Challenging prior DUI convictions; The value of a Motion to Exclude out of state convictions

Posted by Matt McLane | Apr 19, 2019 | 0 Comments

I have written before concerning the new changes to the Kansas DUI statute.  In July 2018, the revisions to K.S.A. 8-1567 took effect that instructs Judges on what to look at when considering a defendant's prior out-of-state DUI convictions.  My client W.B. has two prior DUI convictions: a California DUI and an Iowa OWI (operating while intoxicated).  Both convictions were recent convictions and he is still on probation on both cases.  The district attorney's office most certainly wants these "prior convictions" included on his criminal history report.  This report is used to enhance his sentence if convicted on the pending felony DUI in Kansas.  The stakes are high: the state will proceed on a felony DUI charge if the Judge rules the 2 priors convictions count under the 2018 revised law.  If the court determines one or both of the prior convictions are not "comparable" and therefore not counted, then the charge will be amended to a misdemeanor DUI and the penalty is naturally less severe.  Simply put, my client does not want a felony conviction on his record.  He will lose his gun rights (avid hunter, of course). 

I am tasked with challenging the prior California and Iowa convictions.  These states have similar DUI statutes on their books, although the "elements" of the crime of DUI is slightly different.  California, for example, has a very generic definition of DUI: "It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." Calif. Code 23152(a).  Likewise, Iowa code 321J.2 states: "A person commits the offense of operating while intoxicated if the person operates a motor vehicle...while under the influence of an alcoholic beverage..."  These two laws sound similar, but the question is whether they are so "comparable" to the Kansas statute that a Judge will consider these as "prior convictions" and therefore include these in his history.  The Kansas statute includes an element of driving "under the a degree that renders the person incapable of safely operating the vehicle."  The additional degree of intoxication is important since it distinguishes the Kansas law from the more generic laws featured in border states of Missouri, Oklahoma, Colorado, and Nebraska.  It is considered a more narrow definition of intoxication than the typical definition seen in jury instructions, for example. This degree of intoxication must be proven in Kansas to convict a driver of DUI.  

The best method of challenging such "priors" is to file a written Motion to Exclude Prior out-of-state Convictions and argue the motion before the Judge.  The Judge will listen carefully to both sides and will generally take the matter "under advisement" so he can review the original Motion filed by Defendant and the State's Reply motion (usually filed by prosecutor).  The issue is very narrow: whether the elements for DUI in each state's law match or compare to the Kansas version.  There have been recent hearings in the Johnson County District Court on this issue and a ruling in my case is expected in mid-May 2019.  Stay tuned.

About the Author

Matt McLane

Matt McLane was born in Topeka, Kansas, and moved to Pittsburg, Kansas in 1980 where he attended middle school, high school and college. Upon graduation from PSU in 1992, Matt moved back to Topeka where he attended Washburn University law school. Upon graduation, he moved to Overland Park and worked in a small firm handling DUI and traffic cases. He opened the McLane Law Firm in April 2011 and has built his firm on a strong referral base and solid reputation.


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McLane Law Firm

Matt McLane has been defending individuals charged with DUI, traffic and criminal offenses since his graduation from Washburn University Law School in 1996. Licensed in the states of Kansas and Missouri. Mr. McLane specializes in DUI and criminal defense throughout the Kansas City metropolitan area.

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