In Kansas, the penalty for a DUI conviction depends largely on how many prior DUI convictions the defendant has. For instance, the penalty for a first DUI requires 48 hours in custody and a $750 fine while the penalty for a fourth DUI requires 72 hours in custody and a $2,500 fine. Judges in DUI cases order a criminal history report that includes a list of all prior convictions. To determine whether the prior out-of-state DUI conviction can be used to increase the DUI penalty, the prior conviction must be comparable to the Kansas DUI statute, K.S.A. 8-1567.
The comparability analysis is not straight forward. Most state DUI laws permit a conviction when the BAC is at .08 or higher. However, some states punish people for DUI when riding a bicycle. Because riding a bicycle while under the influence does not equal a DUI crime in Kansas, that prior conviction is not comparable and cannot be used to increase the current DUI sentence.
In cases where the BAC is not reliable or not performed, Kansas permits DUI convictions if the driver is so intoxicated that he cannot safely operate a vehicle. Other DUI statutes only require that the driver be intoxicated to any degree. In that situation, the Kansas Court of Appeals has held that the priors cannot be used to increase the DUI punishment.
State v. Stanley, holding that certain DUI convictions cannot be used to increase the sentence, has been the law in Kansas for years. However, the Kansas legislature recently amended the DUI statute’s definition of comparable in K.S.A. 8-1567. The most significant change deals with how prior DUI’s are considered to be comparable.
The new comparability analysis asks courts to consider (1) the name of the prior offense, (2) the elements of the prior offense, and (3) whether the prior offense criminalizes similar conduct. Without getting into too much mundane detail, the controversy deals with what similar conduct means.
As before, the question is more complicated than it seems. In fact, the Kansas Court of Appeals (COA) has issued conflicting opinions on the issue. In one case, the COA held that the issue was so complicated that the preamble to K.S.A. 8-1567 must be considered. Another panel held that “similar conduct” must be defined in line with the Stanley opinion in order to pass constitutional muster. Because the law absolutely prohibits conflicting appellate decisions, the Kansas Supreme Court will have to step in to clear up the confusion.
About the Author: Adam D. Stolte has been licensed in Kansas since 2012, and successfully defended DUI defendants from the smallest city courts all the way up to the Kansas Supreme Court. Adam is serious about DUI defense; he has attended the exact same training as most DUI officers for both alcohol and drug DUI’s. You may contact Adam through his website at www.stoltelawllc.com or by telephone at (913) 575-8823 or (844) JOCO-DUI.
