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May 13, 2016, Appellate Court Digests
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Kansas Court of Appeals – Civil

Administrative law; Drivers license; Statutory interpretation
Cullison v. Department of Revenue
Seward District Court – Reversed
No. 114,170 – May 13, 2016

FACTS: A law enforcement officer observed Cullison sitting on a running motorcycle. As the officer approached, Cullison manually reversed the motorcycle then began to move forward with the headlight on and the clutch engaged. The officer smelled alcohol and noticed Cullison's slurred speech and glassy eyes, which prompted him to administer field sobriety tests. After Cullison failed to perform adequately on those tests, and after he failed the preliminary breath test he was taken to jail. A breath test revealed that Cullison's breath alcohol level was well over the legal limit. The Kansas Department of Revenue (KDR) suspended Cullison's driver's license as a result of the incident. Cullison's appeal to the KDR was rejected. He then appealed to the district court, arguing that he was not operating his motorcycle at the time he was stopped because while it ran, the motorcycle was not driveable due to mechanical issues. The district court affirmed the suspension, finding that Cullison failed to prove that the officer lacked reasonable grounds to believe that Cullison was operating or attempting to operate a motorcycle. Cullison appealed that finding to the court of appeals.

ISSUE: Whether a driver attempting to operate a motor vehicle may have a driver's license suspended after a failed breath alcohol test

HELD: Under the plain language of the statute, KDR is authorized to suspend a driver's license only if the driver fails the breath test and the officer certifies that there were reasonable grounds to believe that the driver was "operating a vehicle" while under the influence. This is different from a situation where a driver refuses a breath test; under that scenario, the officer can certify that the driver was operating or attempting to operate a motor vehicle. In this case, the officer certified that Cullison was operating the vehicle. In the absence of sufficient evidence of operation, and given the clear statutory language, the district court erred when it upheld the suspension of Cullison's driving privileges.

STATUTE: K.S.A. 2015 Supp. 8-1001(b)(1), -1002(a)(1)(A), -1002(a)(2)(A), -1002(f), -1020, -1020(h), -1020(h)(1)(A), -1020(h)(2)

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