By Tracy McCue, Sumner Newscow — A driving under the influence incident on Jan. 24, 2021, in Wellington involving a local physician and her family made its way to the Kansas Supreme Court.

The Kansas Supreme Court last week ruled with Wellington physician Shana Jarmer. It reversed the Department of Revenue’s decision to suspend her driver’s license due to a driving incident on the night of the 2021 Kansas City Chiefs football AFC Championship game.

Allegedly, her husband was driving home from a party with Jarmer as a passenger and two minor children, ages 7 and 10, in the back seat. According to the Sumner County District Court complaint, the husband was driving almost three times the legal blood alcohol level when he lost control of the vehicle and struck an electric pole — causing the neighborhood to lose power before driving into or through multiple ditches. He subsequently struck a house before getting stuck in the mud in a ditch.

The husband allegedly scrambled to the rear of the vehicle and attempted to push it free as his wife slid behind the wheel and gunned the engine to add horsepower to the quest.

When law enforcement officers arrived at the Sumner County accident site, the husband was attempting to get the vehicle out of the mud according to an article written in the Kansas Reflector.

The husband registered a 0.22 on the breath-alcohol test, and Jarmer had a .15. Both were arrested for driving under the influence. The legal limit in Kansas is 0.08.

Subsequently, the Kansas Department of Revenue notified Jarmer that the state intended to suspend her driving privileges. She challenged the sanction at the administrative hearing in Sumner County District Court and before the Kansas Court of Appeals. The suspension was upheld based on the notion that Jarmer controlled the vehicle by holding the steering wheel, engaging the transmission, pressing the gas pedal, and spinning the wheels.

During oral argument, Ryan Gering, a Wichita attorney representing Jarmer, told the Kansas Supreme Court that the state law made no distinction between successfully and unsuccessfully operating a vehicle when considering a criminal charge of DUI.

However, Gering said that Kansas law did establish a bright-line division between an attempt to operate a vehicle and the successful operation of a vehicle in license suspension cases. The law was structured so an intoxicated person who chose to sleep it off in the car would be charged with DUI but not lose the ability to drive.

“The issue in this case … is whether my client, Miss Jarmer, was operating or was merely attempting to operate her vehicle. There must be actual operation for any suspension or restriction of their driving privileges,” Gering said.

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On Friday, a divided Kansas Supreme Court agreed with Jarmer and reversed the Department of Revenue’s decision to suspend her license. Even though she failed a breath-alcohol test and tried to drive the vehicle out of the ditch, the justices said, she failed to dislodge it and couldn’t be found to have operated the vehicle in a sense that jeopardized driving privileges.

The word “operate” was synonymous in state law with the word “drive,” which required that a vehicle move under a driver’s control, the Supreme Court opinion said. Circumstances in this case should have prevented the Department of Revenue from seizing Jarmer’s license, the opinion said.

Justice Evelyn Wilson wrote in the majority opinion that findings of the Department of Revenue, Sumner County District Court and the Kansas Court of Appeals were in conflict with the Supreme Court’s 2016 precedent in State v. Darrow and its 2002 decision in State v. Kendall. She said precedent dictated the operation of a vehicle required actual movement when assessing administrative restrictions of a license.

“Because we see no reason to depart from that precedent,” Wilson wrote, “we reverse the suspension of Jarmer’s license.”

Wilson wrote the majority didn’t find persuasive the Court of Appeals’ belief that Jarmer was “in actual physical control of the movements of the machinery of the vehicle and … had she succeeded in her efforts, she could have seriously jeopardized the public safety.”

The Supreme Court opinion says the justices recognized the intuitive appeal of the Court of Appeals’ effort to expand the definition of operating a vehicle in light of Jarmer’s overt effort to drive out of the mud. But the court was convinced not to depart from the idea vehicular movement, not physical control, distinguished the operation of a vehicle from attempts to operate a vehicle, she said.

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Justice Caleb Stegall, in a dissent joined by Justice Melissa Standridge, said he disagreed with the way the Supreme Court majority applied court precedent and state law.

Stegall wrote that he would prefer the Supreme Court pronounce a broad legal definition of operating a vehicle and leave case-by-case application of that standard to juries or judges considering evidence at trial.

Stegall said no bill devised by the Legislature and signed into law by a governor could definitively answer every situation created by motorists. He said the majority opinion defined vehicle movement in a way no reasonable person would recognize.

“I fail to understand how causing the actual movement of the mechanical systems of the drive train of the car, done with the intent to steer the vehicle out of the ditch, does not satisfy the Legislature’s intent behind the word ‘operate,’” Stegall wrote. “Today’s outcome falls far outside the plain meaning of the statute and produces what I believe to be an absurd result.”

“Is a drag racer doing a stationary burnout not ‘driving’ their car?” he asked. “On the other hand, what about a mechanic operating a vehicle’s drive train while the vehicle is on a lift? Or, a motorcycle being revved up to show off a new motor, but the transmission is disconnected?”

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