Appeal from Johnson District Court; BRENDA M. CAMERON, judge.
BY THE COURT
1. Whether a statute is unconstitutionally vague is a question of law over which appellate review is de novo and unlimited. Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent.
2. When there is a valid alternative ground for relief, courts should construe statutes to avoid decisions as to their constitutionality. Thus, if a case can be decided on either of two grounds, one involving a constitutional question and the other involving a question of statutory construction or general law, courts should not reach the constitutional contentions of the parties.
3. In determining prior convictions under K.S.A. 2011 Supp. 8-1567, it is the date of the current offense and not the date of the conviction that triggers the look-back period.
Bruce W. Beye, of Overland Park, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., LEBEN and BRUNS, JJ.
Akin J. Wines was charged with driving while under the influence of alcohol (DUI)--third offense--and with refusing a preliminary breath test for conduct occurring on January 7, 2012. Following a bench trial, Wines was found guilty of DUI and refusing a preliminary breath test. The trial court determined that Wines' current DUI conviction was his third. The penalty for a third DUI conviction under K.S.A. 2011 Supp. 8-1567(b)(1)(D) is a felony when a person has a previous DUI conviction within the preceding 10 years of the person's current DUI offense. On appeal, Wines contends that K.S.A. 2011 Supp. 8-1567 is unconstitutionally [50 Kan.App.2d 818] vague because one of his previous DUI convictions--a December 2001 DUI diversion agreement in Overland Park, Kansas--should not have been included in determining whether his third-time DUI offense was a felony because it did not occur within 10 years from his current DUI offense of January 7, 2012.
Nevertheless, when it is reasonably possible to interpret statutes in a manner that avoids an unnecessary decision as to their constitutionality, an appellate court should not reach the constitutional contentions of the parties. Because Wines had another DUI conviction, other than the one he complains about, within 10 years of his January 7, 2012, DUI offense, we need not address his constitutional question. Because only one DUI conviction within the preceding 10 years is required under K.S.A. 2011 Supp. 8-1567(b)(1)(D) and because Wines had another DUI conviction, other than the one he complains about, within 10 years from his current DUI offense, we affirm.
Wines was charged with a third-offense DUI and with refusing a preliminary breath test for conduct which occurred on January 7, 2012. The written complaint alleged that Wines had two or more previous DUI convictions.
Wines' presentence investigation report listed two prior DUI convictions: a DUI conviction in Overland Park, Kansas, on August 14, 2002, and a DUI conviction ...