                         NOT DESIGNATED FOR PUBLICATION

                                            No. 119,699

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          SUNIL PERSHAD,
                                             Appellee,

                                                   v.

                              KANSAS DEPARTMENT OF REVENUE,
                                        Appellant.


                                  MEMORANDUM OPINION

       Appeal from Sedgwick District Court; ERIC A. COMER, judge. Opinion filed April 17, 2020.
.Reversed and remanded with directions.


       Adam D. King, of Legal Services Bureau, of Kansas Department of Revenue, for appellant.


       Steven D. Mank, of Wichita, for appellee.


Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.


       PER CURIAM: The Kansas Department of Revenue (KDOR) appeals from the
Sedgwick County District Court's decision to reverse KDOR's suspension of Sunil
Pershad's driver's license. KDOR argues that the trial court erred in determining that the
arresting officer read the advisory form too quickly to reasonably provide oral notice to
Pershad. Because K.S.A. 2017 Supp. 8-1001(k) does not contain or impose a
reasonableness requirement on the reader, we reverse the trial court and affirm the
suspension of Pershad's license.




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       Sedgwick County Sheriff's Deputy Scott McCall arrested Pershad for DUI on
September 24, 2017. At the jail, Deputy McCall handed Pershad the DC-70 advisory
form, asked Pershad to follow along, and read the form to Pershad. Deputy McCall read
the complete advisory form in 1 minute and 49 seconds. Pershad never mentioned that he
was unable to understand the advisory form that Deputy McCall was reading. And
Deputy McCall had no difficulty conversing with Pershad in English. Pershad eventually
refused to take the breath test.


       KDOR suspended Pershad's driver's license at an administrative hearing. Pershad
petitioned for review in Sedgwick County District Court. At the trial de novo, the trial
court ruled that Deputy McCall had failed to adequately provide oral notice to Pershad as
required under K.S.A. 2017 Supp. 8-1001(k). The trial court ruled that Deputy McCall
read the advisory so quickly that it failed to communicate a reasonable oral notice to
Pershad.


       KDOR timely appeals.


Did the District Court Err in Ruling That the Oral Notice Given to Pershad was
Inadequate as a Matter of Law?


       KDOR argues that the trial court erred in its interpretation of K.S.A. 2017 Supp. 8-
1001(k) because the trial court read an unstated reasonableness requirement into the
statute. Pershad simply repeats the trial court's ruling that the statute requires a reasonable
oral notice.


       An appellate court reviews appeals from the administrative suspension of driver's
licenses under the Kansas Judicial Review Act. K.S.A. 2019 Supp. 8-259(a); Moser v.
Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009). Because the parties
do not dispute the facts, the question therefore is solely a question of law. An appellate
court has unlimited review of the conclusions of law based on undisputed facts. See
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Gannon v. State, 305 Kan. 850, 881, 390 P.3d 461 (2017). Unlimited review is possible
where the appellate court has the same access to the motions, records, and files as the trial
court. Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014); State v. Fritz, 299
Kan. 153, 154-55, 321 P.3d 763 (2014). Statutory interpretation presents a question of
law over which appellate courts have unlimited review. In re Tax Appeal of BHCMC, 307
Kan. 154, 161, 408 P.3d 103 (2017).


       The relevant language of K.S.A. 2017 Supp. 8-1001(k) is as follows: "Before a
test or tests are administered under this section, the person shall be given oral and written
notice." The trial court ruled that "the oral reading of the [DC-70 advisory] form in 1
minute & 49 seconds is not reasonable to satisfy the [statutory requirement] to
'present . . . oral . . . notice.'" The trial court's reasoning is flawed. First, the trial court
erred in determining that Deputy McCall's oral reading of the notice was not reasonable.
Second, K.S.A. 2017 Supp. 8-1001(k) does not require that the oral notice be reasonable
under the plain language of the statute.


       We here have the same access as the trial court did to the video of Deputy
McCall's conversations with Pershad. The trial court has correctly noted the time it took
for Deputy McCall to read the oral advisories to Pershad. He read those advisories aloud
to Pershad in 1 minute and 49 seconds. The trial court, however, was incorrect in ruling
that Deputy McCall's speed in reading of the oral advisories to Pershad rendered them
incomprehensible or unreasonable. The video showed that Deputy McCall's pace and
articulation in reading the oral notice to Pershad would have reasonably conveyed the
information of the advisories to an ordinary listener.


       Second, even if Deputy McCall's reading of the oral advisories to Pershad would
not have conveyed reasonable notice to him, K.S.A. 2017 Supp. 8-1001(k) does not
contain a requirement that the oral notice be understood. See K.S.A. 2017 Supp. 8-
1001(r) ("It shall not be a defense that the person did not understand the written or oral
notice required by this section."); State v. Bishop, 264 Kan. 717, 721-22, 957 P.2d 369
                                               3
(1998) (holding notice sufficient even though officer read advisory aloud, knowing
licensee was deaf); Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 322-23, 916
P.2d 47 (1996) (holding notice sufficient even though Korean speaker given advisory in
English). So, subsection (k) does not contain language requiring that the officer speak so
as to be understood, and subsection (r) specifically disclaims any requirement for the
listener to actually understand the oral notice. On that basis, the trial court improperly
read into K.S.A. 2017 Supp. 8-1001(k) an unstated statutory reasonable notice
requirement which does not exist in this statute.


       From the plain language of the statute, the applicable test for notice is not whether
it was reasonable. Simply put, K.S.A. 2017 Supp. 8-1001(k) requires that before an
alcohol or drug test is administered, "the person shall be given oral and written notice" of
certain information. Although that notice is mandatory, our Supreme Court has
recognized that substantial compliance with the statute is sufficient. See State v. Edgar,
296 Kan. 513, 528, 294 P.3d 251 (2013); Barnhart v. Kansas Dept. of Revenue, 243 Kan
209, 213, 755 P.2d 1337 (1988). Substantial compliance occurs when the notice is
"'sufficient to advise the party to whom it is directed of the essentials of the statute.'"
Edgar, 296 Kan. at 528 (quoting Barnhart, 243 Kan. at 213). Previous precedent has
focused on the simple yes-no question of whether notice was given. See, e.g., Thompson
v. Kansas Dept. of Revenue, 37 Kan. App. 2d 255, 256, 152 P.3d 106 (2007) (holding that
written notice was given even though recipient did not have glasses); State v. Jackson,
No. 111,922, 2015 WL 718072, at *6 (Kan. App. 2015) (unpublished opinion) (holding
that written notice was given although recipient was lying on his back with a neck brace
and the written notice was placed on his chest). Also, previous precedent does not
evaluate whether the officer reasonably sought to apprise the recipient of the information
in the notice. And, thus, the trial court's application of that test here was in error.


       Reversed and remanded with directions to affirm the decision of the administrative
hearing.


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