The Kansas DUI statute, 8-1567, was amended in July 2018 to further define what the courts should consider when comparing prior out-of-state DUI convictions. 8-1567(j) was added:
(j) For the purposes of determining whether an (out of state DUI) offense is comparable, the following shall be considered:
(1) The name of the out-of-jurisdiction offense;
(2) the elements of the out-of-jurisdiction offense; and
(3) whether the out-of-jurisdiction offense prohibits similar conduct to the conduct prohibited by the closest approximate Kansas offense.
Simply put, Kansas courts will only consider out-of-state DUI convictions if the statutory language and elements of the offense are similar in meaning to the Kansas elements. This new provision in the statute serves to broaden the scope of review of the out of state convictions. Prosecutors will argue the out-of-state law closely resembles the Kansas law and should therefore be used against the accused as a "prior" offense. Defense attorneys will work to highlight the differences in the particular language and elements of the offense. There is an existing court of appeals case filed in April 2016, State vs. Stanley, that defense attorneys will use to exclude prior convictions. The Stanley case featured a comparison of the Missouri DWI statute, 577.010, with the Kansas DUI statute, 8-1567. The sole issue was whether a prior Missouri DWI conviction under 577.010 should be considered in the defendant's criminal history. The Stanley court ruled that the Missouri statute was more broad than the Kansas statute because while Missouri simply uses a standard of "under the influence of alcohol" to define the term "intoxicated," the Kansas law uses more narrow terms: "operating....to a degree that renders the person incapable of safely driving the vehicle." That degree of intoxication makes the difference. You can read the full text of the Stanley case here.
Stay tuned as the "prior convictions" issue will surely be litigated further as Kansas courts weigh the new statutory language against the backdrop of the Stanley case.
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