Kansas Supreme Court dives into ambiguity of K.S.A 8-1567 — the state’s DUI statute

Two pending cases raise questions about weighing out-of-state convictions

By: - September 14, 2021 7:19 am
The Kansas Supreme Court is evaluating conflicting views on two cases raising questions about how Kansas prosecutors should weigh prior DUI convictions from other states. (Screen capture/Kansas Reflector)

The Kansas Supreme Court is evaluating conflicting views on two cases raising questions about how Kansas prosecutors should weigh prior DUI convictions from other states. (Screen capture/Kansas Reflector)

TOPEKA — Dwayne Lynn Patton of Reno County and Jessica Lynn Myers of Johnson County piled up DUI convictions in Kansas, Missouri or Oklahoma without thinking their drinking-and-driving challenges would simultaneously raise poignant questions before the Kansas Supreme Court.

Patton, responsible for a handful of DUI convictions before arrested again Jan. 1, 2016, in Reno County, was convicted and sentenced on that last offense after the Kansas Legislature in 2018 modified state law in an attempt to make it more difficult to discount out-of-state DUI convictions. Two of Patton’s miscues occurred in Missouri and Oklahoma, which the Kansas Court of Appeals agreed ought to be factored into Patton’s punishment. He was sentenced to 12 months in jail and a $2,500 fine.

Shannon Crane, a Hutchinson attorney representing Patton, told Supreme Court justices Monday the lower courts got it wrong. She said it was unfair, and potentially unconstitutional, to subject Patton to a higher standard that didn’t exist in 2016 when he logged the DUI on New Year’s Day. If older Kansas statute was applied to Patton, it might have been possible to not count the Oklahoma and Missouri convictions because those states didn’t have an identical or narrower statute than what existed in Kansas.

“I believe the 2016 law should have applied,” Crane said. “The date of the offense normally applies to what law you use in sentencing.”

Thomas Stanton, deputy district attorney in Reno County, said the felony DUI conviction of Patton should be upheld by the state Supreme Court.

However, he urged justices to delve into constitutionality of the 2018 Legislature’s retroactive imposition of a sentencing standard in DUI cases. The argument placed a spotlight on a previous court decision granting DUI laws  in Kansas special status in the criminal justice system. It was relied upon by the Court of Appeals when it permitted the Legislature’s 2018 amendment of DUI law to influence sentencing of Patton on the 2016 offense.

“It’s always been my concern, and my belief, that sentence is imposed based on what the sentence was at the time of the commission of the crime,” Stanton said. “Anytime there is a constitutional issue, this court needs to determine it.”

Justice Caleb Stegall, an appointee of Gov. Sam Brownback, said he appreciated Stanton’s integrity in framing an issue of law with implications beyond the Patton case.

Myers was arrested in Johnson County for DUI in February 2019. Her criminal record revealed two prior DUIs in Missouri. If the two Missouri cases were considered by the district court in Kansas, she could be expected to face a felony DUI charge. She challenged counting of the Missouri convictions, and the district court agreed the Missouri statute was broader than Kansas’ and excluded both.

The state Court of Appeals agreed in October 2020 by declaring Missouri statutes on DUI criminalized broader conduct than Kansas. The Johnson County district attorney’s office appealed to the Supreme Court.

Adam Stolte, an Overland Park attorney representing Myers, said the Court of Appeals and the Supreme Court didn’t have jurisdiction to hear the state’s challenge of the district court’s action. Stolte said the 2018 amendments to Kansas law on DUIs didn’t eliminate a judge’s authority to exclude out-of-state DUIs.

“We think that this court is duty-bound to interpret statutes in a constitutional manner,” Stolte said.

Jacob Gontesky, assistant district attorney in Johnson County, said there were no constitutional issues embedded in Myers’ case. He said the Supreme Court ought to reverse the Court of Appeals and uphold the right of Johnson County to charge Myers with felony DUI as a three-time offender.

He said plain language of Kansas’ 2018 amendments to DUI law resolved concern about validity of counting Missouri DUI convictions.

In addition, Gontesky said, if a statute was considered ambiguous the courts in Kansas were expected to place emphasis on legislative intent. In 2018, he said, the Legislature included a preamble to the DUI amendments that spelled out how an individual’s prior convictions for comparable DUI offenses in other states ought to be considered in subsequent Kansas cases.

“At least in the context of this case, where we’re examining the Missouri statute, the Legislature intended to capture the Missouri prior offenses,” he said. “I’d ask this court to reverse the Myers decision.”

The Supreme Court closed oral arguments via Zoom by taking both cases under advisement.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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