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State v. Schuster5/31/2002
Affirmed.
The State appeals, pursuant to K.S.A. 2001 Supp. 22-3602, from the district court's order granting Bradley Schuster's motion to dismiss the underage DUI charge against him. The district court concluded that K.S.A. 8-1567a does not establish a criminal offense. The court transferred the case from the Court of Appeals. K.S.A. 20-3018(c).
On March 24, 2001, Bradley Schuster, who was less than 21 years of age, was ticketed for operating a vehicle with a breath alcohol content greater than .02 but less than .08. Arraignment time and place were stated on the complaint. Before the appearance date, Schuster, through counsel, entered a plea of not guilty in writing.
Later, Schuster filed a motion to dismiss the charge of underage DUI in violation of K.S.A. 8-1567a. Relying on Attorney General Opinion No. 97-69, he argued that the statute provides for administrative action by the Kansas Department of Revenue (Revenue) but does not establish a criminal offense. He further stated that "the Kansas Department of Revenue has already commenced and concluded a proceeding pursuant to statute on this matter and the Administrative Judge has rendered her decision so that the State is collaterally estopped from relitigating the issue."
The district court agreed that K.S.A. 8-1567a does not create a criminal offense. The district court ordered that the charge of underage DUI against Schuster be dismissed.
K.S.A. 8-1567a(a) provides: "It shall be unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or greater." When Schuster was ticketed in March 2001, subsection (f) of K.S.A. 2000 Supp. 8-1567a provided:
"If a person less than 21 years of age submits to a breath or blood alcohol test requested pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto, and produces a test result of .02 or greater, but less than .08, the person's driving privileges shall be suspended for one year."
Subsection (h) of K.S.A. 8-1567a, which prohibits a first occurrence of underage breath or blood alcohol content between .02 and .08 from being considered for insurance purposes, refers to the administrative proceeding:
"Any determination under this section that a person less than 21 years of age had a test result of .02 or greater, but less than .08, and any resulting administrative action upon the person's driving privileges, upon the first occurrence of such test result and administrative action, shall not be considered by any insurance company in determining the rate charged for any automobile liability insurance policy or whether to cancel any such policy under the provisions of subsection (4)(a) of K.S.A. 40-277 and amendments thereto."
K.S.A. 8-1015(a) provides:
"When subsection (b)(1) of K.S.A. 8-1014, and amendments thereto, requires or authorizes the division to place restrictions on a person's driving privileges, the division shall restrict the person's driving privileges to driving only under the circumstances provided by subsections (a)(1), (2), (3) and (4) of K.S.A. 8-292 and amendments thereto."
K.S.A. 8-1014(b)(1) provides in part that "if a person fails a test . . ., the division shall . . . n the person's first occurrence, suspend the person's driving privileges for 30 days, then restrict the person's driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days."
The sole question on appeal is whether K.S.A. 8-1567a establishes a criminal offense. The resolution of this issue raised by the State requires the construction an
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