Marijuana Possession Charge amended to Jay Walking

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Felony (3rd) DUI offense amended to Misdemeanor DUI following battle over the admission of "prior convictions" on criminal history report

May 2019

20-year old client, WB, charged with felony DUI (3rd offense) following a car stop on K10 highway in western Olathe.  Client's record indicated two prior DUI convictions: California in 2017; Iowa in 2018.  We moved to exclude prior out-of-state convictions on grounds the two DUI statutes (CA and IA) were not "comparable" to the Kansas DUI statute, 8-1567.  Specifically, we argued that the 2018 revisions to K.S.A. 8-1567 still require judicial interpretation and analysis of the foreign jurisdiction DUI laws.  In this case, the court agreed that the California AND Iowa statutes were more broad than the Kansas statute, by looking at the elements of the crime of each statute.  In the end, K.S.A. 8-1567 still requires a finding that the driver operated in "an intoxicated condition that renders the person incapable of safely operating the vehicle."  This specific degree of intoxication matters: it is more narrow than most other states' statute and therefore NOT comparable through a plain meaning reading of the statutes.

It should be noted that the Kansas legislature intended for most, if not all, out of state DUI convictions to count against a driver.  The preamble to the statutory revision says as much.  However, interpretation of statutes as measured against other state laws is left strictly to the courts.  Judges are under no obligation to interpret a statute other than the plain and ordinary meaning of a statute.  In other words, Judges don't need to look at the intent or purpose of a stature if it can be determined through a plain reading of the statute.

I won't go in to statutory interpretation and canons of construction used by courts to determine ambiguities in a law.  At this time, the Judges still determine whether prior convictions should be counted on a criminal history report and defense counsel should normally challenge ANY conviction that does not sound or look like the Kansas version of the comparable statute.

Practice area(s): DUI / DWI

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.

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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Mr. McLane´s clients benefit from his experience and reputation of being a respected, professional attorney with a strong work ethic who is committed to successfully resolving every client´s legal challenges in a Timely and Professional manner.

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