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Schoen v. Kansas Dep't of Revenue8/15/2003
he results of an Intoxilyzer breath test, then failure to strictly follow the protocol makes the evidence inadmissible. Schoen relies on language from this court's decision in Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 185, 959 P.2d 940 (1998), about reliance on KDHE protocol.
Schoen's argument is without merit because it fails to consider the provisions of K.S.A. 8-1020, which became effective July 1, 2001. This statute governs driver's license suspension administrative hearings. Pursuant to K.S.A. 8-1020(h)(2)(F), if the officer certifies that the person failed a breath test, the scope of the hearing is limited to whether "the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment." (Emphasis added.) Previously, the standard was whether "the testing procedures used were reliable." K.S.A. 2000 Supp. 8-1002(h)(2)(F). Thus, "substantial compliance" is now the rule in determining whether an officer followed the breath testing procedures set out by the KDHE. Furthermore, pursuant to K.S.A. 8-1020(q), upon review in district court, a licensee has the burden to show that the decision of the agency should be set aside.
Here, Enyeart admitted that he failed to visually check the tubing running from the simulator solution to the Intoxilyzer 5000 to make sure it was properly attached. However, Enyeart further testified that he could hear that the machine was operating normally. Enyeart testified that based upon his experience, he would have heard a difference if the tubing was not properly attached. Enyeart further testified that if the tubing was not properly attached, the machine would not even operate.
In considering Enyeart's testimony, the district court stated: "The protocol doesn't require that he have to physically look at all those things, it just requires that he check, and check is a broad term that can be used to indicate the officer used any of his five senses in order to make certain the machine was running." The journal entry reflecting the court's ruling indicated that the testing procedures "substantially complied" with KDHE procedures. Based upon this correct standard, we conclude the district court's finding in this matter was supported by substantial competent evidence.
Finally, Schoen contends the district court was collaterally estopped from admitting the Intoxilyzer evidence in the driver's license suspension case after the district court suppressed the same evidence in the criminal case. We first observe that the record on appeal in this case contains nothing from the related criminal case, which precludes meaningful appellate review of this issue. Furthermore, it has been held that the KDR in a driver's license suspension case is not in privity with the State of Kansas in a criminal prosecution for driving under the influence of alcohol so as to invoke the doctrine of collateral estoppel. Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 458-64, 980 P.2d 1022 (1999).
Affirmed.
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