Kansas Peace Officers Association

P.O. Box 2592, Wichita, KS 67201
(316) 722-8433  |  kpoa@kpoa.org

"Co-operation and Justice"

Garner v. KDOR

12/26/2022 3:25 PM | Grover Piper (Administrator)

Our state Court of Appeals recently tackled a traffic “case of first impression” for Kansas.  On an evening in 2020, Jack Garner was stopped at a stop sign.  A nearby officer observed Garner make his vehicle’s engine “roar” resulting in “spinning [the truck’s] tires all the way around until it got . . . directly onto 13th Street and straightened up.”  The officer stopped Garner for a violation of K.S.A. 8-1547 which provides that: “No person shall start a vehicle which is stopped, standing or parked unless and until such movement can be made with reasonable safety.”  

During the resulting traffic investigation, the officer arrested Garner for DUI.  The Kansas Department of Revenue later suspended Garner’s drivers license, and the county district court upheld the administrative suspension.  Garner appealed challenging the officer’s belief that Garner had violated K.S.A. 8-1547.  (Importantly, this traffic case and appeal did not involve the separate statute, K.S.A. 8-1565, involving “exhibition of speed.”)

“An officer’s decision to seize someone by pulling them over constitutes a valid seizure under the Fourth Amendment if the officer has specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction.  When an officer lacks those specific, articulable facts, the seizure may violate the Fourth Amendment, assuming no exception applies.  In such cases if the traffic stop is unconstitutional the court may set aside KDOR’s administrative suspension of a person’s driver’s license.”

After review, the appellate panel held “[t]his court joins most other state courts that have addressed this statutory language in holding that a driver’s acceleration from a stop that causes the car’s engine to rev and tires to squeal and spin is insufficient to constitute a violation of K.S.A. 8-1547 when there are no other circumstances showing that the acceleration was not reasonably safe . . .The essence of the unsafe-start statute is that it prohibits unsafe conduct, and the officer here did not identify any conditions or circumstances – such as wet road conditions, construction, the presence of other vehicles or pedestrians, or obstruction – that made Garner’s acceleration unsafe . . .This court does not doubt the good-faith intention and belief of the arresting officer, but that is not enough to support the constitutionality of Garner’s seizure in these circumstances.”

Interestingly, the fate of the parallel criminal DUI case is not discussed in the opinion.  One would think that if the original stop was found lacking that it would affect more than the later administrative DL suspension. 

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