290 P.3d 636
Kan.2012Background
- Perkins challenged a DUI conviction after appeal of the Court of Appeals decision,
- The State charged DUI under 8-1567(a) with the disjunctive phrase ‘operate or attempt to operate’
- The jury was instructed on both means; the State did not need to prove both to convict under Ahrens
- Ahrens held the phrase describes the driving element, not alternative means
- Court held the State need not prove both operating and attempting to operate as means, and Perkins’ conviction affirmed on DUI
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do 8-1567(a) contain alternative means? | Perkins; yes, alternative means. | State; no, not alternative means. | No; 8-1567(a) does not present alternative means. |
| Must the State prove both operating and attempting to operate? | Perkins; required to prove both. | State; only driving or attempting to drive suffices. | Not required to prove both; only driving/attempting suffices. |
| Was there sufficient evidence Perkins operated under the influence? | Perkins; insufficient to prove operation. | State; sufficient to prove operation. | Yes; sufficient evidence Perkins operated while under the influence. |
Key Cases Cited
- State v. Ahrens, 296 Kan. 151 (2012) (disallows alternative means between operate and attempt to operate; describes driving element)
- State v. Brown, 295 Kan. 181 (2012) (rubric for determining legislative intent in criminal statutes)
- State v. Wright, 290 Kan. 194 (2010) (addressed when alternatives exist in DUI charging)
- State v. Ward, 292 Kan. 541 (2011) (recognizes circumstantial proof in DUI convictions)
- State v. Kendall, 274 Kan. 1003 (2002) (notes admissibility of circumstantial driving evidence)
- State v. Fish, 228 Kan. 204 (1980) (driving proof may be circumstantial)