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State v. Gensler (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,523

STATE OF KANSAS,
Appellee,

v.

STACY A. GENSLER,
Appellant.


SYLLABUS BY THE COURT

A prior municipal court conviction for driving under the influence (DUI) under a
Wichita ordinance prohibiting operation of a vehicle under certain circumstances, when
the element of "vehicle" is defined more broadly than the "vehicle" element in the state
DUI statute, cannot be used to elevate a later violation of the state statute to a felony.

Review of the judgment of the Court of Appeals in an unpublished opinion filed May 6, 2016.
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 10, 2018.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
vacated, and the case is remanded with directions.

C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, argued the cause and was
on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

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BEIER, J.: This companion case to State v. Mears, 308 Kan. ___, ___ P.3d ___
(No. 115,278, this day decided), and State v. Fisher, 308 Kan. ___, ___ P.3d ___ (No.
115,277, this day decided), involves defendant Stacy A. Gensler's sentence for driving
under the influence (DUI), which was based on two prior convictions for DUI.

Gensler was twice convicted of DUI under a Wichita municipal ordinance.
Gensler argues that the Wichita DUIs cannot be used to enhance his current DUI
sentence, because the Wichita ordinance prohibits a broader range of conduct than the
Kansas statute. The definition of "vehicle" in the Wichita Ordinance included bicycles
and other human-powered devices. In contrast, the state statute explicitly excludes such
devices. Compare Wichita Municipal Ordinance (W.M.O.) 11.04.400 with K.S.A. 8-1485
(vehicle definition, excludes "devices moved by human power"); see also City of Wichita
v. Hackett, 275 Kan. 848, 69 P.3d 621 (2003).

For the reasons set out below, we conclude that the sentencing provisions of
K.S.A. 2017 Supp. 8-1567(i)(1) that define "conviction" do not cover Gensler's previous
DUI convictions under the Wichita ordinance, because the ordinance did not "prohibit[]
the acts that [K.S.A. 8-1567] prohibits." We vacate Gensler's sentence and remand this
case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, the State charged Gensler with felony DUI after his March 29,
2013, arrest for driving with a blood or breath alcohol concentration of more than .08 or,
alternatively, while incapable of safely operating the car. To establish that this would
give rise to Gensler's third DUI conviction and therefore a felony, the State alleged that
Gensler had been twice convicted of DUI in Wichita Municipal Court. The Wichita DUIs
had occurred on November 16, 2006, and June 22, 2010.
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The Wichita ordinance governing at the time of Gensler's prior DUIs read in
pertinent part:

"(a) No person shall operate or attempt to operate any vehicle within the city
while:

(1) The alcohol concentration in the person's blood or breath, as
measured within three hours of the time of operating or attempting to
operate a vehicle is .08 or more;

(2) Under the influence of alcohol to a degree that renders the
person incapable of safely driving a vehicle;

(3) The alcohol concentration in the person's blood or breath as
shown by any competent evidence is .08 or more. For the purposes of
this section, 'any competent evidence' includes (1) Alcohol concentration
tests obtained from samples taken three hours or more after the operation
or attempted operation of a vehicle, and (2) readings obtained from a
partial alcohol concentration test on a breath testing machine;

(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 the influence of a combination of alcohol and any drug
or drugs to a degree that renders the person incapable of safely driving a
vehicle." W.M.O. 11.38.150.

At Gensler's preliminary hearing, Gensler's attorney argued the Wichita DUIs
could not be used to enhance Gensler's state case to a felony because the municipal
ordinance prohibited a broader range of conduct than the state DUI statute. In addition,
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Gensler objected to the State introducing the traffic citations and disposition sheets from
his municipal convictions into evidence. The district court judge rejected Gensler's
arguments.

After the preliminary hearing, Gensler filed a motion to dismiss, reasserting his
argument that the municipal DUIs could not elevate the current DUI prosecution to a
felony. The district judge again rejected Gensler's argument and denied the motion.

Gensler's case proceeded to a bench trial on stipulated facts. The State and Gensler
stipulated:

"On March 29th, 2013, in Sedgwick County Kansas, Defendant drove a vehicle. The
alcohol concentration in defendant's breath at a time within three hours of Defendant
driving a vehicle was 0.182. Wichita Police Service Officer Fransisco Mendez #S0273
administered the test on a machine Mendez believed to be working properly and
certified."

Based on the stipulated facts, the judge found Gensler guilty of felony DUI.

Gensler objected to the inclusion of the two Wichita DUI convictions in the
criminal history score in his presentence investigation report. He reiterated his argument
that those convictions should not be counted because the Wichita ordinance prohibited a
broader range of conduct than the state statute.

Before imposing sentence, the district judge heard arguments on inclusion of the
Wichita DUIs. The State offered into evidence the complaint, i.e., the traffic ticket, and
the journal entry of judgment for each municipal conviction. Relying on those
documents, the district judge concluded that each of the Wichita DUI convictions
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satisfied the statutory definition of a prior conviction and sentenced Gensler for felony
DUI under the state statute.

On appeal to the Court of Appeals, Gensler argued that "any attempt by the district
court to look at the underlying facts of the municipal convictions would constitute
judicial factfinding in violation of Descamps v. United States, 570 U.S [254], 133 S. Ct.
2276, 186 L. Ed. 2d 438 (2013)[,] and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000)." State v. Gensler, No. 112,523, 2016 WL 2610262, at *1
(Kan. App. 2016) (unpublished opinion).

The panel concluded that the Wichita municipal DUI ordinance was a "divisible
ordinance because a conviction under the ordinance applies either to an automobile or a
bicycle, one of which matches a conviction under K.S.A. 8-1567." 2016 WL 2610262, at
*5; see State v. Dickey, 301 Kan. 1018, 1037, 350 P.3d 1054 (2015) (Dickey I)
(explaining Descamps analysis). Based on that conclusion, the panel applied a "modified
categorical" approach to determine whether the district judge appropriately considered
documents from the previous convictions.

"Under this approach, Gensler's sentencing judge was permitted to examine the municipal
court citations that clearly showed his convictions were based on the operation of motor
vehicles rather than a bicycle. This procedure did not constitute impermissible judicial
factfinding in violation of Descamps and Apprendi. The district court correctly
determined that Gensler's prior DUI convictions under the municipal ordinance were
based on the same acts prohibited by K.S.A. 8-1567. Therefore, the district court did not
err when it counted Gensler's two ordinance convictions as prior convictions for
sentencing purposes under K.S.A. 8-1567." 2016 WL 2610262, at *5.

On petition for review, Gensler asks us to decide whether his "prior DUI
convictions for violation of Wichita Municipal Ordinance 11.38.150 [are] 'prior
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convictions' as defined by K.S.A. 8-1567(i), and therefore scoreable to elevate his current
DUI conviction to Felony classification." We granted review.

DISCUSSION

Resolution of the issue in this appeal requires interpretation of a statute. Issues of
statutory interpretation raise questions of law over which appellate courts exercise
unlimited review. State v. Castleberry, 301 Kan. 170, 175, 339 P.3d 795 (2014).

"Legislative intent governs that review, and '[r]eliance on the plain and unambiguous
language of a statute is "the best and only safe rule for determining the intent of the
creators of a written law."' State v. Spencer Gifts, 304 Kan. 755, 761, 374 P.3d 680
(2016) (quoting Merryfield v. Sullivan, 301 Kan. 397, 399, 343 P.3d 515 [2015]).
Therefore, we read the statutory language as it appears, without adding or deleting words,
and only '[i]f the language is less than clear or is ambiguous, [do] we move to statutory
construction.' Ambrosier v. Brownback, 304 Kan. 907, 911, 375 P.3d 1007 (2016). If a
statute is not ambiguous, we do not examine 'legislative history, background
considerations that speak to legislative purpose, or canons of statutory construction.' In re
Marriage of Brown, 295 Kan. at 969." State v. Gray, 306 Kan. 1287, 1294, 403 P.3d
1220 (2017).

Both parties and the Court of Appeals panel begin their analysis with the
interpretation of the underlying statute—K.S.A. 2017 Supp. 8-1567. But their focus
ultimately turns to how the "categorical" and "modified categorical" approaches apply
and whether it is constitutionally permissible to look at documents from a prior
conviction to determine if it qualifies as a prior DUI.

Several Court of Appeals panels have addressed whether a DUI under the Wichita
ordinance counts as a prior DUI conviction under the state statute. With the exception of
the panel in this case, the panels have consistently held that a prior Wichita DUI may not
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be used for DUI sentence enhancement. See, e.g., State v. Lamone, 54 Kan. App. 2d 180,
193, 399 P.3d 235 (2017) (Wichita ordinance cannot support state sentence enhancement
because of impermissible judicial fact-finding), petition for rev. granted 307 Kan. 991
(2018); see also State v. Williams, 55 Kan. App. 2d 389, 393, 416 P.3d 1024 (2018)
(collecting cases).

Recently, we have addressed similar sentencing classification questions. See, e.g.,
Dickey I, 301 Kan. 1018 (classification of prior burglary conviction as person, nonperson
crime). We have resolved the questions in these cases purely as a matter of statutory
interpretation. See State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016) (Dickey II)
("the proper classification of a prior crime is exclusively a matter of state statutory law");
see also State v. Wetrich, 307 Kan. 552, 558-59, 412 P.3d 984 (2018) (resolving scoring
of out-of-state burglary conviction as matter of statutory interpretation). But we have also
recognized that these decisions have a "thick overlay of constitutional law." Dickey II,
305 Kan. at 221. Under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), a sentencing court's fact-finding is limited. Cf. Descamps v. United
States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) (citing Apprendi, 544
U.S. at 25) (sentence enhancement under Armed Career Criminal Act [ACCA] would
"raise serious Sixth Amendment concerns if it went beyond merely identifying a prior
conviction").

We follow the same path today and resolve this case as a matter of statutory
interpretation. See Wetrich, 307 Kan. at 558 (appellate courts generally avoid making
unnecessary constitutional decisions).

Classification of prior DUI convictions is governed by K.S.A. 2017 Supp. 8-1567,
which provides in relevant part:

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"(i) For the purpose of determining whether a conviction is a first, second, third,
fourth or subsequent conviction in sentencing under this section:

(1) Convictions for a violation of this section, or a violation of an
ordinance of any city or resolution of any county which prohibits the acts
that this section prohibits, or entering into a diversion agreement in lieu
of further criminal proceedings on a complaint alleging any such
violations, shall be taken into account, but only convictions or diversions
occurring on or after July 1, 2001."

. . . .

"(3) 'conviction' includes: . . . (B) conviction of a violation of an
ordinance of a city in this state, a resolution of a county in this state or
any law of another state which would constitute a crime described in
subsection (i)(1) or (i)(2)." (Emphasis added.)

Although not argued by the parties and not applicable in this case, we note that the
Legislature amended subsection (i)(3)(B) last session. That section now reads:
"'conviction' includes: . . . conviction of a violation of an ordinance of a city in this state,
a resolution of a county in this state or any law of another jurisdiction that would
constitute an offense that is comparable to the offense described in subsection (i)(1) or
(i)(2)." (Emphasis added.) K.S.A. 8-1567, as amended by L. 2018, ch. 106, § 13. In
addition, the Legislature added three criteria to use to determine if another jurisdiction's
law is comparable. See K.S.A. 8-1567(j)(1)-(3), as amended by L. 2018, ch. 106, § 13.

According to the State, the applicable version of the statute did "not seek to restrict
valid prior municipal court convictions to those under a municipal ordinance that
prohibits only and exactly the same conduct that K.S.A. 8-1567 prohibits." In other
words, the State would interpret the statute to encompass convictions under any
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ordinance that prohibits the acts prohibited by the state DUI law, even if the ordinance
also prohibits a broader range of acts.

In contrast, Gensler argues that K.S.A. 2017 Supp. 8-1567 requires a side-by-side
comparison of the elements of the DUI statute to the elements of the municipal ordinance
forming the basis for the prior conviction. If that comparison reveals that the ordinance
prohibits a broader range of conduct, then the prior DUI conviction cannot be used.

At its core, the dispute between the parties comes down to what it means for an
ordinance to prohibit "the" acts that the state DUI statute prohibits. Is an ordinance
required to prohibit only the acts also prohibited by state law or only a subset of those
acts? Or must an ordinance merely prohibit the acts prohibited by state law without
limitation of the additional acts it may also prohibit?

Each alternative is plausible; "the" as used in the statutory phrase is ambiguous. A
conviction counts as a prior DUI if the conviction is based on an ordinance "that prohibits
the acts that this section prohibits." (Emphasis added.) K.S.A. 2017 Supp. 8-1567(i)(1).
Because of this ambiguity, we turn to the tools of statutory construction—employment of
statutory canons and examination of legislative history and other background
considerations—to determine legislative intent. See Midwest Crane & Rigging, LLC v.
Kansas Corporation Comm'n, 306 Kan. 845, 850, 397 P.3d 1205 (2017) (only when
language is "'less than clear'" or ambiguous does court move to statutory construction). In
addition to these tools, because this is a criminal statute, the rule of lenity mandates that
an unresolvably ambiguous statute be construed in favor of the accused, with the
qualification that "the judicial interpretation in favor of the accused must be reasonable
and sensible to effect the legislative design and the intent of the act." City of Dodge City
v. Webb, 305 Kan. 351, 381 P.3d 464 (2016).

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In City of Wichita v. Hackett, 275 Kan. 848, 69 P.3d 621 (2003), this court
addressed the legislative intent behind the prior-conviction provision of K.S.A. 8-1567
and the Wichita DUI ordinance specifically. The Hackett court very briefly addressed the
question of whether "a conviction for DUI as defined under [Wichita's] ordinance
qualif[ies] as a conviction under K.S.A. 8-1567." 275 Kan. at 852. After reciting the
definition of "conviction," the court noted that the DUI statutes "disclose that the
legislature intended to limit the consequences of a DUI conviction to those acts
proscribed by state law." 275 Kan. at 853.

This previous articulation of legislative intent, the Legislature's silence until this
year, and the rule of lenity, lead us to a narrower interpretation of "the." For a municipal
DUI to count as a prior DUI conviction under the state DUI statute, the municipal
ordinance cannot criminalize a broader range of acts than the state statute criminalizes.

The relevant comparison for determining whether a municipal ordinance
criminalizes a broader range of acts than a statute juxtaposes statutory elements with
ordinance elements, not statutory elements with facts of the ordinance violation in issue.
Hackett, which merely involved whether a Wichita DUI for riding a bicycle while
intoxicated exposed the defendant to additional consequences under K.S.A. 8-1567, did
not address this necessary distinction. See Hackett, 275 Kan. at 852-53.

The elements-based comparison is akin to the categorical approach applied by
federal courts to determine whether a prior conviction qualifies as a listed generic offense
under the ACCA. See Taylor v. United States, 495 U.S. 575, 588-89, 110 S. Ct. 2143,
109 L. Ed. 2d 607 (1990) (Congress intended enhancement provision to be triggered by
crimes having certain elements, not by crimes that happened to be labeled robbery,
burglary); see also Descamps, 570 U.S. at 257 (categorical approach compares elements
of statute forming basis of conviction with elements of "generic crime," i.e., offense as
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commonly understood). This court has previously applied this approach in other
sentencing contexts. See Dickey I, 301 Kan. at 1039 (applying Descamps, discussing
categorical, modified categorical approaches to classification of burglary as person,
nonperson felony). It differs from the federal model only in that the baseline for
comparison is K.S.A. 8-1567 rather than a "generic" crime. If the comparison of the
ordinance underlying the prior conviction and K.S.A. 8-1567 shows that the elements of
the prior conviction are the same as, or narrower than, the elements of K.S.A. 8-1567,
then the prior DUI conviction may be counted. Cf. Dickey I, 301 Kan. at 1038-39
(applying categorical approach).

For simple statutes, the categorical approach works well. But often ordinances and
statutes are structured to set out one or more elements of the offense in the alternative.
This creates a problem if one set of alternative elements is identical to, or narrower than,
the baseline statute, K.S.A. 2017 Supp. 8-1567 in our case, while another set of
alternative elements is broader than the baseline statute. To address this problem, the
United States Supreme Court has approved of a "modified categorical" approach in the
context of the ACCA. See Descamps, 570 U.S. at 257. In Dickey I, we applied the
modified categorical approach to classification of prior burglary convictions. See 301
Kan. at 1037-38.

The modified categorical approach has limitations, however. The approach can be
applied only to what the United States Supreme Court has termed a "divisible" provision.

"That kind of statute sets out one or more elements of the offense in the alternative—for
example, stating that burglary involves entry into a building or an automobile. If one
alternative (say, a building) matches an element in the generic offense, but the other (say,
an automobile) does not, the modified categorical approach permits sentencing courts to
consult a limited class of documents, such as indictments and jury instructions, to
determine which alternative formed the basis of the defendant's prior conviction. The
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court can then do what the categorical approach demands: compare the elements of the
crime of conviction (including the alternative element used in the case) with the elements
of the generic crime." Descamps, 570 U.S. at 257.

It is important to note that not only is the class of documents that may be consulted
limited but also the purpose for which the documents may be consulted is limited. As the
Supreme Court emphasized throughout Descamps, the categorical and modified
categorical approaches "'look only to the statutory definitions'—i.e., the elements—of a
defendant's prior offenses, and not 'to the particular facts underlying those convictions.'"
570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). The review of the documents is not "to
determine 'what the defendant and state judge must have understood as the factual basis
of the prior plea,' but only to assess whether the plea was to the version of the crime . . .
corresponding to the generic offense." 570 U.S. at 262.

As the Court noted, the modified categorical approach is not a separate approach
but merely a means of applying the categorical approach.

"[T]he modified approach merely helps implement the categorical approach when a
defendant was convicted of violating a divisible statute. The modified approach thus acts
not as an exception, but instead as a tool. It retains the categorical approach's central
feature: a focus on the elements, rather than the facts, of a crime. And it preserves the
categorical approach's basic method: comparing those elements with the generic
offense's. All the modified approach adds is a mechanism for making that
comparison when a statute lists multiple, alternative elements, and so effectively creates
'several different . . . crimes.' If at least one, but not all of those crimes matches the
generic version, a court needs a way to find out which the defendant was convicted of.
That is the job, as we have always understood it, of the modified approach: to identify,
from among several alternatives, the crime of conviction so that the court can compare it
to the generic offense. [Citation omitted.]" 570 U.S. at 263-64.

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With this framework in mind, we turn to Gensler's prior DUI convictions under the
Wichita ordinance.

K.S.A. 2017 Supp. 8-1567 and the Wichita ordinance define driving under the
influence in nearly identical ways. Both the state DUI statute and the version of the
Wichita DUI ordinance prohibit operating or attempting to operate a "vehicle" while
intoxicated by alcohol or drugs. And both employ the same five general criteria for
establishing intoxication. Compare K.S.A. 2017 Supp. 8-1567(a)(1)-(5) (subsections
[a][1], [2] require alcohol concentration of .08; subsections [a][3] through [5] require
driver to be incapable of safely driving vehicle due to alcohol, drugs, combination) with
W.M.O. 11.38.150 (same).

Yet the version of Wichita's DUI ordinance applicable at the time of Gensler's
convictions differed from state DUI law in the definition of "vehicle." K.S.A. 2017 Supp.
8-1485 defines "vehicle" as "every device in, upon or by which any person or property is
or may be transported or drawn upon a highway, except electric personal assistive
mobility devices or devices moved by human power or used exclusively upon stationary
rails or tracks." The Wichita ordinance defined "vehicle" to mean "every device in, upon
or by which any person or property is or may be transported or drawn upon a highway,
except devices used exclusively upon stationary rails or tracks." W.M.O. 11.04.400. The
ordinance's silence on exceptions for electric personal assistive devices and devices
moved by human power made its coverage broader than that of the state's baseline
statute. Thus a prior conviction under the ordinance can only count as a prior conviction
in this case and others like it if the ordinance is divisible and the defendant was convicted
under an alternative form of the crime that is the same as, or narrower than, K.S.A. 2017
Supp. 8-1567.

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Here, the Court of Appeals panel took the position that the ordinance's definition
of vehicle made it divisible and ripe for application of the modified categorical approach:

"Applying the analysis in Dickey to Gensler's case, the Wichita municipal DUI
ordinance, including the definition of a vehicle, should be considered a divisible
ordinance because a conviction under the ordinance applies either to an automobile or a
bicycle, one of which matches a conviction under K.S.A. 8-1567. . . . Under [the
modified categorical] approach, Gensler's sentencing judge was permitted to examine the
municipal court citations that clearly showed his convictions were based on the operation
of motor vehicles rather than a bicycle. This procedure did not constitute impermissible
judicial factfinding in violation of Descamps and Apprendi." (Emphasis added.) Gensler,
2016 WL 2610262, at *5.

The problem with the panel's pattern of analysis is that it was explicitly rejected by
the United States Supreme Court in Descamps. Criticizing the Ninth Circuit Court of
Appeals and its statement that the "'only conceptual difference . . . is that [a divisible
statute] creates an explicitly finite list of possible means of commission, while [an
indivisible one] creates an implied list of every means of commission that otherwise fits
the definition of a given crime,'" 570 U.S. at 271 (quoting United States v. Aguila-Montes
de Oca, 655 F.3d 915, 927 [9th Cir. 2011] [en banc] [per curiam]), the Court noted that
the problem with creating a hypothetical list of alternatives to replace a generic term such
as "weapon" is that the jury need not have agreed on a particular alternative in reaching
its verdict.

"Whatever the underlying facts or the evidence presented, the defendant still would not
have been convicted, in the deliberate and considered way the Constitution guarantees, of
an offense with the same (or narrower) elements as the supposed generic crime. . . .

". . .The Ninth Circuit's contrary reasoning would altogether collapse the
distinction between a categorical and a fact-specific approach. . . . [Under such an
15



approach,] every element of every statute [could be] imaginatively transformed . . . so
that every crime is seen as containing an infinite number of sub-crimes corresponding to
'all the possible ways an individual can commit' it." Descamps, 570 U.S. at 273.

Despite the panel's characterization of the ordinance as applying to operation of
either a car or a bicycle, the ordinance itself only prohibits operating a "vehicle" under
the influence. That is the element of the crime, which is then defined in a broad, inclusive
way. This definition obviously includes both cars and bicycles, among many others, but
cars and bicycles do not constitute alternative elements of the crime.

In proving Gensler's previous municipal charges, the prosecution bore the burden
of proving he operated a "vehicle" while intoxicated. Whether that vehicle was a bicycle
or car is impossible to determine based on a comparison of the elements of the statute and
the elements of the ordinance. To determine the precise nature of the "vehicle" Gensler
was operating would require a sentencing court to engage in its own fact-finding, which
is impermissible. Divisibility and application of the modified categorical approach do not
come into play.

The elements of the Wichita ordinance are not the same as, or narrower than, the
elements of K.S.A. 2017 Supp. 8-1567. And Gensler's convictions under the ordinance
cannot be used as prior DUIs for purposes of this DUI prosecution under the state statute,
K.S.A. 2017 Supp. 8-1567.

CONCLUSION

For the reasons stated, we reverse the Court of Appeals decision. We vacate
defendant Stacy A. Gensler's sentence and remand this case to the district court for
resentencing without inclusion of Gensler's DUIs under the Wichita ordinance as prior
DUI convictions.
16




* * *

STEGALL, J., dissenting: "'The controlling principle in this case is the basic and
unexceptional rule that courts must give effect to the clear meaning of statutes as
written.'" Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. ___, 137 S. Ct. 1002,
1010, 197 L. Ed. 2d 354 (2017) (quoting Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 476, 112 S. Ct. 2589, 120 L. Ed. 2d 379 [1992]). When interpreting a statute,
courts first look to the ordinary meaning of the words used at the time the Legislature
passed the law. See Wisconsin Central Ltd. v. United States, 585 U.S. __, __, 138 S. Ct.
2067, 2070, 50 L. Ed. 2d 499 (2018). A court should always strive to effectuate the plain
and unambiguous language of a statute. Only when the statute is ambiguous or unclear
should the court "consult legislative history, or consider other background information to
ascertain the statute's meaning." State v. Arnett, 307 Kan. 648, Syl. ¶ 4, 413 P.3d 787
(2018).

K.S.A. 2017 Supp. 8-1567(i)(1) provides:

"(i) For the purpose of determining whether a conviction is a first, second, third,
fourth or subsequent conviction in sentencing under this section:

(1) Convictions for a violation of this section, or a violation of an
ordinance of any city or resolution of any county which prohibits the acts
that this section prohibits, or entering into a diversion agreement in lieu
of further criminal proceedings on a complaint alleging any such
violations, shall be taken into account, but only convictions or diversions
occurring on or after July 1, 2001." (Emphasis added.)

17



The majority believes the word "the" is ambiguous and concludes as a result that
the plain language of the statute reasonably supports different meanings.

"[W]hat [does] it mean[] for an ordinance to prohibit 'the' acts that the state DUI statute
prohibits[?] Is an ordinance required to prohibit only the acts also prohibited by state law or only
a subset of those acts? Or must an ordinance merely prohibit the acts prohibited by state law
without limitation of the additional acts it may also prohibit?

"Each alternative is plausible." Slip op. at 9.

First, plausibility is not the correct standard for judging when a statute is
ambiguous. See, e.g., In re Tax Appeal of BHCMC, 307 Kan. 154, 166, 408 P.3d 103
(2017) (finding ambiguity because "reasonable minds could differ on this interpretation
of the statute"). Second, and more importantly, I suggest that if we can discern an
ambiguity in the definite article "the," we can discern an ambiguity in virtually any
language the Legislature may choose, effectively rendering our plain language
jurisprudence optional at best and a dead letter at worst.

To understand the plain meaning of K.S.A. 2017 Supp. 8-1567(i)(1), we need look
no further than the four words that follow "the acts" to discern the acts to which the
statute refers—the ones "that this section prohibits." In this case, "the acts that" K.S.A.
2017 Supp. 8-1567 "prohibits" are "operating or attempting to operate any vehicle within
this state while . . . the alcohol concentration in the person's blood or breath, as measured
within three hours of the time of operating or attempting to operate a vehicle, is .08 or
more." K.S.A. 2017 Supp. 8-1567(a)(2). The Wichita ordinance clearly prohibits these
same acts, a fact no one disputes. See W.M.O. 11.38.150(a)(1). As such, Gensler's
conviction under the Wichita ordinance should be used to determine whether Gensler's
current DUI is his first, second, third, fourth, or subsequent conviction.

18



Instead, having determined that "the" is not sufficiently precise, the majority has
substituted its idea of a proper statute in place of the one the Legislature passed. The
statutory language "the acts that this section prohibits" now means only the same acts that
this section prohibits or a subset of those same acts, thus requiring courts to conduct an
elements comparison analysis. See slip op. at 9.

But if the Legislature had wanted to impose on this subsection of the DUI statutes
a same-elements-or-narrower test, it surely knew how to do so. In other portions of the
DUI statutory scheme, the Legislature has demonstrated familiarity with this concept. See
K.S.A. 2017 Supp. 8-1567(i)(4) ("the same arrest"), (k)(2) ("the same violation"), (k)(3)
("notwithstanding that the elements of such ordinance violation are the same as the
elements of a violation of this section that would constitute, and be punished as, a
felony"), (l)(2) ("If the elements of such ordinance violation are the same as the elements
of a violation of this section that would constitute, and be punished as, a felony."). The
Legislature knew how to reach the result the majority seeks, but it chose not to.

"We should not seek ambiguity where none exists merely for the purpose of
invoking the rule of liberal construction." United States Fid. & Guar. Co. v. Western Cas.
& Surety Co., 195 Kan. 603, 605, 408 P.2d 596 (1965). Because K.S.A. 2017 Supp.
8-1567 is unambiguous, our inquiry should begin and end with its text. See National
Association of Manufacturers v. Dept. of Defense, 583 U.S. ___, 138 S. Ct. 617, 631,
199 L. Ed. 2d 501 (2018).

For this reason, I respectfully dissent.

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