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State v. Schuster5/31/2002
1998 Supp. 8-1567a. The Court of Appeals reversed. It reasoned that 8-1567a, which proscribes underage breath or blood alcohol levels between .02 and .08, did not apply where Wick's blood alcohol level was .10. The Court of Appeals concluded that the DUI statutes not limited to drivers under 21 applied.
As to K.S.A. 1998 Supp. 8-1567a, the Court of Appeals stated:
"The statute's placement within the traffic code raises a reasonable argument that criminal penalties are to apply to a violation of the conduct prohibited therein. The statute was placed in the general proximity of K.S.A. 1998 Supp. 8-1567 which clearly establishes criminal penalties for driving under the influence of alcohol, rather than with the civil penalties found in K.S.A. 1998 Supp. 8-1002.
"In contrast, while the language of K.S.A. 1998 Supp. 8-1567a indicates criminal prohibition of the conduct specified therein, the penalties provided by the statute do not constitute criminal penalties but merely civil restrictions on driving privileges, evidencing the legislature's intent to provide only administrative penalties for violation of the statute. See State v. Mertz, 258 Kan. 745, 758-61, 907 P.2d 847 (1995) (holding that suspension of a driver's license for driving under the influence of alcohol is a civil remedy designed to protect the public, not a criminal penalty designed to punish the driver).
"By promulgating a statutory provision to govern minor drivers who have consumed alcohol, we conclude, the legislature intended to maintain existing provisions and sanctions. The statute explicitly states this intent: 'Except where there is a conflict between this section and K.S.A. 8-1001 and 8-1002 and amendments thereto, the provisions of K.S.A. 8-1001 and 8-1002 and amendments thereto, shall be applicable to proceedings under this section.' K.S.A. 1998 Supp. 8-1567a (g).
"Logic dictates that K.S.A. 1998 Supp. 8-1567a was designed to cover conduct not previously covered in K.S.A. 1998 Supp. 8-1002 and K.S.A. 1998 Supp. 8-1567. The statute discusses only the penalties to be applied to persons under 21 years of age for breath or blood alcohol concentrations between .02 and .08, not the penalty to apply to persons whose breath or blood alcohol concentration exceeds .08. See K.S.A. 1998 Supp. 8-1567a (d), (e), (f), and (h)." (Emphasis added.) 27 Kan. App. 2d at 893-94.
The State argues that the legislature's intent to provide criminal penalties is shown by the placement of the statute between 8-1567 and 8-1568 and by the language, " t shall be unlawful."
With regard to placement, the State suggests that had the legislature intended only civil penalties, it would have amended K S.A. 8-1002 or added an 8-1002a instead of adding 8-1567a. The legislature is not involved in the placement or numbering of statutes, and it is long established that " he placement of a law in a particular location in the General Statutes by the compiler is not persuasive as to the intent of the legislature which enacted the statute." Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. 3, 610 P.2d 1107 (1980).
At oral argument, the State took a different tact to support its position. Arguing that by failing to designate the violation of K.S.A. 8-1567a as a felony or traffic violation, "it becomes a misdemeanor" by operation of K.S.A. 2001 Supp. 21-3105, and pursuant to K.S.A. 2001 Supp. 21-4502 has the same penalty as a class C misdemeanor. K.S.A. 2001 Supp. 21-3105 first defines a crime as "an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infr
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