8-1002.
Test refusal or failure; suspension of license; notice; procedure.
(a) Whenever a test is requested pursuant to this act and results in either a test failure or test refusal, a law enforcement officer's certification shall be prepared. If the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, a separate certification pursuant to K.S.A. 8-2,145, and amendments thereto, shall be prepared in addition to any certification required by this section. The certification required by this section shall be signed by one or more officers to certify:
(1) With regard to a test refusal, that: (A) There existed 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 to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A.
8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (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) With regard to a test failure, that: (A) There existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A.
8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (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 result of the test showed that the person had an alcohol concentration of .08 or greater in such person's blood or breath.
(3) With regard to failure of a breath test, in addition to those matters required to be certified under subsection (a)(2), that: (A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.
(b) For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.
(c) When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A.
8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles. In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension in person or by another designated officer or by mailing the notice to the person at the address provided at the time of the test.
(d) In addition to the information required by subsection (a), the law enforcement officer's certification and notice of suspension shall contain the following information: (1) The person's name, driver's license number and current address; (2) the reason and statutory grounds for the suspension; (3) the date notice is being served and a statement that the effective date of the suspension shall be the 30th
day after the date of service; (4) the right of the person to request an administrative hearing; and (5) the procedure the person must follow to request an administrative hearing. The law enforcement officer's certification and notice of suspension shall also inform the person that: (1) Constitutional issues cannot be decided at the administrative hearing, but may be preserved and raised in a petition for review of the hearing as provided in K.S.A.
8-1020(o) and (p), and amendments thereto; and (2) all correspondence will be mailed to the person at the address contained in the law enforcement officer's certification and notice of suspension unless the person notifies the division in writing of a different address or change of address. The address provided will be considered a change of address for purposes of K.S.A.
8-248, and amendments thereto, if the address furnished is different from that on file with the division.
(e) If a person refuses a test or if a person is still in custody when it is determined that the person has failed a test, the officer shall take any license in the possession of the person and, if the license is not expired, suspended, revoked or canceled, shall issue a temporary license effective until the 30th
day after the date of service set out in the law enforcement officer's certification and notice of suspension. If the test failure is established by a subsequent analysis of a breath or blood sample, the temporary license shall be served together with the copy of the law enforcement officer's certification and notice of suspension. A temporary license issued pursuant to this subsection shall bear the same restrictions and limitations as the license for which it was exchanged. Within seven days after the date of service of a copy of the law enforcement officer's certification and notice of suspension the officer's certification and notice of suspension, along with any licenses taken, shall be forwarded to the division.
(f) Upon receipt of the law enforcement officer's certification, the division shall review the certification to determine that it meets the requirements of subsection (a). Upon so determining, the division shall proceed to suspend the person's driving privileges in accordance with the notice of suspension previously served. If the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.
(g) The division shall prepare and distribute forms for use by law enforcement officers in giving the notice required by this section.
(h) The provisions of K.S.A.
60-206, and amendments thereto, regarding the computation of time shall be applicable in determining the effective date of suspension set out in subsection (d).
History:
L. 1955, ch. 61, § 2; L. 1985, ch. 48, § 4; L. 1985, ch. 50, § 2; L. 1986, ch. 40, § 3; L. 1988, ch. 47, § 14; L. 1989, ch. 38, § 35; L. 1989, ch. 38, § 36; L. 1990, ch. 44, § 3; L. 1991, ch. 36, § 19; L. 1993, ch. 259, § 2; L. 1993, ch. 275, § 2; L. 1995, ch. 208, § 2; L. 2001, ch. 200, § 13; L. 2007, ch. 181, § 4; L. 2010, ch. 135, § 5; L. 2016, ch. 69, § 1; July 1.
Notes of Decisions
Pfeifer v. Kansas Dep't of Revenue, 370 P.3d 1200 (Kan. Ct. App. 2016).
· cites it 32× “K.S.A. 2015 Supp. 8-1002(a). Depending on whether the licensee refuses the test or fails the test, the officer must certify various statements.”
Byrd v. Kansas Dep't of Revenue, 221 P.3d 1168 (Kan. Ct. App. 2010).
· cites it 26× “One of the issues that Byrd raised in his petition — and the only issue now on appeal — was whether he was properly served with a copy of the officer’s certification and notice of suspension, commonly referred to as a DC-27 form, as required by K.S.A. 2007 Supp. 8-1002(c). At…”
Foster v. Kansas Dep't of Revenue, 130 P.3d 560 (Kan. 2006).
· cites it 8× “” The trial court also noted that “[t]he prior statutory language (K.S.A. 8-1002[k]) applicable to administrative hearings provided: “ ‘If a timely request for hearing is made, the hearing shall be held within 30 days of the date the request for hearing is received by the…”
Kempke v. Kansas Dep't of Revenue, 133 P.3d 104 (Kan. 2006).
· cites it 13× “8-1001 and amended K.S.A. 8-1002 to provide for a “law enforcement officer’s certification” which was to be signed by “one or more law enforcement officers.”
Martin v. Kansas Dep't of Revenue, 176 P.3d 938 (Kan. 2008).
· cites it 6× “3d 438 (citing K.S.A. 8-1002[a][2] ). The Department's Division of Vehicles reviews the certification to ensure that all requirements were met; if so, it will suspend the driver's license.”
Furthmyer v. Kansas Dep't of Revenue, 888 P.2d 832 (Kan. 1995).
· cites it 14× “K.S.A. 8-1002(a) and (c). K.S.A. 8-1002(h)(l) limits the issues which may be considered in refusal cases.”
Linenberger v. Kansas Dep't of Revenue, 20 P.3d 1290 (Kan. Ct. App. 2001).
· cites it 23× “During the hearing, Linenberger *795 moved to dismiss the case because Officer Nixon had not complied with K.S.A. 1997 Supp. 8-1002(e), in that he had waited more than 5 days to forward a copy of the certification and notice of suspension to KDR.”
Anderson v. Kansas Dep't of Revenue, 853 P.2d 69 (Kan. Ct. App. 1993).
· cites it 18× “The court held that personal service of the DC-27 form is mandatory and must be made in accordance with K.S.A. 8-1002(c). The court further held: “Under the facts of this case, Petitioner was not personally served during the time he was in custody by the officer acting on behalf…”
Barnhart v. Kansas Dep't of Revenue, 755 P.2d 1337 (Kan. 1988).
· cites it 8× “Appellant again refused to submit to testing and, pursuant to K.S.A. 1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant’s driver’s license.”
State v. Ernesti, 239 P.3d 40 (Kan. 2010).
· cites it 6× “There is no requirement in K.S.A. 2009 Supp. 8-1002 that the testing device be certified under regulations in effect on the date of testing; rather, the device must simply be certified.”
Byrd v. Kansas Dep't of Revenue, 287 P.3d 232 (Kan. 2012).
· cites it 13× “: K.S.A. 2011 Supp. 8-1002(c) provides that where a driver s license is being suspended because an illegal blood-alcohol level has been established by a blood test, “the officer shall serve notice of such suspension in person or by another designated officer or by mailing the…”
— K.S.A. § 8-1002(a) — 19 cases
Pfeifer v. Kansas Dep't of Revenue, 370 P.3d 1200 (Kan. Ct. App. 2016).
“K.S.A. 2015 Supp. 8-1002(a). Depending on whether the licensee refuses the test or fails the test, the officer must certify various statements.”
— K.S.A. § 8-1002(a)(1) — 12 cases
Kempke v. Kansas Dep't of Revenue, 133 P.3d 104 (Kan. 2006).
“8-1001 and amended K.S.A. 8-1002 to provide for a “law enforcement officer’s certification” which was to be signed by “one or more law enforcement officers.”
— K.S.A. § 8-1002(a)(1)(A) — 3 cases
— K.S.A. § 8-1002(a)(2) — 16 cases
— K.S.A. § 8-1002(a)(2)(A) — 3 cases
— K.S.A. § 8-1002(a)(2)(D) — 2 cases
— K.S.A. § 8-1002(a)(3) — 14 cases
State v. Ernesti, 239 P.3d 40 (Kan. 2010).
“There is no requirement in K.S.A. 2009 Supp. 8-1002 that the testing device be certified under regulations in effect on the date of testing; rather, the device must simply be certified.”
— K.S.A. § 8-1002(a)(3)(A) — 3 cases
— K.S.A. § 8-1002(a)(3)(B) — 3 cases
— K.S.A. § 8-1002(a)(l) — 3 cases
Pfeifer v. Kansas Dep't of Revenue, 370 P.3d 1200 (Kan. Ct. App. 2016).
“K.S.A. 2015 Supp. 8-1002(a). Depending on whether the licensee refuses the test or fails the test, the officer must certify various statements.”
— K.S.A. § 8-1002(a)(l)(A) — 1 case
— K.S.A. § 8-1002(a)(l)(B) — 1 case
— K.S.A. § 8-1002(b) — 14 cases
Pfeifer v. Kansas Dep't of Revenue, 370 P.3d 1200 (Kan. Ct. App. 2016).
“K.S.A. 2015 Supp. 8-1002(a). Depending on whether the licensee refuses the test or fails the test, the officer must certify various statements.”
Kempke v. Kansas Dep't of Revenue, 133 P.3d 104 (Kan. 2006).
“8-1001 and amended K.S.A. 8-1002 to provide for a “law enforcement officer’s certification” which was to be signed by “one or more law enforcement officers.”
Barnhart v. Kansas Dep't of Revenue, 755 P.2d 1337 (Kan. 1988).
“Appellant again refused to submit to testing and, pursuant to K.S.A. 1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant’s driver’s license.”
— K.S.A. § 8-1002(b)(2) — 1 case
— K.S.A. § 8-1002(c) — 20 cases
Byrd v. Kansas Dep't of Revenue, 221 P.3d 1168 (Kan. Ct. App. 2010).
“One of the issues that Byrd raised in his petition — and the only issue now on appeal — was whether he was properly served with a copy of the officer’s certification and notice of suspension, commonly referred to as a DC-27 form, as required by K.S.A. 2007 Supp. 8-1002(c). At…”
Anderson v. Kansas Dep't of Revenue, 853 P.2d 69 (Kan. Ct. App. 1993).
“The court held that personal service of the DC-27 form is mandatory and must be made in accordance with K.S.A. 8-1002(c). The court further held: “Under the facts of this case, Petitioner was not personally served during the time he was in custody by the officer acting on behalf…”
Byrd v. Kansas Dep't of Revenue, 287 P.3d 232 (Kan. 2012).
“: K.S.A. 2011 Supp. 8-1002(c) provides that where a driver s license is being suspended because an illegal blood-alcohol level has been established by a blood test, “the officer shall serve notice of such suspension in person or by another designated officer or by mailing the…”
— K.S.A. § 8-1002(c)(1)(B) — 1 case
— K.S.A. § 8-1002(c)(2) — 3 cases
Kempke v. Kansas Dep't of Revenue, 133 P.3d 104 (Kan. 2006).
“8-1001 and amended K.S.A. 8-1002 to provide for a “law enforcement officer’s certification” which was to be signed by “one or more law enforcement officers.”
Barnhart v. Kansas Dep't of Revenue, 755 P.2d 1337 (Kan. 1988).
“Appellant again refused to submit to testing and, pursuant to K.S.A. 1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant’s driver’s license.”
— K.S.A. § 8-1002(c)(l)(B) — 1 case
Barnhart v. Kansas Dep't of Revenue, 755 P.2d 1337 (Kan. 1988).
“Appellant again refused to submit to testing and, pursuant to K.S.A. 1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant’s driver’s license.”
— K.S.A. § 8-1002(d) — 11 cases
Kempke v. Kansas Dep't of Revenue, 133 P.3d 104 (Kan. 2006).
“8-1001 and amended K.S.A. 8-1002 to provide for a “law enforcement officer’s certification” which was to be signed by “one or more law enforcement officers.”
Barnhart v. Kansas Dep't of Revenue, 755 P.2d 1337 (Kan. 1988).
“Appellant again refused to submit to testing and, pursuant to K.S.A. 1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant’s driver’s license.”
— K.S.A. § 8-1002(d)(3) — 1 case
— K.S.A. § 8-1002(e) — 9 cases
Foster v. Kansas Dep't of Revenue, 130 P.3d 560 (Kan. 2006).
“” The trial court also noted that “[t]he prior statutory language (K.S.A. 8-1002[k]) applicable to administrative hearings provided: “ ‘If a timely request for hearing is made, the hearing shall be held within 30 days of the date the request for hearing is received by the…”
Linenberger v. Kansas Dep't of Revenue, 20 P.3d 1290 (Kan. Ct. App. 2001).
“During the hearing, Linenberger *795 moved to dismiss the case because Officer Nixon had not complied with K.S.A. 1997 Supp. 8-1002(e), in that he had waited more than 5 days to forward a copy of the certification and notice of suspension to KDR.”
Kempke v. Kansas Dep't of Revenue, 133 P.3d 104 (Kan. 2006).
“8-1001 and amended K.S.A. 8-1002 to provide for a “law enforcement officer’s certification” which was to be signed by “one or more law enforcement officers.”
Martin v. Kansas Dep't of Revenue, 176 P.3d 938 (Kan. 2008).
“3d 438 (citing K.S.A. 8-1002[a][2] ). The Department's Division of Vehicles reviews the certification to ensure that all requirements were met; if so, it will suspend the driver's license.”
— K.S.A. § 8-1002(f) — 13 cases
— K.S.A. § 8-1002(f)(1)(I) — 1 case
— K.S.A. § 8-1002(g) — 5 cases
— K.S.A. § 8-1002(h) — 4 cases
— K.S.A. § 8-1002(h)(1) — 5 cases
— K.S.A. § 8-1002(h)(1)(D) — 1 case
— K.S.A. § 8-1002(h)(2) — 11 cases
Linenberger v. Kansas Dep't of Revenue, 20 P.3d 1290 (Kan. Ct. App. 2001).
“During the hearing, Linenberger *795 moved to dismiss the case because Officer Nixon had not complied with K.S.A. 1997 Supp. 8-1002(e), in that he had waited more than 5 days to forward a copy of the certification and notice of suspension to KDR.”
Anderson v. Kansas Dep't of Revenue, 853 P.2d 69 (Kan. Ct. App. 1993).
“The court held that personal service of the DC-27 form is mandatory and must be made in accordance with K.S.A. 8-1002(c). The court further held: “Under the facts of this case, Petitioner was not personally served during the time he was in custody by the officer acting on behalf…”
— K.S.A. § 8-1002(h)(2)(A) — 1 case
— K.S.A. § 8-1002(h)(2)(C) — 1 case
— K.S.A. § 8-1002(h)(2)(D) — 2 cases
— K.S.A. § 8-1002(h)(2)(F) — 1 case
— K.S.A. § 8-1002(h)(2)(G) — 1 case
— K.S.A. § 8-1002(h)(l) — 9 cases
Linenberger v. Kansas Dep't of Revenue, 20 P.3d 1290 (Kan. Ct. App. 2001).
“During the hearing, Linenberger *795 moved to dismiss the case because Officer Nixon had not complied with K.S.A. 1997 Supp. 8-1002(e), in that he had waited more than 5 days to forward a copy of the certification and notice of suspension to KDR.”
Anderson v. Kansas Dep't of Revenue, 853 P.2d 69 (Kan. Ct. App. 1993).
“The court held that personal service of the DC-27 form is mandatory and must be made in accordance with K.S.A. 8-1002(c). The court further held: “Under the facts of this case, Petitioner was not personally served during the time he was in custody by the officer acting on behalf…”
— K.S.A. § 8-1002(i) — 3 cases
— K.S.A. § 8-1002(k) — 4 cases
Foster v. Kansas Dep't of Revenue, 130 P.3d 560 (Kan. 2006).
“” The trial court also noted that “[t]he prior statutory language (K.S.A. 8-1002[k]) applicable to administrative hearings provided: “ ‘If a timely request for hearing is made, the hearing shall be held within 30 days of the date the request for hearing is received by the…”
— K.S.A. § 8-1002(o) — 2 cases
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