Kansas Supreme Court Justice K.J. Wall, second from right in the middle row, authored the unanimous opinion allowing Kansas prosecutors to count DUI convictions from Missouri when deciding whether to charge someone in Kansas as a repeat felony offender. (Screen capture/Kansas Reflector)
TOPEKA — The Kansas Supreme Court sought to bring clarity to prosecution of driving-under-the-influence offenses Friday by unanimously granting district courts authority to view prior DUI convictions in Missouri as comparable to the Kansas law.
The court examined the Kansas Legislature’s modification of state law in 2018 aimed at accounting for DUIs from other states. The justices said lawmakers sought to eliminate an “identical-to-or-narrower-than” test used in Kansas to determine whether alleged DUI offenders should be charged with a misdemeanor or felony. The court determined Kansas legislators wanted prosecutors in this state to include out-of-state violations of laws broader than Kansas’ infractions, specifically Missouri’s driving-while-intoxicated statute.
Justice K.J. Wall wrote the opinion reversing the Kansas Court of Appeals in the case of a woman charged with felony DUI in Johnson County District Court because she had two prior convictions in Missouri. The lower courts concluded the out-of-state statutes on DUI had to be identical to or narrower than Kansas law. The Supreme Court rejected that position.
Jessica Lynn Myers was arrested in February 2019 for DUI in Johnson County. Without inclusion of the Missouri prior convictions, prosecutors in Kansas couldn’t charge Myers with felony DUI. Myers’ attorney opposed counting the Missouri verdicts.
In 2020, the Court of Appeals released an opinion that said Missouri statute criminalized broader conduct than Kansas law allowed.
Jacob Gontesky, assistant district attorney in Johnson County, had argued to the Supreme Court there was no constitutional impediment to charging Myers with felony DUI as a three-time offender. He also said legislative intent of the DUI reforms was explained in a preamble to the bill that asserted prior convictions for comparable DUI offenses in other states ought to be counted.
Myers’ appellate counsel, Overland Park attorney Adam Stolte, said the Supreme Court didn’t have jurisdiction in the case and the district court properly excluded his client’s prior convictions in Missouri. The Supreme Court rejected both assertions.
In the Supreme Court decision, Justice Wall said the appeal was valid because the district court’s ruling substantially impaired the prosecution of Myers. The justice wrote the phrase “an offense that is comparable to” in the Kansas DUI law was ambiguous, but legislative intent made clear the objective was to find a way to pile up comparable convictions from Missouri when handling Kansas DUIs.
“Therefore,” Wall said, “the district court should have considered Myers’ prior Missouri DWI convictions to determine if she had committed a first, second, third or fourth or subsequent DUI.”
The Supreme Court remanded Myers’ case to the district court for further proceedings.
In 2019, Johnson County prosecutors charged Myers with felony DUI because she’d had the convictions for driving while intoxicated in 2002 and 2010. In an attempt to avoid the felony charge, Myers argued the Missouri and Kansas statutes weren’t comparable. The Johnson County District Court granted her motion.
The government appealed and a majority of the Court of Appeals panel agreed with Myers’ argument the Missouri cases didn’t allow Kansas to prosecute her as a third-time, felony DUI offender. The appellate court said Kansas should have charged her with a first-time, misdemeanor offense.
The Supreme Court, however, decided without dissent the lower courts erred by suppressing evidence of Myers’ convictions in Missouri.
“We do not mean to suggest that a conviction under the DUI law of any state should count as a prior conviction in a DUI prosecution,” Justice Wall said. “The variance may preclude a finding that the out-of-state offense is one that is ‘comparable to the offense described’ in Kansas’ DUI statute.”
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