Cameron v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 118,788

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TIMOTHY CAMERON,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Graham District Court; PRESTON PRATT, judge. Opinion filed November 16, 2018.
Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Charles P. Bradley, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before HILL, P.J., PIERRON and POWELL, JJ.

PER CURIAM: In this appeal of the suspension of his driving privileges, Timothy
Cameron makes two arguments. First, he contends the Kansas implied consent law is
facially unconstitutional. Second, he claims the DC-70 form read to him and then handed
to him when he was arrested was also unconstitutional and did not substantially comply
with the statutes. Adopting the reasoning of several other panels of this court, we hold the
statute is not unconstitutional and the notice he received substantially complied with the
law. Finding no reason to reverse, we affirm the district court's affirmance of the
Department of Revenue's suspension of Cameron's driving license.

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The record reveals that Cameron was involved in a hit-and-run accident. He
admitted later that he was involved in the accident, but left the scene because he was
scared.

Cameron showed several indications of being under the influence of alcohol or
drugs. There was an odor of alcohol on his person, his speech was slurred, and his eyes
were bloodshot. Cameron had trouble communicating and displayed poor balance and
coordination. He also admitted drinking two glasses of wine. The officers requested a
preliminary breath test, which Cameron failed. Suspecting he was intoxicated, the police
arrested Cameron and gave him oral and written notices as required by K.S.A. 2016
Supp. 8-1001(k). The officers later obtained a blood test. The test showed Cameron's
blood-alcohol content was 0.12. Since his blood-alcohol level exceeded the legal limit,
these test results triggered the administrative process to suspend his driving license.

After receiving in the mail a certification and notice of suspension—form DC-
27—Cameron asked for an administrative hearing. At that hearing, an administrative
hearing officer affirmed the Department's suspension of Cameron's driving privileges.
Cameron petitioned the district court to review his suspension.

In district court, the parties stipulated to the facts and asked the court to decide the
matter based on written briefs and the stipulations. In due course, the court approved the
license suspension after finding that Cameron failed to meet his burden to show that the
agency's action should be set aside.

To us, Cameron argues that the Kansas implied consent law is facially
unconstitutional and his arresting officers did not—and essentially could not—
substantially comply with the notice requirements under the law. He asks us to vacate the
administrative suspension of his driving privileges.
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We note that Cameron does not argue for the suppression of his breath or blood
test results, nor does he argue that the evidence was insufficient to suspend his driving
privileges. He simply argues that because the officers did not give him warnings of the
implied consent law as written in the statutes in effect at the time, and could not have
done so because portions of those statutes were unconstitutional, his license suspension
must be vacated. We look first at the notices given to Cameron.

The notices Cameron received substantially complied with the statute.

This issue centers on the effects from two Kansas Supreme Court opinions. First,
the court in State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) aff'd on reh'g, 306 Kan.
682, 396 P.3d 711 (2017), held that K.S.A. 2014 Supp. 8-1025, a law which made it a
crime to refuse to submit to a test to determine the presence of alcohol or drugs, violated
a suspect's rights under the Fourth and Fourteenth Amendments to the United States
Constitution, and § 15 of the Kansas Constitution Bill of Rights. 303 Kan. at 963. The
court therefore struck down the statute by ruling it unconstitutional.

The second case, State v. Nece, 303 Kan. 888, 367 P. 3d 1260 (2016), aff'd on
reh'g, 306 Kan. 679, 396 P.3d 709 (2017), focused on the consent to breath-alcohol
testing obtained from drivers by operation of K.S.A. 2014 Supp. 8-1025. The court held
that a suspect's consent to a breath-alcohol search given after an officer provided notice
that a refusal could result in a separate criminal charge was improperly coerced. Thus,
such coerced consent could not meet the Fourth Amendment standard of being freely and
voluntarily given. 303 Kan. at 896-97.

From these two decisions, Cameron asks us to engage in folly. He now argues the
notices given to drivers as required by K.S.A. 2016 Supp. 8-1001(k) must still contain
warnings for an unconstitutional law. He claims that the notice given to him, the
substitute DC-70 advisory form, created after Ryce and Nece did not contain all the
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advisories listed in the statutes in effect at the time of his arrest. Thus, the officers failed
to give him the statutory notice to which he was entitled. Cameron argues that his license
suspension must be vacated. We are not so persuaded.

Several reasons lead us to believe otherwise. First, our courts have looked at
implied consent notices before. They need not be in the exact words of the statutes.
Substantial compliance with statutory notice provisions will usually be sufficient. To
substantially comply with the statute, a notice must be enough to advise the party to
whom it is directed of the essentials of the statute. Barnhart v. Kansas Dept. of Revenue,
243 Kan. 209, 213, 755 P.2d 1337 (1988).

We are persuaded that the notices given here substantially complied with the
statute. The substituted DC-70 told Cameron that he had to submit to testing; that he had
no constitutional right to consult with an attorney about whether to submit to testing; and,
a refusal to submit to testing would result in a suspension of driving privileges for one
year. This information is consistent with the essentials in K.S.A. 2016 Supp. 8-1001(k).

To us, Cameron argues the implied consent notices must include the two
paragraphs telling him that the opportunity to consent to or refuse a test was not a
constitutional right, and that refusal to submit to testing may result in an additional
criminal charge. Because the substituted DC-70 form did not have those warnings, in his
view, it did not comply with the statute. We want to make it clear that he does not claim
that the officers misstated or omitted paragraphs from the substituted DC-70. In other
words, the officer's only mistake was in not telling Cameron about two provisions of the
law that did not apply.

They did not apply because the two parts of the law requiring those advisories
were held unconstitutional earlier that year. See Ryce, 303 Kan. at 963; Nece, 303 Kan. at
896-97. We fail to see how those unconstitutional provisions would apply to Cameron
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and we note that he does not argue they did apply to him. Indeed because that law was
unconstitutional, those warnings apply to no one.

Cameron's argument is one of form over substance. Previously, when dealing with
an omission of a paragraph while reading a DC-70 advisory form to a driver, this court
has found no error in failing to read a paragraph because the omitted paragraph did not
apply to the driver in any way. See State v. Kaiser, No. 102,845, 2010 WL 3853206, at
*2 (Kan. App. 2010) (unpublished opinion). Common sense tells us that we need not
require officers to perform useless acts. Since the paragraphs omitted in the substituted
form here did not apply to Cameron, their omission from either being read to him or
printed in the form cannot be error.

Taking a slightly different tack, Cameron claims the Department amended the DC-
70 unilaterally and with no legal or statutory authority because Ryce and Nece were not
final when the Department did so. But Cameron fails to acknowledge or address the fact
that the implied consent notices the officers gave to him were issued by the Office of the
Attorney General to replace the DC-70 on the day Ryce and Nece were issued. He does
not claim that the Kansas Attorney General did not have the legal or statutory authority to
amend or alter the form. An issue not briefed by the appellant is considered waived or
abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676
(2011).

The implied consent notices given to Cameron through the substituted DC-70
advising him that he may lose his driving privileges for refusing to submit to testing were
accurate. These same advisories informed Cameron about the essentials of the statutes
that applied to him, and thus substantially complied with the implied consent notices
required by K.S.A. 2016 Supp. 8-1001(k). We find no error on this point.

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The Ryce and Nece rulings do not render the Kansas implied consent law
unconstitutional.

Using unclear logic, Cameron argues that somehow the law continues to require
that all the implied consent warnings must still contain the language held
unconstitutional. This interpretation places law enforcement officers in a dilemma. They
must either give warnings that are unconstitutional or violate the statute by failing to give
the warnings. The Department contends that the severability clause in the Act saves the
law. See K.S.A. 8-1007. We agree with the Department.

Cameron's argument here is like his first. He claims the warnings in the substitute
DC-70 form eliminated the provisions found unconstitutionally coercive in Ryce and
Nece, but were not the advisories mandated by statute. He concludes that on one hand,
the failure to give all the statutorily mandated advisories is in direct violation of the
statute, and on the other hand, giving the statutorily mandated advisories constitutes an
unconstitutional coercion of consent under Ryce and Nece. A motorist may be charged
and convicted of DUI based on evidence that the motorist's blood-alcohol concentration
is .08 or more or if the motorist is "under the influence of alcohol to a degree that renders
the person incapable of safely driving a vehicle." K.S.A. 2016 Supp. 8-1567(a)(1) and
(3). Based on Cameron's argument, a driver can never be capable of consenting to a
breath or blood test under any circumstances, and an officer may not administer tests
under any circumstances, even if the driver wishes to undergo the test to show their
sobriety.

When it enacted the Kansas implied consent law, the Legislature provided a
severability clause which stated that if provisions of the implied consent law are rendered
unconstitutional, the remaining provisions of the law should be enforced. K.S.A. 8-1007
states whatever remains of the Act should be enforced:

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"This act shall be construed as supplemental to existing legislation; and if any clause,
paragraph, subsection or section of this act shall be held invalid or unconstitutional, it
shall be conclusively presumed that the legislature would have enacted the remainder of
this act without such invalid or unconstitutional clause, paragraph, subsection or section."

In accordance with this provision of statute, the Kansas Attorney General modified
the DC-70 to delete the unconstitutional provisions. This ability to modify is shown in
State v. Limon, 280 Kan. 275, 304, 122 P.3d 22 (2005), when the court held that the
enactment of a severability clause in a statute or series of statutes evidences the intent of
the Legislature that if some portion or phrase in the statute is unconstitutional, the
balance will be considered valid. Here, the Legislature expressed its intent that if a
portion of the Kansas implied consent law was found to be unconstitutional, the
remaining provisions of the statute survive. The substituted DC-70 is evidence of that
fact.

By deleting the unconstitutionally coercive provisions from the original DC-70
advisory, the officers who arrested Cameron have substantially complied with the Kansas
implied consent law. In the wake of Ryce and Nece, interpreting the various provisions of
the Kansas implied consent law in this way brings the statute into a workable harmony.
See Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P. 3d 1255
(2013). Substantial compliance did not require the officers to misadvise Cameron of the
possible adverse consequences of withdrawing his consent to testing. To interpret the
statute as Cameron would have us do would create an unreasonable or absurd result. See
Milano's Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501, 293 P.3d 707 (2013). When
we view the statute in this light, we see no inherent contradiction within the Kansas
implied consent law that renders it facially unconstitutional.

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The district court did not err in finding that Cameron failed to meet his burden to
show the agency's decision should be set aside. The court properly affirmed the
suspension of his driving privileges.

Affirmed.