Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1020.Administrative hearing; requirements;
procedure.
(a) Any licensee served with an officer's certification
and
notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto, may
request an administrative hearing. Such request may be made either by:
(1) Mailing a written request which is postmarked 10 days
after
service of notice; or
(2) transmitting a written request by electronic facsimile which is
received
by the division within 10 days after service of notice.
(b) If the licensee makes a timely request for an administrative hearing, any
temporary license issued pursuant to K.S.A. 8-1002, and amendments thereto,
shall remain in effect until the 30th day after the effective
date of
the decision made by the division.
(c) If the licensee fails to make a timely request for an administrative
hearing, the licensee's driving privileges shall be suspended or suspended and
then restricted in accordance with the notice of suspension served pursuant to
K.S.A. 8-1002, and amendments thereto.
(d) Upon receipt of a timely request for a hearing, the division shall
forthwith set the matter for hearing before a representative of the director
and
provide notice of the extension of temporary driving privileges. The hearing
shall be held by telephone conference call unless the hearing request includes
a request that the hearing be held in person before a representative of the
director. The officer's certification and notice of suspension shall inform the
licensee of the availability of a hearing before a representative of the
director. Except for a
hearing conducted by telephone conference call, the hearing
shall be conducted in the county where the arrest occurred or a county adjacent
thereto.
(e) Except as provided in subsection (f), prehearing discovery shall be
limited to the following documents, which shall be provided to the licensee or
the licensee's attorney no later than five days prior to the
date of
hearing:
(1) The officer's certification and notice of suspension;
(2) in the case of a breath or blood test failure, copies of documents
indicating the result of any evidentiary breath or blood test administered at
the request of a law enforcement officer;
(3) in the case of a breath test failure, a copy of the affidavit showing
certification of the officer and the instrument; and
(4) in the case of a breath test failure, a copy of the Kansas department of
health and environment testing protocol checklist.
(f) At or prior to the time the notice of hearing is sent, the division shall
issue an order allowing the licensee or the licensee's attorney to review any
video or audio tape record made of the events upon which the administrative
action is based. Such review shall take place at a reasonable time designated
by the law enforcement agency and shall be made at the location where the video
or audio
tape is kept. The licensee may obtain a copy of any such video or audio tape
upon request and upon payment of a reasonable fee to the law enforcement
agency, not to exceed $25 per tape.
(g) Witnesses at the hearing shall be limited to the licensee, to any law
enforcement officer who signed the certification form and to one other witness
who was present at the time of the issuance of the certification and called by
the licensee. The presence of the
certifying officer or officers shall not be required, unless requested by the
licensee at the time of making the request for the hearing. The examination of
a law enforcement officer shall be restricted to the factual circumstances
relied upon in the officer's certification.
(h) (1) If the officer certifies that the person refused the test, the
scope of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating or attempting to operate a vehicle while under the influence of
alcohol or drugs, or both, or had been driving a commercial motor vehicle, as
defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or
other drugs in such person's system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto; and
(D) the person refused to submit to and complete a test as requested by a law
enforcement officer.
(2) If the officer certifies that the person failed a breath test, the scope
of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs, or both,
or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and amendments thereto, while having alcohol or other drugs in such person's
system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of
health and environment;
(E) the person who operated the testing equipment was certified by the Kansas
department of health and environment;
(F) the testing procedures used substantially complied with the procedures
set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration
of .08 or greater in such person's breath; and
(H) the person was operating or attempting to operate a vehicle.
(3) If the officer certifies that the person failed a blood test, the scope
of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs, or both,
or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and amendments thereto, while having alcohol or other drugs in such person's
system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was reliable;
(E) the person who operated the testing equipment was qualified;
(F) the testing procedures used were reliable;
(G) the test result determined that the person had an alcohol concentration
of .08 or greater in such person's blood; and
(H) the person was operating or attempting to operate a vehicle.
(i) At a hearing pursuant to this section, or upon court review of an order
entered at such a hearing, an affidavit of the custodian of records at the
Kansas department of health and environment stating that the breath testing
device was certified and the operator of such device was certified on the date
of the test shall be admissible into evidence in the same manner and with the
same force and effect as if the certifying officer or employee of the Kansas
department of health and environment had testified in person. A certified
operator of a breath testing device shall be competent to testify regarding the
proper procedures to be used in conducting the test.
(j) At a hearing pursuant to this section, or upon court review of an order
entered at such a hearing, in which the report of blood test results have been
prepared by the Kansas bureau of investigation or other forensic laboratory of
a state or local law enforcement agency are to be introduced as evidence, the
report, or a copy of the report, of the findings of the forensic examiner shall
be admissible into evidence in the same manner and with the same force and
effect as if the forensic examiner who performed such examination, analysis,
comparison or identification and prepared the report thereon had testified in
person.
(k) At the hearing, the licensee has the burden of proof by a preponderance
of the evidence to show that the facts set out in the officer's certification
are false or insufficient and that the order suspending or suspending and
restricting the licensee's driving privileges should be dismissed.
(l) Evidence at the hearing shall be limited to the following:
(1) The documents set out in subsection (e);
(2) the testimony of the licensee;
(3) the testimony of any certifying officer;
(4) the testimony of any witness present at the time of the issuance of the
certification and called by the licensee;
(5) any affidavits submitted from other witnesses;
(6) any documents submitted by the licensee to show the existence of a
medical condition, as described in K.S.A. 8-1001, and amendments thereto; and
(7) any video or audio tape record of the events upon which the
administrative action is based.
(m) After the hearing, the representative of the director shall enter an
order affirming the order of suspension or suspension and restriction of
driving privileges or for good cause appearing therefor, dismiss the
administrative action. If the representative of the director enters an order
affirming the order of suspension or suspension and restriction of driving
privileges, the suspension or suspension and restriction shall begin on the
30th day after the effective date of the order of suspension or suspension and
restriction. If the person whose privileges are suspended is a nonresident
licensee, the license of the person shall be forwarded to the appropriate
licensing authority in the person's state of residence if the result at the
hearing is adverse to such person or if no timely request for a hearing is
received.
(n) The representative of the director may issue an order at the close of the
hearing or may take the matter under advisement and issue a hearing order at a
later date. If the order is made at the close of the hearing, the licensee or
the licensee's attorney shall be served with a copy of the order by the
representative of the director. If the matter is taken under advisement or if
the hearing was by telephone conference call, the licensee and
any
attorney who appeared at the administrative hearing upon behalf of the licensee
each shall be served with a copy of the hearing order by mail. Any law
enforcement officer who appeared at the hearing also may be mailed a copy of
the hearing order. The effective date of the hearing order shall be the date
upon which the hearing order is served, whether served in person or by mail.
(o) The licensee may file a petition for review of the hearing order pursuant
to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the
licensee shall serve the secretary of revenue with a copy of the petition and
summons. Upon receipt of a copy of the petition for review by the secretary,
the temporary license issued pursuant to subsection (b) shall be extended until
the decision on the petition for review is final.
(p) Such review shall be in accordance with this section and the act for
judicial review and civil enforcement of agency actions. To the extent that
this section and any other provision of law conflicts, this section shall
prevail. The petition for review shall be filed within 10 days after the
effective date of the order. Venue of the action for review is the county where
the person was arrested or the accident occurred, or, if the hearing was not
conducted by telephone conference call, the county where the administrative
proceeding was held. The action for review shall be by trial de novo to the
court and the evidentiary restrictions of subsection (l) shall not apply to the
trial de novo. The court shall take testimony, examine the facts of the case
and determine whether the petitioner is entitled to driving privileges or
whether the petitioner's driving privileges are subject to suspension or
suspension and restriction under the provisions of this act. If the court finds
that the grounds for action by the agency have been met, the court shall affirm
the agency action.
(q) Upon review, the licensee shall have the burden to show that the decision
of the agency should be set aside.
(r) Notwithstanding the requirement to issue a temporary license in K.S.A.
8-1002, and amendments thereto, and the requirements to extend the temporary
license in this section, any such temporary driving privileges are subject to
restriction, suspension, revocation or cancellation as provided in K.S.A.
8-1014, and amendments thereto, or for other cause.
(s) Upon motion by a party, or on the court's own motion, the court may enter
an order restricting the driving privileges allowed by the temporary license
provided for in K.S.A. 8-1002, and amendments thereto, and in this section. The
temporary license also shall be subject to restriction, suspension, revocation
or cancellation, as set out in K.S.A. 8-1014, and amendments thereto, or for
other cause.
(t) The facts found by the hearing officer or by the district court upon a
petition for review shall be independent of the determination of the same or
similar facts in the adjudication of any criminal charges arising out of the
same occurrence. The disposition of those criminal charges shall not affect the
suspension or suspension and restriction to be imposed under this section.
(u) All notices affirming or canceling a suspension under this section, all
notices of a hearing held under this section and all issuances of temporary
driving privileges pursuant to this section shall be sent by first-class mail
and a United States post office certificate of mailing shall be obtained
therefor. All notices so mailed shall be deemed received three days after
mailing, except that this provision shall not apply to any licensee where such
application would result in a manifest injustice.
(v) The provisions of K.S.A. 60-206, and amendments thereto, regarding the
computation of time shall be applicable in determining the time for
requesting an administrative hearing as set out in subsection (a) and to
the time for filing a petition for review pursuant to
subsection (o)
and K.S.A. 8-259, and amendments thereto.
History: L. 2001, ch. 200, § 1;
L. 2007, ch. 181, § 6; July 1.
Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1020.Administrative hearing; requirements;
procedure.
(a) Any licensee served with an officer's certification
and
notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto, may
request an administrative hearing. Such request may be made either by:
(1) Mailing a written request which is postmarked 10 days
after
service of notice; or
(2) transmitting a written request by electronic facsimile which is
received
by the division within 10 days after service of notice.
(b) If the licensee makes a timely request for an administrative hearing, any
temporary license issued pursuant to K.S.A. 8-1002, and amendments thereto,
shall remain in effect until the 30th day after the effective
date of
the decision made by the division.
(c) If the licensee fails to make a timely request for an administrative
hearing, the licensee's driving privileges shall be suspended or suspended and
then restricted in accordance with the notice of suspension served pursuant to
K.S.A. 8-1002, and amendments thereto.
(d) Upon receipt of a timely request for a hearing, the division shall
forthwith set the matter for hearing before a representative of the director
and
provide notice of the extension of temporary driving privileges. The hearing
shall be held by telephone conference call unless the hearing request includes
a request that the hearing be held in person before a representative of the
director. The officer's certification and notice of suspension shall inform the
licensee of the availability of a hearing before a representative of the
director. Except for a
hearing conducted by telephone conference call, the hearing
shall be conducted in the county where the arrest occurred or a county adjacent
thereto.
(e) Except as provided in subsection (f), prehearing discovery shall be
limited to the following documents, which shall be provided to the licensee or
the licensee's attorney no later than five days prior to the
date of
hearing:
(1) The officer's certification and notice of suspension;
(2) in the case of a breath or blood test failure, copies of documents
indicating the result of any evidentiary breath or blood test administered at
the request of a law enforcement officer;
(3) in the case of a breath test failure, a copy of the affidavit showing
certification of the officer and the instrument; and
(4) in the case of a breath test failure, a copy of the Kansas department of
health and environment testing protocol checklist.
(f) At or prior to the time the notice of hearing is sent, the division shall
issue an order allowing the licensee or the licensee's attorney to review any
video or audio tape record made of the events upon which the administrative
action is based. Such review shall take place at a reasonable time designated
by the law enforcement agency and shall be made at the location where the video
or audio
tape is kept. The licensee may obtain a copy of any such video or audio tape
upon request and upon payment of a reasonable fee to the law enforcement
agency, not to exceed $25 per tape.
(g) Witnesses at the hearing shall be limited to the licensee, to any law
enforcement officer who signed the certification form and to one other witness
who was present at the time of the issuance of the certification and called by
the licensee. The presence of the
certifying officer or officers shall not be required, unless requested by the
licensee at the time of making the request for the hearing. The examination of
a law enforcement officer shall be restricted to the factual circumstances
relied upon in the officer's certification.
(h) (1) If the officer certifies that the person refused the test, the
scope of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating or attempting to operate a vehicle while under the influence of
alcohol or drugs, or both, or had been driving a commercial motor vehicle, as
defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or
other drugs in such person's system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto; and
(D) the person refused to submit to and complete a test as requested by a law
enforcement officer.
(2) If the officer certifies that the person failed a breath test, the scope
of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs, or both,
or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and amendments thereto, while having alcohol or other drugs in such person's
system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of
health and environment;
(E) the person who operated the testing equipment was certified by the Kansas
department of health and environment;
(F) the testing procedures used substantially complied with the procedures
set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration
of .08 or greater in such person's breath; and
(H) the person was operating or attempting to operate a vehicle.
(3) If the officer certifies that the person failed a blood test, the scope
of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs, or both,
or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and amendments thereto, while having alcohol or other drugs in such person's
system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was reliable;
(E) the person who operated the testing equipment was qualified;
(F) the testing procedures used were reliable;
(G) the test result determined that the person had an alcohol concentration
of .08 or greater in such person's blood; and
(H) the person was operating or attempting to operate a vehicle.
(i) At a hearing pursuant to this section, or upon court review of an order
entered at such a hearing, an affidavit of the custodian of records at the
Kansas department of health and environment stating that the breath testing
device was certified and the operator of such device was certified on the date
of the test shall be admissible into evidence in the same manner and with the
same force and effect as if the certifying officer or employee of the Kansas
department of health and environment had testified in person. A certified
operator of a breath testing device shall be competent to testify regarding the
proper procedures to be used in conducting the test.
(j) At a hearing pursuant to this section, or upon court review of an order
entered at such a hearing, in which the report of blood test results have been
prepared by the Kansas bureau of investigation or other forensic laboratory of
a state or local law enforcement agency are to be introduced as evidence, the
report, or a copy of the report, of the findings of the forensic examiner shall
be admissible into evidence in the same manner and with the same force and
effect as if the forensic examiner who performed such examination, analysis,
comparison or identification and prepared the report thereon had testified in
person.
(k) At the hearing, the licensee has the burden of proof by a preponderance
of the evidence to show that the facts set out in the officer's certification
are false or insufficient and that the order suspending or suspending and
restricting the licensee's driving privileges should be dismissed.
(l) Evidence at the hearing shall be limited to the following:
(1) The documents set out in subsection (e);
(2) the testimony of the licensee;
(3) the testimony of any certifying officer;
(4) the testimony of any witness present at the time of the issuance of the
certification and called by the licensee;
(5) any affidavits submitted from other witnesses;
(6) any documents submitted by the licensee to show the existence of a
medical condition, as described in K.S.A. 8-1001, and amendments thereto; and
(7) any video or audio tape record of the events upon which the
administrative action is based.
(m) After the hearing, the representative of the director shall enter an
order affirming the order of suspension or suspension and restriction of
driving privileges or for good cause appearing therefor, dismiss the
administrative action. If the representative of the director enters an order
affirming the order of suspension or suspension and restriction of driving
privileges, the suspension or suspension and restriction shall begin on the
30th day after the effective date of the order of suspension or suspension and
restriction. If the person whose privileges are suspended is a nonresident
licensee, the license of the person shall be forwarded to the appropriate
licensing authority in the person's state of residence if the result at the
hearing is adverse to such person or if no timely request for a hearing is
received.
(n) The representative of the director may issue an order at the close of the
hearing or may take the matter under advisement and issue a hearing order at a
later date. If the order is made at the close of the hearing, the licensee or
the licensee's attorney shall be served with a copy of the order by the
representative of the director. If the matter is taken under advisement or if
the hearing was by telephone conference call, the licensee and
any
attorney who appeared at the administrative hearing upon behalf of the licensee
each shall be served with a copy of the hearing order by mail. Any law
enforcement officer who appeared at the hearing also may be mailed a copy of
the hearing order. The effective date of the hearing order shall be the date
upon which the hearing order is served, whether served in person or by mail.
(o) The licensee may file a petition for review of the hearing order pursuant
to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the
licensee shall serve the secretary of revenue with a copy of the petition and
summons. Upon receipt of a copy of the petition for review by the secretary,
the temporary license issued pursuant to subsection (b) shall be extended until
the decision on the petition for review is final.
(p) Such review shall be in accordance with this section and the act for
judicial review and civil enforcement of agency actions. To the extent that
this section and any other provision of law conflicts, this section shall
prevail. The petition for review shall be filed within 10 days after the
effective date of the order. Venue of the action for review is the county where
the person was arrested or the accident occurred, or, if the hearing was not
conducted by telephone conference call, the county where the administrative
proceeding was held. The action for review shall be by trial de novo to the
court and the evidentiary restrictions of subsection (l) shall not apply to the
trial de novo. The court shall take testimony, examine the facts of the case
and determine whether the petitioner is entitled to driving privileges or
whether the petitioner's driving privileges are subject to suspension or
suspension and restriction under the provisions of this act. If the court finds
that the grounds for action by the agency have been met, the court shall affirm
the agency action.
(q) Upon review, the licensee shall have the burden to show that the decision
of the agency should be set aside.
(r) Notwithstanding the requirement to issue a temporary license in K.S.A.
8-1002, and amendments thereto, and the requirements to extend the temporary
license in this section, any such temporary driving privileges are subject to
restriction, suspension, revocation or cancellation as provided in K.S.A.
8-1014, and amendments thereto, or for other cause.
(s) Upon motion by a party, or on the court's own motion, the court may enter
an order restricting the driving privileges allowed by the temporary license
provided for in K.S.A. 8-1002, and amendments thereto, and in this section. The
temporary license also shall be subject to restriction, suspension, revocation
or cancellation, as set out in K.S.A. 8-1014, and amendments thereto, or for
other cause.
(t) The facts found by the hearing officer or by the district court upon a
petition for review shall be independent of the determination of the same or
similar facts in the adjudication of any criminal charges arising out of the
same occurrence. The disposition of those criminal charges shall not affect the
suspension or suspension and restriction to be imposed under this section.
(u) All notices affirming or canceling a suspension under this section, all
notices of a hearing held under this section and all issuances of temporary
driving privileges pursuant to this section shall be sent by first-class mail
and a United States post office certificate of mailing shall be obtained
therefor. All notices so mailed shall be deemed received three days after
mailing, except that this provision shall not apply to any licensee where such
application would result in a manifest injustice.
(v) The provisions of K.S.A. 60-206, and amendments thereto, regarding the
computation of time shall be applicable in determining the time for
requesting an administrative hearing as set out in subsection (a) and to
the time for filing a petition for review pursuant to
subsection (o)
and K.S.A. 8-259, and amendments thereto.
History: L. 2001, ch. 200, § 1;
L. 2007, ch. 181, § 6; July 1.
Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1020.Administrative hearing; requirements;
procedure.
(a) Any licensee served with an officer's certification
and
notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto, may
request an administrative hearing. Such request may be made either by:
(1) Mailing a written request which is postmarked 10 days
after
service of notice; or
(2) transmitting a written request by electronic facsimile which is
received
by the division within 10 days after service of notice.
(b) If the licensee makes a timely request for an administrative hearing, any
temporary license issued pursuant to K.S.A. 8-1002, and amendments thereto,
shall remain in effect until the 30th day after the effective
date of
the decision made by the division.
(c) If the licensee fails to make a timely request for an administrative
hearing, the licensee's driving privileges shall be suspended or suspended and
then restricted in accordance with the notice of suspension served pursuant to
K.S.A. 8-1002, and amendments thereto.
(d) Upon receipt of a timely request for a hearing, the division shall
forthwith set the matter for hearing before a representative of the director
and
provide notice of the extension of temporary driving privileges. The hearing
shall be held by telephone conference call unless the hearing request includes
a request that the hearing be held in person before a representative of the
director. The officer's certification and notice of suspension shall inform the
licensee of the availability of a hearing before a representative of the
director. Except for a
hearing conducted by telephone conference call, the hearing
shall be conducted in the county where the arrest occurred or a county adjacent
thereto.
(e) Except as provided in subsection (f), prehearing discovery shall be
limited to the following documents, which shall be provided to the licensee or
the licensee's attorney no later than five days prior to the
date of
hearing:
(1) The officer's certification and notice of suspension;
(2) in the case of a breath or blood test failure, copies of documents
indicating the result of any evidentiary breath or blood test administered at
the request of a law enforcement officer;
(3) in the case of a breath test failure, a copy of the affidavit showing
certification of the officer and the instrument; and
(4) in the case of a breath test failure, a copy of the Kansas department of
health and environment testing protocol checklist.
(f) At or prior to the time the notice of hearing is sent, the division shall
issue an order allowing the licensee or the licensee's attorney to review any
video or audio tape record made of the events upon which the administrative
action is based. Such review shall take place at a reasonable time designated
by the law enforcement agency and shall be made at the location where the video
or audio
tape is kept. The licensee may obtain a copy of any such video or audio tape
upon request and upon payment of a reasonable fee to the law enforcement
agency, not to exceed $25 per tape.
(g) Witnesses at the hearing shall be limited to the licensee, to any law
enforcement officer who signed the certification form and to one other witness
who was present at the time of the issuance of the certification and called by
the licensee. The presence of the
certifying officer or officers shall not be required, unless requested by the
licensee at the time of making the request for the hearing. The examination of
a law enforcement officer shall be restricted to the factual circumstances
relied upon in the officer's certification.
(h) (1) If the officer certifies that the person refused the test, the
scope of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating or attempting to operate a vehicle while under the influence of
alcohol or drugs, or both, or had been driving a commercial motor vehicle, as
defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or
other drugs in such person's system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto; and
(D) the person refused to submit to and complete a test as requested by a law
enforcement officer.
(2) If the officer certifies that the person failed a breath test, the scope
of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs, or both,
or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and amendments thereto, while having alcohol or other drugs in such person's
system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of
health and environment;
(E) the person who operated the testing equipment was certified by the Kansas
department of health and environment;
(F) the testing procedures used substantially complied with the procedures
set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration
of .08 or greater in such person's breath; and
(H) the person was operating or attempting to operate a vehicle.
(3) If the officer certifies that the person failed a blood test, the scope
of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person
was operating a vehicle while under the influence of alcohol or drugs, or both,
or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and amendments thereto, while having alcohol or other drugs in such person's
system;
(B) the person was in custody or arrested for an alcohol or drug related
offense or was involved in a vehicle accident or collision resulting in
property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and
written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was reliable;
(E) the person who operated the testing equipment was qualified;
(F) the testing procedures used were reliable;
(G) the test result determined that the person had an alcohol concentration
of .08 or greater in such person's blood; and
(H) the person was operating or attempting to operate a vehicle.
(i) At a hearing pursuant to this section, or upon court review of an order
entered at such a hearing, an affidavit of the custodian of records at the
Kansas department of health and environment stating that the breath testing
device was certified and the operator of such device was certified on the date
of the test shall be admissible into evidence in the same manner and with the
same force and effect as if the certifying officer or employee of the Kansas
department of health and environment had testified in person. A certified
operator of a breath testing device shall be competent to testify regarding the
proper procedures to be used in conducting the test.
(j) At a hearing pursuant to this section, or upon court review of an order
entered at such a hearing, in which the report of blood test results have been
prepared by the Kansas bureau of investigation or other forensic laboratory of
a state or local law enforcement agency are to be introduced as evidence, the
report, or a copy of the report, of the findings of the forensic examiner shall
be admissible into evidence in the same manner and with the same force and
effect as if the forensic examiner who performed such examination, analysis,
comparison or identification and prepared the report thereon had testified in
person.
(k) At the hearing, the licensee has the burden of proof by a preponderance
of the evidence to show that the facts set out in the officer's certification
are false or insufficient and that the order suspending or suspending and
restricting the licensee's driving privileges should be dismissed.
(l) Evidence at the hearing shall be limited to the following:
(1) The documents set out in subsection (e);
(2) the testimony of the licensee;
(3) the testimony of any certifying officer;
(4) the testimony of any witness present at the time of the issuance of the
certification and called by the licensee;
(5) any affidavits submitted from other witnesses;
(6) any documents submitted by the licensee to show the existence of a
medical condition, as described in K.S.A. 8-1001, and amendments thereto; and
(7) any video or audio tape record of the events upon which the
administrative action is based.
(m) After the hearing, the representative of the director shall enter an
order affirming the order of suspension or suspension and restriction of
driving privileges or for good cause appearing therefor, dismiss the
administrative action. If the representative of the director enters an order
affirming the order of suspension or suspension and restriction of driving
privileges, the suspension or suspension and restriction shall begin on the
30th day after the effective date of the order of suspension or suspension and
restriction. If the person whose privileges are suspended is a nonresident
licensee, the license of the person shall be forwarded to the appropriate
licensing authority in the person's state of residence if the result at the
hearing is adverse to such person or if no timely request for a hearing is
received.
(n) The representative of the director may issue an order at the close of the
hearing or may take the matter under advisement and issue a hearing order at a
later date. If the order is made at the close of the hearing, the licensee or
the licensee's attorney shall be served with a copy of the order by the
representative of the director. If the matter is taken under advisement or if
the hearing was by telephone conference call, the licensee and
any
attorney who appeared at the administrative hearing upon behalf of the licensee
each shall be served with a copy of the hearing order by mail. Any law
enforcement officer who appeared at the hearing also may be mailed a copy of
the hearing order. The effective date of the hearing order shall be the date
upon which the hearing order is served, whether served in person or by mail.
(o) The licensee may file a petition for review of the hearing order pursuant
to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the
licensee shall serve the secretary of revenue with a copy of the petition and
summons. Upon receipt of a copy of the petition for review by the secretary,
the temporary license issued pursuant to subsection (b) shall be extended until
the decision on the petition for review is final.
(p) Such review shall be in accordance with this section and the act for
judicial review and civil enforcement of agency actions. To the extent that
this section and any other provision of law conflicts, this section shall
prevail. The petition for review shall be filed within 10 days after the
effective date of the order. Venue of the action for review is the county where
the person was arrested or the accident occurred, or, if the hearing was not
conducted by telephone conference call, the county where the administrative
proceeding was held. The action for review shall be by trial de novo to the
court and the evidentiary restrictions of subsection (l) shall not apply to the
trial de novo. The court shall take testimony, examine the facts of the case
and determine whether the petitioner is entitled to driving privileges or
whether the petitioner's driving privileges are subject to suspension or
suspension and restriction under the provisions of this act. If the court finds
that the grounds for action by the agency have been met, the court shall affirm
the agency action.
(q) Upon review, the licensee shall have the burden to show that the decision
of the agency should be set aside.
(r) Notwithstanding the requirement to issue a temporary license in K.S.A.
8-1002, and amendments thereto, and the requirements to extend the temporary
license in this section, any such temporary driving privileges are subject to
restriction, suspension, revocation or cancellation as provided in K.S.A.
8-1014, and amendments thereto, or for other cause.
(s) Upon motion by a party, or on the court's own motion, the court may enter
an order restricting the driving privileges allowed by the temporary license
provided for in K.S.A. 8-1002, and amendments thereto, and in this section. The
temporary license also shall be subject to restriction, suspension, revocation
or cancellation, as set out in K.S.A. 8-1014, and amendments thereto, or for
other cause.
(t) The facts found by the hearing officer or by the district court upon a
petition for review shall be independent of the determination of the same or
similar facts in the adjudication of any criminal charges arising out of the
same occurrence. The disposition of those criminal charges shall not affect the
suspension or suspension and restriction to be imposed under this section.
(u) All notices affirming or canceling a suspension under this section, all
notices of a hearing held under this section and all issuances of temporary
driving privileges pursuant to this section shall be sent by first-class mail
and a United States post office certificate of mailing shall be obtained
therefor. All notices so mailed shall be deemed received three days after
mailing, except that this provision shall not apply to any licensee where such
application would result in a manifest injustice.
(v) The provisions of K.S.A. 60-206, and amendments thereto, regarding the
computation of time shall be applicable in determining the time for
requesting an administrative hearing as set out in subsection (a) and to
the time for filing a petition for review pursuant to
subsection (o)
and K.S.A. 8-259, and amendments thereto.
History: L. 2001, ch. 200, § 1;
L. 2007, ch. 181, § 6; July 1.