Hart v. Kansas Dept of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 118,102

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TIMOTHY J. HART,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; JEROME P. HELLMER, judge. Opinion filed May 11, 2018.
Affirmed.

Roger D. Struble, of Blackwell & Struble, LLC, of Salina, for appellant.

Donald J. Cooper, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before ARNOLD-BURGER, C.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: The Kansas Department of Revenue (KDOR) suspended Timothy J.
Hart's driver's license after he refused to submit to testing following his arrest for driving
under the influence (DUI). Hart appealed to the district court, and the district court
affirmed. Hart appeals the district court's decision, arguing he rescinded his initial refusal
by complying with a search warrant for a blood draw. We find no error and affirm the
district court.



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Factual and Procedural Background

The KDOR suspended Hart's driver's license for having refused to submit to
testing following his arrest for driving under the influence. Hart appealed the suspension
to the district court.

At the district court hearing, Trooper Cole McGee of the Kansas Highway Patrol
testified he stopped Hart after he failed to stop before exiting a private driveway and later
failed to use a turn signal. After completing a DUI investigation, McGee arrested Hart for
driving under the influence. At the Ottawa County Jail, McGee gave Hart the implied
consent advisory and asked him to submit to a test, though the record is not clear whether
it was a breath test or a blood test. Hart refused, and McGee applied for a search warrant
while Hart remained in custody. McGee testified he returned to the jail with a search
warrant, presented the warrant to Hart, and asked if Hart was going to comply. McGee
said Hart agreed, and McGee had a nurse draw Hart's blood.

According to Hart, McGee returned with the warrant and told Hart, "We can do
this the hard way or the easy way." Hart presented his arm to the nurse and said, "Here
you go." Hart also testified he was at the jail for several hours from the time he first
arrived until he "was forced to draw blood." He later agreed, however, that the initial stop
took place around 11 p.m. and the blood draw occurred at 1:44 a.m.

The district court found that Hart refused testing and he did not specifically
rescind that refusal. The court pointed out that Hart had testified he was forced to have
his blood drawn since McGee had obtained the warrant, thus, Hart did not voluntarily
rescind his initial refusal. The district court affirmed the suspension of Hart's driver's
license.


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Hart did not rescind his refusal.

On appeal, Hart argues the district court erred by finding he did not rescind his
refusal. He contends he verbally acknowledged he would consent to the blood draw and
presented his arm to the nurse when McGee presented him with a warrant. He asserts this
constitutes an effective rescission.

Standard of Review

This court reviews a district court's ruling in a driver's license suspension to
determine whether it is supported by substantial competent evidence. Only when there is
no factual dispute does this court exercise de novo review. Swank v. Kansas Dept. of
Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Here, the parties do not dispute the
underlying facts relevant to the issue of rescission, so this court's review is unlimited. See
McIntosh v. Kansas Dept. of Revenue, 291 Kan. 41, 43, 237 P.3d 1243 (2010).

Rescission

Neither party disputes Hart initially refused testing. Rather, the question is
whether he rescinded that refusal. A driver may rescind an initial refusal to submit to
evidentiary chemical testing by subsequent consent. Standish v. Department of Revenue,
235 Kan. 900, 902, 683 P.2d 1276 (1984). In Standish, the Kansas Supreme Court held
that a driver's subsequent consent to testing is effective if it is made:

"(1) within a very short and reasonable time after the prior first refusal;
"(2) when a test administered upon the subsequent consent would still be accurate;
"(3) when testing equipment is still readily available;
"(4) when honoring the request will result in no substantial inconvenience or expense to
the police; and
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"(5) when the individual requesting the test has been in the custody of the arresting
officer and under observation for the whole time since arrest." 235 Kan. at 902-03.

In addition to these enumerated factors, this court has also interpreted the Standish
opinion as requiring a specific request from the driver to rescind his or her initial refusal.
Ramirez v. Kansas Dept. of Revenue, 13 Kan. App. 2d 332, 335, 770 P.2d 490 (1989).

The facts of this case are similar to those in Leister v. Kansas Dept. of Revenue,
No. 115,090, 2017 WL 947236 (Kan. App. 2017) (unpublished opinion). In Leister,
Officer Walz obtained a warrant to draw Leister's blood after he refused to submit to an
evidentiary breath test. 2017 WL 947236 at *2. Walz later testified before the district
court that Leister complied with the warrant but did not communicate his consent other
than silently offering his arm. Leister testified that after Walz presented him with the
warrant, the nurse asked for his arm and he said, "Okay." 2017 WL 947236, at *3.

Applying Ramirez, the Leister court found that Leister had not rescinded his initial
refusal because he did not make a specific request to take the test. The court explained,

"The mere fact that Leister did not physically resist the blood draw but simply presented
his arm to the nurse so that blood could be seized in compliance with the search warrant
was not a specific request to Officer Walz to rescind his initial refusal. It was
acquiescence to the court order." 2017 WL 947236, at *8.

See also Hammerschmidt v. Kansas Dept. of Revenue, No. 111,377, 2014 WL 7571645
(Kan. App. 2014) (unpublished opinion) (finding that driver did not rescind test refusal
by presenting arm for blood draw because he did not make specific request).

Here, Hart never specifically requested to rescind his initial refusal. Like Leister,
he simply presented his arm to the nurse after McGee obtained and presented the search
warrant. Hart testified that he was "forced" to have his blood drawn, and thus his own
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testimony establishes he did not voluntarily submit to the test. Hart did not rescind his
refusal by acquiescing to the court order.

Hart also argues issuance of a search warrant should not preclude rescission. He
claims the State has the ability to coerce consent, and in his case, the search warrant was
necessary to coerce his consent. Because he eventually consented to the search, he asserts
he effectively rescinded his refusal.

Hart's argument misconstrues the significance of consent. Consent is an exception
to the warrant requirement under the Fourth Amendment to the United States
Constitution. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). In the case of
DUI investigations, the State may coerce consent to warrantless blood draws with the
threat of civil penalties or evidentiary consequences. Birchfield v. North Dakota, 579
U.S. __, 136 S. Ct. 2160, 2187, 195 L. Ed. 2d 560 (2016). Once a search warrant has
been obtained, however, consent is no longer at issue because the warrant requirement is
fulfilled. Thus, Hart's "consent" to the blood draw after being presented with the search
warrant is irrelevant.

Additionally, Hart's argument ignores the requirements of rescission. Even if he
complied with the warrant, he did not specifically request to rescind his refusal as
required by Ramirez. As such, the district court was right to find his rescission was not
effective, and we affirm.

Affirmed.