The Kansas statute prohibiting driving under the influence (“DUI”), K.S.A. 8-1567, categorizes the severity level of the crime based on how many prior DUI convictions the offender has. For example, DUI is a class B misdemeanor for someone who has no prior DUI convictions. But DUI is a felony for someone with three or more prior DUI convictions (or two prior DUI convictions, when at least one occurred within the last 10 years).

The severity level of a state DUI offense can be enhanced by a prior DUI conviction under a city ordinance—but only if that city ordinance is “comparable” to the state statute and “prohibits the acts that [the state DUI statute] prohibits.” In recent years, Kansas courts have been repeatedly confronted with whether a prior DUI conviction out of Wichita municipal court is a “comparable” offense (such that it can increase the severity level of a subsequent state DUI offense).

The debate emerged because Wichita’s DUI ordinance prohibits a broader range of conduct than does the state DUI statute. Specifically, Wichita’s DUI ordinance applies to intoxicated operation of bicycles and other human-powered devices, whereas the state DUI statute excludes those devices from its coverage. Because they do not address precisely the same conduct, the defense bar has argued that Wichita DUI convictions cannot count as prior DUI convictions in a state DUI prosecution.

On August 10, 2018, the Kansas Supreme Court weighed in. In State v. Gensler, the court held: “For a municipal DUI to count as a prior DUI conviction under the state DUI statute, the municipal ordinance cannot criminalize a broader range of acts than the state statute criminalizes.” Kansas Supreme Court Case No. 112,523, slip. op. at 10 (Aug. 10, 2018). Because the elements of the Wichita DUI ordinance are not the same as, or narrower than, the elements of K.S.A. 8-1567, the court determined that a conviction under the ordinance cannot be used to enhance the severity level (and sentence) of a DUI charge under the state statute.

Though Gensler and its companion cases (State v. Mears and State v. Fisher) specifically address prior convictions under the Wichita DUI ordinance, they provide a more general framework for analyzing when an offense is “comparable” to a state DUI (and may, therefore, elevate a later violation of the state statute to a felony). Other DUI convictions formerly counted as priors may be subject to challenge.

If you have been charged with DUI, call the criminal defense attorneys at Joseph, Hollander & Craft. With offices in Wichita (316-262-939), Topeka (785-234-3272), Lawrence (785-856-0143), and Overland Park (913-948-9490), we serve clients from the Oklahoma border to the Kansas City area.

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