the Riley County DUI charge and the Pottawatomie County DUI charge clearly arose from unitary conduct—Quakenbush's alleged drunk driving and motorcycle accident in Tuttle Creek State Park on August 23, 2009. Given the unique procedural posture of this case, it is less clear which test to apply under the second component. Although both the Riley County DUI charge and the Pottawatomie County DUI charge were brought under K.S.A. 2009 Supp. 8-1567(a), the unit of prosecution test appears to be inapplicable because the State never charged Quakenbush with two or more separate violations of the same statute arising out of the same conduct. Thus, it is more logical to apply the same elements test.
The State argues in essence that the Riley County DUI charge and the Pottawatomie County DUI charge did not have the same elements because one required the State to prove that the offense occurred in Riley County and the other required the State to prove that the offense occurred in Pottawatomie County. The State's argument rests on the flawed presumption that jurisdiction is an essential element in every criminal offense. This is not correct. As we have shown in the analysis of Rivera, that while the State is required to prove jurisdiction and venue in every criminal case, jurisdiction and venue are not, strictly speaking, elements of every criminal case.
Under the same elements test, the Riley County DUI charge and the Pottawatomie County DUI charge were brought under the same statute and have the exact same elements. It is irrelevant that the State would have been required to prove a different jurisdiction under each charge because jurisdiction and venue are not elements of a DUI offense. Thus, the two DUI charges were “identical charges” for the purpose of aggregation under the speedy trial statute.
The State did not make a showing of necessity at the time the Riley County DUI charge was dismissed. Further, because the two DUI charges were identical charges, the district court erred in refusing to aggregate the time chargeable to the State for statutory speedy trial purposes. Quakenbush was not brought to trial within the statutorily required 180 days.
Because the speedy trial clock had run, the COA reversed the conviction.
[Update: the state did not file a PR and the mandate issued on December 27, 2012.]