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.
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
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.
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.
F.A. Maughan, of Maughan Law Group LC, of Wichita, for
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
Arnold-Burger, C.J., Buser and Schroeder, JJ.
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).
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).
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
Factual and Procedural History
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.
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.
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