Opinion
No. 106,208.
2012-07-20
STATE of Kansas, Appellee, v. Ross R. McGUCKIN, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Ross R. McGuckin appeals two aspects of the punishment the Sedgwick County District Court imposed upon him after his conviction for felony driving under the influence in violation of K.S.A.2010 Supp. 8–1567. First, the district court impounded McGuckin's motor vehicles and required he drive only vehicles equipped with ignition interlock devices. The statute permits one or the other but not both. Second, McGuckin submits the district court erred in failing to consider whether he should be allowed to perform community service rather than pay a mandatory fine. McGuckin has already paid the fine. As explained below, we vacate the sentence in part and dismiss as moot in part.
On November 19, 2010, the district court sentenced McGuckin based on his earlier plea to the felony DUI charge arising out of an incident in Wichita in September 2009. The details of the incident and the progression of the case through the district court are immaterial. The issues here rest entirely on discrete aspects of McGuckin's sentence. A district court may require that repeat DUI offenders have any motor vehicles they own or lease impounded or immobilized or be equipped with an ignition interlock device. K.S.A.2010 Supp. 8–1567(l)(l). An approved interlock mechanism requires the driver to provide a breath sample and prevents ignition of the vehicle if the sample tests positive for alcohol. In pertinent part, K.S.A.2010 Supp. 8–1567(l)(l) provides:
“Except as provided in paragraph (3) [pertaining to leased vehicles], in addition to any other penalty which may be imposed upon a second or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years.”
At the sentencing, the district court ordered impoundment of McGuckin's motor vehicles and directed the 2–year period run from his arrest on September 22, 2009, when police seized his vehicle. At sentencing, the district court also required that McGuckin drive only vehicles equipped with interlock devices for 2 years. The impoundment order expired last September, but the interlock order remains in effect until November 2012.
McGuckin contends the district court could not both impound his motor vehicles and order that he use interlock devices. We agree. The issue presents a question of law resting on the interpretation of K.S.A.2010 Supp. 8–1567(1). Our review is plenary. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). When interpreting statutes, the appellate courts are to glean the legislative purpose and intent from the language used, and they are to give effect to that purpose and intent. See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009); Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). It is not the courts' business or function to add to or take away from the language of a statute. And the courts should not impose some meaning on a statute beyond what the words themselves convey through their common and usual definitions. See Gracey, 288 Kan. at 257.
The language here is plain. There is no mistaking the meaning of the “either ... or” phrasing of the sentencing options. The phrase clearly conveys that the district court may impose use of an interlock device or require impoundment of vehicles but not both. This is not a situation in which an isolated statutory “and” or “or” necessarily must be read as the other to render a measure reasonable. See, e.g., State v. Marx, 289 Kan. 657, 670–72, 215 P.3d 601 (2009).
The district court erred. Because McGuckin has already been subject to the full measure of the punishment of impoundment, we vacate the remainder of the ignition interlock punishment.
For his second issue on appeal, McGuckin says the district court erred in not considering community service as an alternative to his paying the mandatory $1,500 fine imposed on third-time DUI offenders. The Kansas Supreme Court has held that at sentencing a district court must consider allowing a defendant facing a mandatory fine under the statute to substitute community service. State v. Copes, 290 Kan. 209, Syl. ¶ 8, 224 P.3d 571 (2010); see K.S.A. 21–4607(3). That did not happen here. But everyone agrees McGuckin has already paid the fine. The issue is, therefore, moot. A legal controversy becomes moot when the specific dispute has been resolved and a judgment from the court would not affect the legal rights of the parties. Rodarte v. Kansas Dept. of Transportation, 30 Kan.App.2d 172, 183, 39 P.3d 675,rev. denied 274 Kan. 1113 (2002). Appellate courts do not decide issues that no longer present live legal controversies. This is such an instance, since the fine has been paid. That portion of McGuckin's appeal is dismissed.
Vacated in part and dismissed in part.