The opinion of the court was delivered by
The State appeals the Shawnee District Court’s dismissal of the charge of driving while license suspended, in violation of K.S.A. 1998 Supp. 8-262(a). This appeal involves five cases from Shawnee County docketed as
State v. Victor L. Bowie,
No. 82,929;
State v. Rey O. Martinez,
No. 83,048;
State v. Garth B. Ortiz,
No. 83,049;
State v. Woodie C. Morgan, Jr.,
No. 83,114; and
State v. Victor L. Bowie,
No. 83,115. This court ordered the cases consolidated for determination under case No. 82,929. We have jurisdiction pursuant to K.S.A. 1999 Supp. 22-3602(b)(1). Victor Bowie is the only defendant/appellee who filed a brief. The district court dismissed felony charges against Bowie of driving while his license was suspended. The question we must resolve is whether a person who has not been licensed to drive can be found guilty
Bowie has never been licensed, or otherwise authorized, to drive a motor vehicle. Before the charges in the present case were filed, he had entered pleas of no contest to charges of driving while suspended on three occasions — once in Shawnee District Court and twice in Topeka Municipal Court. In this case, he filed a motion to dismiss the charge, and it was granted by the district court. The district judge did not believe that the language of K.S.A. 1998 Supp. 8-262(a) would support the charge of driving while suspended against a person who never had a license. Moreover, in the district judge’s opinion, K.S.A. 1998 Supp. 8-235, which prohibits driving without a valid driver’s license, is the statute applicable to Bowie’s conduct.
In the cases against the other defendants, the charge of driving while suspended was dismissed by the district court “pursuant to the Court’s prior Memorandum Decision and order in State v. Victor Bowie, Case #98-CR-2566.”
Bowie was charged under K.S.A. 1998 Supp. 8-262(a), which provides, in pertinent part: "Any person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked shall be guilty of a . . . severity level 9, nonperson felony on a third or subsequent conviction.” He persuaded the district court that he could not be prosecuted under 8-262(a) because he had no driver’s license and hence no privilege to drive that had been canceled, suspended, or revoked. The statute the district court believed was applicable in the circumstances is K.S.A. 1998 Supp. 8-235(a), which provides: “No person, except those expressly exempted, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license.” Violation of 8-235(a) is a misdemeanor.
The fundamental rule of statutory construction to be applied by the court is that the intent of the legislature governs when it can be ascertained. The legislative intention is to be determined from consideration of the entire act rather than disconnected provisions, and, if possible, effect must be given to the entire act and every part of it. To this end, it is the duty of the court, as far as practi
With regard to the statutory scheme governing operation of motor vehicles, the State first calls to the court’s attention the following definition of “license to operate a motor vehicle” in K.S.A. 8-1430:
“ ‘License’ or ‘license to operate a motor vehicle’ means any driver’s license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this state, including:
(a) Any temporary license, or instruction permit;
(b) the privilege of any person to drive a motor vehicle whether or not such person holds a valid license; and
(c) any nonresident’s operating privilege.”
As phrased by the State in its brief, the clear meaning of subsection (b) of 8-1430 is that unlicensed drivers, such as Bowie, who willfully ignore the driver’s license requirement and continue to drive “are assuming the benefits of the privilege.” The State likens this statutory concept to a constructive privilege. In arguing that there can be no subsection (b) privilege without the State’s creating it, Bowie focuses on the prefatory language, “issued under, or granted by, the laws of this state.” The State’s rejoinder is that a constructive privilege is a fiction created by the operation of law.
K.S.A. 1998 Supp. 8-262(a) prohibits a person from driving a motor vehicle on a highway of this state “at a time when such person’s
privilege
so to do is canceled, suspended or revoked.” (Emphasis added.) The State’s position is that consideration of the statutory scheme rather than of 8-262(a) in isolation will show that the legislature did not intend for a person’s
privilege
to drive to depend on his or her having a driver’s license. K.S.A. 1998 Supp. 8-255(a) authorizes the division of vehicles “to suspend or revoke a person’s driving
privileges”
upon a showing of circumstances enumerated in subsections (1) through (5). (Emphasis added.) K.S.A. 1998 Supp. 8-255(b) requires the division to suspend a person’s driving privileges when required by 8-262 or K.S.A. 1998 Supp. 8-1014. The latter statute governs suspension and restriction of driving privileges for refusing or failing a test or failing to complete a
The State presented evidence in the district court of the procedure used by the Department of Revenue’s Driver Control Bureau for keeping track of the driving histories of unlicensed drivers. The witness testified that when an unlicensed driver is charged with an offense that could lead to a suspension of driving privileges, a computer-generated number is assigned to him or her for record keeping and notice purposes. There is no statutory authorization for the Bureau’s practice, and no recognition or statutory authority for the Bureau to create a constructive privilege by assigning a number to a driver.
Kansas courts have had few opportunities to consider how driver’s licenses and driving privileges are related. In
Schowengerdt v. Kansas Dept. of Revenue,
“[I]f a license or privilege exists, it is subject to suspension, and it can be suspended for any period permitted by law. Once suspended, the suspension remains in effect for the full period ordered, regardless of whether the originally valid license might otherwise have expired at some point during the period of suspension. To hold otherwise would be counter to logic and would allow a driver to benefit from letting his driver’s license expire. It is the privilege to drive that is suspended. The license itself merely represents that privilege.”14 Kan. App. 2d at 149 .
In
State v. Mertz,
“Popp v. Motor Vehicle Department,211 Kan. at 766 , and Schowengerdt v. Kansas Dept. of Revenue,14 Kan. App. 2d at 149 , found that driving is not a natural right, but a privilege. If a driver does not abide by the conditions of the privilege, the license is subject to suspension in order to protect public safety and welfare. A sanction which revokes a privilege is a remedial sanction, not a punitive sanction. We hold the sanction in this case is remedial for two reasons. One, it is remedial because it protects the public welfare. Two, it is remedial because the suspension revokes a privilege which is being abused.”258 Kan. at 761 .
On this ground, the trial court’s dismissal of the criminal charge against Mertz was reversed and the matter remanded for trial.
In
Schowengerdt,
the Court of Appeals discussed a line of Alaska cases because several of them had been cited by Schowengerdt.
In
Fielding v. State, 733
P.2d 271 (Alaska App. 1987), Fielding had a valid driver’s license when his string of driving convictions began; therefore, his issue differed significantly from the issue in
In 1978, the Vermont Supreme Court considered whether a person who never had a license could be charged under Vt. Stat. Ann. tit. 23, § 674, which made it a violation to operate a motor vehicle when one’s right to operate (or license) has been suspended, revoked, or refused.
State v. Cady,
The defendant in
People v. Rivera,
The opinions from these various foreign state courts appear to represent differing viewpoints, including some that favor the State’s position here. Bowie, however, contends that all these foreign cases must be distinguished from the present case due to statutory provisions absent from the Kansas statutory scheme. For example, he points out that Vermont has a statute that defines “privilege to operate” to include the privilege of a resident to obtain a license. Vt. Stat. Ann. tit. 23, § 4(58) (1999). He asserts that Kansas has no similar provision. He would have the court conclude that what a Vermont court suspends when dealing with an unlicensed driver is the privilege to obtain a license, but that a Kansas court cannot do so for lack of specific authority.
We agree that the statutory scheme differs from state to state, and we need not look beyond the Kansas statutory scheme and Kansas cases for resolution of this issue. In
Mertz,
we noted that driving a motor vehicle in Kansas is not a natural right but a privilege.
The legislature used the phrase “valid driver’s license” in 8-235(a) and, by doing so, intended to specify the tangible representation of a driving privilege. In 8-262(a), the legislature uses the term “privilege” rather than “license” and, by so doing, demonstrated the intent to include licensed drivers as well as drivers exempt under 8-236. No other drivers are granted a privilege to drive in Kansas. Further, the legislature limited the scope of the provision to persons whose privilege to drive is “canceled, suspended or revoked.” In so doing, the legislature intended for only licensed persons to be covered by 8-262(a). The district judge stated in this regard:
“I think the whole matter could be cleared up by the statute being amended by, if nothing else, if they just flat stated that any person who drives a motor vehicle on any highway of this state at the time when such person’s privilege to do so was canceled, suspended, or revoked, they could add the words nonexistent or never legally present. And it’s so easy to amend.”
Bowie also argues that the statute prohibiting driving without a valid driver s license governs because it is more specific to his circumstances than the statute prohibiting driving while suspended. It is well established in Kansas courts that “where a statute dealing generally with a subject and a statute dealing specifically with a certain phase of the subject are conflicting, the more specific statute generally controls unless the legislature intended otherwise.”
State v. LaMunyon,
The State’s most persuasive argument is that the district court’s interpretation of the statutes elevates an unlicensed driver to a legally superior position over a licensed driver and in doing so frustrates the legislature’s intention to foster public highway safety. In the district court’s scheme of things, an unlicensed driver can be convicted only of a class B misdemeanor — driving without a valid driver’s license in violation of K.S.A. 1998 Supp. 8-235(a) and (e). K.S.A. 1998 Supp. 8-262(a)(1), in contrast, provides for escalation
“What all this means, of course, is that the defendant has found a convenient loophole in the Vehicle and Traffic Law. Moreover, under the present state of tire law an individual who flagrantly violates the law by never applying for a license but driving nevertheless is in a better legal position than an individual whose driving record is blemished by a single offense and whose license was consequently revoked. The flagrant lawbreaker apparently can only be charged with a violation upon his arrest . . . regardless of the number of convictions he has had for the same offense. However, the single offender subsequently arrested for operation while license is revoked is subject to prosecution for a misdemeanor. We urge the legislature to close the loophole and correct the obvious inequities in the law.”359 N.Y.S.2d at 451 .
Notwithstanding the patent purpose of the legislature to promote safety on public highways, adopting the State’s position on this issue would require the court to enlarge the phrase “canceled, suspended or revoked” to include driving privileges never granted. Because there are some criminal penalties involved, the statute before the court must be strictly construed in favor of the accused. As this court has stated, however, “[t]he rule of strict construction ... is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.”
State v. Vega-Fuentes,
The judgment of the district court is affirmed.