8-259. Cancellation, suspension, revocation or denial of license by division; judicial review. (a) Except in the case of mandatory revocation under K.S.A. 8-254 or 8-286, and amendments thereto, mandatory suspension for an alcohol or drug-related conviction under subsection (b) of K.S.A. 8-1014, and amendments thereto, mandatory suspension under K.S.A. 8-262, and amendments thereto, or mandatory disqualification of the privilege to drive a commercial motor vehicle under subsection (a)(1)(A), (a)(1)(B), (a)(1)(C), (a)(2)(A), (a)(3)(A) or (a)(3)(B) of K.S.A. 8-2,142, and amendments thereto, the cancellation, suspension, revocation, disqualification or denial of a person's driving privileges by the division is subject to review. Such review shall be in accordance with the Kansas judicial review act. In the case of review of an order of suspension under K.S.A. 8-1001 et seq., and amendments thereto, or of an order of disqualification under subsection (a)(1)(D) of K.S.A. 8-2,142, and amendments thereto, the petition for review shall be filed within 14 days after the effective date of the order and venue of the action for review is the county where the administrative proceeding was held or the county where the person was arrested. In all other cases, the time for filing the petition is as provided by K.S.A. 77-613, and amendments thereto, and venue is the county where the licensee resides. The action for review shall be by trial de novo to the court. 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, cancellation or revocation under the provisions of this act. Unless the petitioner's driving privileges have been extended pursuant to subsection (o) of K.S.A. 8-1020, and amendments thereto, the court on review may grant a stay or other temporary remedy pursuant to K.S.A. 77-616, and amendments thereto, after considering the petitioner's traffic violations record and liability insurance coverage. If a stay is granted, it shall be considered equivalent to any license surrendered. If a stay is not granted, trial shall be set upon 21 days' notice to the legal services bureau of the department of revenue. No stay shall be issued if a person's driving privileges are canceled pursuant to K.S.A. 8-250, and amendments thereto.
(b) The clerk of any court to which an appeal has been taken under this section, within 14 days after the final disposition of such appeal, shall forward a notification of the final disposition to the division.
History: L. 1937, ch. 73, § 26; L. 1949, ch. 104, § 31; L. 1959, ch. 49, § 27; L. 1963, ch. 52, § 2; L. 1985, ch. 47, § 1; L. 1986, ch. 318, § 16; L. 1987, ch. 184, § 1; L. 1988, ch. 47, § 10; L. 1989, ch. 38, § 32; L. 1990, ch. 44, § 2; L. 1991, ch. 36, § 12; L. 1993, ch. 259, § 15; L. 1994, ch. 353, § 3; L. 2005, ch. 31, § 3; L. 2010, ch. 135, § 4; L. 2011, ch. 91, § 2; July 1.
Law Review and Bar Journal References:
Constitutionality of suspension of driver's license for refusal to submit to blood test, Edward Larson, 10 K.L.R. 154 (1961).
Judicial review of administrative decisions, Kenton C. Granger, 33 J.B.A.K. 291, 336 (1964).
Constitutionality discussed, Marion Beatty, 35 J.B.A.K. 15 (1966).
Terms of the suspension in chemical test cases may not be altered; see case annotations 4 and 5 below, William M. Ferguson, 39 J.B.A.K. 351, 355 (1970).
Judicial review of administrative actions, 17 W.L.J. 312, 313, 318, 328 (1978).
"Judicial Review of Administrative Action—Kansas Perspectives," David L. Ryan, 19 W.L.J. 423, 426 (1980).
"Rethinking Kansas Administrative Procedure," Marilyn V. Ainsworth and Sidney A. Shapiro, 28 K.L.R. 419, 444 (1980).
"The New Kansas Drunk Driving Law: A Closer Look," Matthew D. Keenan, 31 K.L.R. 409, 411 (1983).
Attorney General's Opinions:
Drivers' licenses; examinations, seizure disorders. 89-10.
CASE ANNOTATIONS
1. Refusal to take chemical test for intoxication under K.S.A. 8-1001; license suspension and revocation upheld on appeal hereunder. Lee v. State, 187 Kan. 566, 568, 569, 572, 358 P.2d 765.
2. Mentioned; conviction of driving automobile while license suspended; admissibility of exhibit in evidence questioned (dissenting opinion). State v. Harkness, 189 Kan. 581, 588, 370 P.2d 100.
3. Proceedings to determine reasonableness for refusal to submit to blood test is separate action from prosecution for driving while under influence. Hazlett v. Motor Vehicle Department, 195 Kan. 439, 441, 443, 407 P.2d 551.
4. Subsection (a) not in violation of "separation of powers" doctrine; reasonableness of petitioner's failure to submit to blood test is only issue on appeal. Lira v. Billings, 196 Kan. 726, 727, 729, 731, 414 P.2d 13.
5. Court's jurisdiction limited to approving or overruling order, may not modify same. Beckley v. Motor Vehicle Department, 197 Kan. 289, 290, 291, 292, 293, 294, 416 P.2d 750.
6. Subsection (a) provides a limited statutory review, but it does not operate to deprive person of another remedy existing independently. Wilcox v. Billings, 200 Kan. 654, 655, 656, 657, 438 P.2d 108.
7. Mentioned in upholding K.S.A. 8-1001 as a valid exercise of state police power; compulsory blood test involves no testimonial compulsion. Popp v. Motor Vehicle Department, 211 Kan. 763, 764, 508 P.2d 991.
8. Cited in construing K.S.A. 44-1011 as not imposing trial de novo in derogation of constitutional doctrine of separation of powers. Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 97, 510 P.2d 132.
9. Referred to in case construing provisions of K.S.A. 44-1011 concerning trial de novo on appeal (dissenting opinion). Stephens v. Unified School District, 218 Kan. 220, 238, 546 P.2d 197.
10. Section cited; conviction under K.S.A. 8-262 reversed. City of Overland Park v. Rice, 222 Kan. 693, 696, 567 P.2d 1382.
11. Referred to in determining scope of review on appeal from school board decision limited by K.S.A. 60-2101. Brinson v. School District, 223 Kan. 465, 468, 576 P.2d 602.
12. Annulled traffic violation convictions may not be considered for purpose of suspending driving privileges. Myers v. Kansas Division of Vehicles, 3 Kan. App. 2d 437, 438, 596 P.2d 181.
13. Cited; an administrative agency is a proper party to an appeal taken from its quasi-judicial decisions. Board of Johnson County Commissioners v. City of Lenexa, 230 Kan. 632, 635, 640 P.2d 1212 (1982).
14. Division of vehicles required to issue subpoenas to compel arresting officer and relevant witnesses to testify on question of refusing blood chemical test and reasonableness thereof. Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 242, 671 P.2d 547 (1983).
15. Service on department of revenue only pursuant to K.S.A. 60-205 sufficient on appeal of license suspension. In re Gantz, 10 Kan. App. 2d 299, 302, 698 P.2d 385 (1985).
16. Statute must be strictly construed; de novo review provided for still predominantly appellate in nature. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 764, 758 P.2d 226 (1988).
17. Cited; notice provisions of K.S.A. 8-1001 concerning right to independent test as mandatory rather than directory examined. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 210, 755 P.2d 1337 (1988).
18. Cited; regulation setting minimum visual acuity standards required for driver's license as mandatory examined. Vandever v. Kansas Dept. of Revenue, 243 Kan. 693, 696, 763 P.2d 317 (1988).
19. Act for judicial review of agency actions (K.S.A. 77-601 et seq.) found to contain no provision for substantial compliance with service requirement. Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 13, 825 P.2d 172 (1991).
20. De novo review by district court in license suspension cases, requirement that issues be first raised at administrative hearing examined. Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 327, 851 P.2d 1385 (1993).
21. Standard of review in driver's license suspension cases discussed. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 637, 856 P.2d 1357 (1993).
22. Trial court did not err by considering affidavit not admitted during administrative hearing. Zorn v. Kansas Dept. of Revenue, 24 Kan. App. 2d 749, 750, 953 P.2d 1053 (1998).
23. Hearing officer is without jurisdiction to amend suspension order based on motion for reconsideration filed outside the 10-day filing period. Johnson v. Kansas Dept. of Revenue, 29 Kan. App. 2d 455, 27 P.3d 943 (2001).
24. Service of summons not required; court has jurisdiction if licensee files timely appeal and mails a copy to KDR. Pieren-Abbott v. Kansas Dept. of Revenue, 32 Kan. App. 2d 763, 88 P.3d 1236 (2004).
25. Issue not raised at administrative hearing may not be raised at court's de novo review. Soza v. Kansas Dept. of Revenue, 33 Kan. App. 2d 254, 100 P.3d 102 (2004).
26. Although subject to de novo appeal, petition for review must strictly comply with pleading requirements of K.S.A. 77-614(b). Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 787, 148 P.3d 538 (2006).
27. Appellants required to strictly comply with pleading requirements of K.S.A. 77-614 to invoke district court jurisdiction. White v. Kansas Dept. of Revenue, 38 Kan. App. 2d 11, 13, 14, 163 P.3d 320 (2007).
28. Petition for judicial review held to comply with pleading requirements of K.S.A. 77-614(b). Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 204 P.3d 562 (2009).
29. Under K.S.A. 77-614 a petition for judicial review requires petitioner's reasons for relief, not factual bases. Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 204 P.3d 551 (2009).
30. New evidence may be taken in an appeal on the administrative record. Frick v. City of Salina, 289 Kan. 1, 208 P.3d 739 (2009).
31. Ten-day limit for filing petition for review per K.S.A. 8-259 applies to every order of suspension issued pursuant to K.S.A. 8-1001 et seq. Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 213 P.3d 1061 (2009).
32. Breath test failed to substantially comply with KDHE protocol. Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 200 P.3d 496 (2009).
33. District court has no authority to modify the agency's orders relating to suspension. Turner v. Kansas Dept. of Revenue, 46 Kan. App. 2d 841, 264 P.3d 1050 (2011).
34. Hearing officer has no authority to sua sponte reverse a decision dismissing a license suspension hearing once a final order has been entered. Pearson v. Kansas Dept. of Revenue, 56 Kan. App. 2d 369, 381, 430 P.3d 475, 485 (2018).
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