Morales v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 117,513


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MIGUEL MORALES,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed February 2, 2018.
Appeal dismissed.

Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.

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

Before GREEN, P.J., MALONE and ATCHESON, JJ.

PER CURIAM: Miguel Morales was suspected of driving a vehicle under the
influence of alcohol. After he was stopped, Morales refused to submit to a preliminary
breath test. Morales also refused to submit to a breath test at the police station. In
accordance with a DC-27 form, Morales' driving privileges were provisionally
suspended. He requested an administrative hearing concerning the suspension. The
suspension of his driving privileges was upheld at the administrative level. Morales
petitioned for a review of the administrative decision to the trial court. The trial court
upheld the administrative decision. On appeal, Morales contends that because he
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submitted to the blood draw after his breath test refusal, his earlier breath test refusal
should not be grounds to suspend his driving privileges. For reasons stated below, we
reject this contention and dismiss for the lack of jurisdiction.

On December 12, 2015, Miguel Morales was stopped because he drove his vehicle
into the opposing lane of traffic. After stopping Morales, Officer Shane Harris smelled an
odor of alcohol on Morales and he noticed that Morales was slurring his words. Based on
those observations, Harris asked Morales how much he had to drink. Morales responded
that he had consumed two beers. Harris asked Morales to step out of his vehicle for the
purpose of conducting a field sobriety test.

During the field sobriety test, Harris requested that Morales do the walk-and-turn
test, a one-leg-stand test, a number counting test, and a preliminary breath test. While
attempting the walk-and-turn test, Morales started the test before he was told to do so. He
also showed signs of the following: he failed to stand in the starting position, he
stumbled on the turn, he used his arms for balance, and he failed to step heel-to-toe. The
conditions during the test were not optimal because the ground was moist, there was no
visible line for the test, and the surface was an incline. Nevertheless, Harris opined that
those conditions did not cause Morales' test failure. Morales did not attempt the one-leg-
stand test due to a medical condition with his back. Morales was not able to accurately
complete the counting test. Morales then refused to take the preliminary breath test.
Harris placed Morales under arrest for driving under the influence of alcohol and took
him to the station where he read him his rights under the implied consent advisory. The
advisory contained a threat of criminal prosecution if the defendant failed to submit to a
test. After being read the implied consent advisory, Morales refused to submit to a
breathalyzer test.

Harris then completed a DC-27 form. This form explained that Morales' driving
privileges would be suspended for his failure to submit to a breath test. Harris gave
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Morales a copy of the DC-27. Morales requested an administrative hearing before his
driving privileges were suspended. The Kansas Department of Revenue (KDOR)
suspended Morales' driving privileges after determining that Harris had reasonable
grounds to believe Morales was operating a vehicle while under the influence of alcohol
and that Morales had refused to submit to a breath test. Morales petitioned the trial court
to review the administrative decision.

In his petition for review, Morales argued (1) that the standardized field sobriety
tests were improperly conducted; (2) that he was penalized for declining to participate in
an unconstitutional testing of his deep lung air; (3) that the implied consent advisory was
constitutionally infirm; and (4) that Harris was unable to provide a proper foundation for
his testimony at the administrative hearing.

At the trial court level, Morales, through counsel, argued that his petition for
reinstatement of his driving privileges should be granted because (1) an officer should not
be able to request a breath test with the threat of prosecution hanging in the balance in
light of the holdings in State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017), and State v.
Nece, 306 Kan. 679, 396 P.3d 709 (2017); and (2) his actions cannot be classified as a
refusal because a refusal is of no legal consequence when a later blood test could have
been obtained under a warrant.

When Morales attempted to introduce evidence of the later blood test at trial, the
KDOR objected to the admission of the blood test on the basis of relevancy. The KDOR
argued that the blood draw was not relevant because the DC-27 form and the
administrative decision was based on a failure to submit to a breath test and was not
based on a failure of a breath or blood test. In response to the relevancy challenge,
Morales argued:

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"Here's how it's relevant. If the refusal is of no consequence, is it really a refusal?
If I refuse, but you're gonna get my blood anyway through a warrant, which is what
happened here, then what was my refusal other than just a word, a word that could've
been spoken in Chinese? It's of no consequence. So there wasn't a refusal."

In sustaining the KDOR's objection, the trial court ruled that the suspension was based on
the refusal to submit to a breath test and not a failure of a breath or blood test.

The trial court upheld the suspension of Morales' driving privileges. The trial court
reasoned as follows: (1) that Morales failed to meet his burden of showing Harris lacked
reasonable grounds to believe he was operating his vehicle while under the influence of
alcohol; and (2) that Morales failed to prove the implied consent advisories were in
violation of the Constitution because there was no consent given in this civil case.

On appeal, Morales asserts the following issue: whether he should have been
penalized with a driver's license suspension for a test refusal that was of no practical
consequence. In support of his argument, Morales asserts that the breath test refusal was
of no practical legal consequence when he acceded to a blood draw after a warrant was
obtained for the blood draw. Morales cites Standish v. Department of Revenue, 235 Kan.
900, 683 P.2d 1276 (1984), as standing for the proposition that when a person has
properly rescinded his or her refusal to submit to testing, he or she cannot be punished for
the refusal to submit to a breath or blood test. Morales then asserts that because his
consent to the blood draw was effectively a rescission, he cannot be punished for refusal
to submit to a breath or blood test.

After Morales filed his brief, the KDOR moved for summary disposition of the
case. In its motion, the KDOR asserted that this court lacks jurisdiction over Morales'
claim because Morales has failed to make a claim that he effectively submitted to testing
based on the blood draw during the administrative hearing or during the trial court trial de
novo. Moreover, the KDOR argued that there is no evidence in the record to support such
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an argument because it was never made below. Finally, the KDOR asserted that no lower
court ever ruled on this issue. The KDOR's brief before this court is nearly identical to its
motion for summary disposition.

In his response to the KDOR's motion for summary disposition, Morales asserted
that he is not making a rescission argument before this court, but he is making this
argument: it "may as well have been" a rescission.

This court denied the KDOR's motion for summary disposition because it was
unclear how the Ryce line of cases applied to administrative appeals involving licensure.

Was There Substantial Competent Evidence to Support the Trial Court's Decision
to Uphold the Suspension of Morales' Driving Privileges?

Morales argues that he should not have been penalized for failing to submit to a
breath test when the refusal was of no legal consequence. In support of his argument,
Morales asserts that acceding to a blood test after he initially refused a breath test was
effectively a rescission of his refusal. He supports this argument by equating the
procedure used to obtain a blood test in this case with the rescission procedure set out in
Standish, 235 Kan. at 902-03. Morales then asserts that because a motorist has no
constitutional right to deny a blood draw once an officer has procured a warrant, a
motorist that is punished for refusing to take a breath test is merely punished for making
the officer go through the proper due process channels to procure a sample.

The KDOR argues that this court lacks subject matter jurisdiction over Morales'
claim relating to rescission because Morales has failed to argue rescission at either the
administrative level or the trial court level.

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This court reviews the trial court's decision in a driver's license suspension case for
substantial competent evidence. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881,
281 P.3d 135 (2012). Evidence is substantially competent when a reasonable person
would accept it as adequate to support a conclusion. State v. Jolly, 301 Kan. 313, 325,
342 P.3d 935 (2015). When reviewing factual findings, appellate courts do not reweigh
evidence, resolve evidentiary conflicts, or make determinations regarding witness
credibility. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).

Jurisdiction

Whether jurisdiction exists is a question of law that this court reviews de novo.
Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015). Subject matter jurisdiction may
be raised at any time, whether for the first time on appeal or even on the appellate court's
own motion. Jahnke v. Blue Cross & Blue Shield of Kansas, 51 Kan. App. 2d 678, 686,
353 P.3d 455 (2015), rev. denied 303 Kan. 1078 (2016). If the trial court lacks
jurisdiction to make a ruling, an appellate court does not acquire jurisdiction over the
subject matter on appeal. Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284
P.3d 337 (2012).

Failure to Preserve the Issue for Judicial Review

The KDOR asserts that this court does not have jurisdiction over Morales'
rescission claim or his "effectively a rescission" claim because Morales "failed to exhaust
his administrative remedies by first raising the rescission issue at his administrative
hearing as required by 2016 Supp. K.S.A. 77-612." In support of its argument, the KDOR
draws a distinction between Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 409-12,
204 P.3d 562 (2009), and Sierra Club v. Mosier, 305 Kan. 1090, 1122-24, 391 P.3d 667
(2017), and asks this court to follow the more recent case of Sierra Club. The KDOR
asserts that Kingsley stands for the proposition that "the exhaustion of administrative
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remedies refers to administrative procedures not to issues," where Sierra Club stands for
the proposition that the exhaustion of remedies refers to individual issues. Such a
distinction is not necessary, however, as Kingsley and Sierra Club are consistent.

In Kingsley, our Supreme Court reviewed a petition from a driver's license
suspension. 288 Kan. at 393-94. The court stated: "[T]he KJRA's exhaustion requirement
applies to administrative procedures, not to individual issues to be reviewed." 288 Kan.
at 409. The court then stated: "The exhaustion requirement . . . is a jurisdictional
prerequisite to the entire petition for judicial review. [Citation omitted.] The failure to
raise an issue at the administrative hearing only bars a district court from reviewing that
particular issue." 288 Kan. at 410. The court further stated: "In an appeal from a
decision by an administrative agency, a party may only argue the issues raised at the
administrative hearing. [Citation omitted.] In turn, a trial court may only review those
issues litigated at the administrative level." 288 Kan. at 411-12. En route to its holding in
Kingsley, the court noted that the KDOR argued that the trial court should not have
considered the issues in Kingsley's petition for review because he had failed to
substantiate those claims with evidence at the administrative hearing. The Kingsley court
further pointed out that the KDOR's argument was more correctly characterized as a
claim that Kingsley had failed to preserve those issues for judicial review. 288 Kan. at
411.

In Sierra Club, our Supreme Court reviewed a petition from the Kansas
Department of Health and Environment regarding emissions standards. 305 Kan. at 1093.
The court held that merely preserving the issue for appeal or making a vague reference to
the issue is not the same as litigating the issue. 305 Kan. at 1123-24. Because Sierra Club
made only a vague reference to its claim during the administrative proceeding, the court
held that the claim should not have been allowed upon review because the party failed to
preserve the issue for appeal. 305 Kan. at 1124.

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Following Kingsley, the KDOR's argument here is more properly categorized as a
claim that the issues were not preserved for judicial review. The trial court did not have
jurisdiction to hear issues that were not litigated at the administrative level. See 288 Kan.
at 411-12. Morales failed to litigate the issue of rescission or "effectively a rescission" at
the administrative level so the trial court would not have had jurisdiction to hear such an
issue if it had been brought before it. Because the trial court lacked jurisdiction to make a
ruling, we do not acquire jurisdiction over the subject matter on appeal. Ryser, 295 Kan.
at 456.

Nevertheless, assuming arguendo that we had subject matter jurisdiction over the
issue of rescission, this court has considered and rejected it in Heitman v. State, No.
108,216, 2013 WL 3455800, at *3 (2013 Kan. App. ) (unpublished opinion) ("[T]he
statutory scheme aims to insure compliance with an officer's testing request, whether for
a single test or multiple tests, and punishes any recalcitrance. That's true even if an officer
ultimately obtains the required blood-alcohol evidence despite a refusal on one of the
requested tests.").

As a result, Morales' argument fails. Accordingly, we dismiss for a lack of
jurisdiction.

Appeal dismissed.