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Court Decides Due Process Not Violated Because it was at the Administrative Hearing

After an alleged breath test refusal or failure, a person has 14 days to request the administrative hearing regarding their license. Otherwise, they automatically lose their license. Unfortunately, your line of questioning and witnesses at the administrative hearing is greatly limited. Not only does the Kansas statute greatly limit the scope of the hearing, but the hearing officer severally limits your line of questioning. A person has the ability to appeal their decisions, but it is expensive as you are then entering significant civil litigation against the Kansas Department of Revenue in the District Court.

Obviously, as DUI defense lawyers, we prefer to resolve driver license issues at the administrative hearing level, to save the expense for our clients. Sometimes, we do prevail at this level. However, the reality is, clients are often forced to appeal, ir order to obtain any real decisions and due process.

Recently, the Court of Appeals addressed the limitations put on people during the administrative hearings, and decided the person can always get their due process through appealing. In other words, it seems as if the administrative hearings officers were given free range to limit the scope of the hearings. The case was Kempke v. Ks. Dept. of Revenue 281 Kan. 770, 133 P.3d 104 (2006)

In that case, Kempke was stopped by Ellsworth County Deputy Tyree. The Deputy observed that Kempke was lethargic, slurred his speech, and had bloodshot, watery eyes. He also saw a bottle of alcohol, whiskey, under the passenger's leg. The Deputy suspected Kempke was under the influence of alcohol and therefore decided to

Perform a DUI investigation. SFST's were administered and then a different officer administered the PBT to Kempke. Deputy Tyree was present during the PBT, and Kempke's BAC registered at .05. Deputy Tyree arrested Kempke for drunk driving

and transported him to the Ellsworth County Sheriff's Office. Kempke refused to submit to an evidentiary test for alcohol. Deputy Tyree completed a DC-27 form and certified that Kempke refused the test. At the admin hearing, Deputy Tyree was

present and was examined by Kempke's criminal defense attorney. However, the officer who administered the PBT was not present. The Kansas Department of Revenue affirmed the suspension. Kempke appealed to the district court, by filing a petition for judicial review. He had a de novo trial, where the district court found Kempke's due process rights were violated because he was not allowed to examine the who administered the PBT at the administrative hearing. KDOR then appealed that decision.

The Court of Appeals then held that Kempke's due process rights were not Violated, even though the other officer was a "relevant witness." The court held that Kempke's due process rights were not violated, because Kempke's license was not suspended until after the de novo appeal to the district court, where he could call the other officer as a witness.

This decision is frustrating forDUI defendants and their Kansas lawyers, as it gives so much freedom to the administrative hearing officers to simply deny many issues at the administrative level, forcing people to appeal for their legal issues to really be litigated.