257 P.3d 1266
Kan. Ct. App.2011Background
- Adame was convicted by jury of felony DUI (fourth offense) along with driving while suspended and failure to provide proof of insurance; district court imposed prison time, fines, court costs, and court-appointed attorney fees.
- Disputed conduct occurred after Dalenia Beckwith’s vehicle stalled; Adame allegedly assisted, but the car’s location and movements were disputed, leading to a noninjury collision with Kevin West’s truck.
- At the scene, Officer Rucker detected odor of alcohol, noted other indicia of intoxication, and Adame refused a breath test; license was suspended and no valid insurance proof was produced.
- Evidence included Adame’s statements about driving the vehicle from Elm Street to McDonald’s parking lot, eyewitness accounts of pushing the car, and Adame’s admissions, supporting both operation and attempt to operate a vehicle under the influence.
- The district court imposed BIDS attorney fees and various fines; on appeal, issues included unanimity on alternative means, BIDS fees, and whether fines could be imposed with consideration of the defendant’s ability to pay; the court remanded for on-record considerations and vacated certain fees/fines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity on alternative means DUI | Adame lacked unanimity on the means (operation vs. attempt) | Adame argues lack of unanimity instruction violated rights | No unanimity error; evidence supports both means and Stevens framework applied |
| BIDS attorney fees | Fees imposed without assessing Adame’s ability to pay | State contends fees permissible | BIDS fees vacated; remanded for on-record ability-to-pay analysis under 22-4513 |
| Fine for 4th DUI and ability to pay | Court must consider defendant’s financial resources for the mandatory fine and alternative payment | State agrees to remand for consideration of ability to pay | Remanded to consider community service under 8-1567(j) and financial resources under 21-4607(3) for related fines |
| Fines for suspended license and no proof of insurance | Court failed to consider ability to pay when imposing fines | Discretionary/mandatory aspects require on-record financial consideration | Vacated fines; remanded to assess financial resources per 21-4607(3) for these penalties; also require 21-4607(2) findings if both fine and imprisonment are imposed |
| Discretionary vs mandatory aspects of 40-3104(g)(1) fine/jail | Disjunctive 'or' implies discretion; court should consider 21-4607(3) | Mandatory minimum fine vs. potential jail term | Court should have applied 21-4607 factors; findings required when both fine and imprisonment are imposed |
Key Cases Cited
- State v. Stevens, 285 Kan. 307 (2007) (unanimity doctrine for alternate means DUI; requires sufficiency on both means)
- State v. Trautloff, 289 Kan. 793 (2009) (standard for appellate review of sufficiency of evidence)
- State v. Kendall, 274 Kan. 1003 (2002) (definition of operation via movement of vehicle; evidence types)
- State v. Fish, 228 Kan. 204 (1980) (establishing operation via direct or circumstantial evidence)
- State v. Robinson, 281 Kan. 538 (2006) (on BIDS fees; due consideration of defendant’s ability to pay)
- State v. Copes, 290 Kan. 209 (2010) (mandatory fine vs. ability-to-pay; community service option)
- State v. Raschke, 289 Kan. 911 (2009) (requirements when imposing fines alongside imprisonment; 21-4607 analysis)
- State v. McGlothlin, 242 Kan. 437 (1988) (need for findings under 21-4607 when fine and other penalties imposed)
- State v. Green, 280 Kan. 758 (2006) (credibility determinations favor State; standard in sufficiency review)