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State v. Manbeck1/30/2004
' 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. 572, 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." 31 Kan. App. 2d at 621-22.
There is some legislative history, including the testimony of Representative Greg Packer, which supports a different version of the legislation and would have adopted language using the disjunctive "or" rather than the conjunctive "and." Whether an act of commission or omission, the use of the conjunctive "and" cannot be ignored in our view. We assume the legislature meant what it passed. If it did not, it is the legislature's prerogative to change the statute.
We agree with Judge Johnson's interpretation of K.S.A. 2002 Supp. 21-4711(c)(2). Driving under the influence of alcohol and drugs is a specific alternative of K.S.A. 8-1567. Reading the plain language of K.S.A. 2002 Supp. 21-4711(c)(2) in conjunction with the specific language of K.S.A. 8-1567 requires us to agree with the result the Court of Appeals arrived at, but we adopt the reasoning of the concurring opinion of Judge Johnson.
Manbeck also argues that the sentencing enhancement provisions of K.S.A. 2002 Supp. 21-4711(c)(2) violate Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000). The Court of Appeals did not address this issue in its opinion, and the State did not raise the issue in its petition for review. However, Manbeck raised the issue both before the trial court and the Court of Appeals. In the interest of judicial economy, we will address this issue.
Manbeck asks this court to reverse its decision in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), which held that the Apprendi rule specifically excludes prior convictions. Manbeck argues that the Apprendi court impliedly overturned Almendarez-Torres v. United States, 523 U.S. 224, 140 L.Ed. 2d 350, 118 S.Ct. 1219 (1998), which established the exc
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