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State v. Manbeck5/30/2003
Therefore, the question presented is whether the legislature intended the enhanced scoring to be limited to those involuntary manslaughter convictions based upon driving "under the influence of a combination of alcohol and any drug or drugs." K.S.A. 8-1567(a)(5).
The State's public policy arguments are seductive. One might perceive the goal of K.S.A. 2002 Supp. 21-4711(c)(2) is to more severely punish a repeat offender whose refusal to refrain from driving under the influence eventually results in a person's death, irrespective of the offender's substance of choice. However, our directive is to refrain from making decisions based upon public policy in derogation of rules of construction. See O'Bryan v. Columbia Ins. Group, 274 Kan. ___, Syl. 2, 56 P.3d 789 (2002).
In K.S.A. 8-1567, the legislature provided alternative means by which a person can commit or be convicted of driving under the influence (DUI) of alcohol or drugs. An alcohol concentration in a driver's blood or breath of .08 or higher is sufficient, without more. K.S.A. 8-1567(a)(1) and (2). Alternatively, DUI is committed by being incapable of safely driving a vehicle when that condition is caused by alcohol (K.S.A. 8-1567 ), any drug or combination of drugs (K.S.A. 8-1567 ), or a combination of alcohol and any drug or drugs (K.S.A. 8-1567 ).
K.S.A. 2002 Supp. 21-4711(c)(2) specifically applies the enhanced scoring to involuntary manslaughter while driving under the influence of alcohol and drugs, which is a specific alternative under K.S.A. 8-1567(a)(5). If the lawmakers viewed drivers using both drugs and alcohol to be a special class of DUI offenders worthy of enhanced punishment for committing involuntary manslaughter, the use of the conjunctive, "and," in K.S.A. 2002 Supp. 21-4711(c)(2) would accomplish that policy decision. Under that scenario, our intuitive perception that the legislature simply used imprecise language in the enhancement statute would actually circumvent legislative intent. In the long run, our applying statutory law as it is written, rather than as we divine that it was intended to be written, will preserve the integrity of the legislative function.
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