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State v. Williams

Court of Appeals of Kansas

March 9, 2018

State of Kansas, Appellee,
v.
Timothy J. Williams, Appellant.

         SYLLABUS

         1.Because the crime of refusing to submit to a breath test has been declared unconstitutional by the Kansas Supreme Court, a pending conviction for a violation of the statute must be dismissed or vacated.

         2.A conviction for a violation of Wichita Municipal Ordinance 11.38.150 as it existed prior to September 13, 2016, cannot be used as a predicate offense for sentencing enhancement purposes under the Kansas driving under the influence statute.

         3.Judges are not required to turn a blind eye to a person's total criminal history. They are free to consider all prior convictions and the facts related to said convictions as long as such consideration does not enhance a defendant's sentence beyond the statutory maximum.

         Appeal from Sedgwick District Court; Stephen J. Ternes and Bruce C. Brown, judges. Convictions reversed in part, sentences vacated in part, and case remanded with directions.

          Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Buser and Schroeder, JJ.

          Arnold-Burger, C.J.

         To determine whether to sentence a driving under the influence (DUI) offender in Kansas to a misdemeanor, meaning one or fewer prior DUI convictions, or a felony, meaning two or more prior DUI convictions, the court must verify the number of prior convictions. A conviction is defined as including not only prior convictions under K.S.A. 2016 Supp. 8-1567 but also including "a violation of an ordinance of any city . . . which prohibits the acts that [K.S.A. 8-1567] prohibits." K.S.A. 2016 Supp. 8-1567(i)(1).

         Timothy J. Williams was convicted of a felony DUI because he had a prior DUI conviction under K.S.A. 8-1567 and another DUI conviction under a similar Wichita municipal ordinance. He argues that the district court improperly counted his Wichita municipal DUI because the city ordinance did not prohibit the same acts prohibited by K.S.A. 8-1567. We agree and vacate his sentence and remand for sentencing as a second-time offender under K.S.A. 2016 Supp. 8-1567(b)(1)(B).

         Williams also asserts that he was improperly convicted of refusing to take a breath test under K.S.A. 2012 Supp. 8-1025, which was found to be unconstitutional by the Kansas Supreme Court. We agree and reverse his conviction for refusing to take a breath test.

          Factual and Procedural History

         In 2013, Williams was charged with refusing to submit to a breath test to determine the presence of alcohol; felony DUI; and failure to maintain a single lane. In order to establish that the DUI charge was a felony, the complaint referenced in part a prior DUI conviction in the Wichita Municipal Court. In 2012, Williams was convicted of DUI under Wichita Municipal Ordinance (W.M.O.) 11.38.150.

         Williams filed a motion to dismiss the charge of refusing to submit to a breath test arguing that K.S.A. 2012 Supp. 8-1025 was unconstitutional because it criminalized his refusal to submit to a breath test. He also filed a motion to dismiss the felony DUI charge, arguing that his prior conviction for DUI under W.M.O. 11.38.150 could not be used as a prior DUI conviction for purposes of determining the level offense. The district court denied both motions.

         The State and Williams proceeded to a bench trial on stipulated facts. At the bench trial, Williams preserved his arguments regarding the constitutionality of the criminalization of his refusal to submit to a breath test and the use of the Wichita municipal conviction for enhancement of his DUI from a ...


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