53 (1992).
18. Drunken condition preventing completion of preparatory requirements of agreed-to breathalyzer test constitutes refusal. McRoberts v. Kansas Dept. of Revenue, 17 Kan. App. 2d 680, 683, 843 P.2d 280 (1992).
19. Cited; discussion of "verified on oath v. merely signing a DUI report." Double S, Inc. v. Northwest Kansas Prod. Cred. Ass'n, 17 Kan. App. 2d 740, 743, 843 P.2d 741 (1992).
20. Cited where court examined district court's de novo review of administrative hearing regarding license suspension. Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 326, 851 P.2d 1385 (1993).
21. Personal service requirement of notice of suspension is mandatory; "substantial compliance" not sufficient. Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 349, 853 P.2d 69 (1993).
22. Department of revenue not required to establish certification of standard solution used to calibrate breath testing equipment. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 856 P.2d 1357 (1993).
23. Whether a finding defendant was operating vehicle is required before suspension provisions applicable examined. Furthmyer v. Kansas Dept. of Revenue, 19 Kan. App. 2d 591, 593, 595, 873 P.2d 1365 (1994).
24. Whether section's five-day certification requirement may be challenged at KDR administrative license suspension hearing examined. Schulz v. Kansas Dept. of Revenue, 19 Kan. App. 2d 665, 667, 877 P.2d 1 (1994).
25. Whether oral testimony regarding certification of breathalyzer and operator is admissible to establish certification examined. State v. Rohr, 19 Kan. App. 2d 869, 870, 879 P.2d 221 (1994).
26. Cited; whether KDR breath test refusal sanctions apply where officer has reasonable belief driver attempted to operate vehicle examined. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 829, 834, 888 P.2d 832 (1995).
27. Breath test requests are not limited to motorists arrested for alcohol or drug offenses impairing driver's ability. State v. Counseller, 22 Kan. App. 2d 155, 159, 912 P.2d 757 (1996).
28. Collateral estoppel does not bar relitigation of issues decided in administrative driver's license suspension hearing. City of Manhattan v. Huncovsky, 22 Kan. App. 2d 189, 195, 913 P.2d 227 (1996).
29. Savings clause for technical irregularities (K.S.A. 8-1001(f)(4)) applies only to commercial motor vehicle operators. State v. Bunker, 260 Kan. 564, 566, 920 P.2d 405 (1996).
30. Lack of proficiency in English is not a defense to understanding written or oral notice required by section. Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 320, 323, 916 P.2d 47 (1996).
31. Collateral estoppel does not bar relitigation of issues determined in administrative hearing in subsequent criminal proceeding. State v. Dewey, 22 Kan. App. 2d 963, 965, 925 P.2d 449 (1996).
32. Officer's testimony concerning his intoxilyzer certification could not substitute for certification document as foundation requirement. State v. Muck, 262 Kan. 459, 939 P.2d 896 (1997).
33. Trial court did not err by considering affidavit not admitted during administrative hearing. Zorn v. Kansas Dept. of Revenue, 24 Kan. App. 2d 749, 751, 953 P.2d 1053 (1998).
34. Trial court ruling that state laid an adequate foundation for admitting breath test evidence upheld. State v. Bishop, 264 Kan. 717, 725, 957 P.2d 369 (1998).
35. Expert opinion concerning better alcohol testing procedure not relevant to issue of administrative driver's license suspension. Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 184, 959 P.2d 940 (1998).
36. Minor errors in officer's certification did not support suppression of evidence of driver's refusal to submit to breath test. Madison v. Kansas Dept. of Revenue, 25 Kan. App. 2d 760, 762, 969 P.2d 259 (1998).
37. Defendant may not claim collateral estoppel based on dismissal of criminal charge in municipal court in administrative suspension of license action before DOR as two public agencies not in privity; collateral estoppel exception justified because of disparity between the quality and extensiveness of criminal and administrative procedures. Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 980 P.2d 1022 (1999).
38. Officer not required to inform driver being tested for alcohol that driving privileges can be restricted for 330 days. Ruble v. Kansas Dept. of Revenue, 26 Kan. App. 2d 1, 3, 973 P.2d 213 (1999).
39. Certification of reasonable grounds to believe person was under the influence of alcohol or drugs sufficient; no requirement for factual statement; conclusory statement suffices. Thomas v. Kansas Dept. of Revenue, 26 Kan. App. 2d 132, 979 P.2d 1255 (1999).
40. Probable cause finding not required before preliminary breath test is administered. Gross v. Kansas Dept. of Revenue, 26 Kan. App. 2d 847, 849, 994 P.2d 666 (2000).
41. Section allows preparation and service of a second certification and notice of suspension form to correct errors or omissions. Enslow v. Kansas Dept. of Revenue, 26 Kan. App. 2d 953, 954, 996 P.2d 361 (2000).
42. Full and complete execution of Department of Revenue form DC-27 not required as foundation for admission of blood alcohol test results; other competent testimony, or combination thereof, will suffice. State v. Baker, 269 Kan. 383, 2 P.3d 494 (2000).
43. Failure of police officer to complete suspension notice form within 5-day requirement does not deprive department of jurisdiction to conduct suspension hearing. Linenberger v. Kansas Dept. of Revenue, 28 Kan. App. 2d 794, 20 P.3d 1290 (2001).
44. Officer using breath testing machine substantially complied with state requirements for operation of machine. Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, 74 P.3d 588 (2003).
45. Person arrested for DUI who refuses to take breath test and leaves police headquarters or custody of law enforcement officers has lost right to rescind prior refusal. Eberle v. Kansas Dept. of Revenue, 33 Kan. App. 2d 759, 108 P.3d 465 (2005).
46. Personal service adequate where form placed in front of defendant, explained, offered and placed in defendant's belongings. Gudenkauf v. Kansas Dept. of Revenue, 35 Kan. App. 2d 682, 685, 133 P.3d 838 (2006).
47. Doctrine of substantial compliance not applicable to personal service under K.S.A. 8-1002(c). Ashley v. Kansas Dept. of Revenue, 38 Kan. App. 2d 421, 166 P.3d 1060 (2007).
48. Mentioned in case upholding exclusion of constitutional issues in administrative hearings under K.S.A. 8-1020. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 630, 176 P.3d 938 (2008).
49. There is no evidentiary requirement the DUI machine operator has reviewed manufacturer's operation manual. State v. Wenzel, 39 Kan. App. 2d 194, 195, 196, 198, 177 P.3d 994 (2008).
50. Ten-day limit for filing petition for review per K.S.A. 8-259 applies to every order of suspension issued pursuant to K.S.A. 8-1001 et seq. Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 213 P.3d 1061 (2009).
51. Breath test failed to substantially comply with KDHE protocol. Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 200 P.3d 496 (2009).
52. Officer had reasonable grounds to believe that the driver had been driving under the influence of alcohol under facts of the case. Poteet v. Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 233 P.3d 286 (2010).
53. Service by mail achieved based on substantial compliance doctrine despite technical irregularities. Byrd v. Kansas Dept. of Revenue, 43 Kan. App. 2d 145, 221 P.3d 1168 (2010).
54. Definition of "mail" interpreted by a reasonable application to determine compliance with service by mail. Byrd v. Kansas Dept. of Revenue, 295 Kan. 900, 287 P.3d 232 (2012).
55. In all proceedings brought under the Kansas implied consent law, a signed and properly completed DC-27 form, or a copy or photostatic reproduction of the form, shall be admissible in evidence to prove the statements it contains without the necessity for testimony by the certifying law enforcement officer. Pfeifer v. Kansas Dep't of Revenue, 52 Kan. App. 2d 591, 601, 370 P.3d 1200 (2016).
56. When a defendant failed a roadside sobriety test, the court was limited to determining whether the officer had a reasonable ground to believe the license holder was operating the motorcycle, and the court's finding that the license holder was merely attempting to operate the motorcycle is insufficient to suspend the license holder's driving privileges. Cullison v. Kansas Dept. of Revenue, 52 Kan. App. 2d 745, 747, 372 P.3d 442 (2016).
57. A signature is an indication by any distinctive mark, including a previously created image of an electronic signature, for the purpose of communicating and recording a person's authorization, certification, agreement or identity, and "signing" is merely the act of affixing that signature. Brungardt v. Kansas Dep't of Revenue, 58 Kan. App. 2d 284, 290, 468 P.3d 791 (2020), rev. denied (Nov. 24, 2020).
58. A driver who is in actual physical control of the machinery of a vehicle, causing the machinery to move by engaging the transmission and pressing the gas pedal, is operating the vehicle within the meaning of statute. Jarmer v. Kan. Dept. of Revenue, 63 Kan. App. 2d 37, 41, 524 P.3d 68 (2023).