Opinion
No. 107,767.
2013-04-5
STATE of Kansas, Appellee, v. Robert M. BUTLER, Jr., Appellant.
Appeal from Butler District Court; Charles M. Hart, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Alice R. Burns, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; Charles M. Hart, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Alice R. Burns, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
The Kansas DUI law allows DUI convictions from other states to count as prior DUI offenses in Kansas—thus enhancing the penalty for the Kansas DUI—if the out-of-state statute “prohibits the acts that [the Kansas DUI law] prohibits.” K.S.A.2010 Supp. 8–1567(o)(2). Robert Butler Jr. challenges the district court's decision to count his four Texas DUI convictions as past offenses for Kansas sentencing purposes.
We agree with Butler that counting his Texas convictions was erroneous because the Texas DUI statute prohibited conduct more broadly than our Kansas statute does. Two of Butler's Texas convictions were committed when the Texas statute made it a violation to drive while “under the influence of” alcohol, and the other two were committed when the Texas statute made it a violation to drive while “not having the normal use of mental or physical faculties” due to alcohol. But our Kansas statute requires that the driver be so under the influence of alcohol as to be “ incapable of safely driving a vehicle.” (Emphasis added.) K .S.A.2010 Supp. 8–1567(a)(3). The Texas statutes prohibited conduct beyond that prohibited by our Kansas statute, and the Texas convictions cannot be counted as prior offenses for Kansas sentencing purposes. We therefore reverse the district court and remand the case for resentencing.
Factual and Procedural Background
Butler was arrested in Augusta on New Year's Eve 2010 for DUI. Based on prior Texas DUI convictions, he was charged with a felony DUI offense under K.S.A.2010 Supp. 8–1567.
Butler filed a motion in the district court to prevent using his four Texas DUI convictions so as to classify his Kansas offense as a felony. But the district court held that the Texas DUI statute “prohibit[ed] nearly the identical conduct” as the Kansas one, allowing the use of Butler's Texas convictions here. That meant that Butler's offense was a felony, not a class B misdemeanor, and that he would be sentenced for a fourth DUI offense.
The district court found Butler guilty of the felony DUI and two traffic infractions. The court sentenced Butler to 6 months in jail and ordered that he pay a $2,500 fine.
Butler has appealed to this court, raising three issues. First, he argues that the Texas convictions should not have counted since the Texas and Kansas DUI statutes don't prohibit the same conduct. Second, he argues that a 2011 statutory change in Kansas—under which DUI convictions for offenses before July 1, 2001, are no longer considered—should be applied retroactively. That would also eliminate consideration of the Texas convictions, which were based on offenses from 1982, 1983, 1986, and 1989. Third, he argues that the district court should have considered his financial resources when determining how his $2,500 fine should be paid since Kansas law allows the “payment” of the fine through community-service work.
We have concluded that Butler's first argument is correct and the Texas convictions should not have been considered. We need not reach the other two issues: Butler's second argument would merely achieve the same result (elimination of consideration of the Texas convictions), and his fine was the required fine for a fourth-time DUI offense. We must remand the case for resentencing, so Butler's challenge to his fine is moot.
Analysis
K.S.A, 2010 Supp. 8–1567(o)(2) provides that “[f]or the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section ... ‘conviction’ includes being convicted of a violation of law of another state ... which prohibits the acts that this section prohibits.” The Kansas DUI statute prohibits the following acts:
“(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8–1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.” K.S.A.2010 Supp. 8–1567(a).
Essentially, the statute prohibits operating or attempt to operate a vehicle while (1) the person's blood-alcohol concentration is .08 or more, or (2) the person is incapable of safely driving due to the influence of drugs or alcohol.
Let's turn next to the Texas statute. At the time of Butler's offenses, that was Tex.Rev.Civ. Stat. Ann. art. 6701 l–1 (1977) (repealed 1993). When Butler's first two offenses occurred (1982 and 1983), the statute as amended provided that a person is guilty of DUI if that person “drives or operates an automobile ... upon any public road or highway in this state, on a beach ... or upon any street or alley with the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor.” 1979 Tex. Gen. Laws, ch. 682, sec. 3, p. 1609 (S.B.1071).
By the time Butler's other two DWI offenses occurred (1986 and 1989), the Texas Legislature had added a definition of “intoxicated” in subsection (a)(2) of the statute:
“(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or
“(B) having an alcohol concentration of 0.10 or more.” 1983 Tex. Gen. Laws, ch. 303, sec. 3, p. 1575 (S.B.1).
In unpublished cases, our court has twice concluded that convictions under Kansas municipal ordinances that defined a DUI to outlaw merely driving while “under the influence” of alcohol—as the earlier Texas statute did—could not be counted because those ordinances were noticeably broader than the Kansas statute (prohibiting driving while “under the influence ... to a degree that renders the person incapable of safely driving a vehicle”). See State v. Wood, No. 105, 128, 2012 WL 718928, at *2 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (February 28, 2013); State v. McClain, No. 104,263, 2011 WL 3795476, at *3–4 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (February 3, 2012). We agree, and because the Texas DUI statute in place in 1982 and 1983 prohibited acts that our Kansas statute does not, Butler's first two Texas convictions may not be considered for the purpose of determining whether the Kansas DUI is a first, second, third, or subsequent DUI offense under K.S.A.2010 Supp. 8–1567(o)(2).
The later Texas statute presents a closer question. It makes driving illegal if the driver lacks the “normal use of mental or physical abilities” due to alcohol. Contrast that with the Kansas statute, which requires that the driver be sufficiently below normal performance levels that he or she is “incapable of safely driving a vehicle.” Depending on how widely one defines “normal use,” the two standards might be the same. But we are reluctant to make that assumption, and the rule of lenity cautions against doing so. See State v. Malmstrom, 291 Kan. 876, Syl. ¶ 2, 249 P.3d 1 (2011) (noting that reasonable doubt regarding meaning of a sentencing statute should be resolved in favor of the defendant); Wood, 2012 WL 718928, at *2. We conclude that Butler's 1986 and 1989 Texas convictions may not be considered as prior offenses under K.S.A.2010 Supp. 8–1567(o)(2), either.
We note that the documents provided by the State concerning Butler's Texas convictions do not tell us which of the applicable Texas intoxication standards Butler was convicted under. It's possible that he was convicted for driving with a blood-alcohol concentration of .10 or more, something that would also be prohibited under the Kansas statute. See State v. Attwood, No. 100,748, 2009 WL 1766514, at *3–4 (Kan.App.2009) (unpublished opinion) (concluding that an out-of-state conviction for BAC over .10 would count because Kansas statute providing for DUI with BAC over .08 prohibits the conduct covered by the out-of-state statute). But we don't know that to be the case, and the State has the burden of proving that the prior DUI convictions may be counted so as to enhance the penalty for the Kansas DUI offense. See McClain, 2011 WL 3795476, at *5.
Because Butler's offense must be considered a class B misdemeanor, rather than a felony DUI, he must be resentenced. We therefore reverse the district court's judgment ( i.e., Butler's conviction for a felony DUI) and remand for further proceedings consistent with this opinion.