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Soza v. Kansas Dep't of Revenue Division of Vehicles11/12/2004
Affirmed.
Robert Soza appeals the district court's grant of summary judgment and dismissal in favor of the Kansas Department of Revenue, Division of Vehicles (KDOR), on his appeal of an administrative order suspending his driver's license. Soza claims that issues "reserved" at the administrative hearing precluded summary judgment against him. We disagree and affirm.
Factual and Procedural Overview
In connection with his arrest for suspicion of driving under the influence , Soza was allegedly served with an Officer's Certification and Notice of Suspension (DC-27 Form) which set forth the procedure for requesting an administrative hearing, stating in material part:
"The hearing request must state whether you want to have the certifying officer(s) subpoenaed to the administrative hearing. If you wish to contest the facts contained in the officer's certification at the administrative hearing, you have the burden of disproving those facts, and you may need to compel the appearance of certifying officer(s) to do so. If you fail to request any officer's attendance at the time you make a hearing request, your right to compel that attendance by subpoena will be deemed waived and the Law Enforcement Officer's certification will be admitted as evidence at the hearing."
Soza mailed a written request for an administrative hearing to the address specified on the form, but he failed to make a request to subpoena the certifying officer at the time of his request.
Soza appeared at the administrative hearing with counsel, but no other witnesses were present. According to Soza, the hearing officer told him that because the certifying officer was not subpoenaed, the certification form would be admitted into evidence and Soza's license would be suspended, whether or not Soza testified. Soza requested a continuance in order that the certifying officer could be subpoenaed, but the hearing officer denied this request. Thereafter, Soza elected not to testify or present evidence because the hearing officer had advised him that his license would be suspended in any event. Soza's attorney, however, informed the hearing officer that all issues were "reserved" for appeal. The hearing officer affirmed the suspension of Soza's driving privileges. On the hearing notes, the hearing officer wrote "reserved" beside all but one issue, but also noted an issue of "whether served."
Soza filed a petition for review with the district court, setting out eight issues, including whether the officer personally served the DC-27 form and whether the hearing officer erred in denying Soza's request to continue the hearing and subpoena the certifying officer. KDOR moved for summary judgment, arguing that because Soza did not preserve any issues at the administrative hearing, the district court was without jurisdiction to hear his case. In response, Soza admitted that he did not put on evidence or testify in the hearing. The court granted KDOR's motion, finding that in order to perfect issues for appeal, Soza was required to provide some evidence as to each issue which would support his position. The court concluded that Soza failed to raise any issue at the administrative hearing, and because the court had no jurisdiction to consider issues not raised below, KDOR was entitled to judgment as a matter of law.
Standard of Review
In a motor vehicle license suspension case, the standard of review used by the district court is set forth by K.S.A. 8-259. Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 233, 32 P.3d 705 (2001). "In the case of review of an order of suspension under K.S.A. 8-1001 et seq., and amendments thereto . . . he action for review
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