Witthuhn v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 115,220

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRANDON WITTHUHN,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed March 10, 2017.
Affirmed.

Donald E. Anderson, II, of Robert A. Anderson Law Office, of Ellinwood, for appellant.

John D. Shultz, of Kansas Department of Revenue, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: Brandon Witthuhn appeals the decision of the Barton County
District Court upholding the suspension of his driver's license because a blood test
showed he was legally intoxicated when he wrecked his motor vehicle. Witthuhn
contends the district court should not have considered the results of the test because the
blood draw amounted to an unconstitutional search and seizure. Witthuhn also contends
the 16-month delay in scheduling the district court trial was inherently unreasonable, so
he should be relieved of the suspension. We find neither argument persuasive and affirm
the district court's ruling suspending Witthuhn's driver's license.

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Given the points Witthuhn raises on appeal, we may set the legal stage with a brief
account of the facts and procedural history. In 2013, Witthuhn had a wreck and suffered
injuries requiring his hospitalization. The Kansas Highway Patrol trooper responding to
the scene of the wreck determined Witthuhn to have been the driver of the vehicle and
recognized signs he had been drinking, including the odor of alcohol. At the hospital,
Witthuhn's blood was drawn. The trooper had a sample of the blood tested to determine
Witthuhn's blood alcohol level. The test showed Witthuhn had a blood alcohol level of
0.14, rendering him legally intoxicated.

The trooper duly advised Witthuhn of the testing protocols and otherwise
informed him of his legal rights regarding the testing. The trooper later prepared a DC-27
form reporting the grounds for requesting the test and the test results. The form was
served on Witthuhn by mail. Witthuhn does not dispute the sufficiency of the paper work
and the notification he received. Based on the test results, the Kansas Department of
Revenue issued an order suspending Witthuhn's driving privileges.

Witthuhn exercised his right to an administrative hearing. The administrative
hearing officer upheld the suspension order. As provided in K.S.A. 2016 Supp. 8-
1020(o), Witthuhn then requested a trial de novo in the district court to challenge the
suspension. The Kansas Judicial Review Act, K.S.A. 77-601 et seq., governs the court
proceedings. Witthuhn filed his petition for review in early July 2014 and identified the
admissibility of the blood test results as the basis for his challenge.

The district court heard the matter in mid-November 2015. At the start of the trial,
Witthuhn stated he also disputed the legal propriety of the trial based on the lapse of time
since he had filed the petition for review. The lawyer representing the Department of
Revenue did not interpose any procedural objection and simply addressed the merits of
the timeliness claim in due course during the trial. The only evidence presented at the
trial was the DC-27 form the Highway Patrol trooper completed. The day after the trial
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the district court issued a memorandum decision denying Witthuhn relief and upholding
the Department's suspension order. Witthuhn has appealed that ruling.

For his first point, Witthuhn fashions an argument based on State v. Declerck, 49
Kan. App. 2d 908, 317 P.3d 794, rev. denied 299 Kan. 1271 (2014), that the blood draw
violated his right to be free of unreasonable government searches and seizures protected
in the Fourth Amendment to the United States Constitution and, as a consequence, the
results of the testing should not have been considered in the suspension proceedings.
What Witthuhn seeks is an application of the exclusionary rule to bar the admission of
the blood alcohol test as evidence against him. But Witthuhn carefully avoids referring to
the exclusionary rule by name.

The exclusionary rule prohibits the government from introducing as evidence
against criminal defendants things seized in violation of their Fourth Amendment rights.
The rule, therefore, theoretically induces law enforcement officers to engage in
constitutionally reasonable searches and seizures so they can later use as evidence
whatever they might find. See State v. Althaus, 49 Kan. App. 2d 210, 219, 305 P.3d 716
(2013). The Kansas Supreme Court has held the exclusionary rule cannot be invoked in
driver's license revocation proceedings to suppress evidence based on Fourth Amendment
violations, since they are civil administrative actions rather than criminal prosecutions.
Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 8, 176 P.3d 938 (2008). The
Martin decision effectively forecloses Witthuhn's argument.

In addition, the only evidence admitted in the district court—the DC-27 form—
furnished probable cause or reasonable grounds for blood-alcohol testing. And that is
sufficient to support use of the test results in a driver's license revocation proceeding. On
appeal, Witthuhn asks us to consider the notes of the administrative hearing officer in
addition to the DC-27 form. But the notes were not offered or admitted as evidence in the
district court trial, so they have no bearing on the district court's decision. And, as we
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have mentioned, the district court conducts a de novo trial, not a review of the
administrative record. On appeal, we consider the district court's ruling in light of the trial
evidence.

Next, Witthuhn argues that the lapse of time between his filing the petition for
review and the de novo trial categorically amounts to an unreasonable delay that, without
anything more, entitles him to be relieved of any administrative suspension. Witthuhn,
however, neither identifies the legal source of his asserted right nor any authority
supporting the notion. Absent a statutory directive establishing a fixed time limit for
holding a trial after the filing of a petition for review—something Witthuhn
acknowledges doesn't exist—we would suppose that, at a minimum, a delay would have
to cause some degree of prejudice to warrant a judicial remedy. See, e.g., Barker v.
Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (prejudice to criminal
defendant considered in assessing constitutional speedy trial violation); In re Care &
Treatment of Ellison, 305 Kan. ___, 385 P.3d 15, 28-29 (2016) (prejudice weighed as
factor in timeliness of trial under Sexually Violent Predator Act, K.S.A. 59-29a01 et
seq.). In this case, we do not presume to fashion some test for measuring impermissible
delay in driver's license revocation proceedings and suggest only that such a test would
require actual prejudice to the licensee.

Here, Witthuhn asserts no actual prejudice. He has not claimed his ability to
present relevant evidence was somehow compromised. Nor has he claimed some kind of
tangible extrajudicial burden or prejudice attendant to the pendency of the revocation
proceedings. Indeed, Witthuhn has retained his driving privileges, albeit on a temporary
basis, during the pendency of the administrative and judicial processes—a period now
stretching to well over 3 years. Accordingly, we decline Witthuhn's invitation to find he
has sustained legally cognizable harm requiring relief simply because he filed his petition
for review in the district court in July 2014 and did not go to trial until November 2015.
We mention in passing that the trial record does not reflect any reasons for that lapse of
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time and Witthuhn did not endeavor to show who might have been responsible for the
delay.

The Department of Revenue contends the district court and, in turn, this court lack
subject matter jurisdiction to consider Witthuhn's timeliness argument because it was not
included in his petition for review. The Kansas Judicial Review Act requires a petitioner
to state in the petition the reasons the district court should grant relief. K.S.A. 2016 Supp.
77-614(b)(6). The statement of reasons is jurisdictional, and the district court lacks the
authority to consider issues not so identified. Kingsley v. Kansas Dept. of Revenue, 288
Kan. 390, 405-06, 204 P.3d 562 (2009). But a petition for review may be amended, and a
district court should freely permit amendments as justice requires. K.S.A. 2016 Supp. 77-
614(c). As we have already indicated, Witthuhn raised his claim for unreasonable delay
at the start of the trial. That amounted to an oral motion to amend his petition to include
the issue. The lawyer for the Department of Revenue did not object to Witthuhn's
assertion of the issue on the grounds the point had not been included in the petition. Nor
did the lawyer suggest he needed a continuance to respond if the district court were to
consider the point. Rather, the lawyer argued against Witthuhn's claim on the merits
alone. We see that as tacit agreement to an oral amendment of the petition, so the district
court had subject matter jurisdiction, as do we.

Having considered both of Witthuhn's arguments, we find the district court
correctly upheld the administrative suspension.

Affirmed.