 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cross v. Kansas Dep't of Revenue4/29/2005
th Cross in determining that he had reasonable grounds to ask her to submit to a breath test. Evidence established that other officers at the scene stayed with the injured person, took witness statements, and completed the accident report. Steere arrested Cross, transported her to the law enforcement center, administered the tests, completed the DC-27, and was the only officer to sign the certification form. Under the current law, the certification of the DC-27 was complete upon signing by the certifying officer. See K.S.A. 8-1002(b).
Cross did not testify or present any evidence to the contrary at the hearing or before the district court, nor did she submit affidavits from other witnesses as permitted by K.S.A. 8-1020(l). In the request for admissions before the district court, Cross admitted that she told the officer that she had consumed an alcoholic beverage and that the officer had reasonable grounds to believe she was operating or attempting to operate a vehicle while under the influence of alcohol. This admission alone supports the conclusion that reasonable grounds existed for the officer to ask her to submit to a breath test. While Cross' counsel told the district court that these admissions were merely framing issues since they were not raising this issue before the district court other than regard to her inability to have a fair hearing at the administrative level; no evidence was presented or proffered to contradict the testimony of Officer Steere.
On appeal, Cross asks this court to speculate that "other relevant witnesses" existed who were denied access to her administrative hearing by the operation of K.S.A. 8-1020(g). Without identifying the witnesses below or proffering their testimony at either the administrative hearing or the trial de novo, Cross provides this court with no means to review her claim other than to simply believe that such witnesses existed. However, an appellate court may not speculate as to what may have existed at the time of the hearing but rather must consider the evidence of record and base its decisions on facts in the record.
In light of Officer Steere's uncontradicted testimony, Cross' own admissions, and her mere speculation as to how these other witnesses might testify, Cross has not established that other witnesses were relevant to establish the absence of reasonable grounds to ask her to submit to the test. As the certifying officer, Steere was subject to subpoena under K.S.A. 8-1020(g), and Cross had the opportunity to cross-examine the only officer who made the observations and assessments and administered the breath test.
Based upon the facts of this case, we hold that K.S.A. 8-1020(g), as it applied to Cross, did not deny her due process of law at her administrative hearing. Accordingly, Cross has no standing to make a facial constitutional attack upon the provisions of K.S.A. 8-1020(g). See Thompson, 237 Kan. at 563.
Affirmed.
GERNON, J., not participating.
LARSON, S.J., assigned.
Page 1 2 3 4 5 6 7 8 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|