We granted Buddy Ahrens’ petition for review to consider whether the terms “operating” or “attempting to operate” a vehicle create alternative means of establishing the crime of driving under the influence (DUI) under K.S.A. 2008 Supp. 8-1567(a)(3). The Court of Appeals concluded that while the statute creates alternative means, Ahrens was not entitled to a reversal of his conviction because the State presented sufficient evidence that Ahrens both operated and attempted to operate his vehicle while under the influence of alcohol.
Applying the rubric we recently developed in State v. Brown,
Factual and Procedural Background
As Kingman County Sheriffs Deputy Michael Roths conducted a traffic stop on the evening of April 8, 2009, he saw a Suburban with a defective taillight pass by. After completing the traffic stop, Roths returned to his vehicle and pursued the Suburban. As he did so, he noticed the Suburban also had a defective brake light. Roths activated his emergency lights and pulled over the Suburban.
Upon making contact with the Suburban’s driver, Ahrens, Roths detected the odor of alcohol and noted that Ahrens’ eyes were glassy and bloodshot and his speech was slurred. Suspecting Ah-rens was intoxicated, Roths asked Ahrens if he had been drinking. Ahrens initially denied consuming alcohol but later told Roths he had consumed alcohol earlier in the afternoon. After Ahrens failed two of the field sobriety tests administered by Roths, Roths arrested him for DUI.
The jury was instructed, in relevant part, that Alirens was “charged with the crime of operating or attempting to operate a vehicle while under the influence of alcohol,” that the State was required to prove that Ahrens “drove or attempted to drive a vehicle,” that Ahrens, “while driving or attempting to drive, was under the influence of alcohol,” and that “this act occurred on or about the 8th day of April, 2009, in Kingman County Kansas.”
The jury also was instructed that its verdict “must be founded entirely upon the evidence admitted and the law as given in [the jury] instructions” and that its “agreement upon a verdict must be unanimous.” The jury verdict form reflects that the jury found Ahrens guilty “as to the crime of Driving Under the Influence of Alcohol.”
The jury found Alirens guilty of DUI under K.S.A. 2008 Supp. 8-l567(a)(3), and Alirens directly appealed to the Court of Appeals. Relying on State v. Stevens,
We granted Alirens’ petition for review, obtaining jurisdiction under K.S.A. 20-3018(b).
Analysis
Ahrens argues he was deprived of his right to a unanimous jury verdict because the State charged him with, and the jury was instructed on, alternative means of committing DUI, i.e., operating or attempting to operate a vehicle while under the influence of
Ahrens’ argument rests on a trio of decisions from this court: State v. Timley,
In Timley, this court established what we have since referred to as the “alternative means rule” and its corollary “super-sufficiency requirement”:
“ ‘[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.]’ ” Timley,255 Kan. at 289 .
In Stevens, we held that the DUI statute at issue here, 8-1567(a), provides alternative means of committing'DUI because it prohibits both the operation and the attempt to operate a vehicle while under the influence of alcohol. Stevens,
Finally, in Wright, this court reinforced that a criminal defendant possesses a statutory right under K.S.A. 22-3421 to a unanimous jury verdict and that the enforcement of the Timley rule and its corollary super-sufficiency requirement “is the only choice” to ensure that statutory right. Wright,
Relying on these cases, Ahrens points out that he was charged with, and the jury was instructed on, alternative means of committing DUI, hut the State failed to present any evidence he attempted to operate a vehicle while under tire influence of alcohol. Thus, he argues, he was deprived of a unanimous jury verdict and his conviction must be reversed.
Like the panel, we reject Ahrens’ alternative means argument but not for the same reasons identified by the panel. Instead, we reject Ahrens’ argument in light of the framework for identifying alternative means we recently articulated in Brown,
Our newly developed guidelines for determining whether a statute provides alternative means require us to reconsider our determination in Stevens that 8-1567(a)(3) contains two alternative means for committing a DUI: (1) operating a vehicle while under the influence of alcohol, and (2) attempting to operate a vehicle while under the influence of alcohol.
In Fish, the State sought clarification of whether it was “a violation of K.S.A. 1979 Supp. 8-1567(a) for an intoxicated person to be in a motor vehicle with the motor running where there is no evidence, direct or circumstantial, that he drove the motor vehicle in that condition?” Fish,
The Fish court rejected the State’s argument. After reviewing several statutes, the court determined that the legislature intended for the terms “ ‘operate’ ” and “ ‘drive’ ” to mean the same thing because the legislature used the terms interchangeably.
“that the word ‘operate as used in section (a) of [K.S.A. 1979 Supp. 8-1567] should be construed to mean ‘drive’ thus requiring some evidence, either direct or circumstantial, that the defendant drove the automobile while intoxicated in order*156 for the defendant to be convicted under that section. Proof of driving does not require an eyewitness to the driving. It may be shown by circumstantial evidence as was done in State v. Dill,182 Kan. 174 , and State v. Hazen,176 Kan. 594 .” Fish,228 Kan. at 210 .
We find it curious that Fish interpreted the terms “drive” and “operate” as being synonymous. Significantly, Fish recognized that other jurisdictions had construed the term “driving” in DUI statutes as requiring actual movement of the vehicle but had construed the term “operating” more broadly “to include not only the act of driving but also such acts as stalling the engine or activating the electrical or mechanical devices of the vehicle.” Fish,
Nevertheless, Fish reaffirmed that a DUI conviction could be sustained with circumstantial evidence of driving but concluded the legislature’s decision to replace the word “drive” in the DUI statute with the term “operate” was essentially meaningless because the legislature used the terms interchangeably in several other statutes.
Five years after the Fish decision, the legislature amended K.S.A. 8-1567 to prohibit “the operation or the attempt to operate any vehicle by a person under the influence of alcohol.” State v. Kendall,
Significantly, the Fish court relied on the legislature’s interchangeable use of the terms “drive” and “operate” in several statutes to reject the State’s argument that the legislature’s change of the term “drive” to “operate” in the DUI statute signaled a legislative intent to broaden the acts that would constitute a DUI. Fish,
This court’s first opportunity to consider tire 1985 amendment arose in Kendall. There, this court explained that after tire amendment K.S.A. 8-1567(a) “encompasses both those accused of actually driving while under tire influence and Arose who merely tried but failed, with no election required.”
The jury verdict form in Kendall gave the jury three options: (1) the defendant was guilty of DUI “by driving a motor vehicle,” (2) the defendant was guilty of DUI “by attempting to drive a motor vehicle,” or (3) the defendant was not guilty.
On appeal, the defendant challenged the court’s response to the jury regarding movement of the vehicle. The Kendall court agreed that the trial court misstated the law.
*158 “Kendall was found in the driver’s seat of his truck with the engine running, the headlights on, his foot on the brake, and his seat belt fastened. The truck was sitting in the middle of a public street in a residential neighborhood. Even if the jury believed Kendall did not move his vehicle while under the influence of alcohol, there was sufficient evidence to convict Kendall of DUI on the alternative theory that he attempted, but failed, to operate the truck.
“The trial court’s answer to the jury’s question, while error, was harmless.”274 Kan. at 1012 .
Essentially, Kendall unknowingly paved the way for operating and attempting to operate to be construed as alternative means of committing a DUI. And that construction took hold in the Court of Appeals decision in State v. Stevens,
There, a majority of the Court of Appeals’ panel relied on Kendall to conclude that “operating” and “attempting to operate” were alternative means of committing the crime of DUI. Stevens,
Finally, this court solidified the notion that DUI is an alternative means crime in Stevens,
While Stevens did not cite Kendall, we recognize that Stevens’ determination that operating a vehicle while under the influence of alcohol and attempting to operate a vehicle while under the influence of alcohol are alternative means of committing a DUI was derived from Kendall which, in turn, was derived from Fish.
And, in light of Browns emphasis on legislative intent as the governing principle in identifying alternative means statutes, we conclude that the Kendall court did not adequately consider whether the legislature intended to make DUI an alternative means crime when it added the phrase “attempt to operate” to the DUI statute in 1985. Accordingly, Kendall does not provide a solid foundation for Stevens’ determination that DUI is an alternative means crime and we analyze this issue anew in light of Brown.
Because legislative intent governs, our first task is to consider the language and structure of the DUI statute to determine whether the legislature intended to create alternative means of committing DUI by inserting a disjunctive “or” between the term “operate” and the phrase “attempt to operate.” See Brown,
Brown suggested a framework for determining whether the legislature intended a statute to include alternative means of committing a crime:
“In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction. [Citation omitted.]”295 Kan. at 194 .
Ahrens was charged under K.S.A. 2008 Supp. 8-l567(a)(3). At the time Ahrens committed the crime, K.S.A. 2008 Supp. 8-1567(a) provided:
“(a) No person shall operate or attempt to operate any vehicle within this state while:
*160 (1) The alcohol concentration in the person’s blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under tire influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.” (Emphasis added.)
Applying Brown, we conclude that the legislature did not intend to create alternative means of committing DUI by placing the disjunctive “or” between the term “operate” and the phrase “attempt to operate” in K.S.A. 2008 Supp. 8-1567(a).
The crime of driving under the influence requires two primary elements—that is, driving and simultaneously being under the influence. The driving element can be established through proof that the defendant either “operated” or “attempted to operate” the vehicle, while the “under the influence” requirement can be established through proof of any of the factual circumstances described in subsections (a)(1) through (a)(5).
Essentially, rather than requiring tire State to prove that a defendant actually drove a vehicle while under the influence, the legislature employed the phrase “operate or attempt to operate” in order to encompass a broader set of factual circumstances that could establish the driving element. In the language of Brown, the term “operate” and the phrase “attempt to operate” merely “describe the factual circumstances in which a material element”— i.e., driving—“may be proven.” Brown,
Notably, the latest version of the DUI statute reinforces the legislature’s intent in this regard. As discussed, the preliminary language contained in the previous version of the DUI statute provided: “No person shall operate or attempt to operate any vehicle within this state while:. ...” K.S.A. 2008 Supp. 8-1567(a). In 2011, the legislature amended the preliminary language to read: “Driving
Because we conclude the legislature did not intend the phrase “operate or attempt to operate” in K.S.A. 2008 Supp. 8-1567(a) to create alternative means of committing the crime of DUI, we reverse the Court of Appeals decision finding otherwise. Further, our conclusion means that the district court’s inclusion of that phrase in the charging instructions in this case did not create a juiy unanimity problem and does not demand application of the super-sufficiency requirement. See Brown,
Here, the State alleged Ahrens unlawfully and “intentionally operated] or attempted] to operate a motor vehicle while under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle,” in violation of K.S.A. 2008 Supp. 8-1567(a)(3). Ahrens does not challenge the sufficiency of the evidence that he “operated” the vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving the vehicle, and the record demonstrates more than sufficient evidence of such operation. Thus, we affirm his DUI conviction.
In conclusion, while we reverse the Court of Appeals’ conclusion regarding alternative means, we affirm its judgment affirming Ah-rens’ conviction and the judgment of the district court.