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City of Wichita v. Hackett5/30/2003
(1994).
In addition to asking whether the proscribed conduct is adequately defined, this court has recognized that a second inquiry is appropriate, i.e., "'whether the ordinance adequately guards against arbitrary and discriminatory enforcement.'" State v. Rucker, 267 Kan. at 831. When making either inquiry, this court should bear in mind that "' he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.'" Rucker, 267 Kan. at 831.
In State v. Bryan, 259 Kan. 143, 910 P.2d 212 (1996), we cited Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), to explain the reasons for the two inquiries.
"First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on a ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Bryan, 259 Kan. at 145-46.
As previously mentioned, City Ordinance 11.38.150, the DUI ordinance, is quite similar to K.S.A. 8-1567. Both prohibit the intoxicated operation of vehicles. Hackett argues ambiguity surfaces because a city ordinance defines vehicles to include human powered devices, whereas state statute excludes them. Additionally, Hackett finds it significant that City Ordinance 11.48.160(b) states: "A person operating a vehicle by human power upon and along a sidewalk or across a roadway upon and along a crosswalk, shall have all the rights and duties applicable to a pedestrian under the same circumstances." He claims that since pedestrians may not be convicted of DUI, the same privilege should be extended to operators of human powered vehicles in such locations.
On its face, the city's ordinance is as clear as the state's statute. The city council simply has opted to control more expansive conduct, and the facts in the instant case demonstrate the council's decision happened to be well-founded.. Here, Hackett was so inebriated he fell off of his bicycle in a city intersection, requiring the involvement of emergency medical personnel and law enforcement.
Additionally, the extension of Hackett's first argument would permit no differences between statutes and corresponding ordinances because, according to him, any differences would cause confusion and would be unconstitutional. This contention directly contradicts K.S.A. 8-2001, which expressly permits cities to enact nonconflicting traffic regulations to meet the unique needs of the community. This argument also ignores the test applied in void-for-vagueness cases, i.e., whether a person of ordinary intelligence would be misled upon reading the city ordinance. "Vehicle" is a commonly used word and is to be given its ordinary meaning. See City of Wichita v. Lucero, 255 Kan. at 451. Webster's Third New International Dictionary 2538 (1993), defines it as, "a means of carrying or transporting something." The ordinary meaning is clearly consistent with the definition provided in the city ordinance which does not distinguish human-powered from motor-driven conveyances.
The same is true regarding his second argument. While we acknowledge that City Ordinance 11.48.160(b) provides that a bicyclist will have all the rights and
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