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State v. Schuster5/31/2002
action, . . . a fine is authorized." That is followed by classifying crimes as (1) a felony, (2) traffic infraction, (3) cigarette or tobacco infraction, and (4) "all other crimes are misdemeanors." According to the State, K.S.A. 2001 Supp. 21-3105 makes all crimes misdemeanors if not designated as a felony or traffic violation. Not only does the State add something not found in the statute, it ignores the definition of a crime in the first part of K.S.A. 2001 Supp. 21-3105. K.S.A. 8-1567a does not meet that definition, and thus it cannot be classified as a misdemeanor. K.S.A. 2001 Supp. 21-4502(d) provides:
"Unclassified misdemeanors, which shall include all crimes declared to be misdemeanors without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime; if no penalty is provided in such law, the sentence shall be the same penalty as provided herein for a class C misdemeanor."
This subsection is not applicable since K.S.A. 8-1567a is not a crime nor is it "declared to be a misdemeanor without specification as to class."
The Attorney General's opinion thoroughly and convincingly examines the reason for the " t shall be unlawful" language in 8-1567a. The legislative history shows that the language was part of a Senate substitute bill for H.B. 2603, which was adopted by the Senate due to KDOT's concerns that the House bill would not satisfy federal requirements. Att'y Gen. Op. No. 97-69, p. 4. "However, there was no mention in the minutes that the Senate intended to reinsert any criminal sanctions for violation of the law, and the amendments to K.S.A. 8-1567 were not made a part of the Senate substitute bill." Att'y Gen. Op. No. 97-69, p. 5. K.S.A. 8-1567a does not establish a criminal offense, and the district court did not err in dismissing the underage DUI charge against Schuster.
The judgment of the district court is affirmed.
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