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City of Wichita v. Hackett5/30/2003
Affirmed.
A Sedgwick County District Court convicted Robert L. Hackett of one count of driving under the influence (DUI) in violation of Section 11.38.150 of the Code of the City of Wichita (City). At the time of the violation, he was riding a bicycle. After Hackett's appeal to the Court of Appeals, we transferred the case on our own motion pursuant to K.S.A. 20-3018(c). The issues on appeal, and this court's accompanying holdings, are as follows:
1. Is it permissible for cities to adopt ordinances prohibiting the operation of bicycles while under the influence of alcohol? Yes.
2. Does a conviction for DUI as defined under the City ordinance qualify as a conviction under K.S.A. 8-1567? No.
3. Is the City's DUI ordinance unconstitutionally vague? No.
Accordingly, the district court is affirmed.
FACTS:
On March 3, 2000, at approximately 9 p.m., Wichita Police Officer Keith Fort, a member of the city's DUI task force, responded to his dispatcher's report of an accident involving an automobile and a bicycle. Upon arrival at the scene, Officer Fort discovered there had been no collision. Hackett had simply fallen from his bicycle when crossing the intersection of Maple and Tracy and had suffered minor injuries. After EMS attended to Hackett's injuries, Fort approached him to investigate the accident.
During questioning, Officer Fort noticed Hackett smelled of alcohol, had bloodshot eyes, and slurred his words when describing his accident. Fort therefore asked Hackett to perform several field sobriety tests. After Hackett had failed three tests, Fort placed him under arrest for operating his bicycle while under the influence of alcohol, contrary to Wichita City Ordinance 11.38.150, and failure to license his bicycle, contrary to Wichita City Ordinance 11.48.020. Later, Hackett submitted to a breath test at the Sedgwick County Jail. It disclosed a blood alcohol content of .204%, approximately two and one-half times the limit allowed by the city's ordinance.
On August 9, 2001, the Wichita Municipal Court found Hackett guilty of DUI. Hackett timely appealed to the Sedgwick County District Court where, following a bench trial, he was convicted of one count of DUI.
ANALYSIS:
Issue 1: Is it permissible for cities to adopt ordinances prohibiting the operation of bicycles while under the influence of alcohol?
According to Hackett's interpretation of the statutes, the City was prohibited from proscribing his operation of a bicycle while under the influence of alcohol. He claims that since K.S.A. 8-1485 defines "vehicles," the City is prohibited from expanding this definition to include bicycles. Our review of this issue is unlimited, since interpretation of statutes and ordinances is a question of law. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).
We first examine the relevant statutes and ordinances. The city ordinance under which Hackett was charged, 11.38.150, is virtually identical to K.S.A. 8-1567. Both proscribe the operation or attempted operation of "any vehicle" while "the alcohol concentration in the person's blood or breath, as measured within 2 hours of the time of operating or attempting to operate a vehicle, is .08 or more."
The chief difference between the Kansas statute and the city ordinance is their definition of "vehicle." K.S.A. 8-1485 defines "vehicle" as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks." (Emphasis added.) By contrast, City Ordinance 11.04.4
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