State v. CottState v. Cott
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The defendant, Nicole Lynn Cott, was arrested for driving under the influence of alcohol (DUI) and was charged un
der
At the preliminary hearing on the felony charge, Trooper Nicholas Wright testified that after observing Cott commit several traffic violations, he stopped her and subsequently arrested her for DUI. He also testified that, at the time of the stop, Cott’s 4-year-old son was in the car with her. The boy was asleep in the front seat and was not in any kind of child safety seat, but the trooper could not remember whether he was wearing a seat belt. The Intoxilyzer 5000 test subsequently administered to the defendant showed that she had an alcohol concentration of .147 grams of alcohol per 210 liters of breath.
Following the presentation of evidence, the attorney for the defendant argued the provision found in
Although the parties framed their arguments to the trial court in terms of multiplicity, the district court’s decision to dismiss the felony count of child endangerment was based on the court’s conclusion that
On appeal, the Court of Appeals, noting that the issue was one of first impression everywhere except Virginia, considered the Virginia case of Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27 (2004). The Court of Appeals observed that Virginia, like Kansas, recognizes that when one statute speaks to a subject specifically and conflicts with another that deals with the subject generally, the specific statute will apply. The court read the Virginia case to suggest the two statutes at issue here are “compatible” and adopted the holding and rationale of Wolfe. State v. Cott, 39 Kan. App. 2d 950, 952, 186 P.3d 826 (2008).
Whether one statute precludes application of another is an issue of statutory interpretation ultimately involving the determination of legislative intent. Interpretation of a statute is a question of law, and an appellate court’s standard of review of a lower court’s statutory interpretation is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008).
“(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person s blood or breath as shown by any competent evidence ... is .08 or more;
“(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had a child under the age of 14 years in the vehicle at the time of the offense shall have such person’s punishment enhanced by one month of imprisonment.”
“(a) Aggravated endangering a child is:
(1) Intentionally and recklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health is injured or endangered.”
The finding by the Court of Appeals that the statutes are compatible reflects the general rule of statutory construction that when there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intends to make the general act controlling. In other words, the Court of Appeals, based on
Wolfe,
found there was no conflict between the provisions of
The facts in Wolfe are similar to the facts in this case, except that there the defendant pled guilty to the DUI charge and was subsequently found guilty of child abuse and neglect. He argued that “the Commonwealth was prohibited from prosecuting him for felony child abuse and neglect . . . based upon his act of transporting his son while driving under the influence because [the DUI statute] provides a specific penalty for a person driving under the influence who has a passenger 17 years or younger.” Wolfe, 42 Va. App. at 779. After dismissing the precedent cited by the defendant as unhelpful, the Wolfe court simply declared that “the meaning of the legislative action may be easily discerned from the plain language of the statute” and found that “the legislature intended nothing more than to enhance the penalty for the crime of DUI where transportation of a minor is involved.” 42 Va. App. at 782.
Ultimately, the rule that a general statute should yield to a specific statute covering the same criminal conduct is a rule of statutory construction designed to determine legislative intent and it must yield where there is a clear indication that the legislature did not intend for one statute to be the
When the sentence enhancement provision in
Kansas case law appears to be well settled on the general rule followed by the Court of Appeals and on the applicability of the rule to criminal cases. The Court of Appeals cited
Williams,
250 Kan. at 736, for the rule. In
Williams,
the defendant was charged with one count of indecent liberties with a child,
The Williams court observed: “[F]or the general statute versus specific statute rationale to be applicable to the two crimes, the indecent liberties statute must be viewed as a statute generally prohibiting certain sexual behavior and the aggravated incest statute as applying to the identical prohibited conduct by a person related to the victim.” (Emphasis added.) 250 Kan. at 736. The court examined the elements of the two crimes and concluded that, although they were similar, “the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child. This relationship is not an element in the indecent liberties with a child statute.” 250 Kan. at 736.
In
State v. Fritz,
261 Kan. 294, 933 P.2d 126 (1997), the court focused on this language from
Williams
in a case involving the crimes of theft by deception,
“obtaining the victims’ property is central to the theft by deception charges, but immaterial to the loan broker fraud charges. This prohibited act (fraud) under 50-1017of the Loan Broker’s Act is not the same act (theft) prohibited under what is now 21-3701(a)(2). Thus, the former does not address a specific subject generally addressed in the latter. The two statutes are not in conflict.” 261 Kan. at 304.
Applying the analysis of Williams and Fritz to this case, for the general statute versus specific statute rationale to be applicable to the two crimes, this court would have to find that the child endan germent statute must be viewed as a statute generally prohibiting certain conduct and the DUI statute as applying to the identical prohibited conduct by a person driving while under the influence. See Williams, 250 Kan. at 736. Put another way, this court would have to determine that the DUI sentence enhancement provision proscribes for a certain class of persons conduct which is proscribed generally in the child endangerment statute. See Fritz, 261 Kan. at 302-03.
The Court of Appeals remarked that “this is a close case,”
Cott,
39 Kan. App. 2d at 951, but concluded that the statutes created independent crimes and neither prevents the application of the other. This conclusion is supported by reasoning that the focus of
The decision of the Court of Appeals reversing the district court is affirmed. The district court is reversed, and the case is remanded for a new prehminary hearing.