C. Ryan Gering won in State v. Gensler, No. 112,523 (Kan. August 10, 2018), obtaining a new sentencing hearing in a Sedgwick County DUI case. The main issue was whether a prior Wichita municipal ordinance conviction could be used for enhancement purposes in a state DUI prosecution. The KSC reviewed its recent case law (blogged about here and here), which interpreted statutes to require prior convictions to be identical or narrower to avoid constitutional implications. The KSC applied the same interpretation and held that the Wichita ordinance for DUI was broader than the state statute for DUI:
Despite the panel's characterization of the ordinance as applying to operation of either a car or a bicycle, the ordinance itself only prohibits operating a "vehicle" under the influence. That is the element of the crime, which is then defined in a broad, inclusive way. This definition obviously includes both cars and bicycles, among many others, but cars and bicycles do not constitute alternative elements of the crime.
In proving Gensler's previous municipal charges, the prosecution bore the burden of proving he operated a "vehicle" while intoxicated. Whether that vehicle was a bicycle or car is impossible to determine based on a comparison of the elements of the statute and the elements of the ordinance. To determine the precise nature of the "vehicle" Gensler was operating would require a sentencing court to engage in its own fact-finding, which is impermissible. Divisibility and application of the modified categorical approach do not come into play.
The elements of the Wichita ordinance are not the same as, or narrower than, the elements of K.S.A. 2017 Supp. 8-1567. And Gensler's convictions under the ordinance cannot be used as prior DUIs for purposes of this DUI prosecution under the state statute, K.S.A. 2017 Supp. 8-1567.
As a result, Ms. Gensler received a new sentencing hearing.
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