A couple of weeks ago the Kansas Court of Appeals released a decision in a case called Manzano v. Kansas Department of Revenue in which the Court of Appeals found that the administrative driver’s license hearing to determine whether the driver’s license should be suspended because he refused a breath test was a sham. In fact, the Court of Appeals agreed with a lower court that it was such a sham that it warranted dismissing the action against the driver’s license and giving Manzano his license back.
There are a few notable things about this case: (1) the attorney for the driver brought a court reporter to the hearing. The overwhelming majority of the time there is no court reporter taking down what happens at these hearings. Had there been no record made of what happened in this case, this driver would still be suspended; (2) the decision references the fact that these administrative hearings are only set for 10 minutes. 10 minutes to decide if you lose your license for a year, lose your job, lose the ability to take your kids to school, etc. That is laughable. Since this opinion the hearings have been expanded to a generous 15 minutes.; (3) the Court of Appeals said that a driver should actually get a full and fair administrative hearing about whether he or she should be suspended. Believe it or not, this was not clearly settled in prior cases which said that if you didn’t get due process at the administrative hearing you could just appeal and get due process at the next level. This, of course, meant that you had to pay a filing fee, hire an attorney, lock horns with the Department of Revenue for months or years and otherwise spend a ton of time and money just to get the most basic of rights that our country is supposed to offer.
Not surprisingly, the Kansas Department of Revenue has requested the Kansas Supreme Court to review the case on appeal in the hope that they can get this decision reversed somehow.
Here are some highlights from the opinion, which you can read in full here:
Manzano was arrested and charged with a DUI in violation of K.S.A. 2010 Supp. 8-1567. After being given the required implied-consent advisories, Manzano refused to submit to testing intended to determine the presence of alcohol or drugs in his body. Officers Flores and Wheet filled out the Officer’s Certification and Notice of Suspension form (DC-27) and gave it to Manzano at 3:50 a.m.
Manzano requested an in-person administrative hearing, which was held September 30, 2011, before Administrative Hearing Officer Collins. Manzano and Officers Flores and Wheet were present to testify at the hearing. Counsel began questioning Officer Wheet regarding his investigative report. After a few preliminary questions about when and where Officer Wheet wrote his report, Collins interrupted saying, “Let’s move on. If there’s an issue with the report get to it.” Counsel continued by questioning Wheet about where he and his car were located in relation to where Manzano was driving. After seven more questions from counsel, Collins again interrupted, “Get to the stop. This is taking way too long.” After another seven short questions (
e.g., “How far back?”; “Were your windows up?”), Collins said, “Let’s get to the actual stop itself.” Counsel asked Wheet why he began following Manzano. Wheet said that Manzano had “accelerated] rapidly” from a stop sign, “squealing the tires.” Counsel then asked whether the officer’s windows were down (“No”) and followed up by asking what the speed limit was at that location.
Collins again interrupted and ruled that Manzano’s attorney could not ask any further questions about how and why the officer conducted a traffic stop: “According to the Martin case [Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008)], that’s as far as we’re going to go with that. Move on to his contact with your client.” Counsel continued by asking Officer Wheet how far he had followed Manzano’s vehicle and if he observed anything else. Collins told the attorney to move on: “Let’s go to his contact with your client. . . . Client’s parked in the driveway, the officer stopped, go from there.”
Counsel asked four questions about who was present and then asked where Wheet had turned on his police lights to pull over Manzano in relationship to where Manzano had pulled into his driveway. Collins did not allow Wheet to answer. Collins said, “I don’t care. Go ahead. Next question.” Counsel asked eight more questions about the discussion that Wheet had with Manzano after the stop. At that point, Collins said he would only allow 5 more minutes to finish the hearing:
“[Hearing Officer Collins:] Okay, I’m going to give you 5 more minutes to complete this.
“[Counsel:] Well —
“[Hearing Officer Collins:] Then I’m going to make a ruling based on what I’ve heard.
“[Counsel:] Well, wait, I — I have the other officer. I —
“[Hearing Officer Collins:] Then you better hurry.
“[Counsel:] Well, if we’re behind I can reschedule for a time that you have time.
“[Hearing Officer Collins:] No, we can’t reschedule. We’re going to do it today.
“[Counsel:] Well, it’s going to take me —
“[Hearing Officer Collins:] It’s docketed for 10 minutes.
“[Counsel:] Well, I didn’t docket it for 10.
“[Hearing Officer Collins:] Use the time as you [see] fit. Just warning you.”
Counsel finished questioning Officer Wheet (15 additional questions) and began questioning Officer Flores. She questioned Officer Flores, uninterrupted, regarding his report, Manzano’s ability to stop the vehicle, Manzano’s ability to speak clearly, and whether there was a videotape of the stop. Officer Flores explained that the written report had some information missing—that he had asked Manzano if he would be willing to go to the Law Enforcement Center to complete an alcohol-related test and that Manzano had said he would. At that point, Collins ended the hearing:
“[Hearing Officer Collins:] “At this time, I’m going to affirm the certification.
“[Counsel:] Um, I’m not done yet, because my client hasn’t testified.
“[Hearing Officer Collins:] No, ma’am. We’re done.
“[Counsel:] We’re not done with the hearing.
“[Hearing Officer Collins:] I said we’re done. There’s your copy of the order. There’s one for the officers.”
The district court conducted its hearing on September 6, 2012. Prior to the presentation of any evidence or testimony, the trial judge requested that the parties discuss the preliminary issues in the case. During that discussion, Manzano raised the issue of due process based on the abbreviated administrative hearing. After hearing further arguments and opening statements from the parties, the court noted it had read the stipulated transcript of the administrative hearing and declared the hearing “a farce.” The court continued, “[T]here was a travesty of justice performed by the hearing officer. That there was not any reasonable due process of law provided to Mr. Manzano during that particular hearing. And, frankly, he didn’t get a hearing.”
The Court of Appeals agreed that this “hearing” was a sham and a farce, and agreed with the District Court that the case should be dismissed. Things have gotten to such an extreme in the last few years in the Kansas DUI laws that I am not surprised to see the pendulum swinging back a little now. It just may be that concepts like due process, scientific integrity and the Constitution will begin to creep back into the process.