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Johnson v. Kansas Department of Revenue7/20/2001
Appeal from Barton District Court; MIKE KEELEY, judge
Reversed and remanded with instructions.
Michael Scott Johnson appeals the district court's order allowing a Kansas Division of Vehicles hearing officer to reconsider and amend Johnson's driver's license suspension after the statutory deadline to appeal such an administrative order. We reverse and remand with instructions to reinstate the original administrative order.
Following an arrest for driving under the influence (DUI), Johnson failed a blood alcohol test. After receiving the law enforcement officer's certification of test failure and suspension of driver's license form, Johnson properly requested and received an administrative hearing on May 19, 1999. That date, the hearing officer issued an administrative order, making findings adverse to Johnson. The order specified Johnson's driver's license was suspended for 30 days and restricted for an additional 330 days (30/330). The document specifically advised Johnson he had 10 days from May 19th to petition for review with the district court.
No appeal was taken from the administrative order. On June 11, 1999, the Director of Vehicles issued a driver's license suspension notice to Johnson, subtitled "ORDER." It indicated the suspension was from May 19 to June 17, 1999, and the restrictions were from June 18, 1999, to May 13, 2000.
On June 25, 1999, the Kansas Department of Revenue (KDR) filed a motion for reconsideration with the hearing examiner. The motion alleged Johnson had a prior DUI diversion in July 1995 and the suspension should have been for 1 year. Johnson objected to the reconsideration. On August 23, 1999, a telephone conference hearing was conducted, and the hearing officer issued an amended order designating a 1-year suspension. The following day, the Director of Vehicles issued a driver's license withdrawal notice indicating a suspension from May 19, 1999, to May 19, 2000.
Johnson effected judicial review of the amended administrative order. In April 2000, the district court issued its memorandum decision, finding in favor of KDR. Johnson timely appeals.
The sole issue raised on appeal is whether the hearing officer had the authority to reconsider the May 19th administrative order. Johnson frames the issue as jurisdictional. Whether the hearing officer had jurisdiction to reconsider the order is a question of law over which this court has unlimited review. See Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). KDR disputes that the issue is jurisdictional but agrees the issue on appeal is legal in nature and subject to de novo review.
The district court found KDR's motion for reconsideration "was nothing more than a motion to correct an illegal disposition," and, therefore, the hearing officer did not lose jurisdiction to correct the illegal suspension. It is unclear how the renaming or recharacterization of KDR's pleading supported the trial court's ruling. KDR also asserts it was merely seeking correction of an illegal order or of a clerical mistake. This is not a criminal case in which jurisdiction exists to correct an illegal sentence at any time. See K.S.A. 22-3504. Even in the criminal arena, the State is barred from subsequently challenging a sentence based on a stipulated but erroneous criminal history. See, e.g. Thompson v. State, 25 Kan. App. 2d 659, 660, 967 P.2d 361 (1998). Here, the 30/330 suspension order was not illegal; it was the statutorily mandated sanction for a first-time offender. KDR wanted to revisit the factual issue of Johnson's driving history.
K.S.A. 2000 Supp. 8-259(a) provides for judicial review of an alcoho
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