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Cross v. Kansas Dep't of Revenue4/29/2005
Affirmed.
Aimee Elizabeth Cross was arrested for driving under the influence . Cross agreed to testing and requested an administrative hearing after receiving a notice of suspension. The administrative hearing officer affirmed the suspension, and Cross petitioned the district court for review arguing that K.S.A. 8-1020(g), a limitation on witnesses who may be called for the hearing, denied her due process of law. Cross also contends that the above statute is constitutionally defective on its face. The district court held that Cross was afforded due process in the hearing, denied her claim that K.S.A. 8-1020(g) as applied was unconstitutional, and further held that Cross lacked the standing to facially attack the statute. Cross appealed, and we affirm on our transfer of this case pursuant to K.S.A. 20-3018(c).
On February 15, 2003, Riley County Police Officers Steere and Curtiss were dispatched to a report of a pedestrian vehicle accident and were the first officers to arrive at the scene. Curtiss stayed with the person who had been injured in the accident while Steere spoke with appellant Cross. Officer Asher subsequently arrived at the scene and took witness statements and completed the accident report.
Steere was the first person to speak with Cross and Cross identified herself as the driver of the vehicle. Steere observed the odor of alcoholic beverages coming from Cross, and Cross failed the field sobriety tests Steere administered. Steere observed that Cross had slurred speech, bloodshot eyes, difficulty in communicating, and poor balance or coordination. Cross told Steere that she had drunk a few alcoholic beverages. Steere relied solely upon his own observations and conversation with Cross in determining that he had reasonable grounds to ask her to submit to an evidentiary breath test.
Officer Steere placed Cross under arrest for driving under the influence and transported her to the Law Enforcement Center. Cross consented to a breath test which showed a blood alcohol concentration of .158. Steere completed an officer's certification and notice of suspension, commonly referred to as a DC-27 form, and personally served it upon Cross. Steere was the only officer to complete and sign the form.
On February 17, 2003, Cross requested an administrative hearing, asking that subpoenas duces tecum be issued "for any and all officers who signed or initialed the Law Enforcement Officers' Certification, Form DC-27, to appear and testify." Steere was the only witness subpoenaed to the hearing, which was held on July 18, 2003. No transcript of the hearing is in the record on appeal, making it difficult to determine precisely what arguments were raised. Relevant to this appeal, the hearing notes provided: "Other issues raised: DC-27 not properly completed since other off on paperwork. " The hearing officer affirmed the administrative action to suspend Cross' driving privileges.
On July 25, 2003, Cross timely filed a petition for review in the Riley County District Court. The petition sought review of all issues raised at the hearing, specifically: "That the order suspending plaintiff's driving privileges should be vacated by this Court because the officer did not properly complete the law enforcement officer's certification; the officer lacked probable cause to arrest; the officer failed to follow KDHE [Kansas Department of Health and Environment] protocol regarding breath testing."
On December 5, 2003, a trial de novo was conducted on the petition. Officer Steere was the only witness to testify at the hearing and was examined by both parties. Afterward, the district court heard substantial oral argument wherein Cross' counsel ide
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