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City of Wichita v. Hackett5/30/2003
2: Does a conviction for DUI as defined under the city ordinance qualify as conviction under K.S.A. 8-1567?
Hackett's conviction under the city ordinance raises the question whether it also qualifies as a conviction under the Kansas DUI statute, K.S.A. 8-1567. Our interpretation of the statute is a question of law. Engles, 270 Kan. at 532-33.
K.S.A. 8-1567(l) provides:
"For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
(1) 'Conviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section; (2) 'conviction' includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution." (Emphasis added.)
In a similar fashion, K.S.A. 8-1567(m) provides:
"Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto." (Emphasis added.)
These statutes disclose that the legislature intended to limit the consequences of a DUI conviction to those acts proscribed by state law. Operating a bicycle while under the influence, though a violation of the city code, is not a DUI under K.S.A. 8-1567. Such a conviction therefore does not count for state sentencing purposes concerning the instant offense or subsequent offenses.
Issue 3: Is the City's DUI ordinance unconstitutionally vague?
Finally, Hackett argues that the city's DUI ordinance is unconstitutionally vague.
When reviewing the constitutionality of an ordinance our standard of review is de novo. Boyles v. City of Topeka, 271 Kan. 69, 21 P.3d 974 (2001). As the party asserting unconstitutionality, however, Hackett's burden is a weighty one. See Barrett v. U.S.D. 259, 272 Kan. 250, 255, 32 P.3d 1156 (2001). This is because we have a duty to preserve the validity of the ordinance and to search for ways to uphold its constitutionality. We must presume that the ordinance is constitutional, resolve all doubts in favor of validity, uphold the ordinance if there is any reasonable way to construe it as constitutional, and before striking the ordinance, we must conclude that it clearly appears to be unconstitutional. Boyles, 271 Kan. at 72.
Constitutional attacks based upon vagueness require additional considerations. The ordinance must convey sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. Boyles, 271 Kan. at 72; State v. Rucker, 267 Kan. 816, 831, 987 P.2d 1080 (1999). As we stated in State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983): "A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process." Kansas has long held, however, that a statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law. City of Wichita v. Lucero, 255 Kan. 437, 451, 874 P.2d 1144
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