State v. Perkins
257 P.3d 1283
Kan. Ct. App.2011Background
- Perkins was convicted by Norton County jury of felony DUI under K.S.A. 2008 Supp. 8-1567 for fourth offense, plus misdemeanors for license suspension and open containers.
- Perkins testified the passenger (his stepson) drove; Perkins switched to driver’s seat after parking to clean up vomit; the jury rejected his version.
- State proved Perkins was intoxicated and attempted to drive; the trial instructed the jury to find he drove or attempted to drive.
- Perkins challenged the DUI conviction as legally insufficient to prove either driving or attempting to drive under the statute’s alternative means.
- Perkins challenged the license-suspension conviction under K.S.A. 2008 Supp. 8-262, arguing alternative means (cancellation, suspension, revocation) required separate proof, which the State failed to provide.
- Trial court imposed a $2,500 mandatory DUI fine, which the Supreme Court later held must be subject to a community-service substitution option.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DUI can be proven by attempted operation under 8-1567 | Perkins defines 'attempt' by 21-3301; argues insufficient evidence for attempted DUI | State contends 8-1567 treats attempt as legal equivalent of DUI; no need to elect means | Affirmed: attempted DUI valid; no need to elect means; record supports alternative means showing driving or attempting to drive |
| Whether an attempted DUI should be governed by 21-3301 | 21-3301 governs attempts; DUI should not use 21-3301 | Legislature intended attempts language in 8-1567 to mirror completed DUI | Affirmed: Legislature intended attempts within 8-1567; not governed by 21-3301 |
| Whether conviction under 8-262 for suspended license stands given the State failed to prove cancellation or revocation | Cancellation, revocation, and suspension are distinct; State must prove each or elect | Status (suspension) shown; argues status suffices as alternative means | Reversed: acquittal on alternative means of cancellation or revocation; conviction reversed for insufficient basis |
| Whether mandatory DUI fine must allow community-service substitute under Copes | Copes requires court consider community service as substitute for fine | Fine imposed; no substitute considered | Remanded to consider community service substitute; fine vacated as necessary |
| Whether the State preserved proper jury instructions on alternatives | Used 21-3301 definition; overbroad for DUI | Instruction preserved; not prejudicial error | No prejudicial error; instruction adequate |
Key Cases Cited
- State v. Stevens, 285 Kan. 307 (2007) (DUI includes alternate means of operating or attempting to operate)
- State v. Wright, 290 Kan. 194 (2010) (Jury need not agree on which alternative means; general verdict valid)
- State v. Jefferson, 287 Kan. 28 (2008) (Unlimited review on statutory interpretation; 1st principles apply)
- State v. Gaither, 283 Kan. 671 (2007) (Attempts require specific intent; voluntary intoxication may bar attempts)
- Clemons v. State, 39 Kan. App. 2d 561 (2008) (Distinguishes underlying offense vs. attempted crime; intent required)
- State v. Brown, 291 Kan. 646 (2011) (Attempts are specific-intent crimes; intoxication can be a defense)
- State v. Gonzales, 253 Kan. 22 (1993) (Voluntary intoxication may defeat specific intent for attempts)
- State v. Martinez, 268 Kan. 21 (1999) (DUI no-bad-intent characteristic; consequences of attempts differ)
- Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601 (2005) (Canons of construction avoid absurd results)
- State v. Van Hoet, 277 Kan. 815 (2004) (Avoid surplusage; interpret statute to give effect to each term)
- State v. Gracey, 288 Kan. 252 (2009) (Words given their usual meanings; avoid surplus)