1 No

. 1 2 4 , 920

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S HANA L. J ARMER , Appell ant ,

v.

K ANSAS D EPARTMENT OF R EVENUE ,

Appell ee

.

SYLLABUS BY THE COURT

A driver who is in actual physical control of the machinery of a vehicle, causing such machinery to move by engaging the transmission and pressing the gas pedal, is operating the vehicle within the meaning of K.S.A. 2020 Supp. 8

- 1002(a)(2)(A).

Appeal from S umner District Court; G A TEN W OOD , judge. Opinion filed January 13 , 20 2 3

. Affirmed.

C. Ryan Gering , of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, f or appellant.

Charles P. Bradley
, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before A RNOLD

- B URGER , C .J., G ARDNER and C L IN E , J J

.

C LINE , J. : Shana L. Jarmer was notified her driving privileges would be suspended after she failed a breath alcohol test. She challenges the district court's decision to uphold the suspension by claiming she did not " operate " the vehicle because it
was stuck in the mud and did not move . We disagree. Jarmer was actively contro lling the movement of the vehicle by pressing the gas pedal, spinning the tires with the transmission engaged
, and holding the steering wheel. We find such actions sufficient to2

constitute "operation" of the vehicle under K.S.A. 2020 Supp. 8

- 1002(a)(2)(A) and affirm
the district court.

The underlying proceedings

On January 24, 2021, law enforcement was called to the scene of a vehicle
accident. Jarmer's husband had apparently dr i ve n the ir vehicle into a house before landing in a muddy ditc h. Law enforcement arrived to find the couple t rying to maneuver the vehicle out of the ditch. Jarmer was in the driver's seat, pressing the gas pedal with her hands on the steering wheel. T he vehicle's tires were spinning
, a nd her husband was pushing it f

rom the rear . The vehicle itself was not moving, however, because of the muddy conditions.

Jarmer submitted to a breath alcohol test and the result was 0 .156. The legal limit
in Kansas is 0 .08. See K.S.A. 2021 Supp. 8

- 1567(a). She was arrested for driving under the influence ( DUI ), and she was notified her driving privileges would be suspended by
the Kansas Department of Revenue ( KDR ) under K.S.A. 2020 Supp. 8

- 1014.

Jarmer r equested an administrative hearing to challenge the suspension of her driving privileges

. The KDR upheld the suspension , finding Jarmer " operated [the] vehicle while [her] husband pushed [the] car. " Jarmer then sought judicial review of this decision in Sumner County District Court. She ar gued that because the vehicle was not moving from one point to another, she was not " operating " or " driving " the vehicle. Instead, she claim ed she was merely attempting to operate the vehicle, so the administrative suspension of her driver's license was im proper. The relevant statute, K.S.A. 2020 Supp. 8

- 1002(a)(2)(A), r equire s the operation of a vehicle, rather than attempted operation
, if the driver fails a breath alcohol test. In contrast, K.S.A. 2020 Supp. 8

- 1002(a)(1)(A) requires either operation or at tempted operation if the driver
refuses a breath alcohol test.3

The district court denied Jarmer's petition after finding Jarmer was operating the
vehicle since the engine was running, she was behind the wheel, and the tires were spinning. It emphasized that, but for the muddy conditions, the vehicle would have been
in motion.

Jarmer timely appeals.

Did the district court err in finding that Jarmer operated the vehicle?

Jarmer challenges the district court's decision for the same reason sh e disputed the suspension below

— she claims she was merely attempting to operate the vehicle, but not actually operating i t.

Appeals of the administrative suspension of driver's licenses are subject to review
under the Kansas Judicial Review Act. Rosendahl v. Kansas Dept. of Revenue , 310 Kan. 474, 480, 447 P.3d 347 (2019); see K.S.A. 20 2 1 Supp. 8

- 259(a). Our review is unlimited here since there is no factual dispute and we are interpreting statutory language. This
means we owe no deference to either KDR or the district court's interpretation of K.S.A. 2020 Supp. 8

- 1002(a)(2)(A)

. See Hanson v. Kansas Corp. Comm ' n , 313 Kan. 752, 76 2

- 6 3, 490 P.3d 1216 (2021).

Jarmer argues the term " operate " in K.S.A. 2020 Supp. 8

- 1002(a)(2) should be interpreted the same way our Supreme Court has interpreted that term in the DUI

statute

— K.S.A. 8

- 1567. While t his proposition makes sense , it does not further Jarmer's position because she overstates the holdings in the cases on which she relies.

Our Supreme Court has interpreted the term " operate " in the DUI statute to mean

" drive. " See, e.g., State v. Zeiner , 316 Kan. 346, Syl. ¶ 2
, 515 P.3d 736 (2022) ; State v.4

Darrow , 304 Kan. 710, Syl. ¶ 1, 374 P.3d 673 (2016) ; State v. Kendall , 274 Kan. 1003, 1009, 58 P.3d 660 (2002); State v. Fish , 228 Kan. 204, 207, 612 P.2d 180 (1980).

And, in Darrow , it held t his mean s some movement of the vehicle i s required. 304
Kan. 710, Syl. ¶ 1

. But none of these cases hold, as Jarmer claims
, that " the vehicle itself must be moving from one place to another " to find Jarmer was "driving" or "operating" it.

T he district court found Jarmer was driving and caus ing movement of the vehicle by engaging the transmission and spinning the tires. And it properly distinguished the cases cited by Jarmer since none involv ed drivers as actively engaged as Jarmer. In fact, none of the vehicles involved in those cases were even in gear
, and none of the drivers were awake when discovered by law enforcement :

• The defendant i n Fish was found in his vehicle
, parked off the highwa y at a community trash receptacle. The motor was running, the vehicle was in park, and Fish appeared to be asleep in the front seat. 228 Kan. at 20 5. Jarmer's vehicle was not in park, nor was she asleep.

• The defendant i n Kend a ll was found slumped over the steering wheel of his truck, which was resting in the middle of a public street in a residential neighborhood. The truck's motor was running, Kendall was wearing his seat belt, the truck's headlights and brake lights were on, and Kendall had one foot on t he brake. The
truck was in neutral
, and Kendall appeared to be asleep. 274 Kan. at 100 4

- 05. Again, Jarmer was not passively sitting in the driver's seat of a running vehicle. Her transmission was not in neutral but was actively engaged as she pressed the gas pedal and spun the wheels.

• The defendant in Darrow was also found asleep in the driver's seat of a parked but running vehicle. After law enforcement approached and asked Darrow to turn off the vehicle, she " ' started to reach down and fumble [] with the gear shift, but the car stayed in park. ' " 304 Kan. at 712. On appeal, both this court and the Kansas5

Supreme Court agreed that Darrow's actions in fumbling with the gear shift while in the driver's seat with the engine running could support the district court's finding that Darrow had "attempted to operate," i.e. , attempted to move the vehicle, and thus was guilty of violating the DUI statute . 304 Kan. at 718. Jarmer's
vehicle was not in neutral
, and she did more th a n simply "fumble with the gea r shift." She was engaging the transmission, which the court described in Darrow as

" the last act needed to legally ' drive ' the vehicle. " 304 Kan. at 7 19.

• The defendant in Zeiner was also found asleep in the driver's seat of his SUV, parked alongside a gravel road. The motor had been turned off
, but the radio and headlights were still on. At trial, the State argued Zeiner "was 'operating' his vehicle by running the heater, radio, and lights of his SUV while parked." 316
Kan. at 352 . R elying on Darrow , 304 Kan. 710, Syl. ¶ 1, our Supreme Court found this was not a correct statement of the law, since when interpreting the DUI statute
in Darrow it found the " ' term " operate " is synonymous with " drive ," which requires some movement of the vehicle. '" Zeiner , 316 Kan. at 353. The court noted that although Zeiner was in the driver's seat when law enforcement arrived, he

" was wearing no seatbelt, made no attempt to move, stop, or shift the vehicle, or take any other action that indicated he was attempting to control the movement or
future movement of the SUV." Zeiner , 316 Kan. at 347. Unlike Zeiner , Jarmer was actively controlling the movement of the vehicle by pressing the gas ped al with her hands on the wheel, spinning the tires
, and trying to move the vehicle out of
the ditch it was stuck in.

The facts here are almost identical to those in Hines v. Director of Revenue , 916 S.W.2d 884 (Mo. Ct. App. 1996) . In that case, the defendant's husband had driven the couple's vehicle into a muddy ditch where it became stuck. D efendant D eana Hines then unsuccessfully tried to get it unstuck. Like Jarmer, Hines was in the driver's seat, the motor was running, the tra nsmission was in gear, and the rear wheels were spinning. And, like Jarmer, Hines failed a breath test, and her driving privileges were suspended. Hines6

made the same claim Jarmer does

— that is, she argued she was not driving or operating
the vehicle. Howev er, the Missouri Court of Appeals found " in attempting to move the vehicle from the ditch, Mrs. Hines was the person in a position to regulate its movement, " and thus was operating the vehicle. 916 S.W.2d at 886.

We agree with the court's statement in Hines that "[t]he fact that the vehicle could
not be driv e n from the ditch did not preclude its being operated." 916 S.W.2d at 886 ( quo ting Chinnery v. Director of Revenue
, 885 S.W.2d 50, 52 [ Mo. Ct. App. 1994 ] ) (" [D] riving or operating a vehicle occurs 'even when the vehicle is motionless as long as the person is keeping the vehicle in restraint or is in a position to regulate its

movements .'").

Jarmer's case is also like Com monwealth of Pennsylvania v. Kallus , 243 A.2d 483, 485 (Pa. Super. 1968). Like Jarmer, the defendant in Kall u s was seated in the driver's seat behind the steering wheel, with the engine running, tires spinning, and vehicle in gear. While Jarmer was trying to dislodge her vehicle from mud, Kallus was trying the dislodge his from a snowbank. The Pennsylvania Sup e r io r Court found Kallus' actions met the meaning of the term "operate" under 75 Pa. Stat. § 1037 . In upholding Kallus' conviction, it noted:

" We agree with the reasoning of the court below that it is not necessary that the
vehicle itself must be in motion bu t that it is sufficient if the operator is in actual physical control of the movements of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself.

" There is no doubt, in the present case, that the engine was run ning and that the car was in gear and thus the defendant was in actual physical control of the machinery of the vehicle. It was through no fault of his that the vehicle itself was not also in motion and had he succeeded in his efforts, the public safety, w hich the [statute] was intended to protect, could have been seriously jeopardized. " 242 A.2d at 507

- 08

.7

Jarmer was in actual physical control of the movements of the machinery of the
vehicle and
, like the court pointed out in Kallus , had she succeeded in her efforts, she could have seriously jeopardized the public safety that K.S.A. 2020 Supp. 8

- 1002(a)(2)

was intended to protect. See K.S.A. 20 21 Supp. 8

- 1001(u) (implied consent law " is remedial law and shall be liberally construed t o promote public health, safety and
welfare " ); see also Huelsman v. Kansas Dept. of Revenue , 267 Kan. 456, 462, 980 P.2d 1022 (1999) (distinguishing driver's license suspensions from DUI actions).

R ecently, in State v. Moler
, 316 Kan. 565 , 519 P.3d 794 (2022), our Supreme Court interpreted the word "o perate " in the context of the Kansas Offender Registration
Act. I t looked to the " common meaning " of the word as defined by Merriam

- Webster's Collegiate Dictionary 869 (11th ed. 20 19 ) ( " defining the tran sitive verb form of ' operate '

to mean to ' bring about, effect ' ; ' to cause to function, work ' ; ' to put or keep in operation ' ;

or ' to perform an operation on ' " ). Moler
, 316 Kan. at 572 . Using this definition, we agree with the district court's finding that Jarmer operated the vehicle because she caused it to function or work when she engaged the transmission and pressed the gas pedal.

Affirm ed

.