374 P.3d 673
Kan.2016Background
- On Dec. 4–5, 2010 Darrow was found asleep in the driver’s seat of a parked convertible that was running and backed up against a chain-link fence; exhaust was observed.
- Friends had driven her earlier, parked at a dead-end, and left Darrow alone in the car; she had switched to the driver’s seat and fallen asleep.
- When awakened by an officer the next morning, Darrow fumbled with the gear shift; the transmission remained in park.
- Officer observed odor of alcohol, slurred speech, failed field sobriety tests, arrested Darrow; she refused a breath test.
- At bench trial the parties submitted stipulated facts; the court convicted Darrow of DUI (third offense) and refusal to submit to a preliminary breath test.
- On appeal Darrow argued the stipulations were insufficient to prove she "operated or attempted to operate" the vehicle because there was no evidence she tried to move it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "operate or attempt to operate" under DUI requires movement | State: conviction can be based on being in driver’s seat with engine running and acts toward controls | Darrow: mere physical control or fumbling without intent/movement is insufficient | "Operate" = "drive," which requires movement; "attempt to operate" means attempt to move the vehicle; physical control alone is insufficient |
| Whether stipulated facts support attempt to operate | State: view all stipulations and reasonable inferences favoring prosecution; engine running + in driver’s seat + fumbling with gear shift suffice | Darrow: facts consistent with sleeping in running car or complying with officer’s request to turn off engine; no overt attempt to move car | Court: considering totality and reasonable inferences in light most favorable to State, evidence was legally sufficient to support attempt to operate and conviction |
| Proper standard of review for stipulated-facts sufficiency | State: appellate review normally whether a rational factfinder could convict; here de novo review of stipulated facts is appropriate but facts must be viewed in light most favorable to State | Darrow: urged de novo review to overturn sufficiency | Court: appellate courts may review stipulated facts de novo but must still view facts and inferences in light most favorable to prosecution when testing sufficiency |
| Whether "actual physical control" standard from CDL definitions applies to DUI statute | State/Court of Appeals had relied on a broader "actual physical control" test | Darrow: argued against applying CDL definition to DUI | Court: rejected importing CDL "physical control" definition; Kendall and Fish require movement to constitute driving/operating |
Key Cases Cited
- State v. Kendall, 274 Kan. 1003 (2002) ("operate" construed as synonymous with "drive"; attempt covers those who tried but failed to drive)
- State v. Fish, 228 Kan. 204 (1980) ("operate" in DUI construed to mean "drive," requiring evidence defendant drove while intoxicated)
- State v. Ahrens, 296 Kan. 151 (2012) (legislative "operate or attempt to operate" phrasing broadened driving element to include failed attempts)
- State v. McBroom, 299 Kan. 731 (2014) (convictions may be based entirely on circumstantial evidence and reasonable inferences)
- State v. Scott, 271 Kan. 103 (2001) (probative value of circumstantial and direct evidence is equivalent; appellate courts do not reweigh evidence)