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State v. Schuster5/31/2002
arch 21, 1996. For our purposes, the main distinction between the two bills was that the Senate substitute contained a new section using the language ' t shall be unlawful' for any person less than 21 years of age to operate or attempt to operate a vehicle with a breath or blood alcohol content of .02 or greater. S. Sub. for H.B. 2603, § 1. However, there was no mention in the minutes that the Senate intended to reinsert any criminal sanctions for violation of the law, and the amendments to K.S.A. 8-1567 were not made a part of the Senate substitute bill. [While not available at the time K.S.A. 1996 Supp. 8-1567a was being debated, the federal regulations make clear that criminal sanctions are not required for compliance with the federal 'zero tolerance' requirement. 23 C.F.R. § 1210.4(c) (revised as of April 1, 1997).]" Att'y Gen. Op. No. 97-69, pp. 4-5.
The Court of Appeals in Badgley v. Kansas Driver Control Bureau, 27 Kan. App. 2d 557, Syl. 1, 7 P.3d 326, rev. denied 270 Kan. ___ (2000), started from the premise that the Kansas Department of Revenue, rather than the courts, is authorized to restrict driving privileges. The Court of Appeals stated that " nder K.S.A. 1999 Supp. 8-1015, only the Kansas Department of Revenue is authorized to place restrictions on a person's driving privileges." 27 Kan. App. 2d 557, Syl. 1. The question was whether on an appeal of the administrative action the district court has jurisdiction to alter the restrictions. The Court of Appeals concluded that " he district court does not have jurisdiction to modify the restrictions imposed on a person's driving privileges by the Kansas Department of Revenue under K.S.A. 1999 Supp. 8-1015." 27 Kan. App. 2d 557, Syl. 2.
In Badgley, the district court based its decision on the rationale of Beckley v. Motor Vehicle Department, 197 Kan. 289, 294, 416 P.2d 750 (1966). 27 Kan. App. 2d at 559. The Court of Appeals in Badgley quoted with approval the following from the district court's decision:
"'In Beckley, the District Court found that a test refusal had occurred, but entered an order reducing the period of suspension to thirty (30) days as opposed to the ninety (90) day suspension imposed by the Department. The Supreme Court reversed, holding that the legislature intended that the Court be limited to a judicial determination of the factual basis upon which the action of the Department is predicated. The Supreme Court stated its rationale at page 294 as follows:
"If the courts were permitted to modify the suspension or revocation of a driver's license ordered by the motor vehicle department by either enlarging or reducing the period, the effectiveness of the administrative body will be destroyed. The administrative body would make initial recommendations to the Court, which would rehear the matter and finally determine the length of suspension or revocation. This could result in confusion, reduplication of effort, and inconsistent penalties administered over the state. The Motor Vehicle Department was initially set up for the purpose of avoiding such problems." (Emphasis added.)'" 27 Kan. at 559.
State v. Wick, 28 Kan. App. 2d 888, 24 P.3d 158 (2001), was an interlocutory appeal by the State from the district court's order suppressing the results of Wick's blood alcohol test. Wick, who was under the age of 21, was charged with involuntary manslaughter while operating a vehicle with a blood alcohol concentration of .08 in violation of K.S.A. 1998 Supp. 21-3442. Wick was read an implied consent advisory, but the district court suppressed the test result on the ground that Wick was not read the implied consent advisory applicable to persons under the age of 21, as required by K.S.A.
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