Successful Criminal History Challenge in Kansas DUI Cases

Posted on March 02, 2019 in Uncategorized


In a recent appeal, No. 112828, I argued that Kansas can no longer use some Missouri DUI convictions because the acts prohibited by Missouri's law differs from the acts prohibited by Kansas' law. The Kansas Court of Appeals agreed and the Kansas Supreme Court recently declined to grant the State's Petition for Review.

In Kansas, the penalty for DUI increases based on the number of the defendant's prior DUI convictions. See K.S.A. 2012 Supp. 8-1567(b). A prior conviction can be a conviction for a violation of another state's law that "prohibits the acts that the Kansas DUI law prohibits." K.S.A. 2012 Supp. 8-1567(i)(1), (3). This is important because, in Kansas, a person can be convicted for DUI under K.S.A. 8-1567(a)(3) only if they are "under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle." My client's prior Missouri DUI conviction, on the other hand, permitted a conviction if he operated a motor vehicle while in an intoxicated or drugged condition. Mo.R.S. 577.010(1).

An Apprendi problem arises when using MO DUI's in calculating KS criminal history scores because the MO statute did not require a finding that the person was incapable of safely driving a vehicle as Kansas does. Instead, MO only requires a finding that the person was in any "intoxicated or drugged condition." Thus, in order for the sentencing court to count the prior MO DUI, the court must make a finding that my client's intoxication in the prior MO case rendered him incapable of safely driving. Of course, this finding does not meet the Almandarez-Torres exception to Apprendi because additional fact-finding, beyond the facts found at the time of the original MO convictions, was required. And, this additional fact-finding raised the limit of the possible sentence in my client's KS case.

After comparing the Missouri and Kansas statutes prohibiting driving while intoxicated or driving under the influence, the Kansas Court of Appeals concluded that it is possible that the defendant could have been convicted in Missouri for conduct that would not lead to a conviction for driving under the influence in Kansas. Therefore, the prior Missouri conviction does not qualify as a prior DUI conviction in Kansas. Accordingly, the Kansas Court of Appeals vacated his sentence and remanded the case for resentencing with instructions that the district court exclude the prior Missouri DUI from the defendant's criminal history score.

The best part? This reasoning applies to DUI statutes in Kansas' neighboring states of Nebraska, Iowa, Oklahoma, and possibly Colorado. Now, I realize that this holding is limited to those prior convictions that did not rely on a theory of BAC of .08 or more. But, I'm hopeful that this will discourage incomplete police work (and lazy prosecutions) by requiring thorough investigations into allegations of DUI.

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