By Tim Carpenter, Kansas Reflector
TOPEKA — A trucker wants the Kansas Supreme Court to settle a dispute about an administrative decision by the Kansas Department of Revenue to suspend his commercial driver’s license despite securing a diversion agreement on a DUI charge in Olathe.
The case on oral argument Wednesday before the Supreme Court originated with trucker David Vogt’s appeal in Johnson County District Court of the revenue department’s unilateral suspension action. District Judge Rhonda Mason determined a diversion cannot be defined as a conviction for purposes of evaluating license suspensions, but the Department of Revenue appealed.
A subsequent ruling by the Kansas Court of Appeals said district courts in Kansas lacked jurisdiction to consider challenges to Department of Revenue administrative directives relative to CDL privileges. The Court of Appeals directed Mason to reverse her order in the Vogt case.
“The Court of Appeals got it completely right,” said Charles Bradley, an attorney representing the Department of Revenue. “Based on Kansas law, a court does not have jurisdiction to review a conviction-based suspension in this matter. If this court determines that a diversion is not actually a conviction, which I’m sure it is, then unfortunately KDOR does not have authority or subject matter jurisdiction to do anything.”
Bradley’s theory inspired questions from Justice Eric Rosen, who served as a district court judge in Shawnee County before being appointed to the state’s highest court.
“How does one contest whether the driver was convicted of a DUI? Let’s just say it was a mistake … that the notice of the conviction was for the wrong person. There’s a mistake, but the KDR goes ahead and suspends this commercial driver’s license. What recourse does a person in Mr. Vogt’s position have? It seems like there is none,” Rosen said.
“Fortunately, such an error would never occur,” Bradley replied. “A conviction-based suspension can be reviewed by KDR. The person can submit written requests for review. We take a look at it. There is no hearing.”
Justice Melissa Taylor Standridge pressed Bradley about the Department of Revenue’s conclusion state law blocked a person from seeking due process through the judicial system.
“As a matter of law, would that also include challenging whether a diversion is a conviction?” she asked.
Brandan Davies, an Overland Park attorney representing Vogt, said his client received a DUI in 2021 while driving his personal vehicle in Kansas.
Davies said the Supreme Court shouldn’t allow the Department of Revenue to define a diversion in a way that precluded people from attempting to challenge administrative findings in district court.
“The definition of ‘conviction’ is at the heart of the merit of this case, but then also … whether or not the Court of Appeals opinion is correct,” he said.
For many years, Davies said, DUI attorneys as well as city and state courts operated under the belief that Kansas law forbid commercial driver’s license holders from securing a diversion for driving under the influence. In 2022, then-Attorney General Derek Schmidt issued a legal opinion that said CDL holders were eligible for diversion.
Under the assumption Vogt would be allowed to retain his CDL, Davies said Vogt entered into an agreement with the city of Olathe to resolve the DUI.
“There was no penalty taken administratively on his driver’s license,” Davies said. “Mr. Vogt had a CDL. He was saving his job. He had a diversion.”
At that point, the Department of Revenue put Vogt on notice that his CDL would be suspended for 12 months because, in the view of the state agency, state law characterized diversions as convictions.
“The state misclassified or intentionally classified diversion as a conviction and suspended his driver’s license,” Davies said.
In the original district court ruling, Judge Mason said a failure to provide Vogt with advance notice concerning the potential adverse impact a diversion could have on his CDL compromised his constitutional right to procedural due process.
Rosen indicated he was puzzled the Court of Appeals agreed with the Department of Revenue’s position that certain DUI defendants had no appellate rights in district court.
“Was that ever addressed by the Court of Appeals at oral argument or did this just come as a complete surprise when the opinion was issued?” Rosen said.
“There was no oral argument at the Court of Appeals,” Davies said. “The Court of Appeals sidestepped the merits of the case. They’re just saying, because KDR said it’s a conviction, that you can’t appeal.”
Bradley, representing the Department of Revenue, said state law regulating commercial motor vehicles included provisions directing that a person convicted of DUI must have commercial driving privileges suspended for one year. Unsafe commercial drivers shouldn’t be allowed to mask a DUI by seeking a diversion that kept the incident off a driving record, he said.
“The current case and the treatment of all DUI diversions for all CDL holders is based upon the specific wording used in these statutes,” Bradley said.
He said a first-time DUI offender was required a pay a $750 fine. That financial sanction should to be viewed as the consequence of a conviction, he said.
The Department of Revenue argued, and the Court of Appeals accepted, the notion that the Legislature enacted a path to judicial review only when a CDL was revoked for life after a second or subsequent DUI conviction. This meant there was an avenue to district court for persons who completed a 10-year period of CDL disqualification and had been denied restoration of privileges by the agency.
