BY THE COURT
penalty for driving under the influence of alcohol under
Kansas law increases based on the number of the
defendant's prior convictions. A prior conviction can be
a conviction for a violation of another state's law that
prohibits the acts that the Kansas driving under the
influence law prohibits.
the Kansas DUI law criminalizes two acts: (1) operating or
attempting to operate a vehicle with a blood- or
breath-alcohol level of .08 or more; and (2) operating or
attempting to operate a vehicle while under the influence of
alcohol and/or drugs to a degree that renders the person
incapable of safely driving the vehicle.
out-of-state conviction is based on a statute that is broader
than the Kansas statute, then the out-of-state conviction
cannot be used for sentencing purposes under K.S.A. 2012
Supp. 8-1567(a)(1) and (3), because the same acts are not
prohibited by both laws.
pertinent Missouri driving while intoxicated statute provides
that a person commits the crime of driving while intoxicated
if the driver operates a motor vehicle while in an
intoxicated or drugged condition. A person is in an
intoxicated condition when the driver is under the influence
of alcohol, a controlled substance, or drug, or any
Kansas statute specifically requires that to be in violation,
the influence of alcohol must be to a degree that renders the
driver incapable of safely driving a vehicle (or that the
person has a blood- or breath-alcohol concentration of .08 or
more). That requirement is more stringent than the Missouri
requirement of intoxication that in any manner
impairs the ability of a person to operate an automobile. A
driving impairment may not necessarily render a person
incapable of safely driving a vehicle. It is clearly
conceivable, then, that an act that would be considered
driving while intoxicated in Missouri would not be driving
under the influence in Kansas.
from Johnson District Court; Kevin P. Moriarty, judge.
Opinion filed April 1, 2016. Sentence vacated and remanded
D. Stolte, of Kansas Appellate Defender Office, for
J. Obermeier, senior deputy district attorney, Stephen M.
Howe, district attorney, and Derek ...