                                        No. 119,766

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      CRUZ MOLINA,
                                        Appellant,

                                             v.

                           KANSAS DEPARTMENT OF REVENUE,
                                     Appellee.

                              SYLLABUS BY THE COURT


1.
       Appeals from administrative suspensions of driver's licenses are subject to review
under the Kansas Judicial Review Act (KJRA). They are considered by the district court
de novo. The burden of proving the invalidity of the agency's action rests on the party
asserting invalidity.


2.
       When reviewing a driver's license suspension, an appellate court applies the
substantial competent evidence standard. To uphold an agency's action it must be
supported by evidence that is substantial when viewed in light of the record as a whole.


3.
       Substantial compliance is sufficient to satisfy the protocols established by the
Kansas Department of Health and Environment (KDHE) for administering an Intoxilyzer
9000 test of a suspected intoxicated driver. In driver's license suspension cases, the
substantial compliance standard requires a licensee seeking to overturn the agency's
action to demonstrate a violation of the KDHE testing procedures that strikes at the
purpose for the protocol and casts doubt upon the reliability of the subsequent test results.


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4.
        The 20-minute alcohol deprivation period required before administering an
Intoxilyzer 9000 test ends when the breath test is actually administered by the test subject
providing a breath sample, not when the Intoxilyzer 9000 machine is turned on prior to
the test.


        Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed December 13, 2019.
Affirmed.


        Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.


        John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.


Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.


        MCANANY, J.: Cruz Molina appeals the district court's denial of relief on his
petition for judicial review of the decision of the Kansas Department of Revenue to
impose a one-year suspension on his driving privileges.


        At the hearing before the district court, Molina failed to present evidence that the
proper procedures were not followed in administering the Intoxilyzer 9000 breath test.
The test results showed that Molina had been driving while intoxicated. Rather, Molina
based his claim before the district court—and again before us—on a speculative and
unsupported hypothetical scenario which itself is based on an erroneous understanding of
how the statutory alcohol deprivation period is measured before the Intoxilyzer 9000 test
is to be administered.


        Because Molina has failed to show any impropriety in the manner in which the test
was administered, we affirm.


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       Deputy Waide Scott of the Gray County Sheriff's Office stopped Molina for
failing to maintain a single lane and changing lanes without signaling. Molina smelled of
alcohol, his speech was slurred, he failed a series of field sobriety tests, he failed his
preliminary breath test, and he told Deputy Scott that he had been drinking. Scott arrested
Molina for driving under the influence and transported him to the Gray County Sheriff's
Office.


       At the sheriff's office, Scott administered the Intoxilyzer 9000 breath test. Scott
was properly certified to operate the Intoxilyzer 9000, and the machine was properly
certified. The testing protocol adopted by the Kansas Department of Health and
Environment (KDHE) required that the test subject be deprived of alcohol for at least 20
minutes before providing a breath sample. Molina's 20-minute deprivation period began
at 1:10 a.m. At 1:30 a.m. Scott turned on the Intoxilyzer 9000. At 1:33 a.m., 23 minutes
after the alcohol deprivation period began, Scott administered the test and Molina
provided a breath sample. Molina's breath sample was determined to have a breath-
alcohol concentration of 0.218, far above the 0.08 breath-alcohol legal limit. Scott
provided Molina with a notice that his driving privileges were being suspended.


       Molina requested an administrative review. Following the administrative hearing
before the Kansas Department of Revenue, Molina's one-year suspension of his driving
privileges was affirmed. Molina sought further review by the Ford County District Court,
claiming that Deputy Scott failed to substantially comply with the testing protocol set
forth by the KDHE.


       At the district court's brief and somewhat confusing 23-minute hearing on
Molina's petition for judicial review, Molina's counsel acknowledged that he failed to
subpoena Deputy Scott to testify at the hearing. Molina bore the burden of proof at the
hearing. Nevertheless, his counsel stated, "I think the State should have its officer here. I
was kinda counting on it. Of course, I wasn't counting on it so much that I didn't consider

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maybe we should subpoena this officer." As a result, he had no testimony from Deputy
Scott regarding compliance with the required alcohol deprivation period. His only
witness was Molina, who provided no testimony whatsoever regarding the testing
procedure or the 20-minute alcohol deprivation period.


       Molina's counsel made what apparently started out to be a proffer of evidence but
quickly turned into a summation of his client's position. He argued that Deputy Scott did
not comply with KDHE testing protocols because he did not observe Molina for an entire
20-minute alcohol deprivation period. Molina does not contend that Scott left him
unattended or unobserved during the deprivation period. Rather, he contends that Scott
cut short the deprivation period.


       Molina's counsel was trying to get into evidence the Intoxilizer test receipt which
is in the record from the earlier administrative hearing. That receipt shows that the
alcohol deprivation period for Molina began at 1:10 a.m. Scott turned on the Intoxilyzer
machine at 1:30 a.m. From 1:30 a.m. through 1:32 a.m. the machine went through a
series of diagnostic checks to assure the accuracy of the machine before the actual test
was administered. The "Subject Test"—Molina providing a breath sample for the
machine to analyze— took place at 1:33 a.m.


       Under Molina's theory, the test began when the Intoxilyzer machine was initially
turned on, not when he provided his breath sample. Because the Intoxilyzer test receipt
only show hours and minutes but not seconds for the time of the actual test, and because
the start of the alcohol deprivation period also was expressed in hours and minutes but
not seconds, Molina contended that it was possible that the alcohol deprivation period
started at 1:10:59 a.m. and the machine was turned on at 1:30:00 a.m., resulting in an
alcohol deprivation period of only 19 minutes and 1 second, a full 59 seconds short of the
20-minute alcohol deprivation period. Of course, this is based on the assumption that the
test occurred when the machine was turned on at 1:30 a.m., ignoring the fact that the test

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receipt shows that the "Subject Test" actually occurred at 1:33 a.m., 23 minutes after the
alcohol deprivation period began.


       The district court rejected Molina's theory and upheld his license suspension. The
court concluded that Molina failed to meet his burden to establish that Deputy Scott
failed to substantially comply with the KDHE testing procedures. The court noted that
there was no challenge to the test results, there was no evidence from the certifying
officer showing a failure to comply with the testing protocol, and the test had been
administered well after the 20-minute alcohol deprivation period had expired. Molina's
appeal brings the matter to us.


       The Kansas Judicial Review Act (KJRA) defines the scope of judicial review of
state agency actions. K.S.A. 2018 Supp. 77-603(a). Appeals from administrative
suspensions of driver's licenses are subject to review under the KJRA and are considered
by the district court de novo. K.S.A. 2018 Supp. 8-259(a). On appeal, the burden of
proving the invalidity of the agency action rests on the party asserting such invalidity.
K.S.A. 2018 Supp. 77-621(a)(1). More specifically, in judicial review of a driver's license
suspension administrative proceeding, K.S.A. 2018 Supp. 8-1020(q) states: "Upon
review, the licensee shall have the burden to show that the decision of the agency should
be set aside."


       When reviewing a driver's license suspension, we apply the substantial competent
evidence standard. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135
(2012). Substantial evidence is evidence possessing relevance and substance that
furnishes a basis of fact from which the issues can be reasonably resolved. Mitchell v.
Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 118, 200 P.3d 496 (2009). The KJRA
provides that an agency action must be supported by evidence that is substantial when
viewed in light of the record as a whole. See K.S.A. 2018 Supp. 77-621(c)(7) and (d).



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       The KDHE Intoxilyzer 9000 testing protocol states: "Keep the subject in your
immediate presence and deprive the subject of alcohol for 20 minutes immediately
preceding the breath test." As stated in Mitchell, 41 Kan. App. 2d at 119, "[t]he purpose
of the 20-minute alcohol deprivation period is to make sure there is no residual alcohol in
the subject's mouth at the time of the breath test." Substantial compliance is sufficient to
satisfy this requirement. See K.S.A. 2018 Supp. 8-1020(h)(2)(F); Schoen v. Kansas Dept.
of Revenue, 31 Kan. App. 2d 820, 823, 74 P.3d 588 (2003). Substantial compliance has
been defined as "'compliance in respect to the essential matters necessary to assure every
reasonable objective.'" Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 9, 163
P.3d 313 (2006). In driver's license suspension cases, the substantial compliance standard
requires the petitioner "to demonstrate a violation of the KDHE testing procedures that
strikes at the purpose for the protocol and casts doubt upon the reliability of the
subsequent test results." Mitchell, 41 Kan. App. 2d at 122-23.


       On appeal, Molina rests his case on the time sequence he argued before the district
court. Molina's alcohol deprivation period began at 1:10 a.m. He argues that under the
KDHE test protocol, the Intoxilyzer test began when the Scott, the operator, pressed the
green "Start Test" button at 1:30 a.m. to turn on the machine, not when Molina provided
a breath sample at 1:33 a.m. Because the Intoxilyzer results do not show seconds, there
is no way of knowing whether Molina received a full 20-minute deprivation period. In
other words, he theorizes that if his deprivation period began at 1:10:59 a.m. and the
machine was turned on at 1:30:00 a.m., the test would have begun 59 seconds before the
alcohol deprivation period ended.


       The obvious problem with this hypothetical is that there is simply no evidence to
support that this is what happened in Molina's case. Molina's burden of proof was not
satisfied by positing some theory of what might have happened. Molina bore the burden
of establishing that Deputy Scott actually cut short the required alcohol deprivation
period. He failed to meet this burden.

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       Moreover, Molina's speculative hypothetical is based on the assumption that the
deprivation period ended when Deputy Scott turned on the machine, not when the test
was actually administered to Molina three minutes later. This is inconsistent with
KDHE's protocol for the Intoxilyzer 9000.


       To paraphrase the KDHE protocol, the Intoxilyzer 9000 test operator is required
to (1) keep the subject in the operator's immediate presence and deprive the subject of
alcohol for 20 minutes before the breath test; (2) make sure the power switch on the
machine is activated and is in "Ready Mode"; (3) press the greet "Start Test" button and
follow the instructions on the machine; (4) wait while the machine goes through a series
of diagnostic checks; (5) be sure the machine shows the acceptable range of 0.075 to
0.085; (6) when prompted for "Subject Test," have the subject provide a breath sample by
blowing into the machine's breath tube; and (7) wait for the printout of the test results. It
is clear from the plain language of the KDHE protocol that the test occurs when the
subject blows a breath sample into the machine, not when the machine is turned on and
before it goes through its pre-test diagnostic checks.


       In unpublished decisions we have rejected Molina's notion of when the test occurs.
For example, see Ruppe v. Kansas Dept. of Revenue, No. 120,791, 2019 WL 5089723, at
*1-2 (Kan. App. 2019) (unpublished opinion) (noting that a breath test was administered
after a 36-minute deprivation period), petition for rev. filed November 12, 2019; and
Bryant v. Kansas Dept. of Revenue, No. 99,515, 2009 WL 112821, at *1, 3 (Kan. App.
2009) (unpublished opinion) (noting that a 20-minute deprivation period ended once a
breath test was actually administered).


       The whole point of the alcohol deprivation period is to assure that the test subject
has neither placed alcohol in his or her mouth during the deprivation period nor allowed
some other substance in the test subject's body which could interfere with the accuracy of

                                              7
the test that is about to be administered. It would make no sense for there to be a time
lapse between the end of the deprivation and observation period and a later breath test.


       Consistent with our prior unpublished opinions, we hold today that the 20-minute
alcohol deprivation period ends when the Intoxilizer 9000 breath test is actually
administered, not when the machine is turned on.


       Finally, Molina does not claim that during the alcohol deprivation period Deputy
Scott left him unattended. He does not contend that during this deprivation period he
placed anything—alcoholic or otherwise—in his mouth so as to cause an inaccurate test
result. He does not claim that during the deprivation period he belched, coughed, or
vomited so as to adversely affect the test results. Even if Molina had established that he
was deprived of from 1 to 59 seconds of the full 20-minute alcohol deprivation period,
which he was not, under these circumstances there would have been substantial
compliance with the KDHE protocol for administering the test. Such an insignificant
shorting of the alcohol deprivation period would not have undermined the objective of
the test and would not have cast doubt on the reliability of the test results. See Mitchell,
41 Kan. App. 2d at 122-23; Martin, 38 Kan. App. 2d at 9.


       Molina failed to present any competent, probative evidence to support his
contention that Deputy Scott failed to follow the applicable KDHE testing protocols.
Deputy Scott provided Molina with a full 20-minute alcohol deprivation period before the
Intoxilyzer 9000 test was administered. Molina failed to satisfy his burden of proof
before the district court, and the district court properly denied relief on Molina's petition
for judicial review and affirmed Molina's driver's license suspension.


       Affirmed.




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