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City of Wichita v. Bell11/5/2004
v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
DUI is recognized as an absolute liability offense under K.S.A.2003 Supp. 21- 3204(2). Criminal intent is not an element of the crime. Thus, the prosecution is not required to present evidence of the defendant's intent in order to prove a charge of DUI. See State v. Martinez, 268 Kan. 21, 31, 988 P.2d 735 (1999).
Bell argues that a DUI conviction based upon attempted operation of a vehicle is a logical impossibility because a person cannot attempt to perform an act that requires no intent. Bell further argues that even if such a crime existed, it should be considered a specific intent crime. Generally, an attempt to commit an offense requires specific intent. State v. Maggard, 26 Kan.App.2d 888, 889-90, 995 P.2d 916, rev. denied 269 Kan. 938 (2000). Bell maintains his DUI conviction based upon attempted operation of a vehicle cannot stand because the City of Wichita failed to present evidence of his specific intent to commit the crime.
Bell's arguments are flawed. Bell overlooks the fact that he was charged with DUI, not attempted DUI. The ordinance Bell was charged with violating specifically includes attempt to operate as an element of the crime. Bell was not charged with attempt to commit DUI, which generally would require proof of intent. Instead, he was charged with actually committing a DUI, as defined by ordinance, which prohibits an attempt to operate a vehicle while under the influence of alcohol. This is an absolute liability offense, as interpreted in Martinez, and the prosecution was not required to present evidence of criminal intent in order to sustain a conviction.
Finally, Bell argues Wichita ordinance § 11.38.150(a)(2) is unconstitutionally vague because it is unclear what overt act would be sufficient to meet the element of attempting to operate a vehicle. Bell did not present this argument to the district court. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Moreover, in examining the language of the ordinance, its meaning is clear. The ordinance utilizes plain and concise language in describing the prohibited conduct. Bell's argument to the contrary is without merit.
Affirmed.
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