Violations of Broader Municipal DUI Ordinances Don’t Count Under § 8-1567(i)

State v. Gensler, No. 112,523 (Kan. Aug. 10, 2018).
423 P.3d 488

Issue: K.S.A. § 8-1567(i) provides harsher penalties for people with multiple DUI convictions. However, municipal DUI convictions do not count towards the harsher penalties if the municipal ordinance is broader than the Kansas DUI statute. Gensler was convicted of prior DUI in violation of Wichita’s DUI ordinance. Does the prior conviction count under § 8-1567(i)?

Answer: No. The Wichita ordinance prohibits a broader range of conduct—e.g. biking under the influence—than does Kansas law.

Facts: Gensler was convicted of a DUI under K.S.A. § 8-1567. He had two prior convictions under the Wichita DUI ordinance. The Wichita ordinance had all the same elements as the Kansas statute. However, Wichita defined the term “vehicle” more broadly than did Kansas—for example, Wichita’s definition of “vehicle” included bikes, whereas Kansas’s definition did not.

Discussion: The Court applied a categorical test to determine whether the Wichita ordinance was broader than the Kansas statute. The test requires examining whether it is possible to violate the Wichita ordinance without violating Kansas law. Because the two rules differ on the definition of “vehicle,” the Court concluded that the Wichita ordinance was broader. As such, the Wichita DUIs did not count under § 8-1567(i).

The Court refused to apply a modified categorical test. The modified test allows the Court to look at the prior indictments to see whether Gensler had been charged with behavior that could have resulted in a conviction under Kansas law. But the Court noted that the modified test only applies when a law is “divisible”—i.e. when it sets up alternative ways to violate the statute. It held that the Wichita ordinance was not divisible.

Key Authorities: 

K.S.A. § 8-1567(i) (providing penalties for driving under the influence).