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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,748

ROBERT BLAKE DUMLER,

Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,

Appellee.

SYLLABUS BY THE COURT

1.

Under Kansas' Implied Consent Law, any person who operates a vehicle within 

this state is deemed to have given consent to submit to one or more tests of the person's 

blood, breath, urine, or other bodily substance to determine the presence of alcohol or 

drugs, provided that the person has been given certain mandatory notices before a law 

enforcement officer administers such a test.

2.

The mandatory implied consent notices that must be given to a person before a law 

enforcement officer can administer a drug or alcohol test include the advice that there is 

no constitutional right to consult with an attorney regarding whether to submit to testing, 

but that after the completion of the testing, the person has the right to consult with an 

attorney and may secure additional testing.

3.

The scope of an administrative hearing on a driver's license suspension is 

restricted to those issues set forth in K.S.A. 2009 Supp. 8-1020(h). Whether a driver has 

been denied her or his statutory right to consult with an attorney after alcohol or drug 
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testing is germane to those issues permitted to be addressed at a driver's license 

suspension administrative hearing.

4.

A person who has been given the implied consent advisory notice that he or she 

has the right to consult with an attorney after completion of the alcohol or drug testing, 

may invoke that post-testing right prior to testing. The only statutory constraint on the 

right to counsel in the Implied Consent Law involves when the person may actually 

communicate with a lawyer, i.e., after the completion of the alcohol or drug testing. 

5.

The statutorily mandated implied consent advisory under K.S.A. 2009 Supp. 8-

1001(k)(10)—that after the completion of alcohol or drug testing the person has the right 

to consult with an attorney—does not restrict the subject matter of the attorney 

consultation to which the person is entitled.

6.

In a driver's license suspension administrative hearing, if the district court finds 

that the driver requested, but was denied, counsel pursuant to the statutory right to 

counsel contained in K.S.A. 2009 Supp. 8-1001(k)(10), the proper remedy is to suppress 

the State's testing results.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 28, 

2012. Appeal from Russell District Court; JACK L. BURR, judge. Opinion filed July 24, 2015. Judgment of 

the Court of Appeals affirming the district court is remanded with directions. Judgment of the district 

court is remanded with directions.

Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the brief

for appellant. 
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John D. Shultz, of Kansas Department of Revenue, argued the cause, and James G. Keller, of the 

same office, was on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Robert Blake Dumler challenges the administrative suspension of 

his driving privileges based on driving under the influence of alcohol. Dumler contends 

he was denied his statutory right under K.S.A. 2009 Supp. 8-1001(k)(10) to consult with 

an attorney after he completed a breath alcohol test. The district court and Court of 

Appeals affirmed Dumler's administrative suspension after concluding that his pre-test 

request for counsel was insufficient to invoke his statutory right. We granted Dumler's 

petition for review and now hold that there is no bright-line rule requiring a person to 

invoke his or her statutory right to counsel after the completion of breath or blood alcohol 

testing, so long as the request pertained to post-testing consultation. We remand to the 

district court to apply the standard we set forth in this opinion.

FACTUAL AND PROCEDURAL OVERVIEW 

The facts relevant to Dumler's issue on appeal were established at a de novo 

hearing in the district court and are not in material dispute. On April 17, 2010, a law 

enforcement officer stopped Dumler for committing a traffic violation, which led to his 

arrest for driving under the influence (DUI). The officer transported Dumler to the 

sheriff's office and provided Dumler with the implied consent notices under K.S.A. 2009 

Supp. 8-1001(k)(1) through (10), before requesting that he submit to a breath alcohol test.

One of the implied consent notices informed Dumler that he had the right, after the 

completion of testing, to consult with an attorney and secure additional testing. The 

officer also read Dumler his Miranda rights, which, of course, include the right to an 

attorney. 
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The Court of Appeals opinion related that "[o]n several occasions before the 

breath test was administered Dumler requested that he be permitted to confer with an 

attorney," with the last request coming after the oral and written implied consent 

advisories and the Miranda warnings. Dumler v. Kansas Dept. of Revenue, No. 106,748, 

2012 WL 4679128, at *1 (Kan. App. 2012) (unpublished opinion), rev. granted 298 Kan. 

1201 (2014). The arresting officer acknowledged that he never gave Dumler an 

opportunity to confer with an attorney. Dumler did not repeat his request for an attorney 

or request additional testing after his breath test failure. The arresting officer provided 

Dumler with an officer's certification and notice of suspension of driving privileges and 

apparently placed him in a holding cell, where he remained for an hour or so before 

posting bond and being released.

Dumler made a timely request to the Kansas Department of Revenue (KDR) for an 

administrative hearing where he argued that his statutory right to counsel was violated. 

After the KDR hearing officer affirmed Dumler's suspension, he petitioned the district 

court for review. The Court of Appeals described the district court's disposition as 

follows: 

"The district court found that although the better practice would have been to 

allow Dumler access to an attorney after the breath test was completed, suspension of his

driving privileges should be upheld because the arresting officer complied with paragraph

9 of the implied consent advisories [enumerating statutory right to counsel] and Dumler 

did not ask to speak with an attorney after the breath test failure." Dumler, 2012 WL 

4679128, at *1.

The Court of Appeals majority affirmed the district court based on the timing of 

Dumler's requests to consult with an attorney. Because Dumler did not ask to consult 
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with an attorney after he failed the breath test, he had not invoked his statutory right to an 

attorney and, accordingly, that right was not violated. Dumler, 2012 WL 4679128, at *3. 

Judge Atcheson disagreed with the majority's bright-line rule that a driver can 

invoke the statutory right to an attorney only after completion of the alcohol testing 

because the statute simply does not contain that restriction. 2012 WL 4679128, at *3 

(Atcheson, J., concurring). Nevertheless, Judge Atcheson concurred in the result because 

of his belief that the governing statutes provide no remedy for violation of the statutory 

right to counsel. 2012 WL 4679128, at *5 (Atcheson, J., concurring).

Dumler timely petitioned this court for review. 

STATUTORY RIGHT TO COUNSEL 

Under Kansas' Implied Consent Law, "[a]ny person who operates . . . a vehicle 

within this state is deemed to have given consent, subject to the provisions of this act, to 

submit to one or more tests of the person's blood, breath, urine or other bodily substance 

to determine the presence of alcohol or drugs." K.S.A. 2009 Supp. 8-1001(a). But the 

statute provides that a "person shall be given" certain mandatory notices before a law 

enforcement officer administers such a test. See K.S.A. 2009 Supp. 8-1001(k); Barnhart

v. Kansas Dept. of Revenue, 243 Kan. 209, 212-13, 755 P.2d 1337 (1988) (holding 

notices required before DUI arrestee must submit to a breath test are mandatory). 

The notices advise, inter alia, that "there is no constitutional right to consult with 

an attorney regarding whether to submit to testing." K.S.A. 2009 Supp. 8-1001(k)(3). But 

the notices also provide that "after the completion of the testing, the person has the right 

to consult with an attorney and may secure additional testing, which, if desired, should be 

done as soon as possible and is customarily available from medical care facilities willing 
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to conduct such testing." (Emphasis added.) K.S.A. 2009 Supp. 8-1001(k)(10). Dumler 

asserts he was denied the subsection (k)(10) post-testing right to consult with an attorney. 

Scope of Review 

Our first consideration is whether Dumler's issue is one that can be raised in the 

proceeding before us. We have held that K.S.A. 2009 Supp. 8-1020(h) "circumscribes the 

scope of an administrative hearing on a driver's license suspension, setting forth an 

exclusive list of issues that may be addressed." Swank v. Kansas Dept. of Revenue, 294 

Kan. 871, 875, 281 P.3d 135 (2012).

Where, as here, the officer certifies that the person failed a breath test, the scope of 

the hearing includes the issue of whether "the test result determined that the person had 

an alcohol concentration of .08 or greater in such person's breath." K.S.A. 2009 Supp. 8-

1020(h)(2)(G). A driver must be permitted the opportunity of challenging the efficacy of 

the State's evidence on this issue. Accordingly, the denial of the driver's statutory right to 

consult with an attorney about procuring an additional test is germane to the inquiry 

under subsection (h)(2)(G). The relevance of this opportunity is reinforced by K.S.A. 8-

1004, which provides:

"Without limiting or affecting the provisions of K.S.A. 8-1001 . . . the person 

tested shall have a reasonable opportunity to have an additional test by a physician of the 

person's own choosing. In case the officer refuses to permit such additional testing, the 

testing administered pursuant to K.S.A. 8-1001 . . . shall not be competent in evidence." 

If a test is not competent evidence, it cannot be used to determine whether the 

person "had an alcohol concentration of .08 or greater" under K.S.A. 2009 Supp. 8-

1020(h)(2)(G). Accordingly, we hold that the denial of a driver's statutory right to consult 

with an attorney after alcohol testing is an appropriate issue to be addressed at a driver's 
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license suspension administrative hearing. Because the issue is within the scope of the 

administrative hearing, it is likewise within our scope of review. Sloop v. Kansas Dept. of 

Revenue, 296 Kan. 13, 17, 290 P.3d 555 (2012) (holding issues within scope of 

administrative hearing are "within the reviewing court's purview"). Therefore, we will 

proceed to the merits of Dumler's argument. 

Standard of Review

Because the material facts are undisputed, resolution of the issue before us hinges 

upon our interpretation of the Implied Consent Law, K.S.A. 2009 Supp. 8-1001 et seq. 

Statutory interpretation is a question of law subject to unlimited to review. See, e.g., 

Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).

When a person must invoke the statutory right to counsel

We begin by considering the timing of the request, i.e., when a person must invoke 

the statutory right to counsel. Dumler asserts that a pre-test request for counsel is 

sufficient to invoke the statutory right and, therefore, it was irrelevant that he did not 

repeat his request for counsel after he failed the breath test. He relies on State v. Kelly, 14 

Kan. App. 2d 182, 191-92, 786 P.2d 623 (1990), and State v. Lynch, No. 85,915 (Kan. 

App. 2001) (unpublished opinion). 

In Kelly, a panel of the Court of Appeals held that Kelly's statutory right to consult 

with counsel under the Implied Consent Law was violated. 14 Kan. App. 2d at 190. In 

that case, however, the driver had requested an attorney both before and after completing 

a breath test. Lynch, on the other hand, is factually similar with respect to the timing of 

the request for counsel. Lynch requested counsel before he took his breath test, but then 

he did not renew the request after testing. The Lynch panel held "[t]he fact that Lynch 

requested counsel before, rather than after, the test was administered is of no moment. 
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His right to counsel attached immediately after completing the test, and he previously 

expressed his desire to exercise that right." Slip op. at 4. 

Here, the panel majority rejected Dumler's reliance on Lynch in favor of the

interpretation of the statutory right to counsel expressed in State v. Tedder, 38 Kan. App. 

2d 141, 142-43, 163 P.3d 311 (2007). As in this case, Tedder had asked to speak with an 

attorney before completing a breath test but then did not ask again after completing the 

test. The Tedder panel opined that "a request for counsel must be made after completion 

of the breath test before there can be a violation of the defendant's statutory right to 

confer with an attorney." 38 Kan. App. 2d at 142-43. Based on that reasoning, the 

majority below held that because Dumler did not reiterate his request for counsel posttesting, his statutory right to counsel was not violated. Dumler, 2012 WL 4679128, at *2-

3. 

As in the Lynch opinion, Judge Atcheson's concurrence pointed out that a brightline timing rule cannot be found in the plain language of the statute. See In re Tax Appeal 

of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013) ("[I]n reviewing a statute that is plain 

and unambiguous we will not speculate as to the legislative intent behind it and will not 

read into the statute something not readily found in it."). The concurrence further opined 

that the only statutory restriction on the right to counsel involves "when the person may 

actually communicate with a lawyer." Dumler, 2012 WL 4679128, at *3 (Atcheson, J., 

concurring). We agree. The advisory required under K.S.A. 2009 Supp. 8-1001(k)(10) 

states that the consultation right accrues "after the completion of the testing." But it does 

not say that a request to invoke that right of consultation must await the completion of 

testing.

Moreover, the plain language of the advisory tells the person that, after testing, he 

or she "has the right to consult with an attorney." (Emphasis added.) K.S.A. 2009 Supp. 
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8-1001(k)(10). The right is stated affirmatively and is not conditioned upon the person 

making a post-testing request. The State would apparently expect a layperson to intuit 

that the advisory actually means that, after the testing, the person has the right to request

that he or she be allowed to consult with an attorney. We decline to contort the statutory 

language in that manner.

Consequently, we reject the court-made, bright-line timing rule set forth in Tedder 

and applied by the majority below. A person may invoke his or her post-testing right to 

consult with an attorney prior to testing. 

Whether Dumler requested post-testing consultation

The district court appeared to view the post-testing right to counsel as only being 

applicable to a consultation on the topic of additional testing. Specifically, the district 

court noted that "it certainly is not defined as to what [Dumler] wanted to talk to the 

attorney about . . . and I don't imagine [] Dumler was thinking specifically about talking 

about a test or just talking about things in general with an attorney." But the statutorily 

mandated implied consent advisory does not restrict the subject matter of the attorney 

consultation to which the person is entitled. Rather, it states that "the person has the right 

to consult with an attorney and may secure additional testing." (Emphasis added.) K.S.A. 

2009 Supp. 8-1001(k)(10). As the Court of Appeals recognized in Kelly, "had the 

legislature intended to limit the consultation to whether a second test is performed, it 

could have easily written 'the person has the right to consult with an attorney to determine 

whether to secure additional testing.'" 14 Kan. App. 2d at 189. Certainly, consulting with 

an attorney about additional testing would be an important reason that a person would 

exercise his or her right to counsel, but it is not a condition precedent to the invocation of 

the right. 
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Rather than focusing on the subject matter of the desired consultation, the district 

court should have determined whether Dumler was requesting a post-testing consultation.

As the concurrence below noted, the statute limits when a person may actually 

communicate with a lawyer. 2012 WL 4679128, at *3. For instance, a person has no right 

to consult with counsel before deciding whether to take the requested alcohol testing. But 

after the test, a person has the unrestricted right to consult with an attorney, period. Given 

that the district court apparently applied an incorrect legal standard on the question of 

whether Dumler's post-testing right to counsel was violated, a remand would be in order. 

See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (noting 

that despite general rule that litigant must object to inadequate findings of fact in the trial 

court, "this court may still consider a remand if the lack of specific findings precludes 

meaningful review"). Upon remand, the district court shall determine whether Dumler 

was invoking the right to consult with an attorney after testing that the arresting officer 

specifically advised him that he possessed.

But before sending the matter back for further proceedings, we pause to address 

the question of whether any remedy exists for a violation of the statutory right to counsel. 

Remedy 

As noted, the Court of Appeals concurrence found that the arresting officer 

violated Dumler's statutory right to counsel but opined that the statutes governing driver's 

license suspension proceedings provided him with no remedy for such a denial of his 

right to counsel. 2012 WL 4679128, at *5 (Atcheson, J., concurring). The concurrence's 

rationale is that because K.S.A. 2009 Supp. 8-1001(k)(10) discusses both the person's 

right to consult with an attorney and the person's right to obtain additional testing, but 

K.S.A. 8-1004 only provides an explicit remedy for an officer's failure to permit a person 

to obtain additional testing, the courts should not fashion an implied remedy for the 
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failure to permit a person to consult with an attorney. 2012 WL 4679128, at *5-6 

(Atcheson, J., concurring). We decline to find that the legislature intended to create a 

right without a remedy on the most fundamental subject matter as a person's right to 

counsel.

Although we have not ruled on the remedy issue in the context of a civil 

administrative proceeding, we have clearly held that the notice provisions, including the 

right to consult with an attorney after testing, are mandatory. Barnhart, 243 Kan. at 212. 

And in the criminal DUI context, we have held that because of Barnhart's holding that 

the notices were mandatory, an officer's failure to provide a driver with notice of the 

statutory right to counsel results in suppression of the test results. State v. Luft, 248 Kan. 

911, 913, 811 P.2d 873 (1991). The Court of Appeals has applied Luft to suppress test 

results in the administrative license suspension context, reasoning that Luft's reliance 

upon Barnhart "makes it clear that failure to give the statutory warnings (notices) 

required by 8-1001[k] will result in suppression of test results in an administrative 

suspension of license proceeding as well as in a criminal action." Ostmeyer v. Kansas 

Dept. of Revenue, 16 Kan. App. 2d 639, 644, 827 P.2d 780 (1992). It would seem 

counterintuitive, if not perverse, to provide a person the remedy of suppression where the 

arresting officer failed to tell the person that he or she had the right to consult with an 

attorney, but then withhold any remedy where the officer tells the person of the right but 

then refuses to allow the person to exercise that right. If the legislature intended for the 

State to inform drivers of their rights, it surely contemplated that the State would honor 

those rights, as well.

Further, we do not read K.S.A. 8-1004's explicit provision of a remedy for 

refusing to allow a driver to obtain additional testing as impliedly withholding any 

remedy for refusing to allow a driver to consult with an attorney. As suggested, those two 

rights are often intertwined, so that denying the right to consult with an attorney could 
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remove an important component of the driver's decision-making with respect to 

additional testing. In other words, a driver's exercise of her or his right to consult with an 

attorney could lead to a request for additional testing, which is subject to an explicit 

remedy. Moreover, K.S.A. 8-1004 specifically provides that its provisions do not limit or 

affect K.S.A. 8-1001, from whence the statutory right to counsel emanates. 

Two additional provisions support the notion that the legislature intended to 

provide a remedy for a violation of the right to counsel. First, K.S.A. 2009 Supp. 8-

1001(s) provides that "[n]o test results shall be suppressed because of technical 

irregularities in the consent or notice required pursuant to this act." The clear implication 

is that if something more than a technical irregularity is involved, the test result should be 

suppressed. It would stretch the common understanding of "technical irregularities" to 

find that it encompassed a complete denial of the right to consult with an attorney. See 

Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014) (appellate court ascertains 

legislative intent through statutory language enacted, giving common words their 

ordinary meanings). 

Second, K.S.A. 2009 Supp. 8-1012, dealing with preliminary breath tests, shows 

that our legislature knew how to enact notice provisions that are not grounds for 

suppression. K.S.A. 2009 Supp. 8-1012(c) discusses the notices a person shall be given

before taking a preliminary breath test and explicitly states that "[f]ailure to provide the 

notice shall not be an issue or defense in any action." No corresponding remedy exclusion 

is contained in the notice provisions required under K.S.A. 2009 Supp. 8-1001(k).

Finally, as a practical matter, if we do not recognize a remedy for a violation of the 

statutory right to counsel, that provision would be essentially rendered meaningless. "As 

a general rule, courts should . . . presume that the legislature does not intend to enact 
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useless or meaningless legislation." Board of Miami County Comm'rs v. Kanza RailTrails Conservancy, Inc., 292 Kan. 285, 322, 255 P.3d 1186 (2011). 

Consequently, we hold that suppression of the alcohol testing result is the 

appropriate remedy for the denial of a driver's statutory right to counsel. Therefore, upon 

remand, if the district court finds that Dumler requested counsel pursuant to the statutory 

right to counsel contained in K.S.A. 2009 Supp. 8-1001(k)(10), the proper remedy is to 

suppress the breath test results in his administrative action.

Remanded with directions.