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NOT DESIGNATED FOR PUBLICATION

No. 123,812

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KYLE HEINEKEN,

Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,

Appellee.

MEMORANDUM OPINION

Appeal from Riley District Court; KENDRA LEWISON, judge. Opinion filed January 28, 2022. 

Affirmed.

Jeremiah L. Platt, of Clark & Platt, Chtd., of Manhattan, for appellant. 

Jay P. Van Blaricum, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before SCHROEDER, P.J., BRUNS and WARNER, JJ.

PER CURIAM: Kyle Heineken appeals the district court's decision to uphold the 

administrative suspension of his driving privileges following his arrest for suspicion of 

driving under the influence of alcohol. On appeal, Heineken contends that the district 

court erred in ruling that his request to obtain additional testing was neither unambiguous 

nor unequivocal. Previously, this issue was presented and decided in an interlocutory 

appeal brought by the State in Heineken's criminal case. As a result, we find that issue 

preclusion is applicable in the present appeal and Heineken is bound by our previous 

ruling that his right to seek additional testing was not violated. Moreover, we find that
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even if issue preclusion was not applicable, the result would be the same based on a 

review of the record. Thus, we affirm. 

FACTS

On the evening of September 29, 2018, Clay County Sheriff's Deputy Keith Myers 

stopped Heineken's vehicle for speeding. Following a series of field sobriety tests, 

Deputy Myers arrested Heineken for suspicion of driving under the influence of alcohol. 

At the Clay County Law Enforcement Center, Deputy Myers presented Heineken with a 

DC-70 implied consent advisory form and read it aloud to him. In so doing, Deputy 

Myers informed Heineken that he had the right to seek additional testing after he 

completed the requested breath testing.

Heineken consented to a breath alcohol test, which revealed that his blood alcohol 

level exceeded the legal limit for driving. However, noticing chewing tobacco flakes on 

the mouthpiece of the testing machine following the first test, Deputy Myers asked 

Heineken if he wanted to take a second breath test. Again, Heineken consented. During 

the second 20-minute deprivation period before the second breath alcohol test, Deputy 

Myers explained to Heineken that he thought the first test might be invalid because of the 

chewing tobacco in his mouth. 

While they continued to wait, Heineken asked the officer about the possibility of 

obtaining an additional blood test. In particular, the custodial video recorded the 

following conversation between Deputy Myers and Heineken: 

"'Deputy Myers: [If your attorney] says yeah, go ahead [with additional testing], 

you're going to have to secure testing on your own. That means you'll have to go 

somewhere and take the test. 

"'Heineken: That'll be fine. 
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"'Deputy Myers: I mean, there's no place around here that you can take an actual 

breath test. The only option . . . .

"'Heineken: What about blood? 

"'Deputy Myers: The only option would be to go the hospital and have blood 

drawn. That's something you would have to do on your own. 

"'Heineken: Under your surveillance? 

"'Deputy Myers: No . . . at this point, any additional testing that you do is on 

you, pretty much. So, that means, if you want to go have blood drawn and use that as 

your defense later down the road, that's . . . totally up to you because my basis for the 

arrest tonight was based on what I observed out in the field.'"

Then, Deputy Myers handed Heineken his phone. Although it appears from the 

video that Heineken texted someone, there is no suggestion that he called a physician, 

hospital, or attorney. Afterward, Heineken took the second breath test without requesting 

additional testing. 

The second test also revealed a blood alcohol level over the legal limit for driving. 

Before turning Heineken over to the jailer for processing, Deputy Myers asked him 

whether he had any questions. Heineken responded, "No" and did not request additional 

testing. About two and a half hours after the initial stop—Heineken bonded out of jail. 

There is no indication in the record that Heineken went to a hospital or physician's office 

to obtain additional testing on his own after being released.

On October 18, 2018, the State charged Heineken with driving under the influence 

of alcohol and speeding in a separate driving under the influence criminal case. Prior to

the trial in his criminal case, Heineken moved to suppress the breath alcohol tests, 

arguing that the Deputy Myers had denied him a reasonable opportunity to obtain 
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additional testing. Although a district magistrate judge first denied Heineken's motion to 

suppress, he later reconsidered and entered an order suppressing the breath alcohol test 

results. Thereafter, the State filed an interlocutory appeal under K.S.A. 22-3603, and a 

panel of our court held "that Deputy Myers did not deny Heineken 'a reasonable 

opportunity to have an additional test by a physician of [his] own choosing' as provided 

by K.S.A. 8-1004." State v. Heineken, No. 121,896, 2020 WL 1646805, at *3 (Kan. 

App.) (unpublished opinion). Accordingly, the panel reversed the district court's 

suppression of Heineken's breath alcohol testing and remanded the criminal case to the 

district court for further proceedings. On August 26, 2020, the Kansas Supreme Court 

denied a petition for review filed by Heineken and a mandate was issued. 312 Kan. 896

(2020).

Meanwhile, while the criminal action was pending, the Kansas Department of 

Revenue (KDOR) administratively suspended Heineken's driving privileges and 

Heineken filed a petition for judicial review in Riley County District Court. On January 

5, 2021, the district court held a de novo hearing on Heineken's petition for review. At the 

evidentiary hearing, Heineken testified on his own behalf. In addition, the KDOR

introduced the video that was taken during Heineken's testing at the Clay County Law 

Enforcement Center on the night of his arrest. The video is the same—with minor edits 

that are not material to this appeal—to the one previously admitted into evidence at the 

suppression hearing in Heineken's criminal case and considered by this court in the 

interlocutory appeal brought by the State in that case. 

During closing arguments in the present action, the KDOR pointed out the 

previous opinion entered by this court in the criminal case regarding the issue of 

Heineken's purported request for additional testing. In particular, the KDOR argued: 

"I think the Court of Appeals says it pretty clearly and pretty succinctly in 

overruling the motion to suppress in State v. Heineken. They say 'Similarly, we find 
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Heineken's questions and statements to Deputy Myers to be at most ambiguous and far 

from an unequivocal request for additional testing. Even if Heineken's questions and 

statements could be construed as a request for additional testing, we find nothing in the 

record to suggest that Deputy Myers unreasonably interfered with any attempt by 

Heineken to secure additional testing. Instead, a review of the record shows that Deputy 

Myers honestly tried to answer Heineken's questions to the best of his ability and gave 

him several opportunities to ask questions.'"

On January 6, 2021, the district court entered a journal entry in which it denied 

Heineken's petition for review. In reaching this decision, the district court concluded—as 

this court had previously found in the criminal case—that "[Heineken's] request for an 

independent blood test was not unambiguous nor unequivocal." Thereafter, Heineken 

filed a timely notice of appeal of the district court's decision to uphold the administrative 

suspension of his driving privileges. 

ANALYSIS

The sole issue presented in this action is whether the district court erred in 

concluding that Heineken's purported request for an independent blood test under K.S.A. 

8-1004 was not unambiguous or unequivocal. K.S.A. 8-1004 provides a person suspected 

of driving under the influence of alcohol "a reasonable opportunity to have an additional 

test by a physician of the person's own choosing." As he did in the interlocutory appeal in 

his criminal case, Heineken continues to contend that he was not given a reasonable 

opportunity to seek additional testing. In response, the KDOR points out that this issue 

was previously decided by this court in the previous appeal and further contends that 

there was no violation of K.S.A. 8-1004 because Deputy Myers did not refuse to permit 

Heineken from seeking additional testing. 

Appeals from the administrative suspension of driver's licenses are subject to 

review under the under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. 
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See Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009). Under 

the KJRA, we review a district court's factual findings for substantial competent evidence 

while our review of its legal conclusions is unlimited. Creecy v. Kansas Dept. of 

Revenue, 310 Kan. 454, 466, 447 P.3d 959 (2019). On appeal, the burden of proving the 

invalidity of the agency action rests on the party—in this case Heineken—asserting such 

invalidity. K.S.A. 77-621(a)(1).

As the KDOR correctly points out, the issue presented in this appeal was 

previously addressed by our court in the interlocutory appeal brought by the State in 

Heineken's criminal appeal. As a result, we must determine if the doctrine of issue 

preclusion or collateral estoppel is applicable in this appeal. Whether issue preclusion or 

collateral estoppel applies is a legal question over which we exercise unlimited review. 

State v. Parry, 305 Kan. 1189, 1193-94, 390 P.3d 879 (2017).

Unlike the law of the case doctrine, issue preclusion applies when the same issue 

arises in different cause of actions involving the same parties or those in privity with one 

another. As the Kansas Supreme Court recently explained: 

"Although the terms res judicata and claim preclusion often are used 

interchangeably, res judicata encompasses two distinct doctrines. The first doctrine is 

issue preclusion, also known as collateral estoppel, and it precludes a party from 

relitigating an issue actually decided in a prior case and necessary to the judgment. The 

second is claim preclusion, sometimes called res judicata, which prevents parties from 

relitigating the same claim or cause of action even if certain issues were not litigated in 

the prior action. In re Tax Application of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012)." 

Herington v. City of Wichita, 314 Kan. 447, 457, __ P.3d ___, 2021 WL 5990322 (No. 

120,329, filed December 17, 2021).

Here, a review of the record as well as a review of the opinion issued by our court 

in the interlocutory appeal brought by the State in the criminal action shows that the prior 
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judgment regarding the issue of Heinken's purported request for additional testing under 

K.S.A. 8-1004 was decided on the merits. Likewise, the parties to the previous appeal 

and to this appeal are either the same or they are in privity with one another. 

Significantly, Heinken and the State were parties to the criminal action and are parties to 

this administrative action arising out of the same incident. Although different 

subdivisions represented the State's interest in the two cases, we find the State of Kansas 

to be a party in both cases or—at the very least—we find the subdivisions to be in privity 

with one another. We further find that the resolution of the issue presented in this appeal 

was necessary for resolution of the previous appeal. 

Consequently, we find that all of the elements required to establish issue 

preclusion or collateral estoppel have been met. As a result, Heineken is precluded from 

relitigating an issue that was actually decided in the prior appeal in his criminal case and 

was necessary to the judgment in that case. For these reasons, we conclude that the 

district court did not err in denying Heineken's petition for review or in upholding the 

administrative suspension of his driving privileges. 

Even if issue preclusion was not applicable in this appeal, we also find that the 

district court reached the correct result in upholding Heinken's administrative suspension 

based on our review of the record on appeal. We have reviewed the record to determine 

whether the district court's findings are supported by evidence that is substantial when 

viewed in light of the record as a whole. See K.S.A. 77-621(c)(7), (d); Swank v. Kansas

Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). In doing so, we have not 

reweighed the evidence, assessed the credibility of witnesses, or resolved evidentiary 

conflicts. State v. Boggess, 308 Kan. 821, 825, 425 P.3d 324 (2018).

Under K.S.A. 8-1004, if a law enforcement officer "refuses to permit . . . 

additional testing," the results of any properly administered tests given by the officer are 

not to be considered "competent evidence." The purpose of the statute is to allow a 
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person suspected of driving under the influence the ability to procure probative evidence 

and to prepare a defense. Even so, what is considered to be a "reasonable opportunity to 

have an additional test" performed depends on the circumstances of each case. State v. 

George, 12 Kan. App. 2d 649, Syl. ¶¶ 1, 2, 4, 754 P.2d 460 (1988). 

In the present case, the record reveals that although Heineken asked about the 

possibility of additional testing, he did not request to call a physician or hospital to 

arrange for such testing. Likewise, the record shows that Heineken did not request to be 

taken to a physician's office or hospital. The record also establishes that Deputy Myers 

accurately told Heineken that any additional testing would be "on your own" and not part 

of the testing being performed at the law enforcement center. Thus, we find no violation 

of K.S.A. 8-1004 under the circumstances presented in this case.

As the panel in State v. Heineken recognized: 

"Certainly, a law enforcement officer may not unreasonably interfere with a 

person suspected of driving under the influence's attempts to secure additional testing.

George, 12 Kan. App. 2d at 655. Furthermore, the State's test results must be suppressed 

when the suspect has actually made a request for additional testing and an officer refuses 

to permit such additional testing. City of Dodge City v. Ibarra, 35 Kan. App. 2d 643, 648, 

133 P.3d 159 (2006). Even so, a suspect's invocation of his or her statutory right to 

additional testing under K.S.A. 8-1004 must be unambiguous and unequivocal. See

Mitchell v. Kansas Department of Revenue, 32 Kan. App. 2d 298, 299-302, 81 P.3d 1258 

(2004); State v. Eichem, No. 91,903, 2005 WL 2949404, at *6 (Kan. App. 2005) 

(unpublished opinion).

In Eichem, a law enforcement officer arrested the defendant for DUI. According 

to the officer, the defendant stated that he would prefer a blood test but was informed that 

only a breath test was being offered. At his suppression hearing, the defendant testified 

that he requested a blood test because he did not trust the breath test machines. In 

affirming the district court's refusal to suppress the results of the breath test, the Eichem
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panel held that the officer did not refuse to permit additional testing. Instead, the panel 

found that '[a]t most, the defendant made an ambiguous statement concerning his desire 

to obtain a blood test, which the deputy was under no obligation to clarify.' 2005 WL 

2949404, at *6." Heineken, 2020 WL 1646805, at *3.

Like the district court, we find that Heineken's questions and statements to Deputy 

Myers about the possibility of additional testing were at most ambiguous and were not 

unequivocal. Even if Heineken's questions and statements could be construed as a request 

for additional testing, there is nothing in the record to suggest that Deputy Myers 

unreasonably interfered with Heineken's rights if he desired to secure additional testing. 

Rather, a review of the record shows that Deputy Myers attempted to answer Heineken's 

questions to the best of his ability and gave him several opportunities to ask additional 

questions. 

In summary, we conclude that the issue presented in this case was previously 

decided by a panel of this court. Hence, relitigation of this issue in this appeal is barred. 

Nevertheless, even if issue preclusion were inapplicable, we conclude that there is 

substantial competent evidence in the record to support the district court's decision to 

deny Heineken's petition for review and uphold the administrative suspension of his 

driver's license. For these reasons, we affirm the district court's decision. 

Affirmed.