State v. Myers, 475 P.3d 1256

Jessica Lynn Myers was arrested for DUI in Kansas (Feb 14, 2019) and charged with felony DUI (third offense) based on two prior Missouri DWI convictions (2002, 2010).
Myers moved pretrial to strike the Missouri priors under K.S.A. 2019 Supp. 8-1567(i)(3)/(j), arguing Missouri's DWI statute criminalizes broader conduct than Kansas' DUI statute.
The district court granted the motion, applying the categorical approach and the identical-or-narrower rule from State v. Wetrich and Dickey I, and struck the priors but did not dismiss the felony charge.
The State timely appealed invoking K.S.A. 2019 Supp. 22-3603 (interlocutory appeal from order suppressing evidence); the court of appeals found jurisdiction under that statute because the order substantially impaired the State's ability to prosecute a felony DUI.
On the merits, the court held Apprendi bars judicial fact-finding about underlying conduct when elevating a sentence, so comparability must be decided by an elements-based (categorical) test; because Missouri's DWI statute is broader than Kansas' DUI statute, the priors are not comparable and cannot elevate the charge to a felony.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Myers)	Held
Jurisdiction under K.S.A. 22-3603 to hear State's interlocutory appeal	District court's order striking priors substantially impairs ability to prosecute felony DUI and is appealable as an order "suppressing evidence"	Prior convictions are sentencing/enhancement factors, not trial elements; order is not "suppressing evidence" warranting interlocutory appeal	Court had jurisdiction under K.S.A. 22-3603 because striking priors substantially impaired the State's ability to prosecute the felony charge
Whether Missouri DWI convictions are "comparable" to Kansas DUI under K.S.A. 8-1567(i)(3)/(j) and Apprendi	K.S.A. 8-1567(j)'s three factors are a nonexclusive test; even if elements are broader, j(3) allows a comparison of whether the out-of-state statute prohibits "similar conduct," and the legislative intent (preamble) favors counting Missouri DWI	Missouri DWI elements are broader than Kansas DUI (Missouri criminalizes being "in an intoxicated condition"); j(3) would require impermissible judicial fact-finding about underlying conduct in violation of Apprendi; must apply categorical elements comparison/identical-or-narrower rule	Applying Apprendi and Wetrich's identical-or-narrower rule, Missouri DWI is broader than Kansas DUI, so the priors are not comparable and cannot be used to elevate the current charge to a felony

State v. Wetrich, 307 Kan. 552 (Kan. 2018) (adopts identical-to-or-narrower-than rule for counting prior out-of-jurisdiction convictions)
State v. Dickey, 301 Kan. 1018 (Kan. 2015) (adopts categorical/elements-based approach in comparability analyses)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (constitutional limit on judicial fact-finding that increases penalty beyond statutory maximum; prior convictions exception)
State v. Gensler, 308 Kan. 674 (Kan. 2018) (applies identical-or-narrower rule to prevent impermissible fact-finding when using municipal convictions to enhance state sentence)
State v. Mejia, 58 Kan. App. 2d 229 (Kan. App. 2020) (contrary panel holding Missouri DWI may be comparable under K.S.A. 8-1567(j))
State v. Stanley, 53 Kan. App. 2d 698 (Kan. App. 2016) (concludes Missouri DWI statute is broader than Kansas DUI)
State v. Newman, 235 Kan. 29 (Kan. 1984) (broad reading of "suppressing evidence" for interlocutory appeals when an order substantially impairs prosecution)
Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016) (limits on using prior statutes broader than the generic offense for enhancement; elemental comparison required)