Jones v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 113,782

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DOUGLAS JONES,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Rooks District Court; EDWARD E. BOUKER, judge. Opinion filed February 19, 2016.
Affirmed.

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

John D. Shultz, deputy general counsel, of Legal Services Bureau, Kansas Department of
Revenue, for appellee.

Before ARNOLD-BURGER, P.J., GREEN and STANDRIDGE, JJ.

Per Curiam: Douglas Jones appeals the trial court's order upholding the
administrative suspension of his driver's license. On appeal, Jones argues that the trial
court erred when it admitted into evidence the certified DC-27 form without the
certifying officer being present to testify at trial. This issue is controlled by State v.
Baker, 269 Kan. 383, 2 P.3d 786 (2000), which held that this procedure was permissible.
As a result, we conclude that the certified DC-27 form was legally admissible.

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On January 19, 2013, Trooper R.C. Henry of the Kansas Highway Patrol stopped
Jones for failing to stop at a stop sign. While speaking with Jones, Trooper Henry noticed
that Jones smelled of alcohol, had bloodshot eyes, and had alcoholic beverage containers
in his vehicle. Jones also admitted that he had been drinking alcohol. After Jones failed
multiple sobriety tests, Trooper Henry arrested him for DUI.

Jones timely requested an administrative hearing and also asked that Trooper
Henry be subpoenaed for the hearing. Trooper Henry appeared for the administrative
hearing, but Jones failed to appear. Following the administrative hearing, the hearing
officer affirmed the suspension of Jones' driver's license. Jones then filed a petition for
review in the Ellis County District Court claiming that the officer did not have reasonable
grounds to believe he was under the influence of alcohol.

According to the journal entry, the Kansas Department of Revenue (KDOR)
offered the DC-27 form for admission under K.S.A. 2014 Supp. 8-1002(b), and it was
admitted over Jones' objection. There is no transcript of the hearing in the record. Based
on the evidence contained in the DC-27 form, the trial court found the trooper had
reasonable grounds to believe that Jones was operating his vehicle while under the
influence of alcohol and denied his petition for review.

Did the Trial Court Err in Admitting the DC-27 Form Into Evidence Without Having the
Certifying Officer Present to Testify?

In his sole issue on appeal, Jones maintains that the trial court erred in admitting
the DC-27 form into evidence without having the certifying officer present to testify.
Specifically, Jones argues that the DC-27 form should only be admissible as a procedural
or charging document used to establish jurisdiction and should not be used as testimony
regarding a reasonable grounds determination.

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To decide this issue, we must interpret K.S.A. 2014 Supp. 8-1002(b).
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015);
Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 955, 335 P.3d 1178 (2014). The most
fundamental rule of statutory construction is that the intent of the legislature governs if
that intent can be ascertained. Neighbor, 301 Kan. at 918. An appellate court must first
attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90
(2014). Moreover, when a statute is plain and unambiguous, an appellate court should not
speculate about the legislative intent behind that clear language, and it should refrain
from reading something into the statute that is not readily found in its words. 298 Kan. at
738-39.

K.S.A. 2014 Supp. 8-1002(b) states:

"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."

In Baker, our Supreme Court discussed the admissibility of the DC-27 form as
follows:

"[In this case, t]he DC-27 form contains the certifications required by K.S.A. 1999 Supp.
8-1002. Once the certification requirements are completed, the DC-27 form is admissible
as evidence to prove the statements contained therein. See K.S.A. 1999 Supp. 8-1002(b).
Thus, the DC-27 form, if properly completed, is a tool which satisfies the foundational
requirements for admission of the results of a defendant's blood alcohol test or refusal to
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take the test. However, its proper completion is not an absolute requirement for such
admission." 269 Kan. at 387.

The Baker court further explained: "The State may seek to establish a foundation for
admission through the use of the completed DC-27 form, through competent testimony,
or through a combination of the two." 269 Kan. at 388.

In Moore v. Kansas Dept. of Revenue, No. 107,810, 2013 WL 5925901, at *5
(Kan. App. 2013) (unpublished opinion), a panel of this court relied on Baker to find that
K.S.A. 2010 Supp. 8-1002(b) plainly and unambiguously states that the DC-27 form shall
be admissible as evidence. Specifically, the Moore court reasoned:

"Essential to our Supreme Court's holding [in Baker] was its discussion of the
meaning of K.S.A. 8-1002(b). As the Supreme Court stated, in part, in its first syllabus:
'The DC-27 form promulgated by the [KDR], if properly completed, is a tool which
satisfies the foundational requirements for admission of the results of a defendant's blood
alcohol test or refusal to take the test.' (Emphasis added.) 269 Kan. 383, Syl. ¶ 1. Should
there be any doubt, the court also stated in its opinion: 'The DC-27 form contains the
certifications required by K.S.A. 1999 Supp. 8-1002. Once the certification requirements
are completed, the DC-27 form is admissible as evidence to prove the statements
contained therein . . . . This interpretation of K.S.A. 8-1002(b) resulted in the Supreme
Court's second syllabus which was dispositive in the Baker case. It stated in relevant part:
'The State may seeks to establish a foundation for admission through the use of a
completed DC-27 form, through competent testimony, or through a combination of the
two.' 269 Kan. 383, Syl. ¶ 2.

"Of note, in his briefing, Moore does not mention Baker or provide any contrary
precedent. He also does not complain that Officer Kirkwood's completed DC-27
certification was defective or deficient in any way. We conclude that Baker is dispositive
of this issue. The plain meaning of K.S.A. 2010 Supp. 8-1002(b), as interpreted by Baker,
results in our conclusion that the trial court erred as a matter of law in refusing to admit
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Officer Kirkwood's DC-27 certification as evidence for purposes of the trial de novo."
2013 WL 5925901, at *6.

Likewise, as in the Moore case, Jones fails to cite any authority in support of the
issue in this appeal because all of the caselaw is contrary to his claim in this appeal.
Furthermore, Jones fails to even cite or distinguish the authority that is contrary to his
position and makes no attempt to argue that existing case law should be reversed or
modified. By failing to cite any legal authority to support his position, Jones has
abandoned the sole issue in this appeal. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d
273 (2013).

In any event, the Moore court properly concluded as follows:

"We find K.S.A. 2010 Supp. 8-1002(b) is plain and unambiguous. It states the
legislature's determination that an officer's DC-27 certification shall be admissible as
evidence in all proceedings provided for in the Implied Consent Act relating to alcohol
testing for driving under the influence of drugs or alcohol. This would include a trial de
novo, like the one under review, requested by a licensee who files a petition for review of
the KDR's order to suspend driving privileges." 2013 WL 5925901 at *5.

Recently, multiple panels from this court have addressed this exact issue and each
case held that the DC-27 form was admissible under K.S.A. 2014 Supp. 8-1002(b) on its
own and without the need for actual testimony. See Reyes v. Kansas Dept. of Revenue,
No. 113,806, 2016 WL 368164 (Kan. App. 2016) (unpublished opinion); Ulrichson v.
Kansas Dept. of Revenue, No. 113,835 (2016 WL 368199 (Kan. App. 2016) (unpublished
opinion); Siglinger v. Kansas Dept. of Revenue, No. 113,417, 2015 WL 8154644 (Kan.
App. 2015) (unpublished opinion); Werner v. Kansas Dept. of Revenue, No. 112,447,
2015 WL 8176441 (Kan. App. 2015) (unpublished opinion); Urban v. Kansas Dept. of
Revenue, No. 113,415, 2015 WL 8192318 (Kan. App. 2015) (unpublished opinion);
Miller v. Kansas Dept. of Revenue, No. 112,924, 2015 WL 7434008 (Kan. App. 2015)
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(unpublished opinion); Beims v. Kansas Dept. of Revenue, No. 112,138, 2015 WL
6834323 (Kan. App. 2015) (unpublished opinion); Alt v. Kansas Dept. of Revenue, No.
112,448, 2015 WL 6621620 (Kan. App. 2015) (unpublished opinion).

This court is duty bound to follow our Supreme Court precedent unless there is an
indication that it is departing from the precedent. State v. Hall, 298 Kan. 978, 983, 319
P.3d 506 (2014). There is no such indication. Based on Baker and the other unpublished
opinions that are directly on point, we determine that the trial court properly admitted the
DC-27 form.

Affirmed.